Department of Human Services v. J. R. D.

SERCOMBE, P. J. The issue in this juvenile dependency case is whether ORS 419A.150(3) allows a party the opportunity to present new evidence in a judicial rehearing of a referee’s determination or whether that evidence can be excluded at the discretion of the juvenile court.1 Here, when mother failed to appear at a pretrial conference under ORS 419B.815(2)(b) before a juvenile court referee, the referee allowed the Department of Human Services (DHS) to proceed with its prima facie case, and the referee entered an order taking jurisdiction of mother’s child, D.2 After the referee entered that order, mother made a timely request for a rehearing before a juvenile court judge under ORS 419A.150, seeking to present additional evidence to rebut DHS’s previously proven case. The court “affirmed” the referee’s order without affording mother the opportunity to present additional evidence and entered a judgment taking jurisdiction of D. Mother appeals from that judgment, arguing that she was entitled to present additional evidence at the rehearing. DHS responds that the court had discretion to decide whether to allow mother to present additional evidence and it did not — 58 — abuse that discretion. We agree with mother and, therefore, reverse and remand. We begin by briefly reviewing the relevant portions of ORS 419A.150. ORS 419A.150(1) permits juvenile court judges to “appoint one or more persons as referees of the juvenile court.” A juvenile court judge may “direct that any case, or all cases of a class designated by the judge, be processed or heard in the first instance by a referee,” who then transmits his or her “findings, recommendations or order in writing” to the judge. ORS 419A.150(2). A referee order is “immediately effective, subject to the right of review provided in [ORS 419A.150].” ORS 419A.150(4). After the referee conducts a hearing, certain parties—including “a child, ward, youth, youth offender, the parent, guardian, district attorney, [DHS], juvenile department or other party affected by the order”—are entitled to request a rehearing before a juvenile court judge. ORS 419A.150(3), (7). The court may also order a rehearing on its own motion. ORS 419A.150(6). If no party requests a rehearing within 10 days, then the referee’s order becomes “a final order of the juvenile court.” ORS 419A.150(4). If a party requests a rehearing, pursuant to ORS 419A.150(3), “[a] rehearing before a judge of the juvenile court may be determined on the same evidence introduced before the referee if a stenographic transcript of the proceedings was kept, but, in any case, additional evidence may be presented.” ORS 419A.150(8) further provides that the “rehearing is conducted de novo.” Here, as noted, DHS petitioned for jurisdiction of mother’s child, D. Mother failed to appear for a pretrial conference before a referee. At the pretrial conference, the referee permitted DHS to present its prima facie case without mother present. The referee subsequently entered an order taking jurisdiction of D. Mother then made a timely request for a rehearing under ORS 419A.150. She argued that, on rehearing, she was entitled to a full jurisdictional hearing before the court, including the right to present evidence. In response, the state argued that mother had forfeited any right to present evidence by failing to appear. The juvenile court agreed with the state, explaining its reasoning in a letter opinion. — 59 — The court first concluded that “there was no reasonable excuse for Mother’s absence [.] ” Next, the court explained that “[h]ad Mother been at the hearing, she would have had the right to call witnesses (including herself, of course), cross-examine the State’s witnesses, and otherwise participate in the hearing.” However, “[b]ecause she was not present in person at the hearing, she lost that right.” The court further explained that it “d [id] not believe that it was the legislature’s intention to allow a parent who failed to appear at the Pretrial Conference and Judicial Settlement Conference to [present evidence] at rehearing.” The court also concluded that, even if mother’s failure to appear did not preclude her from presenting evidence, the court could nevertheless deny her request to do so. According to the court, ORS 419A.150(3) “gives the trial court conducting the rehearing the discretion to review the case using the evidence presented at the initial hearing and also gives the trial court discretion to allow the presentation of‘additional evidence.’” The court determined that, “to the extent that I may allow [mother] to produce additional evidence, I elect to not exercise that discretion.” As the court explained: “To exercise my discretion to allow a parent to proceed to adduce testimony at a rehearing of a hearing to which she failed to attend in the first instance would be to vitiate the need to even consider whether an absence was excusable, and would make ORS 419 [B].815(7) superfluous. A parent, having missed the hearing as summoned due to her own neglect, could simply seek a second bite at the apple, despite the summons and its dire warnings. That would be unfair to the many parents who are present at their hearings even at great difficulty or inconvenience, and could lead to rehearings simply due to a parent’s absence at the hearing to which the parent was summoned originally.” The court then stated that it had “reviewed de novo the evidence presented” at the hearing before the referee, and it “affirmed” the referee’s order taking jurisdiction over D. The court subsequently entered a judgment consistent with that decision. On appeal, the parties dispute the scope of the rehearing available under ORS 419A.150. According to mother, the — 60 — statute permits a new hearing on the merits of the case, including the right to present evidence. The state responds that the statute allows a party to obtain reconsideration of the referee’s decision on the record created by the referee, and that whether new evidence may be presented is at the juvenile court’s discretion. To resolve that issue, we must interpret ORS 419A.150 by examining its text, context, and any relevant legislative history to determine the intent of the legislature. