In this consolidated appeal, mother and father (parents) appeal the juvenile court’s denial of their motions under ORS 419B.923 to set aside a judgment terminating their parental rights to their three children. The state has filed a motion to dismiss the appeal as moot under ORS 419B.923(3), given the intervening adoption of the children. Parents oppose the state’s motion, arguing that application of ORS 419B.923(3) in this case violates procedural due process. As explained below, we agree with the state that the appeal is moot and therefore dismiss parents’ appeals.
Because the parties’ dispute centers on ORS 419B.923, it is helpful to first set out the relevant text of that statute. It provides, in part:
“(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, orders 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 issued.
“(2) A motion to modify or set aside an order or judgment or request a new hearing must be accompanied by an affidavit that states with reasonable particularity the facts and legal basis for the motion.
“(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 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.
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“(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. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court’s order or judgment in the appellate court within seven days of the date of the trial court order or judgment. Any necessary modification of the appeal required by the court order or judgment must be pursuant to rule of the 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.”
With that statutory background in mind, we turn to the facts and procedural history of this case. Mother’s and father’s parental rights to their three children — all under the age of four at the time of trial — were terminated on the basis of unfitness and neglect, following an eight-day trial in January 2007. Mother and father appealed the resulting termination judgment.
See State ex rel Dept. of Human Services v. J. S.,
Meanwhile, in the juvenile court, mother and father filed the two post-judgment motions that are the subject of this appeal. First, on September 2, 2008 — -just a few days after the new transcript in the direct appeal settled — mother and father filed a pro se “Motion for New Trial Under ORS 419B.923[,] ORS 419A.200[, and the] 14th Amendment [to the] United States Constitution.” 1 The motion asserted that “the oral record of the previous termination trial is not sufficiently adequate to provide the parents with a transcript which represents a full, true and accurate record of the proceedings, thus denying them their statutory and constitutional rights to appeal the judgment terminating their parental rights.” That assertion was based, in part, on the many times that the words “unintelligible” or “inaudible” appeared in the transcript, indicating missing portions of the record. In support of their motion, parents attached, among other things, a letter from an asserted forensics expert expressing concerns about the audio-recording system used to record the termination trial and concluding that, “[w]ith the substantial number of places where the record is unintelligible, from either system failure or operator error, it is not possible for the transcripts to represent a full, true and accurate record of the proceedings[.]”
Neither parent served a copy of the motion on this court as required by the statute. See ORS 419B.923(7) (“The moving party [of a motion to modify or set aside a judgment under ORS 419B.923(1)] shall serve a copy of the motion on the appellate court.”). However, over three months later, on December 22,2008, mother filed a motion in this court to hold the direct appeal in abeyance, noting that the juvenile court had scheduled a hearing on parents’ post-judgment motion for January 13, 2009. See ORAP 2.22(2)(b) (“Any party to the appeal may request the appellate court to hold the appeal in abeyance pending disposition of the motion [under ORS 419B.923] or allow the appeal to go forward.”). We denied that motion, and, on January 7, 2009, affirmed the termination judgment in a written opinion.
On January 13, 2009 — six days after we issued our opinion affirming the termination judgment — the juvenile court held a hearing on parents’ motion to set it aside. At the hearing, the state moved to dismiss parents’ motion, and the court ruled in favor of the state. Referring to our order requiring the preparation of a new transcript of the termination trial and allowing the parties to submit supplemental briefing on direct appeal, the court concluded that “the harm that’s been complained about has been remedied or there was an opportunity to remedy the harm at the appellate level.” The court further concluded that there was no “showing of error or unfairness or miscarriage of justice at this point” and “the motion probably is not timely, as well.” On February 9, 2009, the court entered a judgment denying parents’ “motions to set aside judgments terminating
The second motion that is the subject of this consolidated appeal was filed by parents in the juvenile court on April 28, 2009 — a few weeks after the Supreme Court denied review of our decision in the direct appeal, but before the appellate judgment issued on June 15, 2009. That motion also sought relief from the termination judgment under ORS 419B.923. Alleging “newly discovered evidence,” parents (once again appearing pro se) asserted that they were denied a “fundamentally fair proceeding” because, according to billing statements from the original transcriptionist, father’s appellate counsel did not receive the entirety of the original transcript of the termination trial. The juvenile court concluded that it lacked jurisdiction “to hear further matters in the termination of parental rights proceedings,” and, on April 30, 2009, entered an order dismissing parents’ motion.
