In The Matter of M.R.L v. N.L

• Decision Date: 01 September 2010
• Docket Number: 00389613,00389607,00389611,00389606,00389609,A143877.,00389604
• Citation: 239 P.3d 255,237 Or.App. 133
• Parties: In the Matter of M.R.L., E.Y.L., Y.I.L., A.J.L., M.L.L., and S.E.L., Children. STATE of Oregon, Petitioner-Respondent, v. N.L. and B.Z.L., Appellants.
• Court: Oregon Court of Appeals

237 Or.App. 133

239 P.3d 255

In the Matter of M.R.L., E.Y.L., Y.I.L., A.J.L., M.L.L., and S.E.L., Children STATE of Oregon, Petitioner-Respondent v N.L. and B.Z.L., Appellants.

00389604, 00389606, 00389607, 00389609, 00389611, 00389613; Petition Number J13025; A143877.

Court of Appeals of Oregon.

Argued and Submitted April 15, 2010.

Decided Sept. 1, 2010.

Shannon Storey, Deputy Public Defender, argued the cause for appellant N.L. On the brief were Peter Gartlan, Chief Defender, and Holly Telerant, Deputy Public Defender, Appellate Division, Office of Public Defense Services.

Ann Lechman-Su argued the cause and filed the brief for appellant B.Z.L.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.

ORTEGA, J.

Father and mother appeal from a juvenile court judgment taking jurisdiction over their six children: M.R., born in August 1996; E, born in September 1998; M.L., born in July 2000; Y, born in January 2004; A, born in February 2007; and S, born in November 2008. After father and mother filed notices of appeal, the juvenile court entered a judgment amending the jurisdictional/dispositional judgment. As we explain below, we conclude that the juvenile court lacked authority to amend the judgment as it did; that father's trial counsel performed inadequately by misstating the law concerning the applicability of the Indian Child Welfare Act (ICWA); that, as to the juvenile court's finding of medical neglect, father suffered no prejudice as a result of counsel's performance; and that, as to additional findings required by ICWA, father did suffer prejudice. Because the jurisdictional/dispositional judgment did not comply with ICWA as to evidence and findings required under ORS 419B.340, we reverse and remand.

To determine which judgment is at issue on appeal, we begin with the procedural history. In July 2009, DHS was awarded protective custody of the children. In a subsequent shelter order entered later that month, the juvenile court determined that the children were Indian children under ORS 419A.004(13), which defines “Indian child” as a child who either (a) is a member of a tribe or (b) is eligible for membership and is the biological child of a member of a tribe. Fatheris a member of the Choctaw Nation of Oklahoma, and the court found by clear and convincing evidence that the children were enrolled or eligible for enrollment. The court further found, by clear and convincing evidence, that removal from the home was in the children's best interest because the parents' continued custody was likely to result in serious emotional or physical damage to the children and that, under the circumstances, no efforts would have prevented the need for removal or made possible the return of the children.

The jurisdictional hearing was held in October. Near the end of the hearing, the court and counsel discussed the applicability of ICWA. A DHS caseworker testified that she had inquired of the Choctaw Nation whether the childrenwere eligible for enrollment, had received conflicting information in response, and was gathering information to apply for enrollment; the Choctaw Nation did not intend to intervene until the children were enrolled. The caseworker believed that there was a “strong possibility” that they were eligible but that, “based on * * * letters from the Tribe, there is still some confusion about that matter.”

The juvenile court made no findings about enrollment eligibility but did express concern about whether ICWA applied, which would trigger the requirements of proof by clear and convincing evidence and testimony from a qualified expert. ORS 419B.340(7). Counsel for all parties (father, mother, the children, and the state)-apparently confused by the tribe's lack of intervention-responded by agreeing that the applicable evidentiary standard was a preponderance of the evidence. The court accordingly applied that standard and made oral findings that, under ORS 419B.100(1)(c), the children's conditions and circumstances were such as to endanger their welfare because mother and father had (1) failed to provide dental care, (2) failed to provide for the children's medical needs, and (3) failed to provide for their educational needs. The court noted that it would find medical neglect by clear and convincing evidence, if needed. The court subsequently entered a “Judgment of Jurisdiction/Disposition (Non-ICWA).” (Uppercase and boldface omitted.) Mother and father appealed, and father argued, in part, that the juvenile court had erred by failing to apply ICWA.

Meanwhile, after the entry of the jurisdictional judgment and the filing of the notices of appeal in this case, mother filed in the juvenile court a “Motion for Reconsideration of ICWA Ruling at Jurisdictional Hearing.” She contended that the juvenile court had “the authority to correct an error or mistake at any time under ORS 419B.923, even during the pendency of an appeal.” DHS also received information that the children were eligible for enrollment and that the Choctaw Nation intended to intervene. The juvenile court held a hearing on April 13, 2010 (two days before oral argument in the appeal of the jurisdictional judgment), decided that ICWA applied, and set a date for an evidentiary hearing under ICWA standards.

In this court, the state filed a notice of probable mootness, arguing that the juvenile court's actions mooted father's assignment of error concerning ICWA. Attached to that notice is an unsigned order stating, in part, that the juvenile court

“finds that at the original jurisdictional hearing, * * * the case should have been treated as an ICWA case pursuant to [ORS] 419B.878, because there was sufficient ambiguity on the record as to the applicability of ICWA, the underlying facts as to whether the children were in fact ‘Indian children’ under the statute, and * * * the state concedes that there was ‘a suggestion of Indian heritage.’ ”

The state indicated that the parties had agreed to the order and that the juvenile court was expected to sign it on the morning of April 15. Although no party has provided this court with a signed copy of the order, OJIN indicates that, on April 15, the juvenile court signed an “Order grant counsel for mothers mo to reconsider.” That caption corresponds to the caption of the unsigned order that was attached to the state's notice of probable mootness, which was “Order Granting Counsel for Mother's Motion for Reconsideration Regarding the ICWA Issue at Jurisdictional Hearing.” (Uppercase omitted.)

On June 1, the juvenile court held a hearing in which it heard qualified expert testimony from a Choctaw Nation social worker. The court then entered an amended judgment of jurisdiction; applying a standard of clear and convincing evidence, the court found that DHS had made active efforts and that mother and father had failed to provide for children's medical needs, thereby endangering their health and welfare.

After the entry of the amended judgment, the state filed in this court a supplemental notice of probable mootness, arguing that the amended judgment mooted father's assignment of error regarding ICWA. This court inquired about the juvenile court's authority to enter the amended judgment during the pendency of the appeal. ¹ In response,father contended that the juvenile court lacked authority to do so. Mother and the state argued that the juvenile court had authority under ORS 419B.923(1)(c) because of newly discovered evidence-namely, statements from the Choctaw Nation that the children are eligible for enrollment. The state also argued that, under ORS 419B.923(8), the juvenile court had inherent authority to enter an order regarding ICWA and to modify the judgment. ²

We conclude that neither of those asserted bases for entering an amended judgment during the pendency of the appeal is supported by the record before us and that the juvenile court lacked authority to enter that amended judgment. In some circumstances, ORS 419B.923 allows a juvenile court to modify or set aside an order or judgment after the filing of a notice of appeal:

“(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.

“ * * * * *

“(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.^{[ 3 ]} “(8) ...