Department of Human Services v. T. L.

ARMSTRONG, P. J. In this consolidated appeal, father appeals judgments changing the permanency plans for his three children.1 Following a permanency hearing in which father’s counsel did not appear, the juvenile court changed the plan for father’s oldest child from reunification to “another planned permanent living arrangement” (APPLA) and changed the plans for father’s two younger children from reunification to guardianship. The substance of father’s challenge on appeal is that his counsel’s failure to appear at the permanency hearing constituted inadequate assistance of counsel under State ex rel Juv. Dept. v. Geist, 310 Or 176, 796 P2d 1193 (1990), requiring reversal of the judgments— an argument that father makes for the first time on appeal. The Department of Human Services (DHS) responds that we should decline to consider that challenge “because father had the option of raising that complaint to the trial court and that court is the more appropriate forum to resolve such challenges.” We agree with DHS. ORS 419B.923 provides a trial-level mechanism to set aside judgments in dependency cases, and, because that remedy is available to challenge the adequacy of dependency counsel, Geist is inapplicable. Because father did not preserve his claim of inadequate assistance of counsel in this case, we do not consider it. For that reason, we affirm. In March 2013, the juvenile court took jurisdiction over mother and father’s three children — then ages 8, 12, and 14 — based, as to father, on father’s stipulation that his use of alcohol and controlled substances interferes with his ability to provide safe, appropriate, and consistent care for the children.2 Father was ordered to participate in services. Neither parent appeared at the first review hearing on June 5, 2013, though their attorneys were present. The court scheduled a permanency hearing for August 29 to determine whether the permanency plans for the children should be changed from reunification to other plans. Father [457] and mother failed to appear at the start of that hearing, and father’s attorney also failed to appear. Attorneys for DHS, the children, and mother were present. The court tried, unsuccessfully, to contact father’s attorney and waited 12 minutes before beginning the hearing, noting that it was “very unusual” for father’s attorney not to be present. The court then proceeded with the hearing and, after taking evidence and hearing argument (including from children’s appointed counsel, who advocated in favor of changing the plans), decided to change the permanency plan for the oldest child, R, to APPLA and to change the plans for the younger children, M and T, to guardianship. At that point, father and mother arrived, and the court informed them of its decision to change the permanency plans. The court explained: “This is a legal juncture of significance, but by no means is it the end. As I said the last time, if there was not progress by today, this would be a short hearing. There hasn’t been. I don’t want anybody to feel bad. I’m not up here to kick people around. Ours is not a punishment-oriented system. It is about getting kids back to their parents. “But if they are unable to distance themselves from things that are risky to kids, like drug use and the like, then the kids are entitled to a safe, permanent home. They are entitled to that sooner, not later. Now, every kid is entitled to that. That’s the assumption that the law makes. These decisions are designed to accomplish that. “The point here for the parents, [mother and father], you can change the circumstance now. I just decided that we were going to keep this hearing on for October. That’s because the plan could change back at that next hearing, if you can embrace recovery and put yourself in the position to be a safe parent. You don’t have to have it all accomplished by October. But if you could get yourselves into treatment and embrace recovery, then there is the potential that the plan could change back in October.” The discussion that followed was, in large part, devoted to the court’s concern about R, who had run away from foster [458] care and was, apparently, living on the streets.3 During the course of that conversation, father told the court — in an unsworn statement — that he “was under the impression that [he] was doing what DHS was requesting of [him].” He stated that he “went through Tigard Detox,” was “enrolled in Clackamas County Behavioral Health Program,” and had had clean urinalyses. He also indicated that he had, the day before the hearing, dropped off a release to DHS. Father did not say anything about the absence of his attorney at the hearing; nor did he indicate to the court that he was opposed to the change in permanency plans for the children. The court subsequently entered permanency judgments consistent with its decision at the hearing. Father did not move to set aside the judgments. See ORS 419B.923 (set out below at 269 Or App at 460-61). On appeal, father seeks to have those judgments reversed. He purports to assert nine separate assignments of error; however, he presents a single combined argument in which