Mother and father now appeal the February 9 judgment and the April 30 order.
See State ex rel Juv. Dept. v. D.
J.,
Parents apparently agree that, as a statutory matter, ORS 419B.923(3) precludes the juvenile court from addressing their entitlement to have the termination judgment set aside under ORS 419B.923(1). However, parents assert that “the denial of [their] right to procedural due process in the termination appeal precludes the procedural bar in ORS 419B.923(3) from operating in the first place.” They reason that,
“[i]f the lack of a full and accurate trial transcript denied [parents their] right[s] to procedural due process in the termination appeal — as [they] assert[ ] in [their] constitutional claims- — then the termination judgment is invalid, as is the subsequent adoption, and the procedural bar of ORS 419B.923(3) does not apply.”
We begin our discussion with ORS 419B.923. The parties focus on subsection (3) of that statute, which, again, provides:
“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 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.”
(Emphasis added.) No one disputes — and we agree — that the judgment terminating parents’ parental rights is a judgment “pursuant to ORS 419B.527.” 3 Thus, the directive in subsection (3) appears to unequivocally bar the court from setting aside the termination judgment in this case.
“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.”
The obvious question raised by subsection (8) is whether it operates to authorize the juvenile court to set aside the termination judgment in this case, notwithstanding the prohibition in subsection (3).
Notably, subsection (8) differentiates between the court’s power to modify a judgment and the court’s power to set aside a judgment. Specifically, a court’s power to set aside a judgment appears, from the text of the statute, to be limited to circumstances involving “fraud upon the court,” whereas the court’s inherent power to modify a judgment is restricted only by the reasonableness of the time involved. Thus, because fraud upon the court is not alleged in this case, the only way subsection (8) could — even arguably — operate to allow the court to set aside the judgment notwithstanding the intervening adoption proceedings and resulting bar of subsection (3) is if “modifying” the judgment within the meaning of subsection (8) could reasonably be understood to also encompass setting it aside.
Looking to the text in context,
State v. Gaines,
On the other hand, construing the term “modify” in the first phrase of the subsection to also include setting aside the judgment — notwithstanding the specific reference to the latter in the second phrase — does not necessarily render the second phrase “meaningless surplusage.”
State v. Stamper,
The legislative history of ORS 419B.923 provides little guidance. The statute was enacted in 2001 as part of a comprehensive bill drafted by the Juvenile Code Revision Work Group of the Oregon Law Commission to establish consistent rules of procedure in juvenile court dependency cases. See Or Laws 2001, ch 622; Audio Recording, House Committee on Judiciary Committee, Subcommittee on Criminal Law, HB 2611, Feb 15, 2001, http://www.leg.state.or.us/listn/ archive/archive.2001s/HJUDCR-200102150759.ram, at 1:04 (statement of Sen Kate Brown). As one member of the work group explained, the bill had three purposes: (1) to bring together all of the statutes governing procedures in juvenile court dependency cases into one place; (2) to make clear that the Oregon Rules of Civil Procedure do not apply in these cases; and (3) to amend existing procedural statutes by “incorporating certain provisions of the ORCP where it is appropriate and necessary to carry out the purposes of the juvenile court.” Id. at 1:08 (statement of Michael Livingston, Oregon Department of Justice).
