Department of Human Services v. T. L., 358 Or. 679

Background

Father’s three children entered foster care after parents’ substance relapses; father stipulated to juvenile court jurisdiction and was ordered services and review hearings.
At an August 29, 2013 permanency hearing, father, mother, and father’s appointed counsel were absent at the start; the court waited, then proceeded and changed permanency plans (APPLA for oldest, guardianship for others).
Father and mother arrived later; father made an unsworn statement but did not mention counsel’s absence or oppose the changes. Permanency judgments were entered on September 6, 2013.
Father did not move to set aside the judgments under ORS 419B.923 but appealed, asserting for the first time on direct appeal that his trial counsel was inadequate for failing to appear at the permanency hearing.
The Court of Appeals held that under ORS 419B.923 the adequacy claim must be raised first in juvenile court; father sought review.
The Oregon Supreme Court reversed the Court of Appeals, holding that (1) Geist’s rationale extends to permanency judgments changing plan from reunification to guardianship or APPLA, (2) ORS 419B.923 does not foreclose raising inadequate-assistance claims for the first time on direct appeal, and (3) where the record is insufficient, appellate courts may remand or affirm without prejudice to allow a juvenile-court proceeding under ORS 419B.923.

Issues

Issue	Plaintiff's Argument (T.L.)	Defendant's Argument (DHS)	Held
May a parent raise an inadequate-assistance-of-counsel claim for the first time on direct appeal from a permanency judgment changing plan from reunification to guardianship or APPLA?	Geist permits first raising such claims on direct appeal; same logic applies to permanency judgments.	ORS 419B.923 provides a juvenile-court procedure to set aside judgments and thus requires raising the claim first there.	Yes. Geist’s rationale applies; ORS 419B.923 does not bar raising the claim initially on direct appeal.
Does ORS 419B.923 create an exclusive, mandatory trial-level remedy that displaces direct appellate review of unpreserved inadequate-counsel claims?	The statute broadens trial-court authority but was not intended to be exclusive or to eliminate direct-appeal review.	The statute’s allowance for motions during appeals supports requiring trial-court resolution first.	No. The statute authorizes trial-court relief but does not create an exclusive exhaustion requirement.
When an inadequate-counsel claim is raised on direct appeal but the record is inadequate, what should appellate courts do?	Appellate courts may remand for development under ORS 419B.923 or affirm without prejudice to allow juvenile-court proceedings.	DHS emphasizes juvenile court is the appropriate forum to develop facts and make credibility findings.	If record is insufficient, appellate court may remand for an ORS 419B.923 proceeding or affirm without prejudice to renewal in juvenile court.
Was father entitled to relief on the record before the Court?	Counsel’s unexplained absence was serious and prejudicial; due process and fundamental fairness were at issue.	Father failed to show prejudice; absence alone is insufficient without record development.	Record was insufficient to determine prejudice or excuse; remand to juvenile court under ORS 419B.923 required, with appointed counsel and coordination with appellate court.

Key Cases Cited

State ex rel Juv. Dept. v. Geist, 310 Or 176 (1990) (authorized raising unpreserved inadequate-assistance claims on direct appeal in termination cases to protect children’s interest in finality)
State ex rel SOSCF v. Stillman, 333 Or 135 (2001) (statutory requirements in permanency proceedings require child-specific evidence and expert testimony)
State v. Kurtz, 350 Or 65 (2011) (interpretation of nonexclusive statutory lists and use of “including but not limited to”)
Peeples v. Lampert, 345 Or 209 (2008) (exception to preservation where party has no practical ability to raise issue at trial)