Dept. of Human Services v. T. L.

No. 10 March 3, 2016 679
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of M. L. and R. L.,
Children.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
T. L.,
Petitioner on Review.
(CC 110440J02; CC 110441J02;
CA A155300 (Control); CA A155301;
SC S063204)
On review from the Court of Appeals.*
Argued and submitted November 12, 2015.
Holly Telerant, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With her
on the brief was Shannon Storey, Chief Defender, Juvenile
Appellate Section, Office of Public Defense Services.
Inge D. Wells, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. With
her on the brief were Ellen F. Rosenblum, Attorney General,
and Paul L. Smith, Acting Solicitor General.
Angela Sherbo and Caitlin Mitchell, Portland, filed the
brief for amicus curiae Youth, Rights & Justice.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices.**
BREWER, J.
The decision of the Court of Appeals is reversed. The case
is remanded to the juvenile court for further proceedings.
______________
** Appeal from Clackamas County Circuit Court, Douglas V. Van Dyk,
Judge. 269 Or App 454, 344 P3d 1123 (2015).
**  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case. Nakamoto, J., did not participate in the consideration or decision
of this case.
680 Dept. of Human Services v. T. L.
Case Summary: When the juvenile court changed the permanency plans for
father’s children away from reunification, father appealed, alleging that his trial
council was inadequate for failing to appear on his behalf at the hearing. The
Court of Appeals affirmed, holding that father should have challenged the ade-
quacy of trial counsel through a motion under ORS 419B.923 to set aside the juve-
nile court’s judgment; he could not do so on direct appeal from the permanency
judgment. Father sought review. Held: (1) Although ORS 419B.923 provides a
somewhat improved mechanism for asserting inadequate assistance of counsel
claims before the juvenile court in dependency cases, a party may also raise such
a claim for the first time on direct appeal from a judgment changing the perma-
nent plan for dependent children from return to parent to another planned liv-
ing arrangement (APPLA) or guardianship; and (2) if, on direct appeal, a party
identifies an inadequate assistance of counsel claim but further development of
the record is necessary, the Court of Appeals may remand to the juvenile court
for further proceedings or simply affirm without prejudice to the party’s ability
to raise the claim through ORS 419B.923.
The decision of the Court of Appeals is reversed. The case is remanded to the
juvenile court for further proceedings.
Cite as 358 Or 679 (2016) 681
BREWER, J.
In these consolidated juvenile dependency cases,
father appeals from judgments changing the permanent
plans for one of his children from reunification with a parent
to guardianship and for another child from reunification to
another planned permanent living arrangement (APPLA).1
See ORS 419B.476(7) (providing that final decision in per-
manency hearing is appealable).2 Father contends that his
trial counsel was inadequate for failing to appear on his
behalf at the hearing in which the juvenile court decided to
change the permanent plans. He relies on State ex rel Juv.
Dept. v. Geist, 310 Or 176, 185-87, 796 P2d 1193 (1990), in
which this court held that a parent could raise a claim of
inadequate assistance of counsel for the first time on direct
appeal from a judgment terminating parental rights. In so
holding, the court concluded that the legislature intended
for parents defending such actions to receive adequate assis-
tance of counsel, although there did not exist an express
statutory procedure for ensuring that right. Id.The primary question in this case is whether a par-
ent can raise a claim of inadequate assistance of counsel for
the first time on direct appeal from judgments changing the
permanent plans for his children from reunification with a
parent to permanent plans of guardianship and APPLA. We
answer that question in the affirmative, because we conclude
that (1) the unchallenged rationale of Geist is applicable to
a direct appeal from judgments that make such changes in
the permanent plans for children who are wards of the court
in dependency cases; and (2) the legislature’s enactment, fol-
lowing this court’s decision in Geist, of a statute that provides
a juvenile court procedure for modifying or setting aside a
dependency judgment while an appeal from the judgment is
pending, did not obviate the need for a direct appeal remedy
1
In January 2016, father relinquished his parental rights to his youngest
child, T, thereby rendering his appeal from the change of plan in that case moot.
Accordingly, our decision here pertains to only the cases involving the two older
children, R and M.
2
The 2011 version of that statute was in effect when the hearing at issue
here occurred. We cite and quote the current version of the statute, ORS 419B.476
(2015), throughout this opinion because the changes effected by the 2015 amend-
ment do not affect our analysis. See Or Laws 2015, ch 254, § 5.
682 Dept. of Human Services v. T. L.
for father’s claim of inadequate assistance of counsel. For
the reasons explained below, we reverse the decision of the
Court of Appeals and remand the case to the juvenile court
for further proceedings.
We take the pertinent facts and procedural history
from the opinion of the Court of Appeals and the record.
Father and mother have three children. The children were
first placed in foster care in April 2011 due to concerns about
both parents’ heroin use. The children were returned home
five months later over the objection of DHS.
The children were returned to foster care in early
2013, after both parents relapsed. In March 2013, the juve-
nile court took jurisdiction over the children based, with
respect to father, on his stipulation that his use of alcohol
and controlled substances interfered with his ability to pro-
vide safe, appropriate, and consistent care for the children.
Among other provisions, the disposition judgment required
father to participate in a drug and alcohol evaluation and
to submit to random urinalysis testing. The judgment also
ordered father and mother to appear for a review hearing
on June 5, 2013. Neither parent appeared at that hearing,
although their attorneys were present.
The court then scheduled a permanency hearing for
August 29, 2013, to consider DHS’s request that the per-
manent case plans for the children be changed from reuni-
fication with their parents to other plans. The court also
scheduled a “contested” permanency hearing for October 25.
Father and mother failed to appear at the start of the
August 29 hearing, and father’s attorney also failed to
appear. Attorneys for DHS, the children, and mother were
present. The court tried, unsuccessfully, to contact father’s
attorney and waited 12 minutes before beginning the hear-
ing, noting that it was “very unusual” for father’s attorney
not to be present.
The court then proceeded with the hearing. After
taking evidence and hearing argument (including from
the children’s appointed counsel, who advocated in favor
of changing the plans), the court decided to change the
permanent plan for the oldest child, R, to APPLA and to
change the plans for the younger children, M and T, to
Cite as 358 Or 679 (2016) 683
guardianship. At that point, father and mother arrived,
and the court informed them of its decision to change the
permanent plans. Father told the court—in an unsworn
statement—that he was under the impression that he was
doing what DHS had requested of him. Father stated that he
“went through Tigard Detox,” was “enrolled in Clackamas
County Behavioral Health Program,” and had had clean
urinalyses. He also stated that he had dropped off a release
to DHS the day before the hearing. Father did not say any-
thing about the absence of his attorney at the hearing;
nor did he indicate to the court that he was opposed to the
changes in the permanent plans.
On September 6, 2013, the court entered perma-
nency judgments consistent with its decision at the hearing.
Father did not move to set aside the judgments. See ORS
419B.923.3 Father did, however, appeal from the judgments.
