Dept. of Human Services v. P.W.

When reviewing an ineffective assistance of counsel claim, the court has held "[i]f we conclude that the evidentiary record is insufficient for us to resolve on appeal an unpreserved claim of ineffective assistance of counsel, we can, 'where appropriate,' remand to the juvenile court for an evidentiary hearing on the claim." Dept. of Human Services v. T.L., 358 Or 679, 703-04, 369 P3d 1159 (2016).

Mother appealed an order that denied her motion to set aside a judgment that terminated her parental rights with her son. On appeal, Mother argued that she had inadequate assistance of counsel during a previously held hearing to set-aside a motion.  In response, DHS argued that in order for Mother to obtain relief under an inadequate-assistance claim, the evidentiary record would need to be developed because, under ORS 419B.923(2), the current evidentiary record was insufficient. When reviewing an ineffective assistance of counsel claim, the court has held "[i]f we conclude that the evidentiary record is insufficient for us to resolve on appeal an unpreserved claim of ineffective assistance of counsel, we can, 'where appropriate,' remand to the juvenile court for an evidentiary hearing on the claim." Dept. of Human Services v. T.L., 358 Or 679, 703-04, 369 P3d 1159 (2016). The Court held that Mother's inadequate assistance of counsel claim turns on factual issues not fully developed in the record, therefore the order is vacated and the case is remanded to the trial court for an evidentiary hearing on Mother's claim. 

Vacated and remanded.