Section 33, the provision of the bill that became ORS 419B.923, is an example of the latter. At the time, the court’s authority to modify or set aside orders in juvenile dependency cases was set out in ORS 419B.420 to 419B.426. 5 Although that series of statutes contained a provision similar to the portion of ORS 419B.923(3) at issue in this case — that is, one prohibiting the court from setting aside or modifying an order under ORS 419B.527 after an adoption petition has been granted, see former ORS 419B.426 — it did not contain a corresponding analog to subsection (8). A section-by-section analysis of HB 2611 prepared by the Oregon Law Commission explains that section 33 “substantially reworks the provisions of ORS 419B.420 and ORCP 71 to specify procedures for relief from judgments and orders.” Testimony, Senate Committee on Judiciary, HB 2611, Apr 30,2001, Ex I (Section-by-Section Analysis, House Bill 2611-1, adopted by the Oregon Law Commission, Apr 24, 2001). With respect to subsection (8) specifically, the analysis states only that it was “adopted from ORCP 71 C and allows the court to exercise its inherent power to modify or set aside for fraud on the court.” Id. 6
ORCP 71 C contains language very similar to that used in ORS 419B.923(8). It provides:
“This rule does not limit the inherent power of a court to modify a judgment within a reasonable time, or the power of a court to entertain an independent action to relieve a party from a judgment, or the power of a court to grant relief to a defendant under Rule 7 D(6)(f), or the power of a court to set aside a judgment for fraud upon the court.”
(Emphasis added.) Our case law interpreting ORCP 71C provides some support for the notion that reservation of the court’s inherent power to modify includes the power to vacate.
See, e.g., Kneefel v. McLaughlin,
The Supreme Court’s recent decision in
State v. Ainsworth,
“First, the express terms of ORCP 71 C refer to the trial court’s inherent power ‘to modify’ a judgment. Here, the trial court did not modify the terms of the judgment in any way — rather, it subsequently entered a judgment that was identical in substance to the original one. Second, even if the trial court’s reentry of the identical judgment could qualify as a ‘modification’ of the judgment, ORCP 71 C is a reservation of inherent trial court authority, not a source of inherent authority. That provision thus preserves whatever inherent authority a trial court had before the enactment of ORCP 71 C, but it does not add to that authority.”
Id.
at 532-33 (emphasis in original). Applying that principle, the court affirmed the viability of
Far West Landscaping v. Modern Merchandising,
Thus, to the extent that prior judicial interpretation of ORCP 71 C is relevant context for interpreting ORS 419B.923(8), even if the court’s power to “modify” that is recognized in that subsection can be understood to include vacating the judgment entirely, unless the court possesses inherent authority to vacate the judgment under these circumstances, subsection (8) cannot negate the express prohibition in subsection (3). Based on our cases, it does not appear that vacating the judgment in this case would fall within the scope of the court’s inherent powers.
As we explained in Kneefel:
“It is well settled that a trial court can exercise its inherent authority to vacate a judgment only to make a technical amendment, to correct an error of the court, or in other ‘extraordinary circumstances.’ Condliff v. Priest,82 Or App 115 , 118,727 P2d 175 (1986). Here, the only available ground on which the trial court could have exercised its inherent authority to vacate the 1998 judgment was if ‘extraordinary circumstances’ existed at the time of the entry of the stipulated judgment, or, arguably, if such circumstances are deemed tohave occurred subsequently. ‘Extraordinary circumstances’ typically involve some type of fraud or overreaching by one of the parties. Blue Horse v. Sisters of Providence, 113 Or App 82 , 86-87,830 P2d 611 , rev den,314 Or 727 (1992).”
The latter problem, if any, was presumptively remedied by our order of a new transcript. With regard to alleged deficiencies in the audio recording itself, as discussed in more detail below, those concerns could have been brought to our attention during the pendency of the direct appeal, before the commencement of the adoption proceedings involving the children.
See Vinson and Vinson,
In sum, given those factors, we conclude that it was not within the scope of the court’s inherent power to vacate the judgment in this case; therefore, ORS 419B.923(8) cannot be read to “override” the provision of ORS 419B.923(3) and defeat the state’s mootness argument.
The question remains whether application of ORS 419B.923(3) in this case violates parents’ rights to procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution. We understand parents to be arguing that application of ORS 419B.923(3) in this case violates due process because it denies them a mechanism for challenging the validity of the underlying termination judgment, which, if successful, would invalidate the adoption judgment. The issue thus reduces to this: Did the state violate parents’ due process in this case by conditioning the availability of the set-aside remedy under ORS 419B.923 on the absence of an adoption judgment? Or, stated another way, is due process satisfied where the ability of parents to obtain redress in the trial court under ORS 419B.923 for an alleged error in the termination trial was limited to the time period before the adoption petition was granted? 8
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ * * * interests within the meaning of the Due Process Clause of the * * * Fourteenth Amendment.”