On appeal, father contended, among other things, that,
because his counsel had failed to appear at the August 29
permanency hearing, he had received inadequate assistance
of counsel. Father acknowledged that that claim was unpre-
served, but he argued, based on Geist, that he nevertheless
was entitled to assert the claim on direct appeal.
In a divided opinion, the Court of Appeals affirmed,
holding that “a close reading of Geist, in light of the enact-
ment of ORS 419B.923,” required father’s claim that his
appointed trial counsel had been inadequate to “be made
in the first instance in the juvenile court.” Dept. of Human
Services v. T. L., 269 Or App 454, 458-59, 344 P3d 1123,
rev allowed, 357 Or 324 (2015). The Court of Appeals rea-
soned that:
“ORS 419B.923 now provides the statutory procedure for a
parent to challenge the adequacy of counsel that was miss-
ing in Geist. And it does so—appropriately—in the trial
court, the forum that both we and the Supreme Court have
recognized provides the more efficient means to resolve
such claims, which are inherently fact dependent.”
Id. at 461 (citations omitted). The court concluded that, “to
preserve a claim of inadequate assistance of appointed trial
3
That statute, which plays a central role in our analysis, is set out below at
358 Or at 694-95 n 13.
684 Dept. of Human Services v. T. L.
counsel, a parent in a dependency proceeding must first
seek to resolve that issue in the juvenile court by moving,
under ORS 419B.923(1), for the court to modify or set aside
the judgment or order to which the claim relates.” Id. at 468.
On review, father asserts that the rationale of
Geist—although rendered in the context of a judgment ter-
minating parental rights—applies with equal force to the
judgments that changed the children’s permanent plans in
these cases from reunification with a parent to guardian-
ship and APPLA. DHS agrees with that proposition (as did
the Court of Appeals),4 but it argues that the enactment of
ORS 419B.923, which gives a juvenile court authority to set
aside its judgments pending direct appeal, has obviated the
need for a direct appeal remedy for unpreserved claims of
inadequate assistance of counsel in termination of paren-
tal rights proceedings and permanency proceedings alike.
For that reason, in DHS’s view, the Court of Appeals prop-
erly declined to review father’s unpreserved claim of error.
Alternatively, DHS argues that father was required to prove
that his counsel failed to exercise adequate professional
skill and judgment and that father was prejudiced by being
denied a fundamentally fair trial. In this case, DHS asserts,
father did not meet his burden of proving prejudice merely
by showing that his attorney was absent.
Father replies that, contrary to the conclusion of the
Court of Appeals, the text, context, and legislative history of
ORS 419B.923 demonstrate that the legislature meant only
to broaden a juvenile court’s authority to set aside its own
judgments, not to create an exclusive procedure for raising
inadequate assistance of counsel claims in juvenile depen-
dency proceedings. Thus, father asserts, the enactment of
that statute did not undercut Geist’s rationale for providing a
4
The Court of Appeals in this case applied Geist to father’s appeal from a
permanency judgment without discussion, because it had previously held that
Geist applies to pre-termination dependency proceedings. T. L., 269 Or App at
460 (citing State ex rel Juv. Dept. v. Charles/Austin, 106 Or App 628, 810 P2d 389,
rev den, 312 Or 150 (1991)). In Charles/Austin, the Court of Appeals explained
that a dependency hearing can result in “a long-term deprivation of custody and
a substantial intervention in the parent-child relationship[,]” and the potential
intrusion “is so drastic” that parents in dependency cases “have a similar need for
representation as do parents facing termination of their rights to their children.”
106 Or App at 633-34 (citation omitted).
Cite as 358 Or 679 (2016) 685
direct appeal remedy for unpreserved inadequate assistance
of counsel claims. On the merits of his claim, father con-
tends that his counsel’s unexplained failure to appear at the
August 29 hearing constituted inadequate assistance that
prejudiced his efforts to reunify with his children. Father
also argues that his counsel’s failure to appear deprived him
of a fundamentally fair hearing and violated his right to due
process.
To frame our analysis, we begin with a discussion of
Geist, which lies at the heart of the parties’ dispute. There,
the mother had appealed from a judgment terminating her
parental rights to her child. The mother argued for the first
time before the Court of Appeals that she was entitled to a
reversal of the judgment because (among other things) her
trial counsel had failed to provide her with adequate legal
assistance. State ex rel Juv. Dept. v. Geist, 97 Or App 10,
15-16, 775 P2d 843 (1989), aff’d, 310 Or 176, 796 P2d 1193
(1990). The Court of Appeals stated that the mother’s right
to counsel in the termination of parental rights proceeding
arose under former ORS 419.525(2), which provided that,
“[i]f the parents are determined to be indigent by the
court, and request the assistance of appointed counsel, the
court shall appoint an attorney to represent them at state
expense.”5 Id. at 16 n 4, 17. The Court of Appeals held that
implicit in that statutory right to counsel was a right to com-
petent and effective counsel. Id. at 17. However, the court
refused to review the mother’s claim, reasoning that, in con-
trast to criminal matters, the legislature had not created
a “special forum” to litigate such claims, and the appellate
courts had no authority to fashion one. Id. at 18.
On review, this court agreed with the Court of
Appeals that “the legislature intended for the statutory
right to counsel to include the right to adequate counsel.
Geist, 310 Or at 185. But from there, it parted ways. This
court held that the right to adequate counsel would “prove
5
Former ORS 419.525(2) (1989), repealed by Or Laws 1993, ch 33, § 373,
which was in effect at the time of the court’s decision in Geist, is now codified in
nearly identical form as ORS 419B.518(1). The current statute provides:
“If the parents are determined to be financially eligible, and request the
assistance of appointed counsel, the court shall appoint an attorney to repre-
sent them at state expense.”
686 Dept. of Human Services v. T. L.
illusory” without a procedure to vindicate that right. Id.
Moreover, the court explained, its failure to provide a direct
appeal remedy for inadequate assistance of counsel claims
would undermine the goal of timely finality in termination
of parental rights cases:
“Experience teaches us that by the time a petition to termi-
nate parental rights has been filed, the child(ren) involved
probably will have been known to the juvenile authorities
for a long period of time, often several years. In this case,
for example, more than two years passed between the fil-
ing of the original dependency petition and the entry of
the termination order. Generally, termination case records
will show that services have been provided (or at least
have been offered) to the parent(s) by several social ser-
vice agencies, as was the case herein. Ultimately, and often
as a last resort, the state will petition for termination of
parental rights in order to free the child for adoption, so
that the child will have an opportunity to be permanently
integrated into a new family.
“Any delay in achieving finality in a termination case
adversely affects the rights of all the parties. Delay cer-
tainly will weaken the bonds between parents and children
by lengthening their separation. Whether or not the even-
tual result is termination, protracted litigation extends
uncertainty in the child(ren)’s life. Where a termination
has been affirmed on direct appeal, procedures allowing
further litigation or collateral attacks would delay the
finality of the termination order and, thus, also delay the
possibility of permanent adoption with the probable effect
of reducing the chances for successful integration into an
adoptive family. Thus, a procedure that allows a terminated
parent to make a claim of inadequate counsel only after all
direct statutory appeals have been exhausted would only
further delay the finality of the termination decisions.”
