Modifying or setting aside order or judgment
Source:
Section 419B.923 — Modifying or setting aside order or judgment, https://www.oregonlegislature.gov/bills_laws/ors/ors419B.html.
Notes of Decisions
In evaluating whether motion to modify or set aside order or judgment was filed within reasonable time, court may consider length of delay, reason for delay and other circumstances surrounding filing. State ex rel Juvenile Department v. D.J., 215 Or App 146, 168 P3d 798 (2007)
Whether motion to modify or set aside order or judgment was filed within “reasonable time” is matter committed to discretion of court. State ex rel Juvenile Department v. D.J., 215 Or App 146, 168 P3d 798 (2007)
Excusable neglect encompasses parent’s reasonable, good faith mistake as to time or place of a dependency proceeding. State ex rel Dept. of Human Services v. G.R., 224 Or App 133, 197 P3d 61 (2008)
Considerations reasonably guiding and restricting exercise of discretion to deny a motion to set aside order or judgment include (1) nature and magnitude of interest adjudicated and “forfeited” in movant’s absence; (2) movant’s promptness in attempting to rectify his or her nonappearance; (3) extent to which interests of other parties and court would be prejudiced if motion were granted, including because of intervening detrimental reliance on judgment; and (4) whether movant can present colorable defense on merits. State ex rel Dept. of Human Services v. G.R., 224 Or App 133, 197 P3d 61 (2008)
Inherent power of court to modify order or judgment is subject to express prohibition against modifying order that places child in state custody or otherwise directs disposition of child after termination of parental rights. Department of Human Services v. B.A.S./J.S., 232 Or App 245, 221 P3d 806 (2009), Sup Ct review denied
Juvenile court has broad authority in termination of parental rights proceeding to modify or set aside its own order or judgment for reasons other than listed in subsection (1)(a) of this section, including colorable claim of violation of parent’s due process rights caused by juvenile court’s misinterpretation of court authority. Dept. of Human Services v. A.D.G., 260 Or App 525, 317 P3d 950 (2014)
Where standing is limited, under this statute, to persons or entities with status as party to proceeding at time motion to set aside is filed and state’s party status is terminated by court order, state has no entitlement to due process or standing to challenge application of statute to it on constitutional grounds. Dept. of Human Services v. B.M.C., 272 Or App 255, 355 P3d 190 (2015)
Under interpretive method of ejusdem generis, specific examples provided as “reasons” for modifying or setting aside order or judgment listed under subsection (1) of this section serve to narrow scope of reasons authorizing juvenile court to act under this statute. Dept. of Human Services v. K.W., 273 Or App 611, 359 P3d 539 (2015), Sup Ct review denied
Allegations of changed circumstances since entry of judgment terminating parental rights does not authorize court to set aside judgment because change in circumstance does not share common characteristic with specific examples provided as “reasons” to set aside judgment under subsection (1) of this statute. Dept. of Human Services v. K.W., 273 Or App 611, 359 P3d 539 (2015), Sup Ct review denied
Where father’s appointed counsel failed to appear at permanency hearing, this section allowed father to bring inadequate assistance of counsel claim for first time on direct appeal from judgment regarding placement of father’s children. Department of Human Services v. T. L., 358 Or 679, 369 P3d 1159 (2016)
Up to date