he contends that, because his counsel failed to appear at the permanency hearing, he received inadequate assistance of counsel, was consequently denied a fundamentally fair hearing, and, under Geist, is entitled to reversal of the permanency judgments.4 Father acknowledges that he failed to preserve that argument, but contends, quoting Geist, 310 Or at 184 n 9, that he is “not required to have preserved his claim because ‘the general rule that 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.’” We disagree. A close reading of Geist, in light of the enactment of ORS 419B.923 and our cases construing that statute, leads to the conclusion that, as the state contends, father’s claim [459] as to the inadequacy of his appointed trial counsel must be made in the first instance in the juvenile court. We begin with Geist. Geist involved the review-ability on direct appeal of a judgment terminating the mother’s parental rights. The Supreme Court held that the statutory right to counsel for indigent parents in termination cases included the right to adequate counsel, and that, “[ajbsent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may fashion an appropriate procedure.” 310 Or at 185 (emphasis added). Emphasizing the importance of finality in termination cases, the court noted that “a procedure that allows a terminated parent to make a claim of inadequate counsel only after all direct statutory appeals have been exhausted would only further delay the finality of the termination decisions.” Id. at 187. Because of that concern and in the absence of statutes prohibiting it, the court concluded that challenges to the adequacy of appointed trial counsel in termination proceedings were reviewable on direct appeal, notwithstanding the lack of preservation. Id. at 184 n 9 (noting that, “ [b]ecause of the important timeliness considerations,” the general rule that appellate courts will not consider error that has not been preserved at trial “need not be strictly applied to the issue of appointed trial counsel’s adequacy in a parental rights termination proceeding”). The court also determined that the standard of adequacy required was one that ensured “fundamental fairness” and that the parent making the challenge has the burden of proving that that standard has not been satisfied. Id. at 191.5 [460] The following year, we extended the reasoning in Geist to allow direct review of appointed counsel’s performance in the context of other dependency proceedings. State ex rel Juv. Dept. v. Charles /Austin, 106 Or App 628, 810 P2d 389, rev den, 312 Or 150 (1991) (allowing inadequate-assistance-of-counsel claim in appeal of jurisdictional judgment). Those cases provide the foundation for father’s argument that we can properly consider unpreserved claims of inadequate assistance of counsel on direct review of juvenile dependency judgments. The problem with father’s reasoning, however, is that the legal landscape has changed significantly — and dispositively — in the almost 25 years since Geist was decided. As just discussed, a primary rationale for the court’s decision in Geist was the absence of a “legislative procedure for vindicating the statutory right to adequate counsel.” 310 Or at 185; see also id. (“The statutory right to adequate trial counsel may prove illusory if there is no procedure for review of claims of inadequate counsel.” (Footnote omitted.)). However, in 2001, the legislature enacted ORS 419B.923, which provides: “(1) Except as otherwise provided in this section, on motion and such notice and hearing as the court may direct, the court may modify or set aside any order or judgment made by it. Reasons for modifying or setting aside an order or judgment include, but are not limited to: “(a) Clerical mistakes in judgments, order or other parts of the record and errors in the order or judgment arising from oversight or omission. These mistakes and errors may be corrected by the court at any time on its own motion or on the motion of a party and after notice as the court orders to all parties who have appeared. During the pendency of an appeal, an order or judgment may be corrected as provided in subsection (7) of this section. “(b) Excusable neglect. “(c) Newly discovered evidence that by due diligence could not have been discovered in time to present it at the hearing from which the order or judgment is issued. [461] “(3) A motion to modify or set aside an order or judgment must be made within a reasonable time except no order or judgment pursuant to ORS 419B.527 [authorizing post-TPR order placing ward in legal custody of agency authorized to consent to adoption and other dispositions] may be set aside or modified during the pendency of a proceeding for the adoption of the ward, nor after a petition for adoption has been granted. “(7) A motion under subsection (1) of this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. * * * “(8) This section does not limit the inherent power of a court to modify an order or judgment within a reasonable time or the power of a court to set aside an order or judgment for fraud upon the court.” (Emphasis added.) Thus, ORS 419B.923 now provides the statutory procedure