Id. at 186-87. In the absence of an “express legislative proce-
dure,” and “absent statutes providing otherwise,” this court
devised its own remedy. Id. at 185-87. Because it was “nei-
ther realistic nor reasonable to expect that a parent’s trial
counsel will have objected at trial that counsel’s advocacy
was inadequate,” this court held that a parent could not rea-
sonably be expected to preserve such a claim and concluded
that unpreserved challenges to the adequacy of counsel in
Cite as 358 Or 679 (2016) 687
termination proceedings were therefore cognizable on direct
appeal. Id. at 184 n 9.6
In Geist, this court declined to decide the question
of how to proceed in the event that the evidentiary record on
direct appeal was insufficient to adjudicate a parent’s claim.
The court noted that “any determination that relevant evi-
dence or argument was omitted or whether such omission
would have made any difference in the outcome is best made
by the trial court.” Id. at 192 n 16. However, the court con-
cluded that developing a procedure for resolving evidentiary
questions “is the prerogative of the Court of Appeals or of
the legislature in the first instance.” Id.The initial question for decision in this case is
whether the rationale of Geist extends beyond appeals from
judgments terminating parental rights, to appeals from
judgments changing a permanent plan from reunification
with a parent to a plan of guardianship or APPLA. Although,
as discussed, DHS concedes that it does, and the Court of
Appeals agreed with that proposition, we independently
address it. As threshold considerations, several differences
between termination proceedings and permanency proceed-
ings deserve mention.
First, indigent parents are entitled as a matter of
statutory right to appointed counsel in proceedings to ter-
minate their parental rights. ORS 419B.518(1). In all other
dependency proceedings, however, the statutory right to
counsel depends on the application of specific criteria:
“(1)  Counsel shall be appointed for the parent or legal
guardian whenever the nature of the proceedings and due
process so require, and when the parent or legal guardian
has been determined by the court to be eligible to receive
appointed counsel under the standard in ORS 135.050
6
This court in Geist somewhat loosely blended statutory and constitutional
principles. Without an extended statutory construction analysis, the court simply
agreed with the Court of Appeals’ conclusion that the statutory right to counsel
in termination proceedings included, by implication, a right to adequate counsel.
Geist, 310 Or at 185. The court expressly did not reach the question whether due
process requires adequate counsel in termination cases. Id. at 187 n 12. However,
when the court provided a judicial remedy for the vindication of the implied statu-
tory right, it used due process principles to evaluate the adequacy of that remedy.
Id. at 189-90.
688 Dept. of Human Services v. T. L.
[criminal procedural code section determining eligibility
for indigent defendants] or the policies, procedures, stan-
dards and guidelines adopted under ORS 151.216 [Office
of Public Defense Services (OPDS) policies for appointed
counsel]. In deciding whether to appoint counsel under this
section, the court shall consider the following factors:
“(a)  The duration and degree of invasiveness of the
interference with the parent-child relationship that possi-
bly could result from the proceeding;
“(b)  The complexity of the issues and evidence;
“(c)  The nature of allegations and evidence contested
by the parent or legal guardian; and
“(d)  The effect the facts found or the disposition in
the proceeding may have on later proceedings or events,
including but not limited to termination of parental rights
or criminal proceedings.”
ORS 419B.205(1). Thus, unlike in termination proceedings,
a juvenile court retains authority to deny a parent’s request
for counsel in other dependency proceedings—including per-
manency proceedings—if the nature of the proceeding and
due process do not require representation. At least arguably,
that difference suggests that the importance of legal rep-
resentation for parents may be somewhat reduced in pre-
termination dependency proceedings.
Second, and relatedly, termination judgments impose
the final loss of the parent-child relationship, whereas per-
manency judgments—including some judgments that do not
contemplate a return of children to their parents’ custody—
do not necessarily lead to such drastic consequences. Again,
that difference arguably limits the need for consideration of
unpreserved claims of inadequate assistance that this court
found necessary in Geist.
Third, the procedural history in an appeal from
a permanency judgment does not include a record of later
proceedings that could inform the determination whether
inadequate assistance of counsel in fact prejudiced the com-
plaining party. That difference can make it more difficult to
determine the existence and extent of any prejudice result-
ing from inadequate assistance of counsel in a permanency
Cite as 358 Or 679 (2016) 689
proceeding than in a termination proceeding, which is the
final stage of proceedings.
Although those differences are noteworthy, we con-
clude that they are insufficient to preclude the application
of Geist’s reasoning to permanency proceedings in which
counsel has been appointed and the court orders a change
of the permanent plan from return to a parent to a plan
of guardianship or APPLA. To explain why, we describe in
some detail the role and nature of permanency proceedings
in dependency cases.
Permanency proceedings are governed by ORS
419B.470 to 419B.476. Those provisions were enacted in
response to Congress’s passage of the Adoption and Safe
Families Act of 1997 (ASFA), which establishes a number
of requirements for state foster care and juvenile court sys-
tems, with the ultimate goal of reducing the length of time
that children spend in foster care. See 42 USC §§ 671, 675;
Or Laws 1999, ch 859. Among other requirements, ASFA
ties federal financial support for state juvenile systems to
the existence of a case plan meeting certain requirements.
See 42 USC §§ 671(a), 675(1) (describing the contents of a
case plan). In keeping with ASFA, in a permanency proceed-
ing in Oregon, the juvenile court must make certain deter-
minations with regard to the case plan, and the court must
determine and update, as appropriate, a permanent plan for
children in care in accordance with specific time require-
ments and other conditions. See ORS 419B.476(2), (4), (5).
Among other plan options, the court may, under
specified circumstances, change a case plan from reunifica-
tion with parent to guardianship or APPLA.7
7
ORS 419B.476(5) provides, in part:
“(5)  The court shall enter an order within 20 days after the permanency
hearing. In addition to any determinations or orders the court may make
under subsection (4) of this section, the order shall include the following:
“* * * * *
“(e) If the court determines that the permanency plan for the ward
should be establishment of a legal guardianship, the court’s determination of
why neither placement with parents nor adoption is appropriate.
“* * * * *
“(g) If the court determines that the permanency plan for a ward 16
years of age or older should be another planned permanent living arrange-
ment, the court’s determinations:
690 Dept. of Human Services v. T. L.
The permanency judgment with respect to M in this
case changed her case plan from reunification to guardian-
ship. Although the judgment did not specify a particular
form of guardianship, ORS chapter 419B provides at least
two types that may be appropriate for a ward. First, the
juvenile court may establish a permanent guardianship if it
finds by clear and convincing evidence that a ground for ter-
minating parental rights exists, and that it is in the ward’s
best interest that the ward’s parents should “never have
physical custody of the ward[,] but that other parental rights
and duties should not be terminated.” ORS 419B.365(3).
