Dept. of Human Services v. T. S. - Permanent Guardianship Affirmed, Counsel Denial Rejected

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April 15, 2026 Get Citation Alerts Download PDF Add Note

Dept. of Human Services v. T. S.

Court of Appeals of Oregon

• Citations: 348 Or. App. 481
• Docket Number: A187516
• Judges: Powers

• Disposition: Affirmed; motion to supplement the record and file a late transcript denied as moot.

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (31.6K)

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Disposition

Affirmed; motion to supplement the record and file a late transcript denied as moot.

Combined Opinion

No. 302 April 15, 2026 481

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

In the Matter of L. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
L. D.,
Respondent,
v.
T. S.,
Appellant.
Multnomah County Circuit Court
Petition No.
114584;
22JU02030; A187516

Morgan Wren Long, Judge (Order entered April 10, 2025).
Sandra Y. Vallejo, Judge (Judgment entered June 2,
2025).
Argued and submitted on February 18, 2026; on respon-
dent’s motion to supplement the record and file late tran-
script filed March 25, 2026, and appellant’s response filed
April 8, 2026.
Tiffany Keast, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Oregon Public Defense
Commission.
Erin Galli, Assistant Attorney General, argued the cause
for respondent Department of Human Services. Also on the
brief were Dan Rayfield, Attorney General, and Paul L.
Smith, Solicitor General.
Ginger Fitch argued the cause for respondent L. D. Also
on the brief was Youth, Rights & Justice.
482 Dept. of Human Services v. T. S.

Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
POWERS, J.
Affirmed; motion to supplement the record and file a late
transcript denied as moot.
Cite as 348 Or App 481 (2026) 483

POWERS, J.
Mother appeals from a judgment establishing
a permanent guardianship for her child, L. Raising five
assignments of error, mother challenges various points in
the proceedings that resulted in the guardianship being
established without mother being represented by counsel.
As explained below, because we conclude that mother was
not deprived of a fundamentally fair proceeding, we affirm.
We, therefore, also deny as moot the motion to supplement
the record and file a late transcript.
The facts relevant to the current matter are entirely
procedural and generally undisputed. We discuss the pro-
ceedings in some detail, in order to give context to mother’s
arguments and our resolution. In April 2022, the Oregon
Department of Human Services (ODHS) filed a dependency
petition regarding L, and the juvenile court asserted depen-
dency jurisdiction in March 2023. In July 2024, the plan
was changed to permanent guardianship. Over the course
of those proceedings, mother was appointed six different
attorneys, each of whom withdrew from the representation
due to a breakdown in the attorney-client relationship or
mother informing the attorney that she no longer wished to
be represented by them. The court ultimately appointed a
seventh attorney, Kelly, as a legal advisor, and mother repre-
sented herself pro se at the permanency hearing. Following
the change in plan, ODHS filed a petition to establish per-
manent guardianship, in August 2024. Mother continued to
represent herself, with Kelly as her legal advisor.
In October 2024, Kelly filed a motion to withdraw as
mother’s legal advisor. At a review hearing at which mother
did not appear, as she had not yet been served with the
guardianship petition, Kelly withdrew the motion in order
to provide additional time to confer with mother on whether
she wanted to use Kelly’s services. The court and Kelly dis-
cussed the possibility that there might not be anyone else
available to take over as mother’s legal advisor. In the review
order that the court issued, it noted, “Given the number of
attorneys that have previously represented [mother], there
are serious concerns that there may not be another attorney
who can serve as the mother’s legal advisor.”
484 Dept. of Human Services v. T. S.

