Dep't of Human Servs. v. B. F. (In re P. F.)

• Decision Date: 23 March 2022
• Docket Number: A176139
• Citation: 318 Or.App. 536,507 P.3d 350
• Parties: In the MATTER OF P. F., a Child. Department of Human Services, Petitioner-Respondent, v. B. F., Appellant.
• Court: Oregon Court of Appeals

318 Or.App. 536

507 P.3d 350

In the MATTER OF P. F., a Child.Department of Human Services, Petitioner-Respondent,

v.B. F., Appellant.

A176139

Court of Appeals of Oregon.

Submitted February 7, 2022.

March 23, 2022

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Joel C. Duran, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge.

AOYAGI, J.

Father appeals a juvenile court judgment asserting dependency jurisdiction over his child. Father contends that the juvenile court failed to provide him with actual notice of the trial readiness hearing and then, when he failed to appear, wrongly adjudicated the dependency petition in his absence and made his child a ward of the court. Alternatively, father contends that the court erred in ordering him to complete certain evaluations and other tasks. For the following reasons, we vacate and remand the portion of the dispositional judgment that orders father to submit to a psychological evaluation, and we otherwise affirm.

We briefly describe the relevant procedural facts. The Department of Human Services (DHS) filed a dependency petition regarding father's child. Father was summoned and personally appeared at a status conference on December 7 and at a trial readiness hearing on January 11. Because of the COVID-19 pandemic, both proceedings were held by telephone. At the December 7 status conference, father was told the consequences of not appearing for the trial readiness hearing. At the January 11 hearing, everyone appeared, but mother requested a trial continuance, to which no one objected, and all parties agreed to resetting the trial dates to April 28, 29, and 30. The court then set a trial readiness hearing for April 19. The court repeated all of the upcoming dates on the record, and it explained to the parties the consequences of failing to appear. The court then asked the parties to confirm that they had heard and written down the dates. Neither father nor mother were heard to respond. With the court unable to determine why no responses were heard, DHS's counsel offered to prepare an order with the dates for the court to mail to the parties. The court agreed that that was a good idea, given the lack of verbal confirmation, and said that it would watch for the order. The record contains no indication that the intended written order was ever prepared or mailed, and the state acknowledges the lack of a written order.

On April 19, father failed to appear for the trial readiness hearing. Father's counsel represented to the court that he had "been in conversations with" father, had given father the call-in information, and had expected father to call in. Father's counsel further stated that there had been "some discussion" with father about his possibly waiving trial rights, that he had sent father the form to do so, but that he had been "unable to confirm with [father] today" whether father had decided to waive. In father's absence, the juvenile court granted DHS's request to proceed with its prima facie case, adjudicated the dependency petition, and made father's child a ward of the court. The court immediately proceeded to disposition, including issuing various orders directed to father.

Father appeals. In his first three assignments of error, father contends that the juvenile court erred by not giving him actual notice of the April 19 trial readiness hearing, by nonetheless proceeding to adjudicate the petition in his absence, and by then making the child a ward of the court. We reject those arguments as explained below.

Although father's counsel could not participate in the actual hearing in father's absence, Dept. of Human Services v. S. C. T. , 281 Or. App. 246, 261, 380 P.3d 1211 (2016), rev. den. , 360 Or. 752, 388 P.3d 723 ; 360 Or. 851, 389 P.3d 1137 (2017), father's counsel was present at the scheduled start time for the hearing, and he was able to tell the court whether father intended to be present or, conversely, alert the court to a potential notice problem. We therefore agree with DHS that father's claims of error based on lack of notice needed to be preserved, that they were not, and that our review is limited to plain error. See ORAP 5.45(1) (allowing for "plain error" review).

On this record, it is unknown whether, at the January 11 hearing, father heard the trial-readiness date and the court's warning about failure to appear; if so, he received notice. It is possible that father heard but did not respond. It is possible that father heard and responded but that the court could not hear him due to a technical issue. It is possible that father lost his connection or otherwise could not hear the court. Such uncertainty is problematic, because one requirement for error to be "plain" is that it is not necessary to go outside the record or select among competing inferences. State v. Terry , 333 Or. 163, 180, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). In any event, plain-error review is discretionary, and we would not exercise our discretion here. It is entirely possible that father heard the court say the April 19 hearing date and the consequences of failing to appear. Father also had at least some awareness of the consequences of failing to appear for a trial readiness hearing, in that he had been told those consequences as to the January 11 trial readiness hearing. Most importantly, father's counsel's statements to the court on April 19 make clear that father was aware of the April 19 hearing and had been actively deciding whether to attend it or waive his rights. That fact weighs decisively against exercising discretion.

We turn to the remaining nine assignments of error. Father argues that the juvenile court erred by ordering father to complete a drug and alcohol evaluation; provide...