Second, the court may establish what is referred to as a
“durable guardianship,” if the court finds by a preponder-
ance of the evidence that the ward cannot safely be returned
home “within a reasonable time,”8 that “adoption is not an
appropriate plan for the ward,” that “[t]he proposed guard-
ian is suitable,” and that a “guardianship is in the ward’s
best interests.” ORS 419B.366(2), (5).
The juvenile court changed the permanent plan
for R from reunification to APPLA. APPLA is “a perma-
nency plan for a stable secure living arrangement for a child
who has reached the age of 16 or young adult that includes
building relationships with significant people in the child’s
life that may continue after substitute care. OAR 413-070-
0000(6). APPLA is “the least preferred permanency plan of
the five permanency plans for a child or young adult and is
appropriate only after the permanency plans of reunifica-
tion, adoption, guardianship, and placement with a fit and
“(A) Why another planned permanent living arrangement is in the
ward’s best interests and a compelling reason, that must be documented by
the department, why it would not be in the best interests of the ward to be
returned home, placed for adoption, placed with a legal guardian or placed
with a fit and willing relative; and
“(B)  That the department has taken steps to ensure that:
“(i)   The ward’s substitute care provider is following the reasonable and
prudent parent standard; and
“(ii) The ward has regular, ongoing opportunities to engage in age-
appropriate or developmentally appropriate activities, including consultation
with the ward in an age-appropriate manner about the opportunities the
ward has to participate in the activities.”
8
“Reasonable time” is a term of legal art that “means a period of time that is
reasonable given a child or ward’s emotional and developmental needs and ability
to form and maintain lasting attachments.” Former ORS 419A.004(20) (2011),
renumbered as ORS 419A.004(23) (2015).
Cite as 358 Or 679 (2016) 691
willing relative have been determined not in the best inter-
ests of a child or young adult.” Id.9 Among other placement
alternatives, APPLA can consist of permanent foster care.
See OAR 413-070-0532(1) (defining types of APPLA).
Against that backdrop, we turn to ORS 419B.205.
Because that statute directs courts to consider specific cri-
teria in determining whether to appoint counsel for par-
ents in dependency proceedings rather than termination
proceedings, we initially consider whether, when counsel is
appointed in permanency proceedings and the court orders
a change in plan from reunification with a parent to a plan
of guardianship or APPLA, counsel must also be adequate.
As noted, ORS 419B.205(1) sets out four factors for
consideration in determining whether the nature of par-
ticular juvenile proceedings and due process require the
appointment of counsel. As to the first factor, the “duration
and degree of invasiveness” into the parent-child relation-
ship is significant in a permanency proceeding, where the
court orders a change in plan from reunification with a par-
ent to a plan of either guardianship or APPLA. Among other
things, such a change divests the parent of family reunifica-
tion services as a matter of right from that time forward. See
ORS 419B.476(4)(c) (providing that court may order reuni-
fication services if it determines “that further efforts will
make it possible for the ward to safely return home within a
reasonable time[.]”). Relatedly, DHS’s statutory obligations
under ORS 419B.476(2)(a) to make “reasonable efforts * * *
to make it possible for the ward to safely return home and
[determine] whether the parent has made sufficient progress
to make it possible for the ward to safely return home[,]” no
longer apply where the permanent plan has changed from
reunification to a different permanent plan.10 Consistent
90
An earlier version of the APPLA rule was in effect when the hearing at
issue here occurred. See OAR 413-070-0524(1) (Jan 15, 2013). We quote the cur-
rent rule because the revision does not affect our analysis.
10
ORS 419B.476(2)(a) provides, in part, that,
“[i]f the case plan at the time of the hearing is to reunify the family, [the
court shall] determine whether the [d]epartment * * * has made reasonable
efforts * * * to make it possible for the ward to safely return home and whether
the parent has made sufficient progress to make it possible for the ward to
safely return home.” (Emphasis added.)
692 Dept. of Human Services v. T. L.
with that premise, the juvenile court’s judgments in these
cases stated that DHS had made reasonable efforts to
reunify father with the children, but that father had failed
to make reasonable progress toward meeting the expecta-
tions set out in the case plan; in its judgments, the court
did not require DHS to provide further services to father. In
short, a change in permanent plan from return to parent to
either guardianship or APPLA marks a profound change of
course in the path to finality for children in care.
As to the second factor, the legal and factual issues
in a permanency proceeding resulting in a change of perma-
nent plan from return to parent to either guardianship or
APPLA can be complex. Among other challenges, DHS has
the burden to prove that a parent has not made sufficient
progress to have the children returned despite its reason-
able efforts, and the evidence required to meet that burden
often includes detailed medical, psychological, or substance
abuse treatment records and accompanying expert testi-
mony. ORS 419B.476(2)(a). Testing the probative value of
such evidence generally requires knowledge of the evidence
code, including juvenile code exceptions to general evidence
code requirements, the use of defense experts and inves-
tigators, and familiarity with pertinent case law address-
ing, among other issues, the reasonable efforts and reason-
able time requirements.11 See, e.g., State ex rel SOSCF v.
Stillman, 333 Or 135, 146, 36 P3d 490 (2001) (holding that
statutory requirements are meant to be “child-specific,” call-
ing for “testimony in psychological and developmental terms
regarding the particular child’s requirements”).
The third factor requires consideration of the nature
of the allegations and evidence, and the fourth requires
consideration of the effect that the facts or disposition in
11
The broad authority to test DHS’s evidence is shown by ORS 419B.875(2),
which provides a nonexclusive list of rights granted to parties in dependency and
termination hearings. That statute provides, in relevant part:
“The rights of the parties include, but are not limited to:
“* * * * *
“(b)  The right to appear with counsel and * * * to have counsel appointed
as otherwise provided by law;
“(c)  The right to call witnesses, cross-examine witnesses and participate
in hearings[.]”
Cite as 358 Or 679 (2016) 693
the proceeding may have on later proceedings. With respect
to those factors, where the court changes a case plan from
reunification to a permanent plan such as guardianship
or APPLA, the parent’s status as the preferred placement
for the child is effectively terminated, unless and until the
plan is changed at a subsequent permanency hearing. See
ORS 419B.476(5) (describing alternative plans to reuni-
fication with parent). Although that consequence is not so
drastic as the termination of parental rights, the magnitude
of deprivation—including the potentially permanent denial
to a parent of custody and care of children—nevertheless is
grave. See, e.g., ORS 419B.365(5) (providing that, “[u]nless
vacated under ORS 419B.368, a guardianship established
under this section continues as long as the ward is subject
to the court’s jurisdiction as provided in ORS 419B.328”).
In sum, our application of the factors set out in ORS
419B.205 leads to the conclusion that, when counsel has
been appointed in a permanency proceeding, and a change
of plan from return to parent to a permanent plan of guard-
ianship or APPLA is ordered, counsel also must have been
adequate. Of particular import, the complex nature of the
legal and factual issues, and the gravity of the interests at
stake in such proceedings, indicate that counsel appointed
pursuant to ORS 419B.205 must be adequate, with adequacy
determined using a standard of fundamental fairness. See
Geist, 310 Or at 189-90.
