Dept. of Human Services v. L. L. , 316 Or. App. 274 ( 2021 )

274
Argued and submitted October 5; orders denying motions to set aside
jurisdictional judgments vacated, remanded for further proceedings
December 8, 2021
In the Matter of S. W.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
L. L.,
aka L. W.,
Appellant.
Marion County Circuit Court
20JU06027; A175534 (Control)
In the Matter of S. W.,
aka S. O. W., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
L. M. W.,
aka L. L.,
Appellant.
Marion County Circuit Court
20JU06028; A175535
502 P3d 1187
Natasha A Zimmerman, Judge pro tempore. (Disposition
Judgment)
Lindsay R. Partridge, Judge. (Jurisdiction Judgment)
Sarah Peterson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Office of Public
Defense Services.
Inge D. Wells, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Cite as 316 Or App 274 (2021) 275
Before DeVore, Presiding Judge, and DeHoog, Judge, and
James, Judge.
PER CURIAM
Orders denying motions to set aside jurisdictional judg-
ments vacated; remanded for further proceedings.
276 Dept. of Human Services v. L. L.
PER CURIAM
Mother appeals from judgments in which the juve-
nile court ruled that mother’s children were dependent pur-
suant to ORS 419B.100(1) and in need of the court’s protec-
tion through wardship, and orders in which the court denied
mother’s motions to set aside those jurisdictional judgments.
Mother’s assignments of error are directed exclusively to
the orders denying her set-aside motions; she requests that
we vacate and remand those orders. We address only that
issue. Because the record is insufficient for meaningful
appellate review, we vacate the court’s orders denying moth-
er’s motions to set aside the jurisdictional judgments and
remand to the juvenile court for clarification of its ruling.
The Department of Human Services filed depen-
dency petitions regarding mother’s children. At some point
in the litigation, the juvenile court set the matter over and
scheduled a “status conference” for the parties to set a new
trial date. The court ordered mother to call in for the status
conference. When mother did not do so, the court held an
in-absentia trial on the department’s petitions and ruled that
mother’s children were within its dependency jurisdiction.
Mother timely moved to set aside the resulting juris-
dictional judgments pursuant to ORS 419B.923, averring—
through declaration of counsel—that mother had “mis-
understood that her appearance was required” at the sta-
tus conference because “her understanding of the court date
* * * was for attorneys to simply set a date for an all-day
trial.” Without holding a hearing, the court denied mother’s
motions. The only memorial of the juvenile court’s ruling, or
reasoning, is a hand-written notation in the upper corner of
a document, reading:
“Denied! [Initials] 1/29/21
“Mom advised on record on 12/17[/]20 to call in at 7:45 A.M.
On 12/22/20, mother failed to call in at that time despite
given call in info. on record on 12/17/20.”
ORS 419B.923 provides a mechanism for a parent
to move to set aside a judgment on the grounds of “excusable
neglect.” A parent’s nonappearance at a scheduled hearing
can qualify as excusable neglect. Dept. of Human Services v.
Cite as 316 Or App 274 (2021) 277
T. M. B., 276 Or App 641, 369 P3d 419, rev den, 359 Or 667(2016); Dept. of Human Services v. K. M. J., 272 Or App 506,
356 P3d 1132, rev den, 358 Or 145 (2015); Dept. of Human
Services v. K. M. P., 251 Or App 268, 271, 284 P3d 519 (2012).
As we explained in K. M. P., when faced with a
motion to set aside a judgment based on excusable neglect,
a juvenile court must engage in a “two-step, sequential
analysis.” Id. The first step requires the court to “deter-
mine whether the parent has established as a matter of law
that the nonappearance resulted from excusable neglect.”
Id. “[I]f the parent makes the predicate showing of excus-
able neglect, the court ‘retains some range of discretion’ to
determine whether, in the totality of the circumstances, to
allow the motion.” Id. at 271-72 (quoting State ex rel Dept. of
Human Services v. G. R., 224 Or App 133, 143, 197 P3d 61
(2008)).
The standard of appellate review varies depending
upon where in that two-step analytical process the juvenile
court grounds its decision. We review a juvenile court’s rul-
ing as to whether a parent’s nonappearance at a hearing
constitutes excusable neglect for errors of law. However,
we review a juvenile court’s ruling denying a motion to set
aside, despite a finding of excusable neglect, for an abuse of
discretion. K. M. P., 251 Or App at 272; G. R., 224 Or App at
139-40.
In this case, the trial court’s bare notation in the
upper corner of a document, without more, and without any
reasoning expressed on the record, does not sufficiently
inform us where on the two-step process the juvenile court’s
decision lies. Accordingly, we cannot determine which stan-
dard of review to apply to the court’s ruling. We therefore
remand to the trial court for clarification and explanation of
its ruling, so that meaningful appellate review can occur.
Orders denying motions to set aside jurisdictional
judgments vacated; remanded for further proceedings.