Department of Human Services v. K. W.

359 P.3d 539, 273 Or. App. 611, 2015 Ore. App. LEXIS 1092
CourtCourt of Appeals of Oregon
DecidedSeptember 16, 2015
Docket11216J; Petition Number 11216J03; A158199
StatusPublished
Cited by2 cases

This text of 359 P.3d 539 (Department of Human Services v. K. W.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Services v. K. W., 359 P.3d 539, 273 Or. App. 611, 2015 Ore. App. LEXIS 1092 (Or. Ct. App. 2015).

Opinion

ORTEGA, R J.

The issue in this juvenile dependency appeal is whether the juvenile court has authority under ORS 419B.923(1) to set aside a judgment terminating parental rights because, at the time of the motion to set aside, adoption was no longer in the best interests of the child. Ultimately, we conclude that the legislature did not intend for ORS 419B.923(1) to grant the juvenile court the discretion to set aside an order or judgment in circumstances such as those alleged by mother in this case. Accordingly, while mother’s concerns may well deserve legislative attention, we must affirm the ruling of the juvenile court.

The relevant facts are mostly procedural. The juvenile court took jurisdiction over S in July 2011, when S was five years old. The court terminated mother’s parental rights in December 2012, after a three-day trial. Mother appealed the termination of parental rights (TPR) judgment, and we affirmed without opinion. Department of Human Services v. J. A. L., 258 Or App 682, 311 P3d 1252 (2013), rev den, 354 Or 699 (2014).

Two months after the appellate judgment was entered and 16 months after the court entered the TPR judgment, mother moved to set aside the TPR judgment under ORS 419B.923(1), asserting that it would “cause harm” to S. Mother supported her motion with affidavits from S’s maternal great-grandparents, who had served as S’s foster parents since her removal from mother’s care in 2011 and had been identified as S’s designated adoptive placement by the Department of Human Services (DHS). The affidavits described a bond between mother and S that had been strengthened by participation in the Family Preservation Project at Coffee Creek Correctional Facility, where mother was incarcerated. In the great-grandparents’ view, adoption was no longer in S’s best interests. Mother also submitted declarations from others that purported to document the progress that she had made since the TPR judgment. Mother did not raise any concerns about the form of the TPR judgment or the fairness of the TPR proceedings that resulted in the TPR judgment.

[614]*614DHS objected to mother’s motion, contending, among other things, that she did not state a proper basis for relief under ORS 419B.923(1). DHS argued that the statute does not provide authority for a juvenile court to set aside a TPR judgment that was “fully litigated” by the parties when the parent has not raised any due process or fairness concerns with the underlying proceedings. In DHS’s view, such authority would jeopardize the finality of TPR judgments and delay permanency for children across the state. Alternatively, DHS maintained that, even if the statute gave the court authority to consider mother’s motion, mother had failed to file her motion within a reasonable time, as required by ORS 419B.923(3).

The court denied mother’s motion on purely legal grounds, concluding that ORS 419B.923(1) does not authorize the court to set aside a TPR judgment because of “changed circumstances” and, alternatively, that mother had failed to bring the motion within a reasonable time. The court concluded that ORS 419B.923(1) allows for a judgment to be set aside only in instances involving faulty procedure or notice related to the TPR proceeding, or at least some type of due process issue — not a mere change of circumstances since the time the court entered the TPR judgment. Accordingly, the court did not address the merits of mother’s allegations.

Mother appeals, assigning error to the court’s denial of her motion. We review the denial of a motion to set aside a judgment under ORS 419B.923 for an abuse of discretion. State ex rel Juv. Dept. v. D. J., 215 Or App 146, 155, 168 P3d 798 (2007). However, we review any underlying legal questions for legal error. Pearson v. Philip Morris, Inc., 257 Or App 106, 168, 306 P3d 665 (2013), rev allowed, 354 Or 699 (2014). And in this case, the juvenile court’s ruling raises only legal questions.

This case requires us to interpret ORS 419B.923, which 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 [615]*615made 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 omissions. * * *
“(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.
* * ❖ *
“(3) A motion to modify or set aside an order or judgment must be made within a reasonable time except no order or judgment [providing for disposition of a ward after entry of a TPR judgment] 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.”

We recently addressed the scope of the juvenile court’s authority to modify or set aside a judgment under ORS 419B.923(1), ultimately concluding that the statute granted the juvenile court the discretion to set aside a default TPR judgment that the court had improperly entered. Dept. of Human Services v. A. D. G., 260 Or App 525, 317 P3d 950 (2014). In that case, the mother had failed to appear at a pretrial hearing, so the court entered an order of default against her. When she later appeared at a prima facie TPR hearing, the court precluded her from participating and entered a TPR judgment at the end of the hearing, noting that “mother failed to appear.” Id. at 531. The mother’s attempt to appeal that TPR judgment was then precluded by State ex rel Juv. Dept. v. Jenkins, 209 Or App 637, 645-46, 149 P3d 324 (2006), rev den sub nom State ex rel Juv. Dept. v. D. C. J., 342 Or 416 (2007) (failure to appear at a prima facie TPR hearing precludes appeal of the resulting default TPR judgment). She subsequently moved to set aside the default TPR judgment under ORS 419B.923(1); the juvenile court denied her motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dept. of Human Services v. R. B.
322 Or. App. 93 (Court of Appeals of Oregon, 2022)
Dept. of Human Services v. K. H. H.
466 P.3d 698 (Court of Appeals of Oregon, 2020)

Cite This Page — Counsel Stack

Bluebook (online)
359 P.3d 539, 273 Or. App. 611, 2015 Ore. App. LEXIS 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-k-w-orctapp-2015.