DocketNumber: 110440J; Petition Number 110440J02; A155300; 110441J; Petition Number 110441J02; A155301; 110442J; Petition Number 110442J02; A155302
Citation Numbers: 269 Or. App. 454, 344 P.3d 1123
Judges: Armstrong, Egan, Nakamoto
Filed Date: 3/4/2015
Status: Precedential
Modified Date: 9/9/2022
In this consolidated appeal, father appeals judgments changing the permanency plans for his three children.
In March 2013, the juvenile court took jurisdiction over mother and father’s three children — then ages 8, 12, and 14 — based, as to father, on father’s stipulation that his use of alcohol and controlled substances interferes with his ability to provide safe, appropriate, and consistent care for the children.
At that point, father and mother arrived, and the court informed them of its decision to change the permanency plans. The court explained:
“This is a legal juncture of significance, but by no means is it the end. As I said the last time, if there was not progress by today, this would be a short hearing. There hasn’t been. I don’t want anybody to feel bad. I’m not up here to kick people around. Ours is not a punishment-oriented system. It is about getting kids back to their parents.
“But if they are unable to distance themselves from things that are risky to kids, like drug use and the like, then the kids are entitled to a safe, permanent home. They are entitled to that sooner, not later. Now, every kid is entitled to that. That’s the assumption that the law makes. These decisions are designed to accomplish that.
“The point here for the parents, [mother and father], you can change the circumstance now. I just decided that we were going to keep this hearing on for October. That’s because the plan could change back at that next hearing, if you can embrace recovery and put yourself in the position to be a safe parent. You don’t have to have it all accomplished by October. But if you could get yourselves into treatment and embrace recovery, then there is the potential that the plan could change back in October.”
The discussion that followed was, in large part, devoted to the court’s concern about R, who had run away from foster
The court subsequently entered permanency judgments consistent with its decision at the hearing. Father did not move to set aside the judgments. See ORS 419B.923 (set out below at 269 Or App at 460-61).
On appeal, father seeks to have those judgments reversed. He purports to assert nine separate assignments of error; however, he presents a single combined argument in which he contends that, because his counsel failed to appear at the permanency hearing, he received inadequate assistance of counsel, was consequently denied a fundamentally fair hearing, and, under Geist, is entitled to reversal of the permanency judgments.
We begin with Geist. Geist involved the review-ability on direct appeal of a judgment terminating the mother’s parental rights. The Supreme Court held that the statutory right to counsel for indigent parents in termination cases included the right to adequate counsel, and that, “[ajbsent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may fashion an appropriate procedure.” 310 Or at 185 (emphasis added). Emphasizing the importance of finality in termination cases, the court noted that “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 187. Because of that concern and in the absence of statutes prohibiting it, the court concluded that challenges to the adequacy of appointed trial counsel in termination proceedings were reviewable on direct appeal, notwithstanding the lack of preservation. Id. at 184 n 9 (noting that, “ [b]ecause of the important timeliness considerations,” the general rule that appellate courts will not consider error that has not been preserved at trial “need not be strictly applied to the issue of appointed trial counsel’s adequacy in a parental rights termination proceeding”). The court also determined that the standard of adequacy required was one that ensured “fundamental fairness” and that the parent making the challenge has the burden of proving that that standard has not been satisfied. Id. at 191.
The problem with father’s reasoning, however, is that the legal landscape has changed significantly — and dispositively — in the almost 25 years since Geist was decided.
As just discussed, a primary rationale for the court’s decision in Geist was the absence of a “legislative procedure for vindicating the statutory right to adequate counsel.” 310 Or at 185; see also id. (“The statutory right to adequate trial counsel may prove illusory if there is no procedure for review of claims of inadequate counsel.” (Footnote omitted.)). However, in 2001, the legislature enacted ORS 419B.923, which provides:
“(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, order 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 judgment is issued.
*461 “(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 [authorizing post-TPR order placing ward in legal custody of agency authorized to consent to adoption and other dispositions] 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.
“(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. * * *
“(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.”
