K. H. H. v. K. H. H.

• Jurisdiction: Oregon
• Parties: In the MATTER OF K. H. H., Jr., aka M. H., a Child. Department of Human Services, Petitioner-Respondent, v. K. H. H., Appellant.
• Citation: 466 P.3d 698,304 Or.App. 530
• Docket Number: A172005
• Court: Oregon Court of Appeals
• Decision Date: 03 June 2020

304 Or.App. 530

466 P.3d 698

In the MATTER OF K. H. H., Jr., aka M. H., a Child.

Department of Human Services, Petitioner-Respondent,

v.K. H. H., Appellant.

A172005

Court of Appeals of Oregon.

Argued and submitted December 23, 2019.

June 3, 2020

Tiffany Keast, Deputy Public Defender, argued the cause for appellant.Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

Philip Michael Thoennes argued the cause for respondent.On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General.

Before Lagesen, Presiding Judge, and Powers, Judge, and Brewer, Senior Judge.

POWERS, J.

In this juvenile dependency case, father appeals from the juvenile court's denial of his motion to set aside a jurisdictional judgment as to his child, M.¹On appeal, father argues that the juvenile court erred when it concluded that (1) the motion and accompanying affidavit lacked the requisite "reasonable particularity" in stating the reasons for the motion, and (2) the motion was not made within a reasonable time.The Department of Human Services(DHS) concedes that the affidavit met the reasonable particularity requirement but maintains that the juvenile court did not abuse its discretion when it denied father's motion for not being filed within a reasonable time of the jurisdictional judgment.We write to address father's contention that the court erred in determining that the motion was not filed within a reasonable time, and affirm.

The facts are mainly procedural and undisputed.In November 2017, the juvenile court asserted jurisdiction over M.In July 2019, father moved to set aside that jurisdictional judgment alleging newly discovered evidence.Father's motion relied on ORS 419B.923, which provides, in part,

"(1) * * * [O]n 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:

"* * * * *

"(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 * * *."

In his declaration supporting the motion, father averred that, at the time he made admissions in the juvenile dependency cases, he was under duress from being prosecuted in a criminal case.He explained:

"At the time I made admissions in this case, I was under duress from the prosecutor in criminal case 17CR154625.I was told [by my] first criminal defense attorney * * * [that] I was looking at federal charges.He had learned this from the Assistant District Attorney on the case * * *.We now know that federal charges were only used as [a] threat and were never under consideration.

"My second attorney * * * coerced me that if I admit guilt to the juvenile case[,] it would show [the Assistant]District Attorney * * * [that] I accept responsibility for my action.This statement was made even though we had an approved Department of Human Services safety plan that put my children safely with my sister.I was led to believe that admissions in the juvenile case would lead to a downward departure in the criminal case, which would give me a fair opportunity to reunite with my children."

The juvenile court denied the motion, explaining: "Father's affidavit fails to state with particularity which newly discovered evidence in the Dependency cases allow for a new trial.Further, Father's motion was not made within a reasonable time of the jurisdictional judgment."This appeal followed.

As a threshold matter, the parties dispute the applicable standard of review.DHS asserts that State ex rel. Juv. Dept. v. D. J. , 215 Or. App. 146, 168 P.3d 798(2007), controls our standard of review for a denial of a motion to set aside a judgment under ORS 419B.923.In D. J. , we concluded that, in the context of a motion made under ORS 419B.923, "although the question of what ‘reasonable time’ means is a question of statutory construction and, thus, a question of law, the trial court's determination that father's motion was not, on the facts of this case, filed within a reasonable time is a matter committed to the court's discretion."Id. at 154-55, 168 P.3d 798.

Father contends that we should review the denial of his motion on whether it was filed "within a reasonable time" under ORS 419B.923(3) for errors of law.Although he acknowledges that D. J. held otherwise, father asserts that our standard of review should be driven by what the legislature intended the phrase "reasonable time" to mean.Relying on State v. Roberts , 231 Or. App. 263, 219 P.3d 41(2009), rev. den. , 347 Or. 608, 226 P.3d 43(2010), andState v. Johnson , 339 Or. 69, 116 P.3d 879(2005), father asserts that our reasoning in Roberts undermines D. J. such that we should now overrule D. J. and instead review the reasonable-time determination for legal error.

