Dept. of Human Services v. T. S. M. , 322 Or. App. 424 ( 2022 )

424
Submitted August 1, affirmed October 19, 2022, petition for review denied
February 9, 2023 (370 Or 740)
In the Matter of J. J. E. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. S. M.,
Appellant.
Lane County Circuit Court
19JU01432; A177935
519 P3d 897
Father appeals a permanency judgment in which the juvenile court contin-
ued child’s permanency plan of adoption and substitute care. Father contends
that the juvenile court violated his right to participate in the hearing under ORS
419B.875(2) when it muted his microphone for portions of the hearing. The juve-
nile court explained that father’s continuous speech prevented others from hear-
ing the court and that father could litigate his concerns in the future. Held: The
juvenile court did not err. Because father appeared, was given the opportunity to
address the juvenile court, and did so, father participated in the hearing.
Affirmed.
Bradley A. Cascagnette, Judge.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Sean K. Connor, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Cite as 322 Or App 424 (2022) 425
HELLMAN, J.
In this juvenile dependency case, father appeals a
permanency judgment in which the juvenile court continued
child’s permanency plan of adoption and substitute care. On
appeal, father’s single assignment of error contends that the
juvenile court violated his right under ORS 419B.875(2) to
participate in the dependency hearing when the juvenile
court muted his microphone for portions of the hearing. For
the following reasons, we affirm.
“We review the meaning of the rights conferred by
ORS 419B.875(2) as a matter of law * * *.” Dept. of Human
Services v. A. E. R., 278 Or App 399, 404, 374 P3d 1018 (2016).
Under ORS 419B.875(2)(c), a party to a dependency proceed-
ing has the right to participate in hearings. In addition, a
party has “the right to testify in the party’s own behalf.”
Dept. of Human Services v. D. J., 259 Or App 638, 643, 314
P3d 998 (2013). If a party wishes to testify, “[p]articipating
in a hearing solely through counsel cannot substitute for
participating as a witness * * *.” A. E. R., 278 Or App at 404(quoting D. J., 259 Or App at 644).
That said, a party does not have an unlimited right
to participate in a court hearing in whatever way they wish.
The juvenile court retains the power “[t]o provide for the
orderly conduct of proceedings before it * * *.” ORS 1.010(3).
Importantly, a court has “explicit and inherent power to con-
trol the trial of the case.” State v. Mains, 295 Or 640, 656,
669 P2d 1112 (1983) (listing “many approved actions a trial
judge may undertake to conduct a proper, expeditious and
just trial”). We review the juvenile court’s “actions to control
the proceedings before it for abuse of discretion.” State v.
Landon, 283 Or App 131, 132, 388 P3d 1157 (2016).
With those legal rules as our framework, we turn
to the facts of this case. In January 2022, the juvenile court
held a permanency hearing in which the Department of
Human Services (DHS) asked the court to continue child’s
plan of adoption and substitute care. Father appeared by
telephone and made two objections while DHS addressed
the court. The juvenile court told father he would have an
opportunity to speak later in the hearing and that father’s
counsel would make objections for him.
426 Dept. of Human Services v. T. S. M.
After explaining that the topic of the hearing was
child’s continued placement, the juvenile court invited
father to speak. Father stated he had numerous concerns,
including a prior hearing when his microphone was muted,
federal law violations, and a forged signature. Although the
juvenile court made four attempts to interject, father contin-
ued to speak. After calling on father’s counsel and DHS and
receiving no response, the juvenile court determined that the
parties could not hear the court and muted father’s micro-
phone. The juvenile court explained that it had repeatedly
asked father to be quiet and that father’s continuous speech
prevented others from hearing the court. The juvenile court
reminded father that father could litigate his concerns in
the future and invited him to speak about child’s placement.
Father stated that the foster parents had not taken proper
care of child. The juvenile court thanked father and, after
father made an indiscernible remark about DHS’ counsel,
muted father’s microphone again.
In his sole assignment of error, father contends that
the juvenile court denied him the right to participate in the
hearing by muting his microphone. DHS argues that father
participated in the hearing and that the juvenile court
appropriately exercised its discretion.1 We agree. The juve-
nile court did not deprive father of his right to participate in
the dependency hearing. The juvenile court had the author-
ity to maintain orderly conduct and did not mute father’s
microphone until father’s comments prevented the court
from communicating with the participants. Moreover, after
explaining why father’s microphone was muted, the juve-
nile court again invited father to comment on child’s place-
ment. Because father appeared, was given the opportunity
to address the juvenile court, and did so, father participated
in the hearing. Therefore, the juvenile court did not err.
Affirmed.
1
DHS also contends that father did not preserve the argument he raises on
appeal. Father represented that his microphone was muted at a prior hearing
and wanted to address that hearing and other issues at the permanency hear-
ing. We observe that the juvenile court instructed father to limit his remarks to
child’s placement and muted father’s microphone after he made those remarks.
In any event, we conclude father adequately preserved his argument.