Furthermore, we conclude that the concern that the
court in Geist expressed about achieving finality for children
in care as soon as possible applies to permanency judgments
that order a change in permanent plan from return to par-
ent to guardianship or APPLA. The risk of disrupting those
types of permanent living arrangements by a subsequent
determination that counsel was inadequate in the underly-
ing permanency proceeding undermines the very certainty
and finality of placement—within a child-specific reason-
able time—that they are meant to promote. The “probable
effect” is to “reduc[e] the chances for successful integration
[of the children] into a [new] family.” Geist, 310 Or at 187.
To paraphrase the reasoning of Geist, appellate courts must
not permit children to remain in such a state of uncertainty
“any longer than is absolutely necessary.” Id. at 187.
694 Dept. of Human Services v. T. L.
Those considerations indicate that the unchallenged
principles in Geist apply to proceedings in which a court
orders a change in permanent plan from return to parent
to a plan of guardianship or APPLA, and that the provi-
sion of a remedy for unpreserved claims of inadequate assis-
tance of counsel in direct appeals from such judgments is
justified. See Geist, 310 Or at 190 (the applicable due process
standard in juvenile proceedings is “fundamental fairness,”
which includes fact-finding procedures, such as “notice, [ ]
counsel, confrontation, cross-examination, and standards of
proof”).12
The question that remains is the one on which the
Court of Appeals divided and the only one on which the par-
ties disagree on review: Whether this court’s reasons for pro-
viding a direct appeal remedy in Geist have been obviated by
the enactment in 2001 of ORS 419B.923.13 In overview, that
statute provides that, “on motion and such notice and hear-
12
Our conclusion is a narrow one, because it is unnecessary in these cases to
decide whether the reasoning in Geist applies to direct appeals from other types
of dependency orders and judgments. We note, however, that the considerations
applicable here may carry less weight in appeals from appealable judgments
entered earlier in the course of a dependency case due, in part, to the juvenile
court’s ongoing ability to recognize and remedy the effects of inadequate rep-
resentation throughout the course of the proceedings. Nothing we have said in
this opinion should be understood to encourage appeals that would result in
needless delay in achieving certainty and finality for children in dependency
cases.
13
That statute provides, in part:
“(1) Except as otherwise provided in this section, on motion and such
notice and hearing as the court may direct, the court may modify or set aside
any order or judgment made by it. Reasons for modifying or setting aside an
order or judgment include, but are not limited to:
“(a)  Clerical mistakes in judgments, orders or other parts of the record
and errors in the order or judgment arising from oversight or omission.
These mistakes and errors may be corrected by the court at any time on its
own motion or on the motion of a party and after notice as the court orders
to all parties who have appeared. During the pendency of an appeal, an
order or judgment may be corrected as provided in subsection (7) of this
section.
“(b)  Excusable neglect.
“(c)  Newly discovered evidence that by due diligence could not have been
discovered in time to present it at the hearing from which the order or judg-
ment issued.
“(2)  A motion to modify or set aside an order or judgment or request a
new hearing must be accompanied by an affidavit that states with reasonable
particularity the facts and legal basis for the motion.
Cite as 358 Or 679 (2016) 695
ing as the court may direct, the court may modify or set aside
any order or judgment made by it.” ORS 419B.923(1). Such
a motion “must be made within a reasonable time,” and “no
order or judgment pursuant to ORS 419B.527 [permanently
committing a child to DHS for the purpose of consenting
to adoption] may be set aside or modified during the pen-
dency of a proceeding for the adoption of the ward, nor after
a petition for adoption has been granted.” ORS 419B.923(3).
The motion “may be filed with and decided by the [juvenile]
court during the time an appeal from a judgment is pending
before an appellate court.” ORS 419B.923(7). In short, ORS
419B.923 allows a parent to move to set aside “any order or
judgment” made by the juvenile court, and further, it allows
a parent to do so during the pendency of a direct appeal from
the order or judgment.
The parties agree about the operation of ORS
419B.923 in two respects. First, they agree that that statute
may be used to raise an inadequate assistance of counsel
claim before the juvenile court. Second, they agree that the
text, context, and legislative history of the statute do not
indicate that the legislature meant to provide an exclusive
“(3)  A motion to modify or set aside an order or judgment must be made
within a reasonable time except no order or judgment pursuant to ORS
419B.527 [permanently committing of the ward to the department] may be
set aside or modified during the pendency of a proceeding for the adoption of
the ward, nor after a petition for adoption has been granted.
“(4) Except as provided in subsection (6) of this section, notice and a
hearing * * * must be provided in any case when the effect of modifying or set-
ting aside the order or judgment will or may be to deprive a parent of the legal
custody of the child * * *. The provisions of this subsection do not apply to a
parent whose rights have been terminated under ORS 419B.500 to 419B.524
or whose child has been permanently committed by order or judgment of the
court unless an appeal from the order or judgment is pending.
“* * * * *
“(7)  A motion under subsection (1) of this section may be filed with and
decided by the trial court during the time an appeal from a judgment is
pending before an appellate court. The moving party shall serve a copy of
the motion on the appellate court. The moving party shall file a copy of the
trial court’s order or judgment in the appellate court within seven days of the
date of the trial court order or judgment. Any necessary modification of the
appeal required by the court order or judgment must be pursuant to rule of
the appellate court.
“(8)  This section does not limit the inherent power of a court to modify
an order or judgment within a reasonable time or the power of a court to set
aside an order or judgment for fraud upon the court.”
696 Dept. of Human Services v. T. L.
mechanism for resolving such claims or even that the legis-
lature specifically considered its effect on inadequate assis-
tance claims.
We agree with both propositions. As to the first,
nothing in ORS 419B.923 prohibits a juvenile court from
considering a challenge under its provisions to an order or
judgment based on inadequate assistance of counsel. The
listed grounds for modifying or setting aside an order or
judgment are nonexclusive; there is no indication that, by
providing specific examples, the legislature meant to pre-
clude a juvenile court from setting aside or modifying its
prior judgments based on other appropriate grounds. See
State v. Kurtz, 350 Or 65, 75, 249 P3d 1271 (2011) (terms
such as “including but not limited to” typically convey an
intent that the enumerated “examples be read in a nonexclu-
sive sense”).14
With respect to the second agreed proposition, we
note that ORS 419B.923 is still devoid of any specific pro-
cedure for raising a claim of inadequate assistance of coun-
sel, as had been found wanting in Geist. See 310 Or at 185.
Although that statute confers broad authority on a juvenile
court to correct its own “errors and omissions,” it does not, by
its terms, create an exhaustion requirement for inadequate
assistance of counsel claims that arise in juvenile depen-
dency proceedings, nor does it otherwise limit the authority
of an appellate court to review such claims.
The context of ORS 419B.923—specifically another
statute enacted by the same legislature—is consistent with
that understanding. See State v. Gaines, 346 Or 160, 177
n 16, 206 P3d 1042 (2009) (statute’s context includes other
14
It is true that, under the principle of ejusdem generis, courts examine “com-
mon characteristics” of enumerated items when construing more general words.