for a parent to challenge the adequacy of counsel that was missing in Geist. And it does so — appropriately—in the trial court, the forum that both we and the Supreme Court have recognized provides the more efficient means to resolve such claims, which are inherently fact dependent. See Geist, 310 Or at 192 n 16; State ex rel Juv. Dept. v. Kopp, 180 Or App 566, 578, 43 P3d 1197 (2002). Father (and the dissent) nonetheless contend that father was not required to pursue the remedy under ORS 419B.923 to challenge the adequacy of his trial counsel because there was a similar set-aside statute in effect at the time that Geist was decided and because ORS 419B.923 does not offer an express legislative procedure to vindicate the statutory right to counsel, as contemplated by Geist. Those arguments do not withstand scrutiny. Although father is correct that ORS 419B.923 derives from a similar statute that was in effect when Geist was decided — viz., former ORS 419.529(1) (1989), repealed by [462] Or Laws 1993, ch 33, § 373® — the court may very well have not considered that statute to be an available remedy because it was part of a scheme that, potentially, made it ineffective in the context of a challenge to a termination of parental rights (TPR) judgment.6 7 In any event, the Geist court did not mention it. And post-Geist developments have made it clear that the set-aside mechanism, now codified at ORS 419B.923, is expressly available as a remedy to challenge the adequacy of appointed counsel in juvenile dependency matters. First, in Kopp, we rejected the state’s argument that the mother, whose parental rights had been terminated by default, was precluded from moving to set aside the default judgment under former ORS 419B.420 (the predecessor to ORS 419B.923(1), see 269 Or App at 462 n 6) because ORS 419B.524 denied her standing to do that.8180 Or App at 579. [463] We concluded that “a construction of ORS 419B.524 that deprives a terminated parent of standing to seek, under former ORS 419B.420, an order modifying or setting aside the termination judgment would have [the] effect” of impairing the parent’s right under the Due Process Clause to a “fundamentally fair” hearing. Id. at 576-77. Thus, we held, ORS 419B.524 must be interpreted to allow such a process. Next, in Dept. of Human Services v. A. D. G., 260 Or App 525, 317 P3d 950 (2014), we considered the scope of the juvenile court’s authority under ORS 419B.923 to set aside a judgment — specifically, in that case, a default judgment terminating the mother’s parental rights. Construing ORS 419B.923(1), we observed that the text itself — viz., “the court may modify or set aside any order or judgment made by it” (emphasis added) — described the court’s authority broadly and did not limit that authority to the nonexclusive list of reasons specifically enumerated in the statute — viz., clerical mistakes, excusable neglect, and newly discovered evidence. A. D. G., 260 Or App at 536. Our extensive review of the statute’s enactment history confirmed that understanding. Id. For example, we quoted testimony from one of the workgroup members who had drafted the legislation that the statute expands the grounds’ upon which a parent may move to set aside a juvenile court’s order ‘beyond those authorized by ORCP 71, which are limited.’” Id. at 539 (quoting Tape Recording, Senate Judiciary Committee, HB 2611, Apr 30, 2011, Tape 115, Side B (statement of Michael Livingston)) (emphasis in A. D. G.). Consequently, we concluded that, because the mother had “raise [d] a serious question regarding the juvenile court’s authority to enter the default judgment [that] she [sought to have] set aside and a colorable claim of a violation of her due process rights by virtue of the juvenile court’s interpretation of its authority to enter judgment without allowing her the opportunity to defend against the allegations in the TPR petition at the hearing she attended,” [464] there were sufficient grounds for the juvenile court to consider exercising its authority under ORS 419B.923(1) to set aside the default judgment. Id. at 539-40. Our holding in A. D. G. leaves little doubt that a claim of inadequate assistance of trial counsel- — -a claim also based on due-process concerns, Geist, 310 Or at 189-90 — would similarly fall within the court’s broad discretionary authority to address under ORS 419B.9230). Thus, since the enactment of ORS 419B.923(1), as construed in A. D. G., a crucial predicate of the court’s reasoning in Geist — that direct appellate review of this type of claim was necessary due to the lack of any other mechanism to vindicate the right to adequate counsel — no longer exists. Similar reasoning, in fact, led us to reject in State ex rel Juv. Dept. v. M. U., 229 Or App 35, 210 P3d 254 (2009), a mother’s argument that we should create a remedy on direct appeal for her claim that her counsel’s failure to file a timely appeal of a juvenile court judgment constituted inadequate assistance of counsel. The mother relied on State ex rel SOSCF v. Hammons, 169 Or App 589, 593-94, 10 P3d 310 (2000), in which we had concluded, under the reasoning of Geist, that it was permissible for us