In Roberts , we explained that "[t]he issue under [ ORS 136.765(2009) ] is what the legislature intended when it required that the state provide notice of its intention to rely on sentence enhancement facts ‘[w]ithin a reasonable time after filing the accusatory instrument.’That is a question of law, not a matter of discretion."231 Or. App. at 268, 219 P.3d 41(third brackets in original).In Johnson , the Supreme Court explained:

"We acknowledge the temptation to treat indefinite terms like ‘good cause,’‘sufficient reason,’ and ‘reasonable period of time’ as calling for a subjective determination and, thus, as invoking personal judgment.However, it is clear that, when such terms appear in a statutory context, they are focused on real, albeit sometimes difficult to discern, legal standards: the legislature's view of what is ‘good,’‘sufficient,’ or ‘reasonable.’As such, in the absence of a factual dispute, a determination [of]‘good cause’ * * * invokes an objective standard and must be reviewed for legal error.In no case would judicial discretion play any role in the ‘good cause’ determination * * *.And, more importantly for our purposes, neither would it play any role in the ‘reasonable period of time’ and ‘sufficient reason’ determinations required by the present-day statutes."

339 Or. at 86, 116 P.3d 879(emphasis in original; footnote omitted).

We reject father's invitation to disavow D. J. and its discussion of our standard of review.First, we decided D. J. after the Supreme Court's decision in Johnson and, as father's argument appears to acknowledge, we have followed D. J. on multiple occasions since Johnson and since we decided Roberts .See, e.g. , Dept. of Human Services v. K. W. , 273 Or. App. 611, 614, 359 P.3d 539(2015), rev. den. , 359 Or. 847, 383 P.3d 849(2016)(reviewing the denial of a motion to set aside for an abuse of discretion and reviewing underlying legal questions for legal error);Dept. of Human Services v. A. D. G. , 260 Or. App. 525, 534, 317 P.3d 950(2014)(same).Second, father has not demonstrated that our decision in D. J. is wrong, let alone "plainly wrong."SeeState v. Civil , 283 Or. App. 395, 415-17, 388 P.3d 1185(2017)(discussing stare decisis and concluding that we will overrule a prior decision only if it is "plainly wrong," which is a "rigorous standard" that is "satisfied only in exceptional circumstances").Finally, the discussion in D. J. regarding our standard of review is consistent with recent cases discussing the standard of review of an analogous motion under ORCP 71.

In D. J. , we first examined ORS 419B.923(3) to determine what it means to require a motion to set aside an order or judgment to be filed with a "reasonable time."In that regard, we concluded that a court's determination includes, but is not necessarily limited to, the emotional and developmental needs of the child.215 Or. App. at 153-54, 168 P.3d 798.To reach that conclusion, we noted that the same considerations involved in a motion to set aside a civil judgment under ORCP 71 B(1) apply to a motion under ORS 419B.923.We explained:

"[G]iven the fact that this is a case that arises under the Juvenile Code, the interests of the children will always be a relevant, even primary, consideration.But, given the fact that the particular statute speaks to the reasonableness of time to file a particular motion, we conclude that, in evaluating reasonableness, we also may consider the circumstances surrounding the filing, including the length of the delay and any reasons for it."

D. J. , 215 Or. App. at 154, 168 P.3d 798.

Having concluded what the statute means, we then turned to the standard of review to evaluate the facts and circumstances.As noted above, we concluded that, although what the legislature meant by the term "reasonable time" is a question of law, the juvenile court's determination that a motion to set aside under ORS 419B.923 met that standard "is a matter committed to the court's discretion."D. J. , 215 Or. App. at 155, 168 P.3d 798.We explained:

" ‘Discretion’ allows the court to choose among several legally correct outcomes.Wells v. Santos , 211 Or. App. 413, 418, 155 P.3d 887[, rev. den., 343 Or. 160, 164 P.3d 1161](2007). If the court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the court did not abuse its discretion.Id .In these circumstances, a decision is not within the range of legally correct discretionary choices if it is unjustified by, and clearly against, reason and the evidence.Forsi v. Hildahl , 194 Or. App. 648, 652, 96 P.3d 852(2004), rev. den. , 338 Or.

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