Dept. of Human Services v. T.M.B.

The legislative intent behind ORS 419B.923(1) is determined to “encompass a parent’s reasonable, good faith mistake as to the time or place of a dependency proceeding” including those good faith mistakes that are careless; however, the party has the burden to establish that their non-appearance was a result of excusable neglect and the juvenile court retains discretion in whether they will allow the motion.

Mother appealed the judgment of termination of parental rights for her two children, contending that her failure to appear at the trial set for termination of parental rights was a result of excusable neglect. Mother had been served with the petition and summons prior to the hearing which indicated that, pursuant to ORS 418B.819(7) and ORS 419B.819(4)(b), Mother’s parental rights could be terminated in her absence and without further notice if she failed to appear. Mother argued that under ORS 419B.923(1) a juvenile court may set aside termination judgments in various circumstances, including excusable neglect. Mother further argued that her excusable neglect in this case was due to her belief that the trial date was the day after the actual trial. The Court determined that the record did not establish that Mother’s failure to appear was because of a mix-up. Rather, the record reflected that in her e-mail communications with Mother’s attorney, Mother intended to meet with her attorney the morning of the trial. The record then reflects that Mother said she had been in Hillsboro and believed the trial was the next day. Due to the inconsistencies in Mother’s statements, this Court affirmed the lower court’s decision. Affirmed.