Mathews v. Eldridge,
With regard to the first question, the United States Supreme Court is “unanimously of the view that ‘the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.’ ”
M.L.B. v. S. L. J.,
In
Geist,
the Oregon Supreme Court determined that due process demands a termination proceeding that is “fundamentally fair.”
Id.
at 189 (citing, generally,
Santosky,
Applying that standard in
State ex rel Juv. Dept. v. Kopp,
Kopp, however, is not dispositive of the precise issue presented here, that is, whether, by precluding the availability of a set-aside of the termination judgment under ORS 419B.923 after adoption proceedings have been completed, the state has denied parents a “fundamentally fair” termination proceeding in this case. We return to the Mathews factors to resolve that question.
Unquestionably, the interest at stake is a “commanding” one.
Santosky,
“Whenever it appears that an appeal cannot be prosecuted, by reason of the loss or destruction, through no fault of the appellant, of the reporter’s notes or audio records, or of the exhibits or other matter necessary to the prosecution of the appeal, the judgment appealed from may be reversed and a new trial ordered as justice may require.”
Parents became aware of the alleged deficiencies in the oral recording system while their appeal was under consideration by this court. That the newly ordered transcript on appeal had settled before they discovered the asserted problem did not preclude them from seeking relief under ORS 19.420. In short, ORS 19.420(3) provided a procedural mechanism by which to address the precise problem raised by parents’ trial court motion. And, if it was warranted, this court could have granted parents the particular relief they sought — that is, reversal of the termination judgment and a new trial. Parents, however, failed to seek relief under that statute.
With respect to parents’ second motion — alleging that father’s counsel did not receive the entirety of the original transcript as evidenced by the transcriptionist’s billing statement — those concerns were addressed by this court’s ordering of a new transcript for the purpose of considering parents’ appeal. Parents’ motion does not assert that there were similar deficiencies in the new transcript or otherwise explain why the error complained of was not adequately addressed by that process.
Moreover, after the Supreme Court denied review of our decision affirming the termination judgment, parents could have moved to stay the issuance of the appellate judgment, pending resolution of their ORS 419B.923 motions. ORS 19.270(6)(c) (appellate court may “[s]tay enforcement of the appellate judgment pending disposition of the matter by the Supreme Court of the United States or for such other time as the Oregon appellate court may deem appropriate” (emphasis added)); see also ORS 19.450(2) (“As to appeals from circuit and tax courts, the appellate judgment is effective when a copy of the appellate judgment is entered in the court’s register and mailed by the State Court Administrator to the court from which the appeal was taken.”). The effect of such a stay, if granted, would be to preclude the adoptions from proceeding, thus eliminating the problem created by ORS 419B.923(3). See ORS 109.316(1)(b), (3) (DHS, “acting in loco parentis, may consent to the adoption of a child who has been” “[permanently committed to it by order of a court of competent jurisdiction” and no other consent is required); ORS 419B.527(1)(a) (order placing child in the legal custody of an agency authorized to consent in loco parentis to the adoption of children after parental rights have been terminated is a “permanent commitment” for purposes of ORS 109.316); ORS 419B.527(2) (“If the rights of only one parent have been terminated, the authority to consent to the adoption of the ward as provided in subsection (l)(a) of this section is effective only with respect to the parent whose rights have been terminated.”).
As mother pointed out at oral argument, parents did file a motion to stay our
consideration
of the direct appeal, and that motion was denied. It does not follow from that denial, however, that it was futile for parents to request a stay of the appellate
judgment
after our decision affirming the terminations was announced and the Supreme Court denied
Understood in that context, the probable value of the continuing availability of the procedure set out in ORS 419B.923 is minimal.
