380 P.3d 1211
Or. Ct. App.2016Background
- DHS served parents with summons requiring personal appearance to admit or deny dependency petition and warning that attorneys may not appear in their place.
- Parents appeared at multiple early hearings to admit or deny the petition but failed to appear at the December 3 call and the December 17 rehearing on the merits. Warrants existed for their arrest.
- A juvenile court referee heard DHS’s prima facie case in parents’ absence; parents’ counsel objected to hearsay during testimony but the court overruled those objections and established jurisdiction.
- Parents appealed, arguing their attorneys should have been allowed to interpose evidentiary objections on their behalf despite parents’ absence.
- DHS argued the appeal was not permitted because parents effectively failed to answer; alternatively DHS argued counsel could not appear for absent parents under ORS 419B.815.
- The court held the judgments were appealable (parents had answered as directed) but affirmed on the merits: when a parent is ordered to appear personally and fails to do so, counsel may not appear in the parent’s place to contest the prima facie case.
Issues
| Issue | Parents' Argument | DHS' Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction exists when parents failed to appear at merits hearings | Parents answered summons by appearing earlier to admit/deny; thus appealable | Absence at merits hearing equals "want of an answer" and bars appeal under ORS 19.245(2) | Appealable — parents answered as summons directed, so ORS 19.245(2) inapplicable |
| Whether counsel may appear and interpose evidentiary objections when parent ordered to appear personally but is absent | Counsel should be able to defend and object; statutory text does not bar counsel from contesting evidence | ORS 419B.815(7)-(8) bars appearance through counsel when parent ordered to appear personally; absence allows court to establish jurisdiction | Held for DHS — when parent fails to appear personally as ordered, counsel may not stand in to contest the prima facie case; objections overruled was proper |
| Effect of ORS 419B.310(3) (burden of proof) on counsel participation when parent absent | Preponderance-of-evidence rule requires court to consider objections regardless of absence | More specific provisions (419B.815) control and limit counsel participation | ORS 419B.815 controls; general burden rule does not override the personal-appearance requirement |
| Availability of relief for excusable nonappearance | Parents argued statute amendments were aimed only at preventing delays, not foreclosing counsel participation | DHS and legislative history show absence can have default-like consequence; courts retain discretion to grant continuances or set aside judgments for excusable neglect | Court noted discretion exists to consider reasonable excuses or motions to set aside, but no reasonable excuse was offered here; default-like consequence stands |
Key Cases Cited
- Dept. of Human Services v. N. P., 257 Or App 633 (appellate review standard for juvenile proceedings)
- State ex rel. Juv. Dept. v. Jenkins, 209 Or App 637 (appeal dismissed where parent failed to appear as directed)
- Dept. of Human Services v. C. Z., 236 Or App 436 (standard of review for legal questions in DHS cases)
- Dept. of Human Services v. A. D. G., 260 Or App 525 (default consequences in juvenile context; termination authority discussed)
- State ex rel. Juv. Dept. v. Mertes, 162 Or App 530 (termination-after-default authority)
- Dept. of Human Services v. T. M. B., 276 Or App 641 (setting aside juvenile judgments for excusable neglect)
- Powers v. Quigley, 345 Or 432 (specific statute controls over general statute)
- State v. Gaines, 346 Or 160 (text, context, legislative history in statutory interpretation)
- State v. Jancsek, 302 Or 270 (attorney authority and client representation)