Department of Human Services v. K. M. J.

370 P.3d 1258, 276 Or. App. 823, 2016 Ore. App. LEXIS 265

• Court: Court of Appeals of Oregon
• Decided: March 9, 2016
• Docket: 2261JU; Petition Number 13226104JU; A156590 (Control); 2262JU; Petition Number 13226204JU; A156591
• Status: Published

Opinions

EGAN, J.

Mother appeals a judgment terminating her parental rights to her children, C and S. The juvenile court terminated mother’s rights after she failed to personally appear for her termination trial. Mother argues that, because the court did not provide her with the notice required by ORS 419B.819 and ORS 419B.820, the court lacked authority to terminate her rights. The Department of Human Services (DHS) concedes that the court did not provide mother the notice required by statute, but argues that mother failed to preserve her argument below and, even if we conclude that the court plainly erred, we should not exercise our discretion to correct the error. We conclude that the juvenile court plainly erred and that it is appropriate to exercise our discretion to correct the error. Accordingly, we reverse and remand.

The issues on appeal relate to whether the court was authorized by statute to terminate mother’s parental rights. That is a legal question that we review for legal error. Dept. of Human Services v. A. W. (A158694), 274 Or App 493, 361 P3d 58 (2015). The facts are procedural and undisputed.

On July 15, 2013, the state filed petitions to terminate mother’s parental rights to C and S. On October 18, 2013, mother was served with summons in Idaho. The summons directed mother to “file a written answer to the petition no later than 30 days after the date you were served with this summons admitting or denying the allegations in the petition.” (Boldface in original.) The summons also stated:

“If you do not file a written answer as directed above, or do not appear at any subsequent court-ordered hearing, the court may proceed in your absence and without further notice to TERMINATE YOUR PARENTAL RIGHTS to the above-named children either on the date an answer is required by THIS SUMMONS OR ON A FUTURE DATE, and may make such orders and take such action as authorized by law.”

(Boldface and capitalization in original.)

Mother filed a timely written answer denying the allegations in the petition and the court issued a “notice of trial” stating that the termination trial was set for March 6 and 7, 2014.

In February 2014, mother wrote letters to her attorney, DHS, and the court, indicating that she was aware that the trial was scheduled for March 6 and 7, but that she lacked transportation to the hearing in Oregon and had no telephone. Those letters were addressed from Washington. Mother’s attorney moved to withdraw, stating in the motion that he had had “no direct contact with [mother] for several months.” The court denied the motion.

Mother did not appear on March 6, 2014, at the time set for her termination trial. However, mother’s attorney was present. The court asked mother’s attorney if mother was present when the court set the date for the termination trial. Her attorney replied that she was not present, but he stated that it is his office’s practice to send copies of “notices of trial” to clients, although his office would have sent that information to mother’s address in Idaho not Washington. The court and mother’s attorney then had the following exchange:

“[THE COURT]: So, [mother’s attorney], can you think of any reason the court shouldn’t proceed with the trial this morning?

“ [MOTHER’S ATTORNEY]: No, Your Honor, I can’t.”

The court then allowed DHS to present evidence and testimony in mother’s absence, including testimony that mother has mental illness and “borderline IQ functioning.” After DHS presented its case, the court ruled from the bench, stating:

“I’m finding that mother had adequate notice of this hearing today and has chosen to absent herself from the hearing, based upon [mother’s attorney’s] remarks to the court that it’s his practice to send notice of the time of the trial to his clients and that he believes he did so in this case.”

The court also noted that a DHS case worker testified that she had recently spoken with mother and discussed the date of the termination trial, and the court observed that mother’s letter to the court indicates that she knew the date of the trial.

Ultimately, the court entered a judgment terminating mother’s parental rights. The judgment stated that mother “did not appear as summoned, although served as required by law.”

On appeal, mother argues that the court did not give mother the notice required by ORS 419B.820 and the court lacked the authority to terminate her rights. Acknowledging that that argument is unpreserved, mother argues that the court’s error was plain and that we should exercise our discretion to correct it. DHS concedes that, although the court issued a “notice of trial” after mother filed her written answer in response to the summons, such notice does not comply with ORS 419B.820. Moreover, DHS argues that, even if the court plainly erred, we should not exercise our discretion to correct the error.

ORS 419B.819(7) authorizes the juvenile court to terminate a parent’s parental rights in the parent’s absence when the parent fails to appear at a hearing related to the petition. ORS 419B.819(7) provides, in relevant part:

“If a parent fails to appear for any hearing related to the petition, or fails to file a written answer, as directed by summons or court order under this section or ORS 419B.820, the court, without further notice and in the parent’s absence may:

“(a) Terminate the parent’s rights * *

(Emphasis added.)

ORS 419B.819(1) dictates the contents of a summons:

“A court may make an order * * * terminating parental rights * * * only after service of summons and a true copy of the petition on the parent * *

ORS 419B.819(2), in turn, provides, in relevant part:

“A summons under this section must require one of the following:

“(a) That the parent appear personally before the court at the time and place specified in the summons for a hearing on the allegations of the petition;

* * * *

“(c) That the parent file a written answer to the petition within 30 days from the date on which the parent is served with the summons”

(Emphases added.)