to fashion a remedy on appeal for the inadequate assistance of the mother’s appellate counsel for failing to file a timely appeal of a termination judgment, because, as in Geist, a legislative procedure to vindicate the mother’s statutory right to counsel did not exist. However, by the time that we considered M. U., the legislature had amended ORS 419A.200 to provide such a procedure. Thus, we held, “the decisive factor upon which our authority to craft a remedy in Hammons was predicated” — the absence of a legislative procedure to address the asserted inadequacy — was itself absent. M. U., 229 Or App at 43. Accordingly, we concluded that the mother’s remedy was governed by the procedure that the legislature had provided — ORS 419A.200(5).9 [465] So, too, has the legislature provided a procedure for a parent to assert a challenge to the adequacy of his or her appointed trial counsel as a reason for setting aside a permanency judgment made by the juvenile court — that procedure is ORS 419B.923(1). Contrary to father’s and the dissent’s contention otherwise, given our construction and application of ORS 419B.923(1) in A. D. G., that provision now constitutes an “express legislative procedure” for ensuring that the statutory right to counsel in dependency cases is not illusory. Geist, 310 Or at 185. Thus, we are not, as the dissent contends, disregarding the mandate of Geist. 269 Or App at 469 (Egan, J., dissenting). Rather, as in M. U., the existence of that legislatively prescribed procedure negates the applicability of Geist. Because of the availability of a legislative procedure for vindicating the right to counsel, Geist’s premise — that direct appeal is necessary — evaporates.10 The other rationale supporting the court’s decision in Geist — the need for “expeditious resolution” of dependency cases, 310 Or at 187* 11 — is also best served by requiring a parent to first seek to set aside an erroneous judgment in the trial court. First, a motion to set aside a judgment in the trial court under ORS 419B.923(1) can be filed at the same time that an appeal from the judgment is pending in this court. ORS 419B.923(7). Thus, even if, as father points out, trial counsel’s alleged inadequacy does not surface until appellate counsel is appointed, ORS 419B.923(7) provides for that contingency by allowing a motion to set aside to be filed in the juvenile court during the pendency of an appeal. And, that motion need not unnecessarily delay appellate review. ORS 419B.923(7); ORAP 2.22(2)(b) [466] (allowing appeal to be held in abeyance, or to go forward, pending disposition of a motion filed in the juvenile court under ORS 419B.923). Moreover, the remedy provided by ORS 419B.923 does not, as the Supreme Court was concerned in Geist, “allow a *** parent to make a claim of inadequate counsel only after all direct statutory appeals [are] exhausted.” Id. at 187.12 Second, allowing a challenge to the adequacy of counsel on direct appeal — as opposed to first pursuing that relief in the trial court — will likely extend the litigation rather than shorten it. That is because such challenges turn on factual questions, questions that the trial court is better equipped to resolve because it, unlike the appellate court, already has mechanisms in place to receive and evaluate evidence.13 The Supreme Court recognized as much in Geist. In a lengthy footnote — some of which is set out at 269 Or App at 459 n 5 — the court indicated its view that those issues generally are best resolved at the trial level. See 310 Or at 192 n 16 (“[A]ny determination that relevant evidence or argument was omitted or whether such omission would have made any difference in the outcome is best made by the trial court.”). As the court discussed, the state had proposed a procedure whereby, after settlement of the transcript on appeal, appellate counsel would have a set time [467] within which to move this court for a remand to the juvenile court to take further evidence on the question of adequacy of trial counsel; presumably, opposing counsel would then have time to respond; and, if we agreed that remand was necessary, we could send the case back to the trial court for fact finding. Id. Even if we did not adopt that procedure, we presumably would need to establish some method to obtain trial court fact finding in those cases. Requiring, instead, that the parent seek to resolve the asserted inadequacy of counsel in the trial court under ORS 419B.923(1) would eliminate the unnecessary step of a remand — after (if, for example, a plan similar to the one that the state proposed in Geist were to be adopted) the further step of additional briefing and decision making on whether a remand is needed. If the parent’s ORS 419B.923(1) motion is denied by the juvenile court, the parent would then be free to appeal that denial, and the issue would be before us with a properly developed factual record. We made a similar observation in Kopp. In concluding that a parent must be permitted to seek an order setting aside a default termination judgment under the predecessor to ORS 419B.923, we explained: “In particular, where a terminated parent has asserted a defect in the