|
(Cite
as: 2010 WL 3419696 (Or.App.)) |
Only
the Westlaw citation is currently available.
Court
of Appeals of Oregon.
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, A143877.
Argued
and Submitted April 15, 2010.
Decided
Sept. 1, 2010.
Yamhill
County Circuit Court, Petition Number J13025.
Ronald
W. Stone, Judge.
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.
*1
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/
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.
Father is 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 children were
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/
*2
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.FN1
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.FN2
FN1.
We also inquired whether the parties would enter into a settlement under ORS
19.410 that would allow this court to remand to the juvenile court for
reconsideration and possible re-entry of the amended judgment. The parties did
not reach an agreement.
FN2.
The state also contends that an ICWA determination can be made at any stage of a
child custody proceeding. The juvenile court's authority to apply ICWA to
ongoing matters, however, is a separate issue from its authority to amend a
judgment during the pendency of an appeal from that judgment.
*3
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.FN3
FN3.
ORAP 2.22(2) provides:
?This
subsection applies to a motion for relief from an order or judgment filed in
juvenile court under ORS 419B.923 during the pendency of an appeal.
?(a)
If the copy of the motion required to be served on the appellate court is not
entitled ?MOTION FOR RELIEF FROM ORDER OR JUDGMENT UNDER ORS 419B.923,? the copy
shall be accompanied by a letter of transmittal identifying the motion as a
motion for relief under ORS 419B.923.
?(b)
Any party to the appeal may request the appellate court to hold the appeal in
abeyance pending disposition of the motion or allow the appeal to go forward. In
the absence of a request from a party, the court on its own motion will review
the motion for relief from judgment and decide whether to hold the appeal in
abeyance. If the court does not order the appeal to be held in abeyance, the
appeal will go forward.
?(c)
If the appellate court holds an appeal in abeyance pending disposition of a
motion for relief from order or judgment and subsequently the court receives a
copy of the juvenile court's order deciding the motion, after expiration of the
period within which an appeal from the order may filed, the appellate court will
decide whether to reactivate the case or take other action.
?(d)
A party wishing to appeal an order deciding a motion for relief from order or
judgment under ORS 419B.923 during the pendency of an appeal shall file a notice
of appeal within the time and in the manner prescribed in ORS chapter 19. The
notice of appeal as filed shall bear the same appellate case number assigned to
the original notice of appeal.?
We
remind practitioners of the importance of compliance with those
rules.
?(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.?
We
begin with the applicability of ORS 419B.923(1)(c). Nothing in the record before
this court suggests that the juvenile court modified its judgment on the basis
of newly discovered evidence. At the jurisdictional hearing, the court did not
make a factual finding concerning the children's eligibility for tribal
enrollment, nor do we have any indication that, on mother's motion for
reconsideration, the court intended to change any factual finding in response to
new evidence. Although further information about the children's eligibility had
been obtained, no one appears to have argued or presented evidence to the
juvenile court that the children's eligibility for tribal enrollment (and thus
their status as Indian children) ?by due diligence could not have been
discovered in time to present it? at the jurisdictional hearing, as required by
ORS 419B.923(1)(c). Rather, the parties appear to have agreed that mistakes were
made at the jurisdictional hearing and that the court should have applied ICWA
based on the record at
the time of that hearing.
The juvenile court was not asked to modify the jurisdictional judgment on the
basis of newly discovered evidence, nor did it do so.
*4
We also reject the state's argument that amending the judgment was within the
juvenile court's ?inherent power? under ORS 419B.923(8). In general, under ORS
19.270, when a notice of appeal is served and filed, the trial court loses
jurisdiction of the cause except as to certain limited matters. Here, nothing in
ORS 19.270 or ORS 419B.923 provided a basis for the juvenile court to amend the
jurisdictional/
FN4.
ORS 19.270 provides, in part:
?(1)
The Supreme Court or the Court of Appeals has jurisdiction of the cause when the
notice of appeal has been served and filed as provided in ORS 19.240, 19.250 and
19.255. The trial court may exercise those powers in connection with the appeal
as are conferred by law, and retains jurisdiction in the matter for the
following purposes:
?(a)
Deciding requests for attorney fees, costs and disbursements or expenses
pursuant to ORCP 68 or other provision of law.
?(b)
Enforcing the judgment, subject to any stay of the judgment.