See Kurtz, 350 Or at 74. However, there is no indication in the text, context, or
legislative history of ORS 419B.923 that the legislature intended the listed exam-
ples of grounds for setting aside an order or judgment to have a limiting effect.
In particular, the pertinent legislative history shows that the statute’s drafters
imported several grounds for setting aside a judgment set out in ORCP 71, but
intended not to limit the grounds for relief to “a closed universe” of those that it
enumerated. Tape Recording, Senate Committee on Judiciary, HB 2611, Apr 30,
2001, Tape 115, Side B (statement of Michael Livingston Oregon Department of
Justice, Appellate Division).
Cite as 358 Or 679 (2016) 697
statutes enacted simultaneously with statute at issue).
The same legislative assembly that enacted ORS 419B.923
enacted another juvenile code provision—Or Laws 2001,
ch 803, § 3, codified as ORS 419C.615—that established
specific rules and standards for delinquent youths to seek
post-adjudication relief that includes the setting aside of
earlier judgments or orders. HB 2355 (2001). Before 2001,
the set-aside statutes in the delinquency and dependency
codes were identical. Compare ORS 419C.610 (1999),
amended by Or Laws 2003, ch 396, § 135 (“[t]he court may
modify or set aside any order made by it”), with former ORS
419B.420 (1999), repealed by Or Laws 2001, ch 622, § 57
(“[t]he court may modify or set aside any order made by
it”). In contrast to the comparatively modest changes that
it enacted in ORS 419B.923, the 2001 Legislative Assembly
more extensively amended the corresponding delinquency
code set-aside statutes to add a detailed procedure that
would “harmonize[ ] post-conviction rights in juvenile cases
involving delinquency with those that currently apply
in criminal law.” Tape Recording, House Committee on
Judiciary, HB 2355, Feb 16, 2001, Tape 13, Side A (state-
ment of Rep Lane Shetterly). See ORS 419C.615 (grounds
for setting aside order, including procedure and right to
appeal); ORS 138.510 to 138.686 (post-conviction relief
statutes).
The 2001 Legislative Assembly added a provision to
the delinquency code stating that, “[i]n addition to any other
grounds upon which a person may petition a court under
ORS 419C.610 [to set aside a judgment],” a person who is
adjudicated as a delinquent in a juvenile court may seek
relief based on “[a] substantial denial in the proceedings”
of the person’s constitutional rights or on the “[u]nconstitu-
tionality of the statute” under which the person was adjudi-
cated. ORS 419C.615(1). The legislature also established a
procedure for bringing such a claim, including a specified
burden of proof and a right to appeal. ORS 419C.615(2)-(3).
In addition, ORS 419C.616 sets out detailed exhaustion-type
provisions concerning the relationship between a proceed-
ing to set aside a delinquency judgment and other proceed-
ings, including a direct appeal from the judgment, and ORS
419C.617 establishes time limits for asserting claims to set
698 Dept. of Human Services v. T. L.
aside delinquency judgments.15 None of those provisions
find a parallel in dependency proceedings in ORS 419B.923.
The enactment of the particularized set of provisions for
challenging the denial of rights in delinquency proceed-
ings thus suggests that, in enacting the much more general
ORS 419B.923, the legislature did not intend to prescribe a
15
ORS 419C.616 provides, in part:
“(1)  The effect of a prior proceeding concerning the adjudication of the
person that is challenged in a petition under ORS 419C.615 is as follows:
“(a)  The failure of the petitioner to have sought appellate review of the
adjudication, or to have raised matters alleged in the petition at the prior pro-
ceeding, does not affect the availability of relief under ORS 419C.615. No pro-
ceeding under ORS 419C.615 may be pursued while direct appellate review
of the adjudication remains available.
“(b) When the petitioner sought and obtained direct appellate review
of the adjudication, no ground for relief may be asserted in a petition for
relief under ORS 419C.615 unless the ground was not asserted and could not
reasonably have been asserted in the direct appellate review proceeding. If
the petitioner was not represented by counsel in the direct appellate review
proceeding, due to lack of funds to retain such counsel and the failure of
the court to appoint counsel for that proceeding, any ground for relief under
ORS 419C.615 that was not specifically decided by the appellate court may be
asserted in the petition described in ORS 419C.615.
“(2)  The court may grant leave, at any time prior to entry of an order
granting or denying relief, to withdraw the petition. The court may make
appropriate orders as to the amendment of the petition or any other pleading,
as to the filing of further pleadings, or as to extending the time of filing of any
pleading other than the original petition.
“(3)  All grounds for relief claimed in a petition described in ORS 419C.615
must be asserted in the original or amended petition, and any grounds not
asserted are deemed waived, unless the court on hearing a subsequent peti-
tion finds grounds for relief asserted therein that could not reasonably have
been raised in the original or amended petition. However, any prior petition
or amended petition that was withdrawn prior to the entry of an order grant-
ing or denying relief by leave of the court, as provided in subsection (2) of
this section, has no effect on the right of the petitioner to bring a subsequent
petition.”
ORS 419C.617 provides:
“If a person seeking relief under ORS 419C.615 is over 18 years of age
and is no longer within the jurisdiction of the juvenile court, the petition
must be filed within two years of the following, unless the court on hearing
a subsequent petition finds grounds for relief asserted therein that could not
reasonably have been raised in the original petition or an amended petition:
“(1)  If no appeal is taken, the date the juvenile court adjudication was
entered in the register.
“(2) If an appeal is taken, the date the appeal is final in the Oregon
appellate courts.”
Cite as 358 Or 679 (2016) 699
comprehensive mechanism for vindicating the right to ade-
quate assistance of counsel in dependency cases.16
The legislative history of ORS 419B.923 is consis-
tent with that conclusion. When this court decided Geist in
1990, the existing set-aside statute in the juvenile depen-
dency code provided that a juvenile court “may modify or set
aside any order made by it upon such notice and with such
hearing as the court may direct.” Former ORS 419.529(1)
(1989), repealed by Or Laws 1993, ch 33, § 373.17 In 1993,
the legislature renumbered that statute as part of a compre-
hensive reorganization of the juvenile code but left its text
unchanged. See former ORS 419B.420 (1993).
In 2001, the legislature convened a Juvenile Code
Revision Work Group for the purpose of addressing per-
ceived procedural inconsistencies in the juvenile code. See
Testimony, Senate Committee on Judiciary, HB 2611, Apr
30, 2001, Ex H (statement of Kathie Osborn, Oregon Law
Commission). Based on a recommendation of that work
group, the legislature recodified former ORS 419B.420 as
ORS 419B.923. Or Laws 2001, ch 622, §§ 33, 57. The new
statute closely tracked the text of former ORS 419B.420, but,
unlike its predecessor, ORS 419B.923 expressly provided
(and still provides) that a trial court retains the authority to
decide a motion to set aside a judgment while the judgment
is being appealed. Despite that difference, and even though
the 2001 work group convened years after Geist was decided
and recommended revisions to the delinquency code that
borrowed from criminal code provisions for post-conviction
relief, its report to the legislature did not mention either
Geist or inadequate assistance of counsel claims.