proceeding leading to termination, a hearing under [former ORS 419B.420] — in which, for example, a parent can develop a factual record relating to the asserted defect — is best suited for providing the parent with the required ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ See [Geist, 310 Or at 189-90] (stating that standard as the ‘essence of fundamental fairness’). A proceeding in juvenile court under former ORS 419B.420 is also likely to be the most expeditious mechanism for resolving any asserted challenge — including, if the court determines that modification or set-aside is warranted, the expeditious scheduling and hearing of whatever further proceedings are required. By comparison, an appeal— particularly one resulting in the reversal of the termination judgment and further proceedings below — may result in a much greater delay in final resolution of the matter.” Kopp, 180 Or App at 578-79 (emphasis added). There is nothing to be gained — and much to be sacrificed — by allowing [468] claims of inadequate assistance of counsel to be made in the first instance on direct appeal when the legislature has provided, in ORS 419B.923(1), a more expeditious and efficient method to resolve them. This case illustrates the problem. Because we do not have a factual record concerning counsel’s reason for not attending the hearing and the actions that counsel would or should have taken had he attended it, we have no basis to conclude that counsel failed to “exercise professional skill and judgment” on father’s behalf, Geist, 310 Or at 190, and that that failure prejudiced father’s case, id. at 191 (parent challenging trial counsel’s inadequacy must produce “some credible evidence” demonstrating that the proceeding was not fundamentally fair). In sum, the premises upon which Geist is grounded have been negated by the availability of ORS 419B.923 as a mechanism for a parent in a dependency action to challenge the adequacy of his or her trial counsel in the juvenile court. In light of those developments — as well as the recognized need for expeditious resolution of these cases — we conclude 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 419B.923(1), for the court to modify or set aside the judgment or order to which the claim relates.14 Because father failed to preserve his claim of inadequate assistance of counsel in this case, we affirm the permanency judgments at issue on appeal. Affirmed. Footnotes [1] Mother is not a party to this appeal. [2] This was the second time that the children had been made wards of the court. They were previously removed from parents’ care for five months beginning in April 2011 due to concerns about parents’ use of controlled substances. [3] Por example, at one point, the court stated: “I’m scared to death for [R]. In four years of doing this work, I have had one other child that I was as nervous about as I am about [R] and her circumstances. She needs her parents to try to bring her back to the agency and put the agency in a situation where they can try some foster care settings. I know they haven’t been successful in the past, but that is what needs to happen.” [4] To the extent that father can be understood to raise a separate contention that the juvenile court also erred in proceeding with the permanency hearing in father’s absence, we reject that contention without further discussion. [5] The court concluded that the trial court record in Geist was sufficient to decide the issue on appeal (and ultimately rejected the mother’s claim of inadequacy) but expressed some skepticism about the mechanism for determining the issue in the event the trial court record was not adequate. See 310 Or at 192 n 16 (“The parties note a potential problem in direct review of a claim of appointed counsel’s inadequacy. They suggest that such claims may involve evidence which trial counsel may have failed to present or arguments which counsel may have failed to make. They argue that it may be impossible to determine from the record on appeal whether the omitted evidence or argument would have made any difference in the outcome of the proceeding. Without necessarily agreeing that a hearing would be constitutionally required, we note that any determination that relevant evidence or argument was omitted or whether such omission would have made any difference in the outcome is best made by the trial court.” (Emphasis added.)). [6] Former ORS 419.529(1) (1989) provided, “Except as provided in this section, the court may modify or set aside any order made by it upon such notice and with such hearing as the court may direct.” It was repealed in the 1993 revision to the juvenile code, Or Laws 1993, ch 33, § 373; however, the substance was retained in former ORS 419B.420 (1993), which provided: “Except as provided in ORS 419B.423 [regarding notice requirements for modification of orders] and ORS 419B.426 [providing limitation on setting aside post-TPR orders], the court may modify or set aside any order made by it upon such notice and with such hearing as the court may direct.” Former ORS 419B.420, in turn, was repealed by Or Laws 2001, ch 622, § 57, the legislation that enacted ORS 419B.923. [7] Former