(Emphasis added.) Thus, ORS 419B.923 now provides the statutory procedure for a parent to challenge the adequacy of counsel that was missing 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. See Geist, 310 Or at 192 n 16; State ex rel Juv. Dept. v. Kopp, 180 Or App 566, 578, 43 P3d 1197 (2002).
Father (and the dissent) nonetheless contend that father was not required to pursue the remedy under ORS 419B.923 to challenge the adequacy of his trial counsel because there was a similar set-aside statute in effect at the time that Geist was decided and because ORS 419B.923 does not offer an express legislative procedure to vindicate the statutory right to counsel, as contemplated by Geist. Those arguments do not withstand scrutiny.
Although father is correct that ORS 419B.923 derives from a similar statute that was in effect when Geist was decided — viz., former ORS 419.529(1) (1989), repealed by
First, in Kopp, we rejected the state’s argument that the mother, whose parental rights had been terminated by default, was precluded from moving to set aside the default judgment under former ORS 419B.420 (the predecessor to ORS 419B.923(1), see 269 Or App at 462 n 6) because ORS 419B.524 denied her standing to do that.
Next, in Dept. of Human Services v. A. D. G., 260 Or App 525, 317 P3d 950 (2014), we considered the scope of the juvenile court’s authority under ORS 419B.923 to set aside a judgment — specifically, in that case, a default judgment terminating the mother’s parental rights. Construing ORS 419B.923(1), we observed that the text itself — viz., “the court may modify or set aside any order or judgment made by it” (emphasis added) — described the court’s authority broadly and did not limit that authority to the nonexclusive list of reasons specifically enumerated in the statute — viz., clerical mistakes, excusable neglect, and newly discovered evidence. A. D. G., 260 Or App at 536.
Our extensive review of the statute’s enactment history confirmed that understanding. Id. For example, we quoted testimony from one of the workgroup members who had drafted the legislation that the statute expands the grounds’ upon which a parent may move to set aside a juvenile court’s order ‘beyond those authorized by ORCP 71, which are limited.’” Id. at 539 (quoting Tape Recording, Senate Judiciary Committee, HB 2611, Apr 30, 2011, Tape 115, Side B (statement of Michael Livingston)) (emphasis in A. D. G.). Consequently, we concluded that, because the mother had
“raise [d] a serious question regarding the juvenile court’s authority to enter the default judgment [that] she [sought to have] set aside and a colorable claim of a violation of her due process rights by virtue of the juvenile court’s interpretation of its authority to enter judgment without allowing her the opportunity to defend against the allegations in the TPR petition at the hearing she attended,”
Thus, since the enactment of ORS 419B.923(1), as construed in A. D. G., a crucial predicate of the court’s reasoning in Geist — that direct appellate review of this type of claim was necessary due to the lack of any other mechanism to vindicate the right to adequate counsel — no longer exists.
Similar reasoning, in fact, led us to reject in State ex rel Juv. Dept. v. M. U., 229 Or App 35, 210 P3d 254 (2009), a mother’s argument that we should create a remedy on direct appeal for her claim that her counsel’s failure to file a timely appeal of a juvenile court judgment constituted inadequate assistance of counsel. The mother relied on State ex rel SOSCF v. Hammons, 169 Or App 589, 593-94, 10 P3d 310 (2000), in which we had concluded, under the reasoning of Geist, that it was permissible for us to fashion a remedy on appeal for the inadequate assistance of the mother’s appellate counsel for failing to file a timely appeal of a termination judgment, because, as in Geist, a legislative procedure to vindicate the mother’s statutory right to counsel did not exist. However, by the time that we considered M. U., the legislature had amended ORS 419A.200 to provide such a procedure. Thus, we held, “the decisive factor upon which our authority to craft a remedy in Hammons was predicated” — the absence of a legislative procedure to address the asserted inadequacy — was itself absent. M. U., 229 Or App at 43. Accordingly, we concluded that the mother’s remedy was governed by the procedure that the legislature had provided — ORS 419A.200(5).
The other rationale supporting the court’s decision in Geist — the need for “expeditious resolution” of dependency cases, 310 Or at 187*
Second, allowing a challenge to the adequacy of counsel on direct appeal — as opposed to first pursuing that relief in the trial court — will likely extend the litigation rather than shorten it. That is because such challenges turn on factual questions, questions that the trial court is better equipped to resolve because it, unlike the appellate court, already has mechanisms in place to receive and evaluate evidence.
