Dept. of Human Services v. B.A.S.

• Decision Date: 25 November 2009
• Docket Number: 0600167M.,A142307.,9700237JV5,9700237JV3.,A141515 (Control).,0600168M.,9700237JV4.
• Citation: 221 P.3d 806,232 Or. App. 245
• Parties: In the Matter of K.A.S., K.P.S., and J.C.S., III, Minor Children. DEPARTMENT OF HUMAN SERVICES, Respondent, v. B.A.S., fka B.S.; and J.S., Appellants. In the Matter of K.A.S., K.P.S., and J.C.S., III, Minor Children. Department of Human Services, Petitioner-Respondent, v. J.S., Appellant.
• Court: Oregon Court of Appeals

221 P.3d 806

232 Or. App. 245

In the Matter of K.A.S., K.P.S., and J.C.S., III, Minor Children.

DEPARTMENT OF HUMAN SERVICES, Respondent, v. B.A.S., fka B.S.; and J.S., Appellants.

In the Matter of K.A.S., K.P.S., and J.C.S., III, Minor Children.

Department of Human Services, Petitioner-Respondent, v. J.S., Appellant.

9700237JV3.

9700237JV4.

9700237JV5

Petition Numbers 0600167M.

0600168M.

A141515 (Control).

A142307.

Court of Appeals of Oregon.

Argued and Submitted September 2, 2009.

Decided November 25, 2009.

Megan L. Jacquot argued the cause and filed the brief for appellant J.S.

Daniel J. Casey argued the cause and filed the brief for appellant B.A.S.

Inge Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

ARMSTRONG, J.

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.

"* * * * *

"(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., 225 Or.App. 115, 200 P.3d 567, rev. den., 346 Or. 157, 206 P.3d 191 (2009) (the direct appeal). After the direct appeal was briefed and argued, we, on our own motion, ordered a new transcript to be prepared from the audio recording of the termination trial because of concerns that had been raised about the accuracy of the original transcription. Id. at 127, 200 P.3d 567. That order, dated July 14, 2008, also allowed the parties to move to correct the new transcript pursuant to ORS 19.370(5) and to submit supplemental briefing, after the new transcript settled, for the purpose of modifying their previous arguments in light of any differences between the two transcripts. The new transcript settled on August 29, 2008, and mother and the state each submitted supplemental materials in accordance with the order; father declined to do so.

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, 2009-6 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 parental rights and for new trials on the petitions to terminate parental rights."

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., 215 Or.App. 146, 168 P.3d 798 (2007) (deciding appeal of trial court's denial of motion to set aside a judgment under ORS 419B.923). On August 13, 2009, the state filed a motion to dismiss parents' appeals, asserting that, because adoption proceedings involving the children were completed on August 5, 2009,² the case is moot under ORS 419B.923(3). According to the state, ORS 419B.923(3) prohibits the juvenile court from setting aside the termination judgment—given the intervening adoption—and, as a result, our decision in this appeal can have no practical effect on the rights of the parents. In other words, even if we were to reverse and remand the juvenile court's denial of either of parents' motions, on remand, the juvenile court now lacks the authority—by virtue of ORS 419B.923(3)—to set aside...