At the initial appearance on the guardianship
petition in early December 2024, the court discussed with
mother and Kelly whether Kelly would continue as mother’s
legal advisor. Mother indicated that she believed Kelly was
no longer her legal advisor and that she knew nothing about
the October order. The juvenile court read her the portion
of the order commenting on the concerns around allowing
Kelly to withdraw and noted that the constant switching
of counsel had caused substantial delay in achieving per-
manency for L. Ultimately, mother told the court that she
was willing to have a meeting with Kelly to discuss Kelly
continuing as her legal advisor, but mother emphasized that
she was not guaranteeing it would work out between them.
Mother repeatedly noted that she was representing herself,
and that she needed to be included in all communications
on the case, which the court acknowledged. The court issued
an order summarizing the discussion that occurred at the
hearing, noting that “questions remain” as to whether Kelly
would continue in the role of legal advisor.
Two weeks later, mother appeared at a follow-up
hearing. She told the court that she had canceled the meet-
ing with Kelly, due to the death of a person close to her, and
that they had not had a conversation about Kelly’s role. The
juvenile court engaged in further conversation with mother
and Kelly about their working relationship, including not-
ing the low odds of anyone else agreeing to be legal advisor
on the case, and observing the difference in availability of
legal advisors versus counsel of record. Trial was scheduled
for four months out, during the second week of April, to
give mother time to prepare and meet with Kelly to decide
whether she wanted her to continue as her legal advisor.
During that hearing, mother told the juvenile court
that she had made up her mind and did want Kelly to with-
draw, because she did not want ODHS to communicate with
anyone other than her about the case. She further told the
court that she had not made a decision about whether she
would be requesting another attorney. ODHS noted that it
would object to any further setovers of the April trial dates
if mother sought additional counsel and asked for a contin-
uance. The court then told mother that she did not get “an
Cite as 348 Or App 481 (2026) 485

indefinite amount of time to decide whether or not you want
another attorney and what role and what form that comes[.]”
The court ultimately declined to allow Kelly to withdraw,
and encouraged mother to have a conversation with Kelly
to clarify some of mother’s confusion regarding her rights
to counsel. The court gave mother 30 days to determine
whether or not she was going to seek a different legal advi-
sor. The court issued an order to appear for a follow-up pre-
trial hearing a month later, and in the order summarized
the latest discussions. The order noted the court’s conclusion
that the continuation of a legal advisor was needed based on
mother’s inability to follow the court’s basic rules and proce-
dures and that the issue of legal advisor could be raised at
any future hearings.
At the early January 2025 pretrial hearing, mother
interrupted the discussion of discovery issues to announce
that she wanted to terminate Kelly. Kelly told the juvenile
court that mother did not wish to speak to her, so there
was not much she was able to do as legal advisor. The court
attempted to have a colloquy with mother about her rights
and what she was giving up by terminating Kelly; how-
ever, mother refused to engage in the colloquy, qualified her
answers, and accused the court of trying to trick her into
keeping a legal advisor that she did not want. The court ulti-
mately determined that it could not find mother’s waiver to
be knowing and voluntary without mother signing something
acknowledging the rights she was relinquishing. Mother
explained to the court that she was not waiving her right to
a legal advisor, that she was just asking to terminate Kelly,
and that she did not know if she would be requesting a new
legal advisor or asking for new counsel of record. The court
informed her that it would not be entertaining a request for
another legal advisor when she had not utilized her current
one and that it would not entertain a request for an attorney
of record because mother had made it clear on the record
that she wanted to be fully in control of her case, and that
was not what an attorney of record would do.
Following another failed attempt at a waiver col-
loquy, the juvenile court acknowledged mother’s statement
that she was specifically not waiving her right to counsel,
486 Dept. of Human Services v. T. S.

but explained that through her actions she may have waived
her ability to seek future appointment of counsel. The court
therefore continued Kelly’s appointment as legal advisor.
In a post-hearing order, the court memorialized the discus-
sion at the hearing, including finding that mother refused
to engage in the colloquy, and that the court informed her
of her right to file a written and signed statement declining
the use of the legal advisor. The order provided, in part:
“[Mother], however, made clear that she was not waiving
her right to either a legal advisor or an attorney of record.
She also repeated her reasoning behind requesting the ter-
mination of her legal advisor, having a legal advisor allows
the other parties with opportunities to have communica-
tion without including the mother. She also made clear that
she is opposed to an attorney determining the trial strat-
egy. This court has previously advised [mother] that her
actions can create an implicit waiver of her right to counsel
or to a legal advisor.”
A month and a half later in late February, Kelly
moved to withdraw, citing an irreparable breakdown in the
relationship that would not allow for further legal advising,
and stating that professional considerations required termi-
nation of the relationship. The juvenile court granted the
motion on March 5. Trial was set to begin on Monday, April
7, with pretrial call the Thursday before, April 3.
On the afternoon of April 2, mother filed a motion
for a continuance of both the April 3 call and the April 7 trial
date. Mother’s motion listed four reasons for the request:
(1) that she did not have counsel or an attorney advisor,
given Kelly’s withdrawal, and therefore had not had any
assistance in the weeks leading up to trial; (2) that there
were issues with her being able to review discovery in antici-
pation of trial; (3) that someone close to her had passed away
in December and she had been struggling since that time;
and (4) that she had not been provided with accommodations
for her disabilities. She requested that the trial be set over
for at least three months to give her the chance to grieve,
recover, and prepare for trial.
At call on April 3 before Judge Henry, the juvenile
court inquired into mother’s various justifications for the
Cite as 348 Or App 481 (2026) 487

