Dep't of Human Servs. v. K.W. (In re S.J.L.)

• Jurisdiction: Oregon
• Parties: In the Matter of S.J.L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. K.W., Appellant.
• Citation: 273 Or.App. 611,359 P.3d 539
• Docket Number: Petition Number 11216J03,A158199.,11216J
• Court: Oregon Court of Appeals
• Decision Date: 16 September 2015

273 Or.App. 611

359 P.3d 539

In the Matter of S.J.L., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent

v.K.W., Appellant.

11216J

Petition Number 11216J03

A158199.

Court of Appeals of Oregon.

Argued and Submitted April 30, 2015.

Decided Sept. 16, 2015.

Caitlin Mitchell argued the cause and filed the briefs for appellant.

Cecil A. Reniche–Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

Opinion

ORTEGA, P.J.

The issue in this juvenile dependency appeal is whether the juvenile court has authority under ORS 419B.923(1) to set aside a judgment terminating parental rights because, at the time of the motion to set aside, adoption was no longer in the best interests of the child. Ultimately, we conclude that the legislature did not intend for ORS 419B.923(1) to grant the juvenile court the discretion to set aside an order or judgment in circumstances such as those alleged by mother in this case. Accordingly, while mother's concerns may well deserve legislative attention, we must affirm the ruling of the juvenile court.

The relevant facts are mostly procedural. The juvenile court took jurisdiction over S in July 2011, when S was five years old. The court terminated mother's parental rights in December 2012, after a three-day trial. Mother appealed the termination of parental rights (TPR) judgment, and we affirmed without opinion. Department of Human Services v. J.A. L., 258 Or.App. 682, 311 P.3d 1252 (2013), rev. den., 354 Or. 699, 319 P.3d 696 (2014).

Two months after the appellate judgment was entered and 16 months after the court entered the TPR judgment, mother moved to set aside the TPR judgment under ORS 419B.923(1), asserting that it would “cause harm” to S. Mother supported her motion with affidavits from S's maternal great-grandparents, who had served as S's foster parents since her removal from mother's care in 2011 and had been identified as S's designated adoptive placement by the Department of Human Services (DHS). The affidavits described a bond between mother and S that had been strengthened by participation in the Family Preservation Project at Coffee Creek Correctional Facility, where mother was incarcerated. In the great-grandparents' view, adoption was no longer in S's best interests. Mother also submitted declarations from others that purported to document the progress that she had made since the TPR judgment. Mother did not raise any concerns about the form of the TPR judgment or the fairness of the TPR proceedings that resulted in the TPR judgment.

DHS objected to mother's motion, contending, among other things, that she did not state a proper basis for relief under ORS 419B.923(1). DHS argued that the statute does not provide authority for a juvenile court to set aside a TPR judgment that was “fully litigated” by the parties when the parent has not raised any due process or fairness concerns with the underlying proceedings.

In DHS's view, such authority would jeopardize the finality of TPR judgments and delay permanency for children across the state. Alternatively, DHS maintained that, even if the statute gave the court authority to consider mother's motion, mother had failed to file her motion within a reasonable time, as required by ORS 419B.923(3).

The court denied mother's motion on purely legal grounds, concluding that ORS 419B.923(1) does not authorize the court to set aside a TPR judgment because of “changed circumstances” and, alternatively, that mother had failed to bring the motion within a reasonable time. The court concluded that ORS 419B.923(1) allows for a judgment to be set aside only in instances involving faulty procedure or notice related to the TPR proceeding, or at least some type of due process issue—not a mere change of circumstances since the time the court entered the TPR judgment. Accordingly, the court did not address the merits of mother's allegations.

Mother appeals, assigning error to the court's denial of her motion. We review the denial of a motion to set aside a judgment under ORS 419B.923 for an abuse of discretion. State ex rel. Juv. Dept. v. D.J., 215 Or.App. 146, 155, 168 P.3d 798 (2007). However, we review any underlying legal questions for legal error. Pearson v. Philip Morris, Inc., 257 Or.App. 106, 168, 306 P.3d 665 (2013), rev. allowed, 354 Or. 699, 319 P.3d 696 (2014). And in this case, the juvenile court's ruling raises only legal questions.