16
We recognize that it could be argued that, because the 2001 Legislative
Assembly enacted an express procedure for resolving inadequate assistance
claims in delinquency cases, its contemporaneous enactment of ORS 419B.923
was meant to provide an analogous express procedure for resolving inadequate
assistance claims in dependency proceedings. However, despite this court’s invi-
tation in Geist, the lack of any express reference to such claims in ORS 419B.923,
and the failure to create any detailed procedure suited to the demands of such
claims (including, for example, any provision for the appointment of substitute
trial counsel to assert them), strongly suggests that the legislature did not intend
to accept this court’s invitation by enacting that statute.
17
This court’s opinion in Geist did not mention former ORS 419.529; rather,
the court appeared to assume that no statutory procedure existed to vindicate
the right to adequate counsel.
700 Dept. of Human Services v. T. L.
We draw the following conclusions from our exam-
ination of the text, context, and legislative history of ORS
419B.923. First, that statute authorizes a motion to set
aside a permanency judgment based on a claim of inade-
quate assistance of counsel in the permanency proceed-
ing. Second, in contrast to its predecessor statutes, ORS
419B.923 expressly provides a right to seek relief from a
judgment while an appeal from the judgment is pending.
Third, in enacting ORS 419B.923, the legislature did not
specifically contemplate its effect on inadequate assistance
claims, nor does the statute provide an exclusive mechanism
for resolving them. Unlike in delinquency proceedings, the
legislature has not provided any comprehensive mechanism
for the adjudication of inadequate assistance of counsel
claims in juvenile dependency proceedings.
Those omissions notwithstanding, DHS asserts
that a parent should be required to preserve an inadequate
assistance of counsel claim in the juvenile court under ORS
419B.923, because (1) the juvenile court is the appropriate
forum for developing an evidentiary record, including mak-
ing credibility determinations; (2) resolving factual disputes
in the juvenile court while an appeal is pending is more
expeditious than doing so on remand at the conclusion of
an appeal; and (3) requiring an evidentiary hearing in the
juvenile court provides procedural fairness to all parties.
Father disagrees. In his view, “there is nothing in the logic
of Geist or the text or context of the statute itself to suggest
that ORS 419B.923 should bar a parent’s ability to raise an
inadequate assistance claim on direct appeal [ ] or an appel-
late court’s authority to review that claim.”
We agree with father that ORS 419B.923 has not
altered the pertinent legal landscape in a fundamental
way: A parent’s practical inability to preserve a claim of
inadequate assistance of counsel remains the same.18 For
18
As this court noted in Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637
(2008), “[t]he principal exception to preservation requirements is for so-called
‘plain error’—that is, an error apparent on the record, about which there is
no reasonable dispute.” However, “[i]n some circumstances, the preservation
requirement gives way entirely, as when a party has no practical ability to raise
an issue.” Id. at 220; see, e.g., State ex rel DHS v. M. A. (A139693), 227 Or App
172, 182, 205 P3d 36 (2009) (juvenile court’s error in failing to include all statu-
torily required findings was not subject to the constraints of plain error review
Cite as 358 Or 679 (2016) 701
father, as for most laypersons, the first opportunity to raise
the issue of inadequate representation did not arise until
he was able to consult with appellate counsel. As this court
observed in Geist:
“We recognize the reality that it is unlikely that any
challenge to the adequacy of appointed trial counsel will
have been preserved in the circuit court. It is neither real-
istic nor reasonable to expect that a parent’s trial counsel
will have objected at trial that counsel’s advocacy was inad-
equate. * * * [W]e conclude that the general rule that appel-
late courts will only consider error that has been preserved
at trial need not be strictly applied to the issue of appointed
trial counsel’s adequacy in a parental rights termination
proceeding.”
310 Or at 184 n 9.
As a practical matter, the identification of an inade-
quate assistance of counsel claim and the question whether
it caused cognizable prejudice to a party are complex legal
issues that remain likely to be detected and assessed in the
first instance only by competent counsel. As a consequence,
any efficiency-related advantage of a rule requiring the
preservation of error before the juvenile court in connection
with such claims likely will be practically unattainable in
most circumstances.
To create a more adequate and exclusive trial-level
mechanism for asserting inadequate assistance of counsel
claims in dependency proceedings, the legislature could have
established (as it did in the context of delinquency judgments
under ORS 419C.616 and ORS 419C.617) the relationship
between direct appeals from a dependency judgment and
collateral proceedings to set aside the judgment and what,
if any, exhaustion-type requirements and time limits apply
to such collateral proceedings. Although ORS 419B.923(8)
provides that a juvenile court has “inherent power” to set
aside a dependency judgment “within a reasonable time,”
because the mother had no practical ability to raise the issue before the perma-
nency judgment issued within 20 days of the hearing); cf. State v. Vanornum, 354
Or 614, 628-29, 317 P3d 889 (2013) (rule of civil procedure did not limit the Court
of Appeals’ authority to review the merits of defendant’s unpreserved claims
of instructional error according to principles regarding preservation and plain
error).
702 Dept. of Human Services v. T. L.
a parent ordinarily lacks standing to appear as a party in
a dependency proceeding after a judgment terminating his
or her parental rights becomes final following appeal. ORS
419B.524. Accordingly, there is a particular urgency in the
final stages of dependency proceedings to provide counsel
for parents to promptly pursue and adjudicate inadequate
assistance of counsel claims by means of clearly identified
procedural channels. Those factors support the provision of a
direct appeal remedy for unpreserved inadequate assistance
of counsel claims in connection with permanency judgments
that impose a change of plan from return to parent to either
guardianship or APPLA.
That conclusion does not mean that ORS 419B.923
is of no consequence to our decision. That statute does pro-
vide a somewhat improved opportunity for the assertion of
inadequate assistance of counsel claims in dependency cases
in comparison to the set-aside statute in effect when Geist
was decided. As noted, subsection (7) expressly authorizes
the assertion of such claims while an appeal is pending. In
addition, it requires communication between the juvenile
and appellate courts as such claims are adjudicated. In par-
ticular, the moving party must “serve a copy of the motion on
the appellate court,” and the moving party must “file a copy
of the trial court’s order or judgment in the appellate court
within seven days of the date of the trial court order or judg-
ment.” ORS 419B.923(7). Further, subsection (7) provides
that “[a]ny necessary modification of the appeal required by
the court order or judgment must be pursuant to rule of the
appellate court.”
Another consideration also bears emphasis. As
in challenges to the adequacy of counsel under the Sixth
Amendment to the United States Constitution, “the burden
of proof to establish trial counsel’s inadequacy” in a juvenile
dependency proceeding rests with the party seeking relief.
