248 Or App 374
February 29, 2012
The court cannot create a judicial remedy allowing an appeal when trial counsel mishandles the filing of a notice of appeal. Nor, is there a mechanism for direct appeal under the due process clause of the 14th Amendment. Generally, a notice of appeal must be filed within 30 days of entry of judgment, but a notice can be filed within 90 days of entry of judgment if the error is not personally attributable to the appellant and a colorable error can be demonstrated.
Father relied on Hammons which allowed a judicial remedy of a late appeal to vindicate a parent's right to adequate assistance of counsel. However, since Hammons was decided, ORS 419A.200 was amended and preempted the relief for which father sought.
Father alternatively asserted that he was "permitted to 'raise substantive issues of his fitness on direct appeal' as a matter of procedural due process" under the 14th Amendment. The court reasserted that termination proceedings must comport with due process by requiring that the procedural safeguards ensure fundamental fairness. Even though the 14th Amendment does not guarantee a right to appeal, if the state does grant that right, "the procedures used in deciding the appeal must comport with the demands of due process." In order to determine if the process provided is fair, the court must balance three factors: "(1) the private interest affected by the state action; (2) the risk of erroneous deprivation of that interest, including the probable value of additional safeguards; and (3) the countervailing public interest." Looking at the factors, the court determined that the procedures outlined in ORS 419A.200 comport with due process.
In this case, the court had the opportunity to review the record de novo as they heard Mother's appeal at the same time. Given that, even if father's appeal was timely, the court would have found that the trial court did not err when it ruled to terminate father's rights.
Cited Cases and Statutes
- In re B.G., 317 SW 3d 250, 251-52 (Tex Sup Ct 2010)
- State ex rel Juv. Dept. v. Geist, 310 Or 176 1990 Multnomah County
- State ex rel SOSCF v. Hammons I, 169 Or App 589 2000 Benton County
- Lassiter v. Department of Social Services, 452 US 18, 27, 101 S Ct 2153, 68 L Ed 2nd 640 (1981)
- Lehman v. Lycoming County Children's Services Agency, 458 US 502, 513, 102 S Ct 3231, 73 L Ed 2d 928 (1982)
- Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976)
- M. L. B. v. S. L. J., 519 US 102, 119, 117 S Ct 555, 136 L Ed 2d 473 (1996)
- State ex rel Juv. Dept. v. M.U., 229 Or App 35 2009 Multnomah County
- Dept. of Human Services v. T.M.M., 248 Or App ___ 2012 Clatsop County
- Shipman v. Gladden, 253 Or 192 (1969)
- Troxel v. Granville, 530 US 57, 65, 120 S Ct 2054, 147 L Ed 2d 49 (2000)
- US West Communications v. City of Eugene, 336 Or 181 (2003)
- Fourteenth Amendment. US Const, Amend XIV, § 1