Cf. Bennett v. Board of Optometry,
Finally, turning to the public interest at stake, both the United States Supreme Court and the Oregon appellate courts have emphasized that the state’s interest in finality is “unusually strong” in cases involving child custody.
See Lehman v. Lycoming County Children’s Services,
“Any delay in achieving finality in a termination case adversely affects the rights of all the parties. Delay certainly will weaken the bonds between parents and children by lengthening their separation. Whether or not the eventual result is termination, protracted litigation extends uncertainty in the child(ren)’s life. Where a termination has been affirmed on direct appeal, procedures allowing further litigation or collateral attacks would delay the finality of the termination order and, thus, also delay the possibility of permanent adoption with the probable effect of reducing the chances for successful integration into an adoptive family.”
Id.
at 186-87. Additionally, the public’s considerable interest in maintaining the finality of adoption judgments is clearly reflected in legislative enactments.
See, e.g.,
ORS 109.381(2) (restricting the ability of a party to an adoption to, “either by collateral or direct proceedings, question the validity of a judgment of adoption”); ORS 109.381(3) (providing that, one year after entry of judgment of adoption, adoption shall be binding on all persons, and no person shall question the validity of the adoption for any reason);
J. B. D.,
On balance, given the significant and profound interest in achieving finality for the children — and the alternative procedural protections that were available to parents in this case — the state did not run afoul of due process by narrowly limiting parents’ right to obtain a set-aside under ORS 419B.923 to the time period before the adoptions of the children were complete. Due process is not offended by the application of ORS 419B.923(3) in this instance.
Motion to dismiss appeals granted; appeals dismissed.
Notes
The juvenile court originally denied parents’ motion on September 5, 2008, without a hearing. On September 22, 2008, after retaining counsel, father filed a motion to reconsider the motion, and, on September SO, 2008, a “supplement” to that motion to reconsider, citing ORS 419B.923(1)(a) and (7). Mother did not originally join in father’s motion for reconsideration; instead, she appealed the court’s September 5 order denying the motion. However, she later voluntarily dismissed her appeal of that order, joined in father’s motion to reconsider, and, on January 7, 2009, filed her own “Amended Motion in Support of Motion for New Trial/Motion to Set Aside Judgment.” (Some capitalization omitted.) Evidently, parents’ motion to reconsider was granted because, as noted later, the court held a hearing on the merits of parents’ motions on January 13, 2009.
The state submitted an affidavit to that effect, which parents do not dispute.
ORS 419B.527 provides, in part:
“(1) After the entry of an order terminating the rights of the parent or parents of the ward, the court may:
“(a) Place the ward in the legal custody and guardianship of a public or private institution or agency authorized to consent in loco parentis to the adoption of the children.”
Here, the termination judgment permanently committed the children to the legal custody and guardianship of the Department of Human Services (DHS), with the authority to consent in loco parentis to their adoption.
See, e.g., ORS 419B.923(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 * * ORS 419B.923(2) (“A motion to modify or set aside an order or judgment or request a new hearing must be accompanied by an affidavit!!]”); ORS 419B.923(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 may be set aside or modified during the pendency for the adoption of the ward, nor after a petition for adoption has been granted.”) (Emphasis added as to all.)
Former ORS 419B.420 (1999), repealed by Or Laws 2001, ch 622, § 57, provided:
“Except as provided in ORS 419B.423 and 419B.426, 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.426 (1999), repealed by Or Laws 2001, ch 622, § 57, provided:
“No order pursuant to ORS 419B.527 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.”
The notion, expressed in that statement, that the court’s inherent power to modify can be exercised only in the event of fraud upon the court is decisively contradicted by the text of subsection (8). Surprisingly, the section-by-section analysis presented to the legislature does not address the interplay between subsections (3) and (8) at all; with respect to subsection (3), it states only that it “requires the motion to be made within a reasonable time,” a requirement that did not appear in former ORS 419B.420. Nor was the issue discussed during the legislature’s consideration of the bill.
Compare
Stevenson v. U. S. National Bank,
Although the statute also precludes the court from setting aside a judgment during the pendency of an adoption proceeding, the application of that condition is not at issue in this case.
ORS 419B.524 (2001) 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.”