369 P.3d 419
Or. Ct. App.2016Background
- DHS filed petitions to terminate mother’s parental rights to two children after dependency proceedings and adoption was set as permanency plan. Mother resided in Arizona.
- Mother was served with the petitions and summonses that warned the court could terminate parental rights in the parent’s absence if the parent failed to appear. Trial was set for March 31, 2015 at 9:00 a.m.; mother received written and verbal notice.
- Mother planned to fly to Oregon for trial but did not appear at 9:00 a.m.; the court waited two hours, then proceeded with trial in her absence.
- Mother’s counsel reported emails indicating (1) a late-night email stating mother’s flight had arrived and she would meet counsel before trial, and (2) no contact thereafter; counsel checked flight records confirming a flight arrived 11:45 p.m. the night before.
- Later the same day counsel filed motions to set aside the termination judgments, supported by affidavits stating mother mistakenly believed the trial was on April 1; the juvenile court denied the motions and entered termination judgments.
Issues
| Issue | Mother’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether mother’s failure to appear was excusable neglect under ORS 419B.923(1)(b) | Mother: she made a reasonable, good‑faith mistake and thought trial was April 1 | DHS: mother had notice, emails suggested she knew trial was March 31; explanation is contradicted by her own communications | Court: Affirmed. Record contains inconsistent statements by mother, so excusable neglect not established as a matter of law; juvenile court did not abuse discretion |
| Whether trial court had authority to proceed in mother’s absence (unpreserved challenge) | Mother: challenges authority to proceed in her absence | DHS: statutory summons and ORS allow proceeding and termination in parent’s absence after notice | Court: Challenge rejected (unpreserved); no discussion |
Key Cases Cited
- State ex rel Dept. of Human Services v. G. R., 224 Or. App. 133 (2008) (excusable neglect covers reasonable, good‑faith mistakes about time or place of dependency proceedings)
- Dept. of Human Services v. K. M. P., 251 Or. App. 268 (2012) (a reasonable, good‑faith mistake as to hearing time can constitute excusable neglect)