We made a similar observation in Kopp. In concluding that a parent must be permitted to seek an order setting aside a default termination judgment under the predecessor to ORS 419B.923, we explained:
“In particular, where a terminated parent has asserted a defect in the proceeding leading to termination, a hearing under [former ORS 419B.420] — in which, for example, a parent can develop a factual record relating to the asserted defect — is best suited for providing the parent with the required ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ See [Geist, 310 Or at 189-90] (stating that standard as the ‘essence of fundamental fairness’). A proceeding in juvenile court under former ORS 419B.420 is also likely to be the most expeditious mechanism for resolving any asserted challenge — including, if the court determines that modification or set-aside is warranted, the expeditious scheduling and hearing of whatever further proceedings are required. By comparison, an appeal— particularly one resulting in the reversal of the termination judgment and further proceedings below — may result in a much greater delay in final resolution of the matter.”
Kopp, 180 Or App at 578-79 (emphasis added). There is nothing to be gained — and much to be sacrificed — by allowing
This case illustrates the problem. Because we do not have a factual record concerning counsel’s reason for not attending the hearing and the actions that counsel would or should have taken had he attended it, we have no basis to conclude that counsel failed to “exercise professional skill and judgment” on father’s behalf, Geist, 310 Or at 190, and that that failure prejudiced father’s case, id. at 191 (parent challenging trial counsel’s inadequacy must produce “some credible evidence” demonstrating that the proceeding was not fundamentally fair).
In sum, the premises upon which Geist is grounded have been negated by the availability of ORS 419B.923 as a mechanism for a parent in a dependency action to challenge the adequacy of his or her trial counsel in the juvenile court. In light of those developments — as well as the recognized need for expeditious resolution of these cases — we conclude that, to preserve a claim of inadequate assistance of appointed trial 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.
Affirmed.
Mother is not a party to this appeal.
This was the second time that the children had been made wards of the court. They were previously removed from parents’ care for five months beginning in April 2011 due to concerns about parents’ use of controlled substances.
Por example, at one point, the court stated:
“I’m scared to death for [R]. In four years of doing this work, I have had one other child that I was as nervous about as I am about [R] and her circumstances. She needs her parents to try to bring her back to the agency and put the agency in a situation where they can try some foster care settings. I know they haven’t been successful in the past, but that is what needs to happen.”
To the extent that father can be understood to raise a separate contention that the juvenile court also erred in proceeding with the permanency hearing in father’s absence, we reject that contention without further discussion.
The court concluded that the trial court record in Geist was sufficient to decide the issue on appeal (and ultimately rejected the mother’s claim of inadequacy) but expressed some skepticism about the mechanism for determining the issue in the event the trial court record was not adequate. See 310 Or at 192 n 16 (“The parties note a potential problem in direct review of a claim of appointed counsel’s inadequacy. They suggest that such claims may involve evidence which trial counsel may have failed to present or arguments which counsel may have failed to make. They argue that it may be impossible to determine from the record on appeal whether the omitted evidence or argument would have made any difference in the outcome of the proceeding. Without necessarily agreeing that a hearing would be constitutionally required, we note that any determination that relevant evidence or argument was omitted or whether such omission would have made any difference in the outcome is best made by the trial court.” (Emphasis added.)).
Former ORS 419.529(1) (1989) provided, “Except as provided in this section, the court may modify or set aside any order made by it upon such notice and with such hearing as the court may direct.” It was repealed in the 1993 revision to the juvenile code, Or Laws 1993, ch 33, § 373; however, the substance was retained in former ORS 419B.420 (1993), which provided:
“Except as provided in ORS 419B.423 [regarding notice requirements for modification of orders] and ORS 419B.426 [providing limitation on setting aside post-TPR orders], the 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 419B.420, in turn, was repealed by Or Laws 2001, ch 622, § 57, the legislation that enacted ORS 419B.923.