Geist, 310 Or at 191. To be entitled to relief, a parent must
show not only that trial counsel was inadequate, but also that
the inadequacy prejudiced the parent’s rights to the extent
that the merits of the juvenile court’s decision are called into
serious question. Id. As father acknowledges, it is a “rare”
case in which the question whether counsel was inadequate
will not require the development of an evidentiary record.
Cite as 358 Or 679 (2016) 703
That is even more likely in an appeal from a pre-termination
dependency judgment because, given the segmented and
sequential unfolding of dependency cases, prejudice can
be either ameliorated or exacerbated by what happens at
the next stage of the case. Accordingly, there likely will be
many instances where it will be necessary to develop a more
thorough evidentiary record than exists on direct appeal to
determine whether the parent is entitled to relief.
The foregoing cross-cutting considerations lead
us to the following refinement of the principles set out in
Geist. First, for the reasons previously stated, we conclude
that the unchallenged rationale of Geist is not limited to
termination of parental rights proceedings; that rationale
also applies to permanency proceedings in which counsel
has been appointed, where the court orders a change of plan
from return to parent to a permanent plan of either guard-
ianship or APPLA. Second, we conclude that ORS 419B.923
does not provide a trial-level remedy for inadequate assis-
tance of counsel claims that undercuts the holding in Geist
that it is unnecessary to preserve such a claim before the
juvenile court; instead, the claim may be raised in the first
instance on direct appeal. Third, if—in the first instance on
direct appeal—a party identifies an inadequate assistance
of counsel claim, and if the further development of an evi-
dentiary record would be necessary to determine whether
inadequate assistance was rendered or whether the party
suffered cognizable prejudice as a consequence, then the
party should seek appropriate relief from the judgment
under ORS 419B.923.19 Fourth, if a party asserting an inad-
equate assistance of counsel claim on direct appeal fails to
utilize the procedure provided by ORS 419B.923, and the
19
ORS 151.216 (1) provides that the Public Defense Services Commission
(PDSC) shall “[a]dopt policies, procedures, standards and guidelines” for
the “appointment of counsel,” and the “[p]erformance for legal represen-
tation[.]” ORS 151.216(1)(f)(B), (G). Pursuant to that directive, PDSC has
adopted complaint policies and procedures (the PDCPP) that are published
on its website. See Public Defense Services Commission, Public Defense
Complaint Policy and Procedures, at http://www.oregon.gov/OPDS/docs/CBS/
PDSCCOMPLAINTPOLICYANDPROCECURES10-17-08.pdf (last accessed Feb
26, 2016).
As discussed, the juvenile court is the appointing authority for indigent rep-
resentation in dependency cases. ORS 419B.205(1). However, subsection (2) of the
same statute provides:
704 Dept. of Human Services v. T. L.
Court of Appeals determines that the record is insufficient
to warrant relief, then the Court of Appeals may, where
appropriate, affirm without prejudice to the parent’s abil-
ity to renew the claim before the juvenile court under ORS
419B.923 or remand for an evidentiary hearing under ORS
419B.923. See, e.g., Dept. of Human Services v. H. H., 266 Or
App 196, 206, 337 P3d 929 (2014), rev den, 356 Or 837 (2015)
(declining to remand for an evidentiary hearing where par-
ents failed to raise “substantial” question about trial coun-
sel’s adequacy, but affirming without prejudice to parents’
ability to renew claim in juvenile court under ORS 419B.923
so as to further develop evidentiary record).20
We turn to the application of the foregoing princi-
ples to the circumstances of this case. Although we ordi-
narily would remand to the Court of Appeals to apply them
in the first instance, out of concern for the regrettable delay
that already has occurred in this case, we make our own
initial determination. We conclude that, in two ways, a more
complete evidentiary record is necessary to review father’s
claim. First, although father’s counsel’s failure to appear at
the August permanency hearing—which is unexplained on
this record—is a serious concern, we do not know whether
there is a reasonable explanation for counsel’s absence. For
example, if counsel had been in a car accident on the way to
“The court may not substitute one appointed counsel for another except
pursuant to the policies, procedures, standards and guidelines adopted under
ORS 151.216 [the PDCPP].”
ORS 419B.205(2). The PDCPP recognize the broad authority of the Office of
Public Defense Services to receive information regarding the performance of pub-
lic defense providers and to “tak[e] such actions as it deems appropriate.” PDCPP
at 4. That authority is broad enough to include communication with a juvenile
court concerning the perceived necessity for the appointment of substitute coun-
sel to pursue a motion to set aside an order or judgment under ORS 419B.923
based on the ground of inadequate assistance of counsel in the proceeding under-
lying the order or judgment.
20
We recognize that the overlapping pendency of two separate proceed-
ings involving the same issue—a direct appeal and a proceeding under ORS
419B.923—gives rise to the possibility that a juvenile court’s judgment under
ORS 419B.923 could render moot an inadequate assistance claim previously
asserted on direct appeal. However, that possibility is inherent in the structure
of ORS 419B.923(7). In any event, we are confident that existing appellate proce-
dural rules are sufficiently flexible to accommodate the possibility of overlapping
determinations without fueling unnecessary delay. See, e.g., ORAP 2.30 (provid-
ing for consolidation of separate cases on appeal); ORAP 8.45 (requiring notice of
occurrence of event rendering appeal moot).
Cite as 358 Or 679 (2016) 705
court, or if the court clerk had failed to properly notice the
hearing, a satisfactory explanation might exist. The point is
that neither party has had an opportunity to make a record
as to why counsel failed to appear.
In addition, we conclude that the record is insuffi-
cient for an appellate court to make an informed determi-
nation whether father was prejudiced by counsel’s absence.
The juvenile court told father at the August 29 hearing that
it would be willing to revisit its decision to change the per-
manency plans if new information about father’s progress
was forthcoming. A second “contested” permanency hearing
had been scheduled for October, and there is no evidence
in the record before us as to what happened at that hear-
ing, if it was held. Moreover, it is impossible to determine
on the existing record whether counsel could have provided
the court with any information that would have altered its
permanency decision at the August 29 hearing.
Each of those matters is an appropriate consider-
ation as to the issue of prejudice, and neither party has had
an opportunity to create an evidentiary record with respect
to them. Accordingly, we remand father’s inadequate assis-
tance of counsel claim to the juvenile court for the purpose
of determining whether father is entitled to relief from the
permanency judgments at issue here under ORS 419B.923.21
Trial counsel shall be appointed to represent father in
that proceeding, and father shall, in accordance with ORS
419B.923(7), file a copy of the juvenile court’s judgment with
the Court of Appeals within seven days of the date of the
judgment, whereupon that court shall proceed to resolve
father’s appeal.22
The decision of the Court of Appeals is reversed.
The case is remanded to the juvenile court for further
proceedings.
21
Father’s briefs before the Court of Appeals with respect to his inadequate
assistance of counsel claim shall be deemed to satisfy the requirements of ORS
419B.923(2).
22
We do not reach father’s alternative argument that the juvenile court’s con-
duct of the August 29 hearing without counsel’s presence rendered the hearing
fundamentally unfair so as to deny him due process of law.