?(c)
Deciding a motion for judgment notwithstanding the verdict under ORCP
63.
?(d)
Deciding a motion for new trial under ORCP 64.
?(e)
Deciding a motion for relief from judgment under ORCP 71 B.
?
* * * * *
?(4)
Notwithstanding the filing of a notice of appeal, the trial court has
jurisdiction, with leave of the appellate court, to enter an appealable judgment
if the appellate court determines that:
?(a)
At the time of the filing of the notice of appeal the trial court intended to
enter an appealable judgment; and
?(b)
The judgment from which the appeal is taken is defective in form or was entered
at a time when the trial court did not have jurisdiction of the cause under
subsection (1) of this section, or the trial court had not yet entered an
appealable judgment.
?(5)
Notwithstanding the filing of a notice of appeal, the trial court has
jurisdiction:
?(a)
To enter an order or supplemental judgment under ORCP 71 or ORS 19.275,
107.105(4) or 107.452; and
?(b)
To enter an order or supplemental judgment for the purpose of implementing a
settlement as allowed by ORS 19.410(3).?
FN5.
ORCP 71 C provides:
?This
rule does not limit the inherent power of a court to modify a judgment within a
reasonable time, or the power of a court to entertain an independent action to
relieve a party from a judgment, or the power of a court to grant relief to a
defendant under Rule 7 D(6)(f), or the power of a court to set aside a judgment
for fraud upon the court.?
Father
makes five assignments of error regarding that judgment. In the first three, he
challenges the juvenile court's findings that the children were within the
jurisdiction of the court on the basis of the parents' neglect of the children's
dental, educational, and medical needs. In the fourth, he contends that the
juvenile court erred by concluding that ICWA did not apply and thus failing to
make findings required under ICWA. While acknowledging that invited error
generally is not a basis for reversal, father contends that his counsel's
statement about ICWA's applicability was not a strategic choice and should not
be attributed to him under the circumstances. Finally, in his fifth assignment
of error, father contends that he received inadequate assistance from his trial
counsel.
We
begin with the fifth assignment of error because it frames our resolution of the
other issues. We agree that the juvenile court erred by not applying ICWA at the
jurisdictional hearing-but ordinarily, given the agreement of father's trial
counsel that the court did not need to do so, we would conclude that the error
was invited and thus not a basis for reversal. State
ex rel Juv. Dept. v. S. P.,
346 Or 592, 606, 215 P3d 847 (2009). Father, however, contends that his counsel
was inadequate in that regard and that he should not be penalized for counsel's
misstatement of the law; in his view, his counsel's statement was not a tactical
decision, and no advantage could have accrued to father from it. We
agree.
*5
The statutory right to counsel includes a right to adequate counsel, and a claim
of inadequate assistance may be raised for the first time on appeal.
State
ex rel Juv. Dept. v. Geist,
310 Or 176, 185-87, 796 P.2d 1193 (1990) (so holding in a termination of
parental rights proceeding); State
ex rel Juv. Dept. v. Charles/
?The
bare assertion of trial counsel's inadequacy does not warrant a remand or
reversal; nor does a finding of inadequacy, standing alone, require a remand or
reversal if, on de
novo
review of the record, the reviewing court is satisfied that the proceeding was
fundamentally fair and that even with adequate counsel, the result inevitably,
would have been the same.?
Here,
father's counsel performed inadequately by mistakenly telling the juvenile court
that ICWA did not apply. In a case involving an Indian child, the court must
comply with ICWA before finding the child to be within its jurisdiction.
State
ex rel Juv. Dept. v. Cooke,
88 Or.App. 176, 178, 744 P.2d 596 (1987). On the record at the time of the
jurisdictional hearing, the juvenile court should have applied ICWA. ORS
419B.878 (providing in part that ?[i]f the court knows or has reason to know
that an Indian child is involved, the court * * * shall enter an order that the
case be treated as an Indian Child Welfare Act case until such time as the court
determines that the case is not an Indian Child Welfare Act case?). Here, we can
conceive of no strategic or tactical advantage that could have accrued to father
from the application of the less stringent standards applicable to a non-ICWA
case.
We
next consider whether the result at the jurisdictional hearing would have been
the same if father's counsel had asserted that ICWA applied. Geist,
310 Or at 191. As requested by father, we review de
novo.
