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Dep't of Human Servs. v. S. M. (In re K. M. M.)

Court of Appeals of Oregon
Feb 14, 2024
330 Or. App. 770 (Or. Ct. App. 2024)

Opinion

A181992

02-14-2024

In the Matter of K. M. M., aka K. M., a Child. v. S. M., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Tiffany Keast, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent.


This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted January 10, 2024

Umatilla County Circuit Court 22JU04922; A181992 Eva J. Temple, Judge.

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Tiffany Keast, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot, Judge.

PER CURIAM

Father appeals an order denying his motion to dismiss dependency jurisdiction of his child, K, a motion that was filed less than three weeks after the juvenile court asserted dependency jurisdiction over K. The juvenile court denied the motion without reaching the merits when father failed to personally appear for the hearing. Father argues that the court erred in doing so and, alternatively, that father's trial counsel provided constitutionally inadequate assistance by failing to argue that the hearing should proceed. The state concedes that it was error for the court to deny the motion on the basis that it did, but argues that we should nonetheless affirm.

Even assuming arguendo that father did not invite the alleged error, he certainly failed to preserve his claim of error. Review of unpreserved claims of error is limited to discretionary plain-error review. ORAP 5.45(1); State v. Vanornum, 354 Or. 614, 630, 317 P.3d 889 (2013). Father has not requested or addressed the requirements for plain-error review. See State v. Ardizzone, 270 Or.App. 666, 673, 349 P.3d 597, rev den, 358 Or. 145 (2015) ("[W]e ordinarily will not proceed to the question of plain error unless an appellant has explicitly asked us to do so * * *."). Nor is it apparent why this would be an appropriate case to exercise our discretion, particularly when father was free to file another motion to dismiss anytime, as father's counsel acknowledged to the juvenile court. Cf. State v. Nordholm, 293 Or.App. 369, 374-75, 427 P.3d 211 (2018) (declining to exercise discretion because any error in holding a pretrial evidentiary hearing without the defendant present was not grave as the defendant could have renewed his pretrial objections). We therefore reject father's challenge to the denial of his motion to dismiss.

As for the alleged inadequacy of father's trial counsel, even assuming arguendo that father's claim is procedurally viable and that father's counsel provided constitutionally inadequate assistance by failing to argue that the hearing should proceed in father's absence, father has not shown prejudice. See Dept. of Human Services v. T. L., 358 Or. 679, 702, 369 P.3d 1159 (2016) ("To be entitled to relief, a parent must show not only that trial counsel was inadequate, but also that the inadequacy prejudiced the parent's rights to the extent that the merits of the juvenile court's decision are called into serious question."). Father's summary assertion of prejudice is insufficient under the circumstances. See McMillan v. Kelly, 304 Or.App. 299, 328, 467 P.3d 791 (2020) (declining to consider an undeveloped argument that petitioner's appellate counsel's performance caused petitioner prejudice) (citing Beall Transport Equipment Co. v. Southern Pacific, 186 Or.App. 696, 700 n 2, 64 P.3d 1193, adh'd to as clarified on recons, 187 Or.App. 472, 68 P.3d 259 (2003)).

Affirmed.


Summaries of

Dep't of Human Servs. v. S. M. (In re K. M. M.)

Court of Appeals of Oregon
Feb 14, 2024
330 Or. App. 770 (Or. Ct. App. 2024)
Case details for

Dep't of Human Servs. v. S. M. (In re K. M. M.)

Case Details

Full title:In the Matter of K. M. M., aka K. M., a Child. v. S. M., Appellant…

Court:Court of Appeals of Oregon

Date published: Feb 14, 2024

Citations

330 Or. App. 770 (Or. Ct. App. 2024)