ORS 419.529(4) (1989), repealed by Or Laws 1993, ch 33, § 73, provided: “No order pursuant to ORS 419.527(l)(a) [which allowed the court, after entry of an order terminating a parent’s rights, to place a child in the legal custody of an agency authorized to consent to the adoption of children] may be set aside or modified during the pendency of a proceeding for the adoption of the child, nor after a petition for adoption has been granted.” And, former ORS 419.525(4) (1989), repealed by Or Laws 1993, ch 33, § 373, provided: “Unless there is an appeal from the order terminating the rights of the parent or parents, the order permanently terminates all rights of the parent or parents whose rights are terminated and the parent or parents have no standing to appear as such in any legal proceeding concerning the child.” Those statutes, in substance, continue to exist in some form in current law. See ORS 419B.923(3); ORS 419B.524. [8] ORS 419B.524 provides: “Unless there is an appeal from the order terminating the rights of the parent or parents, the order permanently terminates all rights of the parent or parents whose rights are terminated and the parent or parents have no standing to appear as such in any legal proceeding concerning the ward.” [463] Although the statute was amended in 2003 — after Kopp — the only change was to replace “child” with “ward,” see Or Laws 2003, ch 396, § 89; thus, for convenience, we quote the current version of the statute. [9] The dissent does not address M. U. and instead implies that we are thoughtlessly undoing “years” of post -Geist precedent, see 269 Or App at 473 (Egan, J., dissenting). However, the cases the dissent cites to illustrate that point were all decided before the enactment of ORS 419B.923 and certainly well before our decision in A. D. G. [10] As even Judge Rossman advocated in his concurrence to our opinion in Geist (which the dissent quotes at length, see 269 Or App at 470-71 (Egan, J., dissenting)), hearing parents’ inadequate-assistance-of-counsel claims on direct appeal was “the only reasonable alternative” — given the nature of the right at stake — “until the legislature provides a better plan” State ex rel Juv. Dept. v. Geist, 97 Or App 10, 22-23 n 2, 775 P2d 843 (1989), aff’d on other grounds, 310 Or 176, 796 P2d 1193 (1990) (Rossman, J., concurring) (emphasis in original). The legislature has now provided that “better plan.” [11] The court observed, “Any delay in achieving finality in a termination case adversely affects the rights of all the parties. *** Whether or not the eventual result is termination, protracted litigation extends uncertainty in the child(ren)’s life.” Geist, 310 Or at 186-87 (emphasis added). The same can be said in all dependency cases. [12] Presumably, the court was referring to the statutory post-conviction review procedure, ORS 138.510 to 138.686, under which a convicted defendant may collaterally challenge his or her conviction on the ground that he or she received inadequate assistance of counsel at trial or on appeal. [13] The dissent complains that our decision will extend, rather than shorten, litigation because it will require “an extra step in all cases before we can review a parent’s inadequate-assistance-of-counsel claim.” 269 Or App at 478 (Egan, J., dissenting) (emphasis in original). To the contrary, utilization of the ORS 419B.923 set-aside process may, in some cases, eliminate entirely one step of the litigation process — that is, the need for an appeal. Moreover, we do not, contrary to the dissent’s assertion, advance the proposition that, if these claims were to be heard in the first instance on direct appeal, there would never be a case in which the factual record would be sufficient for appellate review (indeed, Geist was such a case) — only that they will be rare and that this is not such a case. The dissent, on the other hand, by contending that the factual record in this case is adequate, would, in essence, establish a rule that an attorney is per se constitutionally inadequate if he or she fails to appear for a hearing, regardless of the reasons for that absence or, contrary to Geist, 310 Or at 189-90, whether the parent was prejudiced as a result. That position is untenable. [14] The dissent argues that we thus are eliminating the “fundamental fairness” standard for evaluating inadequate-assistance-of-counsel claims. 269 Or App at 480-81 (Egan, J., dissenting) (“Under the majority view, if the parent’s motion to set aside the judgment is denied, the parent’s appeal of that denial would not be reviewed for fundamental fairness' — as it would be in a direct appeal of an inadequate-assistance-of-counsel claim — but instead would be reviewed under a far more deferential abuse of discretion standard.”). The dissent is wrong. The “abuse of discretion” standard of review does not allow us to ignore the “fundamental fairness” legal standard established by the Supreme Court in Geist. In other words, it would not be within the trial court’s range of permissible discretion to deny a parent the fundamental fairness guaranteed by Geist, and we would be obliged to so hold if confronted with such a circumstance.