ORS 19.415(3)(b); ORAP 5.40(8).FN6
We conclude that, as to the finding of educational and dental neglect, the
result would have been different (although a discussion of those issues would
not benefit the parties or the bench and bar); that, as to the finding of
medical neglect, the proceeding below was fundamentally fair and the result
would have been the same; and that, as to additional evidence and findings
required by ORS 419B.340(7), the result would have been different. Thus,
although educational and dental neglect are not proper bases for jurisdiction in
this case, medical neglect may be a proper basis for jurisdiction if, on remand,
the requirements of ORS 419B.340(7) are satisfied.
FN6.
ORAP 5.40(8)(d)(v) lists, as one of the reasons that this court may exercise its
discretion to review de
novo,
?Whether the trial court made an erroneous legal ruling, reversal or
modification of which would substantially alter the admissible contents of the
record (e.g.,
a ruling on the admissibility of evidence), and determination of factual issues
on the altered record in the Court of Appeals, rather than remand to the trial
court for reconsideration, would be judicially efficient.? Here, father's
arguments regarding ICWA and the adequacy of his counsel implicate the standard
of proof applicable to the proceedings-whether a preponderance of the evidence
or clear and convincing evidence. Reviewing this case de
novo
is more judicially efficient than remanding the entire case for
reconsideration.
*6
We begin with the finding of medical neglect. Father contends that he did not
neglect the children's medical needs and that the record is insufficient to show
that he would neglect any future needs. We disagree. As the juvenile court
orally found at the conclusion of the jurisdictional hearing, there is clear and
convincing evidence that father and mother endangered the children by failing to
provide for their medical needs. Father's and mother's inability to recognize
the need for, or unwillingness to seek, the help of medical professionals has
already created severe, lasting harm to some of the children and presents a risk
of harm to any child in their care. Their protestations that they now would
provide medical care are not credible.
Even
relying only on mother's and father's testimony about the events leading to the
children's hospitalization (and disregarding other accounts provided to medical
staff), the record shows that mother and father have failed to seek medical
help, even when they believed that the children suffered from serious medical
conditions. DHS was awarded temporary custody in July 2009, after all six
children were hospitalized. By that time, two-year-old A had a life-threatening
case of meningococcemia. As a result of that infection, both of his lower legs
and several of his fingers have been amputated, and he has undergone multiple
skin grafts.FN7
All of the children were exposed to infection and treated for it; all could have
ended up in the same condition as A.
FN7.
After being admitted to the hospital on July 4, A remained hospitalized at the
time of the jurisdictional hearing in mid-October. When A contracted pneumonia
in the hospital, father complained that staff were not allowing A enough
visitors; father asserted that his sister, a registered nurse, had told him that
a lack of visitors and movement was contributing to A's pneumonia.
Mother
testified that, in the week or two before hospitalization, the family was sick
with what they believed to be swine flu. Although five or six family members had
racing heart rates, mother sought no medical care, because she believed from
media reports that doctors did not want to see patients until the swine flu was
over. Mother's expert, a registered nurse, testified that the Center for Disease
Control had publicly advised people with suspected swine flu not to go to the
hospital but to call a doctor for advice. She acknowledged that ?[t]he key there
is to call the doctor?-something that father and mother never did.
Mother
testified that, the day before the children were hospitalized, she became sick
and collapsed, and E became sick soon after. Based on father's research, father
and mother thought that E might have scarlet fever, which they believed to be a
serious illness. They did not seek medical care.
A
was the next to fall ill. According to mother, at midnight, A went from being
energetic to lying down with a mild fever. Father testified that later, when he
was told that A was ?kicking, or something,? he saw that A had purple spots and
was having problems breathing. After checking A's throat and trying to cool A by
rinsing him, father told mother to call 9-1-1 at around 2:30 a.m. While waiting
for an ambulance, father had to put his fingers in A's throat to maintain an air
passage while A was convulsing. When the ambulance arrived, mother accompanied A
to the hospital, where she too was admitted to the intensive care
unit.
*7
After mother and A were taken to the hospital, M.L. complained that he had
problems with his legs and was unable to walk. Father, who testified that he
?was confused as to why [M.L.] couldn't walk,? did not call 9-1-1 or arrange to
take M.L. to the hospital. Later in the day, mother's aunt took father and the
children to the hospital. All of the children except M.R. were admitted to the
intensive care unit. By that time, E was delusional.
