361 P.3d 58
Or. Ct. App.2015Background
- Mother’s TPR (termination of parental rights) trial began Dec 17, 2014; she personally attended the first two days.
- On Dec 18 mother sought medical care after an assault; court continued the trial to the afternoon and later scheduled a brief status check for Dec 29 to reset dates.
- Mother’s counsel appeared on Dec 29 but mother did not; DHS moved for default and the court set a prima facie default hearing for Dec 31.
- Mother did not appear Dec 31 (her counsel did not participate at the termination hearing); the court found mother in default based on her two nonappearances and terminated her parental rights to daughter Z.
- On appeal the court considered whether ORS 419B.819(7) authorized default and termination in mother’s absence, taking into account DHS’s concession that mother was not required to appear personally on Dec 29.
Issues
| Issue | Mother’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether Dec 29 status conference was a "hearing related to the petition" requiring mother’s personal appearance | Dec 29 was not such a hearing; mother’s appearance through counsel sufficed | Statute covers scheduled hearings; appearance may be required depending on court order | Court concluded DHS conceded Dec 29 did not justify a personal-attendance default, so Dec 29 could not support termination |
| Whether mother’s failure to appear in person on Dec 29 authorized termination on Dec 31 | Failure to appear Dec 29 did not occur because counsel appeared and personal attendance was not ordered | Default on Dec 29 supported proceeding without mother; any error harmless because counsel participated and Dec 31 notice imputed | Court reversed: Dec 29 default was material to decision and DHS conceded Dec 29 default was unauthorized |
| Whether Dec 31 termination was authorized by mother’s failure to appear at that hearing | Mother lacked actual notice of Dec 31; no procedure was used to compel personal attendance; therefore no authority to terminate in her absence | Mother’s counsel knew of Dec 31 and that knowledge should be imputed to mother; alternatively any Dec 29 error was harmless | Court held there was no basis to find mother in default on Dec 31 either; no evidence mother had notice and statute’s requirements were not met |
| Whether error was preserved/plain error and whether appellate court should correct it | Requests plain-error review; argues trial court deprived her of fundamentally fair proceeding | Argues error unpreserved and not plain; alternatively harmless or imputed notice excuses error | Court found the legal error plain, apparent on the record, and serious enough (fundamental liberty interest) to correct; judgment reversed and remanded |
Key Cases Cited
- Dept. of Human Services v. M. H., 266 Or App 361 (legal standard for reviewing statutory interpretation in juvenile cases)
- State v. Brown, 310 Or 347 (plain-error test: legal error, apparent, and on the face of the record)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (factors guiding exercise of discretion to correct plain error)
- State ex rel Juv. Dept. v. Geist, 310 Or 176 (noting the gravity of permanent termination of parental rights)