ORS 419B.820, in turn, provides:

“If the parent appears in the manner provided in ORS 419B.819 (2)(b) or (c) and the parent contests the petition, the court, by written order provided to the parent in person or mailed to the parent at the address provided by the parent or by oral order made on the record, shall:

“(1) Inform the parent of the time, place and purpose of the next hearing or hearings related to the petition;

“(2) Require the parent to appear personally at the next hearing or hearings related to the petition;

“(3) Inform the parent that, if the parent is represented by an attorney, the parent’s attorney may not attend the hearing in place of the parent;

“(4) Inform the parent that, if the court has granted the parent an exception in advance under ORS 419B.918 [telephonic testimony or other electronic means], the parent may appear in any manner permitted by the court under ORS 419B.918; and

“(5) Inform the parent that, if the parent fails to appear as ordered for any hearing related to the petition, the court, without further notice and in the parent’s absence, may.

“(a) Terminate the parent’s rights ***.”

Mother notes that she appeared in the manner provided in ORS 419B.819(2)(c), by filing a written response contesting the petition. ORS 419B.820. The court then scheduled a date for the termination trial but did not issue a new order or summons that complied with the notice requirements of ORS 419B.820(1) to (5). Significantly, the court did not notify mother of the time and place of the next hearing, inform her that she was required to appear personally, or inform her that, if she failed to appear personally, the court could terminate her rights in her absence. Mother argues that, because the court did not comply with the notice requirements of ORS 419B.820, the court did not have authority to terminate her rights under ORS 419B.819(7). As noted, DHS concedes that the court did not follow the requirements of ORS 419B.820.

Indeed, the record does not show that the court complied with the notice requirements of ORS 419B.820. Moreover, ORS 419B.819(7) and ORS 419B.820 authorize a court to terminate a parent’s rights in the parent’s absence when the parent fails to appear and the court complied with the notice requirements of ORS 419B.820. Consequently, we conclude that the trial court erred.

We also conclude that the error is plain. To qualify as plain error, the error must (1) be a legal error; (2) be apparent, meaning that the legal point is obvious and not reasonably in dispute; and (3) appear on the face of the record such that we “need not go outside the record or choose between competing inferences to find it.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). The error is plain, here, because each of those conditions is met. Even if an error is plain, we must still decide whether to exercise our discretion to correct the error. See Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991) (stating that factors include “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way”).

DHS argues that mother had actual knowledge of the date of the termination trial, therefore two factors— the competing interest of the parties and the gravity of the error — militate against correcting the error. We are not persuaded by DHS’s argument.

In this case it is undisputed that mother actually knew the date of the termination trial. It is also undisputed that, more than one year before the date set for the termination trial, mother received a summons that stated:

“If you do not file a written answer as directed above, or do not appear at any subsequent court-ordered hearing, the court may proceed in your absence and without further notice TERMINATE YOUR PARENTAL RIGHTS [.] ”

(Boldface and capitalization in original.) Thus, if mother, whom the record indicates has mental illness and borderline intellectual functioning, had read, comprehended, and remembered the 2013 summons, she would have understood that her failure to appear at the termination trial could have resulted in the termination of her parental rights even in her absence. That connection is too tenuous to persuade us that the error is not sufficiently grave or that mother’s interest in a fundamentally fair termination proceeding is outweighed, here, by the state’s interests. That is especially so in light of the legislature’s clear direction, embodied in ORS 419B.820, as to what constitutes sufficient notice in these circumstances. On these facts, we will not assume, on less firm grounds than those required by the legislature, that mother knew the consequences of her failure to appear, nor will we use that assumption as a basis for declining to exercise our discretion to correct error that is plain.¹

DHS also argues that we should decline to exercise our discretion to correct the error because mother’s attorney told the court that he could not think of a reason why the court should not proceed with the termination hearing in mother’s absence. We agree that mother’s attorney did not put that issue before the court and, thus, the policies behind preservation were not well served in this instance. Even so, we readily decide to exercise our discretion. As we have recently concluded under similar circumstances, a trial court’s termination of a parent’s rights after failing to give the notice required by statute is an error that we will exercise our discretion to correct “given the magnitude of [a parent’s] interest in a fundamentally fair termination proceeding.” A. W., 274 Or App at 500.

Reversed and remanded.

1 The dissent observes that mother’s counsel may have made strategic choices that influenced when and how the questions at issue in this case would be presented to a court. Ailes counsels us to consider the parties’ interests, among other things, when deciding whether to exercise our discretion. Paramount, here, is the interest in a fundamentally fair proceeding. Regardless of the gamesmanship the dissent believes is afoot, the simple fact remains that mother’s counsel has complied with the procedures outlined in statutes and case law. The court has not. Given that the fundamental right of parenthood is at stake and procedural fairness is our lodestar, we are persuaded to exercise our discretion.