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In re Rardin4/14/2005
En Banc
Submitted on the record February 4, 2005.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
A juvenile court terminated father's parental rights. Father appealed to the Court of Appeals. The Court of Appeals, however, dismissed father's appeal, because that court concluded that the notice of appeal was untimely and that father had failed to raise a colorable claim of error. ORS 419A.200(5)(a) permits a party to file an untimely notice of appeal from a juvenile court judgment if the party (1) demonstrates the existence of a colorable claim of error in the underlying proceeding from which the appeal is taken; and (2) demonstrates that the failure to file a timely notice of appeal was not the party's fault. The issue in this parental termination proceeding is whether father has raised a "colorable claim of error" sufficient to excuse his late-filed notice of appeal. We conclude that father's appeal raises a colorable claim of error, and we therefore reverse the order of the Court of Appeals and remand for further proceedings.
We take the facts from the trial court's letter opinion. In 1995, while father and mother were living together, mother conceived and bore the child that is the subject of this dispute. Father signed the birth certificate, acknowledging his status as the child's father. About six months later, however, mother informed father that child was not his. In October 1995, the Support Enforcement Division required father to pay child support as the legal father. When child was a year and a half old, parents separated. Father made some child support payments after the separation.
Between 1997 and 1999, the Department of Human Services (DHS) could not locate father. When contacted in 1999, father told DHS did not want to participate in child's upbringing and support unless he could be convinced of his paternity through a DNA test. Father could not afford the fee, which was between $1,250 and $2,500, and DHS would not pay for testing. Father and DHS corresponded intermittently from 1999 to 2001.
In April 2002, DHS sent father a letter of expectation stating that, if father worked with DHS, DHS would assist him in developing a relationship with child and that she eventually might be placed with him. By mid-2002, however, DHS became less interested in assisting father and decided to seek the termination of his parental rights. DHS instructed father not to contact child directly but, instead, to send letters, cards, pictures, and presents to her through DHS. He sent items at least once a week. Later, however, DHS informed father that it had stopped giving his cards and letters to child. Father initially did not understand that termination was DHS's goal. However, DHS did advise father that it had decided to seek to terminate his parental rights because the changes that DHS wanted in father's actions had not occurred quickly enough. In August 2002, father paid for paternity testing that confirmed that he was child's biological father.
In October 2002, DHS filed a petition for termination of father's parental rights. The petition alleged, inter alia, that father was
"unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the father's home is improbable within a reasonable time due to conduct or conditions not likely to change, including, but not limited to the following: a) Failure to present a viable plan for the return of the child to the parent's care and custody b) Abandonment of the child."
After a hearing, the trial court issued a lengthy and detailed
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