Dr.
Leonhardt, a pediatrician who saw the children shortly after their
hospitalization and later conducted evaluations of the four oldest children,
testified that E was lucky to survive. S, Y, and M .L. had symptoms of bacterial
meningitis and received treatment. Although M.R. did not display symptoms, he
was admitted to the hospital because of exposure to the disease; Leonhardt
thought that an illness that M.R. suffered the prior week might have been
meningococcemia. Leonhardt also thought that, in A's case, an onset of the
illness in two hours was not impossible, but it would be very surprising if his
symptoms had developed that suddenly. In Leonhardt's view, even after the
children were hospitalized, mother did not appreciate the severity of the
situation.
Mother's
and father's delays in seeking care before the children's hospitalization were
consistent with a long-standing failure to seek medical care. Before the
hospitalization, father and mother had obtained no medical care or check-ups for
the children, except some vaccinations for only M.R. Father testified that
vaccinations ?just slipped my mind or something? and that he had not understood
the need for check-ups. Mother testified that check-ups are unnecessary and that
she has ?very little trust for doctors.?
Twelve-year-old
M.R. had a congenital heart defect that typically would be found during the
first year of life and repaired between ages two and five. In the hospital, the
first person to listen to M. R.'s heart was able to identify a problem. M. R.'s
subsequent surgery was less successful than would be expected for a younger
patient. Long-term consequences of the lack of early treatment may include
pulmonary hypertension and potential scarring of the heart and heart
valves.
When
M. R.'s surgery was scheduled, father opposed it. At the jurisdictional hearing,
he testified that he had done so based on mother's representation that Leonhardt
recommended waiting to do surgery until M.R. was 18 or 19 years old. Leonhardt's
CARES evaluation of M. R., however, noted the need for surgery and for follow-up
with a pediatric cardiologist, and M. R.'s treating pediatric cardiologist
testified to a lack of any medical literature favoring such a delay in
treatment. The cardiologist testified that he had tried to explain to mother the
need for early repair and that mother appeared not to understand.
Like
M. R., 10-year-old E had unaddressed health concerns. She has an eye condition,
strabismus, that can be treated in early stages with an eye patch or exercises
but, if untreated, can cause an extreme loss of vision. E's strabismus was not
treated and, as a result, she may need surgery-an outcome that would have been
less likely if she had been seen by a pediatrician. Despite Leonhardt's
explanation of the need for treatment, both father and mother believed that
mother was adequately addressing the condition with eye exercises. Mother
testified that professional care would not have helped E but ?would have helped
in this court case, because I could have proven that her eyes were not
neglected, and I wouldn't be having this conversation.? Father testified that,
because mother had the same type of eye condition, he ?do[es] a lot of
consulting with [mother] on that.? Father also testified that E had had a
problem with fainting and that someone had suggested that she might have
epilepsy, but those concerns had never been investigated by a doctor. Mother
testified that E had fainted once, when father was medicating scratches on E's
legs.
*8
Father and mother testified that they now would seek medical care and check-ups
for the children-testimony that the juvenile court found not to be credible. The
court also observed that neither parent displayed a sense of responsibility or
emotion about what the children had suffered. We give considerable weight to the
juvenile court's assessment of credibility. Geist,
310 Or at 194. On this record, even if father's counsel had asserted the
applicability of ICWA, the result would have been the same as to the finding of
medical neglect as a basis for jurisdiction. Father was not prejudiced with
respect to that finding.FN8
FN8.
Father also contends that he is entitled to a new trial on the entire
jurisdictional petition. In his view, the findings required under ORS
419B.340(7) cannot be made separately from the finding of neglect. We reject
that argument without further discussion.
Finally,
we turn to the requirements of ORS 419B.340(7), which provides:
?When
an Indian child is involved, the department must satisfy the court that active
efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts have
proven unsuccessful. Foster care placement may not be ordered in a proceeding in
the absence of a determination, supported by clear and convincing evidence,
including the testimony of expert witnesses, that the continued custody of the
Indian child by the parent or Indian custodian is likely to result in serious
emotional or physical injury to the Indian child.?
When
the juvenile court entered the jurisdictional/
Reversed
and remanded.