continuance and, ultimately, denied mother’s motion. With
respect to her lack of counsel, the court observed that mother
had been informed numerous times that asking for replace-
ment counsel just before hearings could be viewed as inten-
tionally causing delay, and confirmed that mother had done
nothing over the past month since Kelly’s withdrawal to
request a new attorney. The court further confirmed moth-
er’s expectations about communication and control over her
case, noting that her expectations did not align with the role
of an attorney. The court made findings on the record and
in a written order that “Mother’s request for a new attorney
in this case is not in good faith and is made for the purpose
of delay,” and that “the appointment of an attorney in this
matter would be futile.”
On April 7, mother appeared for trial before Judge
Long. During preliminary matters when the juvenile court
attempted to address mother’s request for accommodations
for her disabilities, mother asserted that she did not have a
lawyer and had not been able to prepare. Judge Long noted
that mother had gone over those things with Judge Henry
and that they would not be readdressed. Mother declined
to participate in the trial, was held in contempt when she
refused to take the stand after being called as a witness,
and eventually left the courtroom during the first witness’s
testimony and did not return. ODHS put on its case, and the
court ultimately determined that ODHS had proved by clear
and convincing evidence that all allegations in the petition
to establish guardianship were true.
On May 30, a final hearing was held before Judge
Vallejo to finalize the guardianship. At the end of the hear-
ing, mother objected to the establishment of the guardian-
ship, noting she had been “deprived of an attorney,” had
never waived her right to counsel, and did not have an attor-
ney at the trial and multiple other times throughout the
case. She told the juvenile court that she was appealing the
order and wanted a rehearing and an attorney appointed.
Judge Vallejo observed that Judge Henry had denied the
request for an attorney on April 3, and that that ruling car-
ried into the current proceedings. The court issued an order
and judgment establishing the permanent guardianship.
488 Dept. of Human Services v. T. S.

On appeal, mother raises five combined assignments
of error relating to the guardianship being established with-
out mother being represented by counsel. As an initial mat-
ter, we note that mother’s assignments of error do not iden-
tify specific rulings that are being challenged, contrary to
the requirements of the Oregon Rules of Appellate Procedure.
See ORAP 5.45(3) (providing that “[e]ach assignment of error
must identify precisely the legal, procedural, factual, or other
ruling that is being challenged”). For instance, mother’s third
assignment of error contends that the juvenile court erred on
April 7 by not appointing counsel for mother for trial. However,
as described above, mother did not request an appointment of
counsel on April 7, and the juvenile court made no ruling on
that issue. At the April 7 trial, mother only commented that
she was not prepared because she did not have counsel and
the court noted that that issue had been addressed four days
earlier and would not be revisited.
Similarly, in her first assignment of error, mother
asserts that the juvenile court erred when it “concluded that
mother’s conduct * * * effected an implied waiver of her right
to court-appointed counsel” by engaging in misconduct. To
the extent that that “conclusion” can be construed as a rul-
ing, the record contains no such ruling. On January 10, the
court explicitly determined that it could not conclude that
mother had made a knowing and voluntary waiver of the
right to counsel, due to her refusal to engage in the waiver
colloquy. That ruling was never revisited. Judge Henry, at
the April 3 call hearing, found only that mother’s request
for counsel was not made in good faith and was made for
purposes of delay, and he therefore denied her motion for a
continuance.1 The court did not conclude that mother had
impliedly waived her right to counsel. Because mother’s first
assignment of error does not correspond to the facts of the
proceeding and does not identify an actual ruling by the
court that she finds objectionable, we reject that assignment
of error.
1
We note that mother did not explicitly request that counsel be appointed.
Her only motion was for a continuance. Judge Henry treated the motion and dis-
cussion at the hearing as a request for counsel and denied that implicit request
based on his findings that it was not made in good faith and that appointing
another attorney would be futile. The written order denied mother’s motion for a
continuance, which mother has not assigned as error on appeal.
Cite as 348 Or App 481 (2026) 489

