State ex rel Juv. Dept. v. D.J.

• Decision Date: 26 September 2007
• Docket Number: 2004812663.,2004812662.,A134837.,102485M.,2004812661.
• Citation: 215 Or. App. 146,168 P.3d 798
• Parties: In the Matter of A.D.J., aka A.D.H.; S.N.J., aka S.N.H.; and D.C.J., aka D.C.H., Minor Children. STATE EX REL JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. D.J., Appellant.
• Court: Oregon Court of Appeals

168 P.3d 798

215 Or. App. 146

In the Matter of A.D.J., aka A.D.H.; S.N.J., aka S.N.H.; and D.C.J., aka D.C.H., Minor Children.

STATE EX REL JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. D.J., Appellant.

2004812661.

2004812662.

2004812663.

102485M.

A134837.

Court of Appeals of Oregon.

Argued and Submitted June 26, 2007.

Decided September 26, 2007.

Karen S. Torry, Portland, argued the cause and filed the brief for appellant.

Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent.

With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Robin L. Wolfe and Bertoni & Todd, Portland, filed the brief for minor children.

Laura B. Rufolo and Johnson Renshaw & Lechman-Su, Portland, filed the brief amicus curiae for Professor Leslie Harris and The Child Advocacy Project.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

In this termination of parental rights case, father did not appear in response to a petition to terminate his rights, and the trial court entered a default judgment terminating them. Nearly a year later, father filed a motion to set aside the judgment. The trial court denied the motion to set aside on the ground that it had not been filed within a reasonable time. Father now appeals, arguing that the one-year delay was reasonable under the circumstances. We conclude that the trial court did not abuse its discretion in denying the motion to set aside and therefore affirm.

The relevant facts are not in dispute. In August 2004, the state initiated dependency proceedings with regard to father's three children, then ages seven, five, and three. Father, who was incarcerated on a conviction for sexual abuse of one of the children, was represented by counsel during those proceedings. In October 2005, the state filed a petition to terminate father's parental rights. The petition was served on father, who was still in prison. The summons conspicuously directed father to appear personally at an initial hearing on January 19, 2006. The summons advised father that if he did not appear, "the Court may proceed in your absence without further notice to you, and terminate your parental rights." The summons also directed father to contact the juvenile court and to request court-appointed counsel.

Father did not contact the juvenile court. He did not request court-appointed counsel or appear at the hearing. The court allowed the state to present a prima facie case in support of the allegations in the petition and, on that same day, entered a judgment terminating father's parental rights and committing the children to the custody of the Department of Human Services for adoptive planning and placement.

At that point, father obtained counsel. He did not, however, move to set aside the default. Instead, he appealed. Pending the outcome of the appeal, the children were placed in a "legal risk adoptive placement." On December 13, 2006, we dismissed the appeal for lack of an appealable judgment, explaining that, under ORS 19.245(2), a party who has not appeared has no right to appeal a default judgment. State ex rel Juv. Dept. v. Jenkins, 209 Or.App. 637, 646, 149 P.3d 324 (2006), rev. den., 342 Or. 416, 154 P.3d 722 (2007). We explained that "[t]o permit a defendant in a termination of parental rights proceeding to fail to appear at hearing and then to contest the judgment on appeal would be to offend the policy underlying ORS 19.245(2)." Id. at 645, 149 P.3d 324. We concluded that father's failure to appear was

"tantamount to his consent that the court grant the relief requested by the petition. Once the state presented a prima facie case, his failure to contest that evidence left nothing for the trial court to adjudicate. He has therefore, in effect, waived his right to appeal by leaving no issue in the case to be adjudicated."

Id. at 645-46, 149 P.3d 324. In a, we noted that father's remedy appeared to be the filing of a motion to set aside the default judgment under ORS 419B.923. Jenkins, 209 Or.App. at 646 n. 4, 149 P.3d 324.

One month later, and one week shy of a full year after entry of the default judgment, father moved to set aside the judgment pursuant to ORS 419B.923, asserting that his failure to appear at the termination hearing was due to excusable neglect. In an affidavit attached to the motion, father's counsel acknowledged the delay in filing the motion, but explained that "[a]ny delay in the filing of the ORS 419B.923 motion should be considered a tactical decision" that should not be attributed to father himself. At the hearing on father's motion, the court questioned his counsel about that contention. Father's counsel replied that the delay was a result of the "tactical decision" to appeal the default judgment instead of moving to set it aside. According to father, that tactical choice was a reasonable one given the fact that

"until this Jenkins decision was decided by the Court of Appeals, a parent's attorney could — could appeal a default termination. And now that's been taken away, and so now we know that the only recourse is to file the motion to set aside at that time, but that was not the state of the law previously."

The court agreed with the state's contention that father's motion had been filed beyond the "reasonable time" allowed by ORS 419B.923(3). The court explained that

"[r]easonableness of the time is an absolutely critical consideration here.

"The Court of Appeals in the last year has gone out of its way to take seriously its obligation to quickly facilitate the resolution of these cases. There's a big move in that regard, and this Court must take that into consideration in looking at here we have a series of laws, the Adoption and Safe Families Act that says children are not to be in foster care more than a year, or much more than a year.

"They have a right to permanency. This case has been going since 2004. It is now 2007. The appeal has been pending or the—yeah, the appeal must have been filed within 30 days of the Court's order or it wouldn't have been timely filed, so this case is now two full years beyond where it's supposed to be."

On appeal, father contends that the trial court erred in concluding that his motion to set aside had not been filed within a reasonable time. Father acknowledges that the trial court was correct in expressing concern for the children's needs for expeditious resolution of the case. He nevertheless insists that the children's needs in that regard must be weighed against other circumstances. In particular, father contends, we must weigh the interest of expeditious resolution against the facts that he had reasons for failing to show up at the termination hearing, that he relied on court-appointed counsel to protect his interests in seeking to overturn the default judgment, and that such drastic consequences result from that judgment.

The state begins by noting that father's brief includes much material in the excerpt of record that was not admitted into evidence by the juvenile court. The state moves to strike that evidence. The motion is granted without further discussion.

The state then argues that, on the merits, father's appeal fails for at least two reasons. First, the state contends, father does not recognize the fact that the trial court's decision was discretionary and is thus reviewed in this court for an abuse of that discretion. According to the state, the relevant statutes—in particular, ORS 419A.004—make clear that the child's emotional and developmental needs are paramount in determining what is a reasonable time. In light of the fact that nearly a year passed before the filing of the motion to set aside and three years have passed since the commencement of the case, the state contends, the trial court clearly did not abuse its discretion in concluding that the motion had not been filed within a reasonable time. Second, the state argues, father's contention that his delay in filing the motion to set aside is excusable because of his lawyer's inadequacy improperly conflates the grounds for a motion to set aside on the merits with the requirement that the motion be filed within a reasonable time. Moreover, the state argues, father's assertion that his delay is a result of his lawyer's inadequacy is directly contrary to the position that he took before the trial court—which was that his lawyer's decision not to file such a motion earlier was a perfectly reasonable "tactical choice."

ORS 419B.923 sets forth the procedures and substantive standards for seeking to set aside a judgment terminating parental rights. 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:

"* * * * *

"(b) Excusable neglect.

"* * * * *

"(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. * * *

"(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."

Thus, a party may move to set aside a judgment terminating parental rights if the motion is filed "within a reasonable time." The matter in dispute in this case is whether father's motion was filed within the required "reasonable time." Resolving the dispute requires us to address...