Former ORS 419.529(4) (1989), repealed by Or Laws 1993, ch 33, § 73, provided:
“No order pursuant to ORS 419.527(l)(a) [which allowed the court, after entry of an order terminating a parent’s rights, to place a child in the legal custody of an agency authorized to consent to the adoption of children] may be set aside or modified during the pendency of a proceeding for the adoption of the child, nor after a petition for adoption has been granted.”
And, former ORS 419.525(4) (1989), repealed by Or Laws 1993, ch 33, § 373, provided:
“Unless there is an appeal from the order terminating the rights of the parent or parents, the order permanently terminates all rights of the parent or parents whose rights are terminated and the parent or parents have no standing to appear as such in any legal proceeding concerning the child.”
Those statutes, in substance, continue to exist in some form in current law. See ORS 419B.923(3); ORS 419B.524.
ORS 419B.524 provides:
“Unless there is an appeal from the order terminating the rights of the parent or parents, the order permanently terminates all rights of the parent or parents whose rights are terminated and the parent or parents have no standing to appear as such in any legal proceeding concerning the ward.”
The dissent does not address M. U. and instead implies that we are thoughtlessly undoing “years” of post -Geist precedent, see 269 Or App at 473 (Egan, J., dissenting). However, the cases the dissent cites to illustrate that point were all decided before the enactment of ORS 419B.923 and certainly well before our decision in A. D. G.
As even Judge Rossman advocated in his concurrence to our opinion in Geist (which the dissent quotes at length, see 269 Or App at 470-71 (Egan, J., dissenting)), hearing parents’ inadequate-assistance-of-counsel claims on direct appeal was “the only reasonable alternative” — given the nature of the right at stake — “until the legislature provides a better plan” State ex rel Juv. Dept. v. Geist, 97 Or App 10, 22-23 n 2, 775 P2d 843 (1989), aff’d on other grounds, 310 Or 176, 796 P2d 1193 (1990) (Rossman, J., concurring) (emphasis in original). The legislature has now provided that “better plan.”
The court observed, “Any delay in achieving finality in a termination case adversely affects the rights of all the parties. *** Whether or not the eventual result is termination, protracted litigation extends uncertainty in the child(ren)’s life.” Geist, 310 Or at 186-87 (emphasis added). The same can be said in all dependency cases.
Presumably, the court was referring to the statutory post-conviction review procedure, ORS 138.510 to 138.686, under which a convicted defendant may collaterally challenge his or her conviction on the ground that he or she received inadequate assistance of counsel at trial or on appeal.
The dissent complains that our decision will extend, rather than shorten, litigation because it will require “an extra step in all cases before we can review a parent’s inadequate-assistance-of-counsel claim.” 269 Or App at 478 (Egan, J., dissenting) (emphasis in original). To the contrary, utilization of the ORS 419B.923 set-aside process may, in some cases, eliminate entirely one step of the litigation process — that is, the need for an appeal.
Moreover, we do not, contrary to the dissent’s assertion, advance the proposition that, if these claims were to be heard in the first instance on direct appeal, there would never be a case in which the factual record would be sufficient for appellate review (indeed, Geist was such a case) — only that they will be rare and that this is not such a case. The dissent, on the other hand, by contending that the factual record in this case is adequate, would, in essence, establish a rule that an attorney is per se constitutionally inadequate if he or she fails to appear for a hearing, regardless of the reasons for that absence or, contrary to Geist, 310 Or at 189-90, whether the parent was prejudiced as a result. That position is untenable.
The dissent argues that we thus are eliminating the “fundamental fairness” standard for evaluating inadequate-assistance-of-counsel claims. 269 Or App at 480-81 (Egan, J., dissenting) (“Under the majority view, if the parent’s motion to set aside the judgment is denied, the parent’s appeal of that denial would not be reviewed for fundamental fairness' — as it would be in a direct appeal of an inadequate-assistance-of-counsel claim — but instead would be reviewed under a far more deferential abuse of discretion standard.”). The dissent is wrong. The “abuse of discretion” standard of review does not allow us to ignore the “fundamental fairness” legal standard established by the Supreme Court in Geist. In other words, it would not be within the trial court’s range of permissible discretion to deny a parent the fundamental fairness guaranteed by Geist, and we would be obliged to so hold if confronted with such a circumstance.