Mother’s remaining arguments raise a general
challenge to the guardianship being established with-
out her having been appointed counsel. To the extent that
mother argues on appeal that the juvenile court incorrectly
concluded that she waived her right to counsel during the
permanency phase of the proceedings, that argument is not
properly before us because she has not challenged the per-
manency judgment that changed the plan away from reuni-
fication.2 And, regardless, the juvenile court confirmed with
mother in the guardianship proceeding that she was pro-
ceeding pro se and had explicit conversations with her that
she had a right to counsel that she could invoke, but mother
never did invoke that right. To the extent that she suggests
that any judge had a sua sponte duty to appoint counsel, or
that mother had an absolute right to counsel in the proceed-
ing and could not be forced to proceed pro se, we reject those
propositions.3
The right to counsel in juvenile dependency proceed-
ings derives both from state statute and the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution. State ex rel Juv. Dept. v. Geist, 310 Or 176, 188
n 13, 796 P2d 1193 (1990). ORS 419B.205 governs when an
indigent parent is entitled to counsel in dependency pro-
ceedings other than termination of parental rights. Under
2
The parties spent significant time at oral argument debating the existence
and relevance of a June 11, 2024, ex parte hearing where mother might or might
not have engaged in an on-the-record waiver colloquy with the juvenile court. The
record on appeal does not include a transcript of a hearing on June 11. The juve-
nile court issued an order on June 11 allowing the withdrawal of mother’s sixth
attorney and appointing Kelly as a legal advisor only, per mother’s request, that
indicated that mother “was informed of the difference between a legal advisor
and an attorney of record.”
While the matter was under advisement, ODHS filed an emergency motion to
supplement the record with the transcript of the June 11 hearing; mother opposes
the motion and asks, if we grant the motion, for leave to withdraw her opening
brief and for re-argument. Because no portion of the dependency proceeding is
currently at issue, we conclude that the June 11 hearing is immaterial to the res-
olution of this matter. Thus, we deny ODHS’s emergency motion. Although there
may be good cause to allow the motion given the unique circumstances of this
appeal, we ultimately deny the motion as moot given our decision in this case.
3
In a memorandum of additional authorities filed after oral argument,
mother cites Dept. of Human Services v. P. G., 348 Or App 398, ___ P3d ___ (2026),
in support of her argument. The facts and procedural history of this case are suf-
ficiently different from those presented in P.G. that we conclude that P.G. is not
helpful to our analysis in this case.
490 Dept. of Human Services v. T. S.

that statute, a juvenile court is required to appoint counsel
“whenever the nature of the proceedings and due process so
require.” ORS 419B.205(1). Thus, in proceedings other than
termination of parental rights, “a juvenile court retains
authority to deny a parent’s request for counsel * * * if the
nature of the proceeding and due process do not require rep-
resentation.” Dept. of Human Services v. T. L., 358 Or 679,
688, 369 P3d 1159 (2016).
Due process requires that parents be provided
with “fundamentally fair” procedures such that they have
the “opportunity to be heard at a meaningful time and in
a meaningful manner.” Geist, 310 Or at 189-90. As we have
previously noted in the context of dependency cases, “For
all its consequence, ‘due process’ has never been, and per-
haps can never be, precisely defined. It is not a technical
conception with a fixed content unrelated to time, place and
circumstances. Accordingly, due process is flexible and calls
for such procedural protections as the particular situation
demands.” Dept. of Human Services v. J. M., 266 Or App 453,
459, 338 P3d 191 (2014), rev den, 356 Or 685, and rev den,
356 Or 689 (2015) (internal quotation marks, citations, and
brackets omitted).
In Mathews v. Eldridge, 424 US 319, 334-35, 96 S Ct
893, 47 L Ed 2d 18 (1976), the Supreme Court of the United
States explained that, when a court is charged with decid-
ing if due process was satisfied in a particular instance, the
court generally must evaluate three factors: (1) “the private
interest that will be affected by the official action;” (2) “the
risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards;” and (3) “the
Government’s interest, including the function involved and
the * * * burdens that the additional or substitute procedural
requirement would entail.” Id. Oregon courts have applied
those criteria in evaluating whether a parent was provided
with due process in dependency proceedings. See, e.g., J. M.,
266 Or App at 459-63 (applying Mathews factors to parents’
claim of due process violation related to evidentiary issues);
Dept. of Human Services v. W. S. C., 248 Or App 374, 386-
390, 273 P3d 313, rev den, 352 Or 341 (2012) (evaluating
Cite as 348 Or App 481 (2026) 491

