Dept. of Human Services v. T.L.

To preserve a claim of inadequate assistance of appointed trial counsel, a parent in a dependency proceeding must first seek to resolve that issue in the juvenile court by moving, under ORS 410B.923(1), for the court to modify or set aside the judgment or order related to the claim.

T.L. appealed judgments which changed the permanency plans for his three children. T.L. claimed on appeal that his counsel’s failure to appear at the permanency hearing constituted inadequate assistance of counsel. The Department of Human Services (DHS) argued that the Court should decline to consider that challenge because T.L. failed to raise that complaint in the trial court. T.L. cited case law to support his claim that the general rule, where appellate courts will only consider error that has been preserved at trial, need not be strictly applied to the issue of appointed counsel’s adequacy in a parental rights termination proceeding. The court found that the case law supporting T.L.’s assertion was decided prior to the 2001 enactment of ORS 419B.923 which provides a statutory procedure for a parent to challenge the adequacy of counsel in such a proceeding. The Court held that to preserve a claim of inadequate assistance of appointed trial counsel, a parent in a dependency proceeding must first seek to resolve that issue in the juvenile court by moving, under ORS 410B.923(1), for the Court to modify or set aside the judgment or order related to the claim. Affirmed.