This case requires us to interpret ORS 419B.923, which 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 omissions. * * *

“(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.

“* * * * * *

“(3) A motion to modify or set aside an order or judgment must be made within a reasonable time except no order or judgment [providing for disposition of a ward after entry of a TPR judgment] 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.”

We recently addressed the scope of the juvenile court's authority to modify or set aside a judgment under ORS 419B.923(1), ultimately concluding that the statute granted the juvenile court the discretion to set aside a default TPR judgment that the court had improperly entered. Dept. of Human Services v. A.D.G., 260 Or.App. 525, 317 P.3d 950 (2014). In that case, the mother had failed to appear at a pretrial hearing, so the court entered an order of default against her. When she later appeared at a prima facie TPR hearing, the court precluded her from participating and entered a TPR judgment at the end of the hearing, noting that “mother failed to appear.” Id. at 531, 317 P.3d 950. The mother's attempt to appeal that TPR judgment was then precluded by State ex rel. Juv. Dept. v. Jenkins, 209 Or.App. 637, 645–46, 149 P.3d 324 (2006), rev. den. sub nom. State ex rel. Juv. Dept. v. D.C.J., 342 Or. 416, 154 P.3d 722 (2007) (failure to appear at a prima facie TPR hearing precludes appeal of the resulting default TPR judgment). She subsequently moved to set aside the default TPR judgment under ORS 419B.923(1) ; the juvenile court denied her motion.

On appeal, the parties disputed the scope of the juvenile court's authority to set aside the default TPR judgment under ORS 419B.923(1). A.D.G., 260 Or.App. at 534, 317 P.3d 950.

To resolve that issue, we analyzed ORS 419B.923(1) according to our accepted principles of statutory interpretation. See State v. Gaines, 346 Or. 160, 171–72, 206 P.3d 1042 (2009) (to determine legislative intent we examine the text of the statute in context, and in light of any legislative history).

We noted that, by its terms, subsection (1) did not establish any specific limit on the court's authority to set aside an order or judgment. A.D.G., 260 Or.App. at 536, 317 P.3d 950. Further, we explained that, although the statute lists three specific reasons for setting aside a judgment—clerical mistakes, excusable neglect, and newly discovered evidence—that list was not exclusive, and the legislature's use of “include, but are not limited to,” indicated that those examples “do not circumscribe the broad discretion that the subsection otherwise bestows on a juvenile court.” Id.

Next, we examined the legislative history of ORS 419B.923(1) —in particular, changes made by House Bill (HB) 2611 (2001) to the juvenile code “as part of the effort to overhaul the procedural rules applicable to juvenile dependency and TPR cases.” Id. at 537, 317 P.3d 950. One particular purpose of those changes was to clarify that the Oregon Rules of Civil Procedure did not apply in dependency and TPR cases. Id. The legislative history revealed that the legislature had intended to retain the broad discretion to set aside orders or judgments in juvenile dependency cases that had existed in the predecessor statute to ORS 419B.923(1) —former ORS 419B.420 (1999), repealed by Or. Laws 2001, ch. 622, § 57¹ —and to reject the idea that the bases for setting aside or modifying an order or judgment were limited exclusively to the reasons provided in ORCP 71(A) (providing for correction of clerical mistakes) or ORCP 71(B) (providing for relief based on mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or misconduct of an adverse party). 260 Or.App. at 537–39, 317 P.3d 950 (citing legislative testimony by a workgroup member that the statute “expands the grounds” upon which a parent may move to set aside a juvenile court's order “beyond those authorized by ORCP 71, which are limited”) (emphasis in original). Accordingly, we concluded that the legislative history supported our understanding that the legislature intended to bestow broad authority on the juvenile court under ORS 419B.923(1). Id. at 539, 317 P.3d 950.

After noting that “[w]e are not called on to decide a case at the outer boundaries of that broad authority,” we turned to the facts of A.D.G., concluding that

“in this TPR case, mother raises a serious question regarding the juvenile court's authority to enter the default judgment she seeks to set aside and a colorable claim of a violation of her due process rights by virtue of the juvenile court's interpretation of its authority to enter judgment without allowing her the opportunity to defend against the allegations in the TPR petition at the hearing she attended. Those are

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