Dept. of Human Services v. T. S.

Summary

The Oregon Court of Appeals affirmed a judgment establishing a permanent guardianship for the child L. D. The court held that the mother was not deprived of a fundamentally fair proceeding despite proceeding without appointed counsel, considering her history with prior attorneys, the circumstances of her request for new counsel, and the interests in finality and permanency. The court also denied as moot a motion to supplement the record and file a late transcript.

Holdings

1. The court rejected the assignment because the record contained no ruling that mother had impliedly waived her right to counsel. The juvenile court had expressly found that it could not determine that mother knowingly and voluntarily waived counsel because she refused to participate in the waiver colloquy.
2. The challenge was not properly before the court because mother did not appeal the permanency judgment that changed the plan away from reunification.
3. The court rejected the propositions that the juvenile court had a sua sponte duty to appoint counsel or that mother possessed an absolute right to counsel that prevented her from proceeding pro se. Under Oregon law, counsel is required in nontermination dependency proceedings when the nature of the proceeding and due process so require, but the right is not unlimited.
4. Mother was not deprived of due process because the procedures were fundamentally fair. Although mother had a significant liberty interest in the guardianship proceeding, the risk of erroneous deprivation and the probable value of appointing another attorney were low in the circumstances, while the state and child had significant interests in finality and achieving permanency.

Questions Presented

1. Whether the juvenile court made an actual ruling that mother's conduct effected an implied waiver of her right to appointed counsel.
2. Whether mother's challenge to the alleged waiver of counsel during the permanency phase was properly before the appellate court when she did not appeal the permanency judgment.
3. Whether due process or Oregon law required the juvenile court to appoint counsel sua sponte or provide mother an absolute right to counsel in the permanent guardianship proceeding despite her repeated disputes with counsel and the court's finding that a request for new counsel was made for purposes of delay.
4. Whether the procedures used to establish the permanent guardianship were fundamentally fair under the Due Process Clause of the Fourteenth Amendment.

Disposition

affirmed