Mathews factors in deciding whether a statute dictating
appellate timelines provided a parent with due process).
There is no debate that a proceeding to establish
a permanent guardianship is one that affects a significant
interest for a parent. Any dependency situation in general
has the potential to interfere with a parent’s liberty interest
in controlling the care and custody of the parent’s child. J.
M., 266 Or App at 461; see also Troxel v. Granville, 530 US
57, 65, 120 S Ct 2054, 147 L Ed 2d 49 (2000) (observing that
the “liberty interest at issue in this case—the interest of
parents in the care, custody, and control of their children—
is perhaps the oldest of the fundamental liberty interests
recognized by this Court”). A permanent guardianship in
many ways is akin to the termination of parental rights,
in that it results in a deprivation of the right to parent the
child. See Dept. of Human Services v. T. M. D., 365 Or 143,
164-66, 442 P3d 1100 (2019) (discussing the similarities
between termination of parental rights and permanent
guardianship, and that both require a finding that it is in
the best interest of the child that the parents never have
physical custody). Mother had a significant liberty interest
in the outcome of the permanent guardianship proceeding.
On the other hand, the state also has an urgent
interest in the welfare of children and their best interests,
including “a strong interest in finality” and “having those
disputes resolved as expeditiously as possible.” J. M., 266 Or
App at 461 (citing Lassiter v. Dept. of Social Services, 452 US
18, 27, 101 S Ct 2153, 68 L Ed 2d 640 (1981), and Geist, 310
Or at 186). L had been in substitute care since 2022. The
trial dates had been on the calendar for four months and
the petition to establish guardianship had been pending
for nearly eight months by the time of trial. Furthermore,
the court had repeatedly acknowledged that there could be
significant difficulty in locating another attorney who could
represent mother, given the termination of six prior attor-
neys of record and an additional attorney legal advisor, and
the limited number of attorneys and law firms that perform
this kind of work. The state and L had a significant interest
in resolving the matter and achieving permanency for L and
not further postponing the resolution.
492 Dept. of Human Services v. T. S.

In light of those competing interests, our decision
largely turns on the second Mathews factor, viz., the risk
of an erroneous deprivation of mother’s interest through
the procedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards. It is well estab-
lished that there are risks to parents representing them-
selves, particularly given the complex issues involved in
dependency proceedings. Dept. of Human Services v. J. S.,
339 Or App 695, 705-08, 568 P3d 995, rev den, 374 Or 379
(2025) (discussing the importance of a knowing and intelli-
gent waiver of the right to counsel in light of the risks of self-
representation). Typically, we would readily conclude that a
parent has a better chance of achieving a favorable outcome
when opposing a permanent guardianship if the parent has
appointed counsel and utilizes counsel’s services. As demon-
strated by the juvenile court’s factual findings, however, this
case is atypical and significantly deviates from that sort of
typical situation.
Judge Henry made factual findings at the April 3
call hearing that mother was not requesting counsel in good
faith and was only making the request for purposes of delay.
Based on her past statements and her statements on April 3,
Judge Henry found that she did not actually want someone
to perform the role of an attorney, and therefore there was
no reason to believe that her relationship with an eighth
attorney would be any different than her relationships with
the previous seven. Mother has not challenged those find-
ings of fact on appeal. Moreover, even if she did, they are
supported by the record and thus are binding on us under
our standard of review. Thus, given the entire context, there
was a low probability that appointment of another counsel
would have added any procedural protections to these par-
ticular proceedings. Accordingly, we conclude that mother
was provided with “fundamentally fair” procedures.
In short, mother had the “opportunity to be heard
at a meaningful time and in a meaningful manner.” Geist,
310 Or at 189-90. Mother was repeatedly informed that her
right to counsel was not unlimited, that there were time and
personnel constraints on locating counsel for her, and that
last minute requests could be viewed as being for purposes
Cite as 348 Or App 481 (2026) 493

of delay. Considering the flexible nature of due process
requirements, and the demands of this particular situation,
we conclude that the trial court did not err.
Affirmed; motion to supplement the record and file
a late transcript denied as moot.