106 February 22, 2024 No. 115
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of C. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. M.,
Appellant.
Multnomah County Circuit Court
22JU04754
Petition Number 114701;
A182182 (Control)
In the Matter of C. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. M.,
Appellant.
Multnomah County Circuit Court 22JU04755
Petition Number 114701;
A182183
Matthew J. Leady, Judge.
Argued and submitted January 12, 2024.
George W. Kelly argued the cause and filed the brief for
appellant.
Emily N. Snook, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General; Benjamin Gutman, Solicitor General;
and Inge D. Wells, Assistant Attorney General.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
Cite as 331 Or App 106 (2024) 107
KAMINS, J.
Affirmed.
108 Dept. of Human Services v. K. M.
KAMINS, J.
In these consolidated cases, mother appeals the
trial court’s denial of her motion to set aside a judgment tak-
ing jurisdiction over her two children, CA and CO. Mother’s
assignments of error challenge the trial court’s denial of her
motion to set aside because she contends that she demon-
strated excusable neglect for not attending the hearing. We
affirm.
The underlying facts are undisputed. On October 7,
2022, DHS filed a petition for dependency jurisdiction of
CA and CO, alleging that mother’s “substance use inter-
feres with her ability to safely parent the children,” and she
“leaves the children with unsafe caregivers.” The juvenile
court awarded DHS temporary custody of CA and CO, and
the children were placed in relative substitute care. DHS
amended its petition in February 2023, alleging that moth-
er’s “mental health problems interfere with her ability to
safely parent” CA and CO. A rescheduling call was ordered
to take place on March 16, 2023, and mother was 30 min-
utes late for that March 16 call. Additionally, on that call,
the juvenile court scheduled a call for April 20, 2023.
Mother failed to appear at the April 20 call. Mother’s
attorney “alerted” the trial court that mother is often late.
Nevertheless, the juvenile court recalled the case approxi-
mately 15 minutes later and allowed the government to pro-
ceed with its prima facie case. The juvenile court ordered
the children to the legal custody of DHS, with continued
placement in relative substitute care. Additionally, the judg-
ment ordered that the “[c]hildren may be returned to a par-
ent with a safety plan and the agreement of child’s attorney
and CASA.” At the conclusion of that hearing, which was
approximately 40 minutes after its scheduled time to begin,
mother’s attorney and the DHS caseworker saw mother out-
side the courtroom.
On April 26, 2023, mother filed a motion to set aside
the judgment pursuant to ORS 419B.923(1)(b), which autho-
rizes a juvenile court to set aside its orders and judgments on
the grounds of “excusable neglect.” Mother did not appear at
the beginning of the hearing on her motion, and her counsel
Cite as 331 Or App 106 (2024) 109
argued that, because of mother’s modest means, she often
relies on public transportation, which causes her lateness.
However, as DHS argued at the hearing, mother presented
no evidence that her lateness was due to public transporta-
tion or her economic status. The juvenile court ruled “that
there isn’t evidence of excusable neglect” and commented
the “sad irony is that [mother] is late today.” It further con-
templated that its ruling “might even be a little bit different
if it were a termination judgment.” Mother finally arrived
approximately seven minutes after the court made its rul-
ing. She and the trial judge had a candid exchange, which
included the following:
“I had you come back in the courtroom not because I
wanted you to feel bad, not because I wanted to shame you
or anything other than I wanted you to feel like the pro-
cess, this system is listening to you, even if the system isn’t
giving you the exact answers that you’re hoping for. * * * My
decision today doesn’t—in any real effect, it doesn’t change
anything. * * * Because the court orders is that [CA] and
[CO] can come home to you when there’s a written safety
plan and the agreement of child’s attorney and CASA.”
A party’s failure to appear at a juvenile dependency
hearing may qualify as excusable neglect under certain
circumstances. “Whether facts establish excusable neglect
for the purposes of ORS 419B.932(1)(b) presents a question
of law, making our review for legal error.” Dept. of Human
Services v. J. J. J., 317 Or App 188, 190, 504 P3d 683 (2022).
“Evaluating a motion to set aside a judgment under ORS
419B.923(1)(b) entails a two-step process.” Id. First, the
court “must determine whether the parent has established
excusable neglect.” Id. Second, if the court “determines that
a parent has established excusable neglect, it must then
decide whether to exercise its discretion to grant the motion
to set aside.” Id. We “are bound by the trial court’s factual
findings, if supported by evidence in the record.” Dept. of
Human Services v. A. L. S., 318 Or App 665, 666, 508 P3d 79
(2022).
Similar to the “excusable neglect” standard for set-
ting aside a judgment under ORCP 71, the standard under
ORS 419B.923 “requires a showing that there are reason-
able grounds to excuse the default.” J. J. J., 317 Or App
110 Dept. of Human Services v. K. M.
at 190-91. Under 419B.923(1)(b), excusable neglect can be
“a parent’s reasonable, good faith mistake as to the time
or place of a dependency proceeding.” State ex rel Dept. of
Human Services v. G. R., 224 Or App 133, 141-42, 197 P3d
61 (2008). Although that standard, at least in the context
of a termination of parental rights hearing, “must be con-
strued liberally in favor a parent’s fundamental interest,” a
parent must present facts to the juvenile court to establish
reasonable grounds for their failure to appear.1 J. J. J., 317
Or App at 190-91. For instance, in G. R., 224 Or App at 143,
we found that despite the father’s nonappearance, he estab-
lished excusable neglect because he submitted an “uncon-
troverted explanation” that he “inadvertently confused the
11:00 a.m. starting time for the pretrial status conference
with the 9:00 a.m. starting time for the trial,” and he imme-
diately attempted to rectify that mistake. Similarly in Dept.
of Human Services v. K. M. P., 251 Or App 268, 276, 284
P3d 519 (2012), we held that the mother’s uncontroverted
evidence—that she incorrectly wrote down the wrong time
of the hearing, she “had never missed a court appearance
with respect to another child,” and after learning of her mis-
take, “she immediately attempted to find a ride to the court-
house”—constituted excusable neglect.
On appeal, mother renews her argument that her
nonappearance for the dependency hearing was excused by
her habitual lateness combined with the alleged failure of
court personnel in directing her to the correct courtroom.
We agree with the juvenile court that mother has failed to
demonstrate excusable neglect as a matter of law. While
we are sympathetic to mother’s financial circumstances
as argued by counsel, there is no evidence in the record of
those circumstances, or evidence connecting her tardiness
to her finances, difficulties with public transportation, or
the court personnel’s purported errors. According to moth-
er’s counsel’s declaration, mother had been properly served;
she had contacted her caseworker the morning of the
1
We have not previously determined how (or whether) the liberal construc-
tion of that standard applies to set aside the result of a dependency hearing
where the plan is reunification with the parent, rather than a judgment for the
termination of parental rights. Because we conclude that mother did not demon-
strate excusable neglect under any standard, we do not resolve that issue.
Cite as 331 Or App 106 (2024) 111
April 20 hearing; and her caseworker “understood her to be
on her way.” Because mother failed to demonstrate a connec-
tion between her failure to appear and a reasonable ground
for that failure sufficient to establish excusable neglect, the
trial court did not err. Cf. J. J. J., 317 Or App at 191 (explain-
ing that the mother, who was homeless, demonstrated
excusable neglect, in part, because her nonappearance at
the remote trial resulted from “someone she was sharing a
hotel room with” turning off her alarm clock, and her law-
yer’s failure to “alert the court that mother was trying to
call in or ask the court to pause the proceedings to allow”
her to join).
Affirmed.