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). When the text of a statute contains words in common usage, we interpret those words in accordance with their plain, natural, and ordinary meanings. PGE, 317 Or at 611. Furthermore, if a term has a “well-defined legal meaning,” we presume that the legislature intended for it to carry that meaning. Dept. of Transportation v. Stallcup, 341 Or 93, 99, 138 P3d 9 (2006). We may rely on dictionaries to discern the meaning of words in common usage, State v. Higgins, 165 Or App 442, 445, 998 P2d 222 (2000), and legal dictionaries for legal terms of art, Powerex Corp. v. Dept. of Rev., 357 Or 40, 61, 346 P3d 476 (2015). The parties primarily focus on three sections of ORS 419A.150: “(3) When the referee conducts a hearing, the persons entitled to request rehearing as provided in subsection (7) of this section must be notified of the referee’s findings, recommendations or order, together with a notice to the effect that a rehearing may be had before a judge if requested within 10 days. A rehearing before a judge of the juvenile court may be determined on the same evidence introduced before the referee if a stenographic transcript of the proceedings was kept, but, in any case, additional evidence may be presented. “(4) All orders of a referee become immediately effective, subject to the right of review provided in this section, and continue in full force and effect, unless stayed by order of the referee or by a juvenile court judge, until vacated or modified upon rehearing by order of a judge of the juvenile court. Any order entered by a referee becomes a final order — 61 — of the juvenile court upon expiration of 10 days following its entry, unless a rehearing is ordered or requested. "* * * * * “(8) All rehearings of matters heard before a referee shall be heard expeditiously by a judge of the juvenile court within 30 days after the filing of the request, unless the court orders a continuance. In no event may the rehearing occur later than 45 days after the date of the filing of the request. The rehearing is conducted de novo!’ (Emphases added.) To start, we address the juvenile court’s conclusion in its letter opinion that a litigant who failed to appear before a referee is barred from presenting evidence at a rehearing. The text and context of ORS 419A.150 do not support that conclusion. ORS 419A.150 does not make any distinctions between appearing and nonappearing parties. The statute extends the right to “request rehearing” to several classes of litigants, including “a child, ward, * * *, the parent, guardian, district attorney, [DHS], juvenile department or other party affected by the order” without regard to their participation in the hearing before the referee. ORS 419A.150(7). Nor is there anything in the statute to suggest that ORS 419A.150(3), providing that “additional evidence may be presented,” is limited to parties who appeared before the referee. In its letter opinion, the court relied in part on ORS 419B.815(7). ORS 419B.815(7) allows for a juvenile court to “establish jurisdiction without further notice” if a party fails to appear for “any hearing related to the petition,” as the referee did at the pretrial conference in this case, or as a rehearing court might do if a party fails to appear at a rehearing. The statute, however, is silent as to any limitations on the scope of a rehearing under ORS 419A.150 if a party failed to appear at a hearing before a referee, and it is not useful context for discerning the meaning of ORS 419A.150. For its part, DHS does not defend that portion of the juvenile court’s ruling. Rather, as noted, DHS contends that we should interpret the statute to grant the juvenile court — 62 — discretion to allow or deny the parties the opportunity to present additional evidence. That position, however, also is not supported by the text and context of the statute. Again, ORS 419A.150(3) provides that “[a] rehearing before a judge of the juvenile court may be determined on the same evidence introduced before the referee if a stenographic transcript of the proceedings was kept, but, in any case, additional evidence may be presented.” DHS argues that the second use of the word “may” in that sentence grants discretion to the juvenile court to deny a party the opportunity to present additional evidence. We disagree and conclude that the phrase “additional evidence may be presented” unambiguously provides litigants with permission to present new evidence. In other contexts, the use of the passive voice (“may be presented”) might create ambiguity as to the subject of a sentence (i.e., the identity of the actor who may present evidence). See Alfieri v. Solomon, 358 Or 383, 399-400, 365 P3d 99 (2015) (explaining that, depending on the context, the passive voice might “convey [] [the legislature’s] intent that a statute apply more broadly” but also might simply “generate[] ambiguity as to how the law should be applied”); Brentmar v. Jackson County, 321 Or 481, 487, 900 P2d 1030 (1995) (concluding that the legislature’s use of the passive voice created an ambiguity as to the identity of the subject who was permitted to act as provided by the statute). Here, however, there is no ambiguity. Instead, the implicit subject of the sentence is clear from context: Litigants, not courts, “present” evidence—and, thus, litigants may act under the statute to present additional evidence to the court. In this context, the word “may,” which is a word in common usage, means “have permission to” or “have liberty to.” Webster’s Third, New Int’l Dictionary 1396 (unabridged ed 2002). Thus, if additional evidence “may be presented” by litigants, then they “have permission” to present such evidence. ORS 419A.150(3) plainly grants litigants permission to offer additional evidence on rehearing. DHS contends that the statement in ORS 419A.150(3) that a rehearing “may be determined on the same evidence — 63 — introduced before the referee if a stenographic transcript of the proceedings was kept” indicates that the court need not permit a party to present new evidence. However, as discussed above, the remaining portion of that sentence provides that, “in any case, additional evidence may be presented.” The statute therefore permits parties to present new evidence; however, it does not to require them to do so. Thus, the former clause allows a court to make a decision on rehearing on the record before the referee if a transcript is available and the parties choose not to present any additional evidence. The parties also dispute the significance of two other terms in ORS 419A.150—the use of “rehearing” to label the procedure provided by the statute and the description of the standard of review for that rehearing as “de novo” in ORS 419A.150(8). In a different context, the legislature’s use of those terms might generate ambiguity. “Rehearing” can mean either a “[s]econd consideration of [a] cause for [the] sole purpose of calling to [the] court’s attention any error, omission, or oversight in [the] first consideration” or “[a] retrial of issues” with “notice to [the] parties entitled thereto and [an] opportunity for them to be heard.” Black’s Law Dictionary 1452 (4th ed 1968). Similarly, “de novo,” which means “anew,” “afresh,” or “a second time,” often refers to an entirely new hearing “in the same manner in which [the] matter was originally heard.” Black’s at 483, 852; see also State v. Knighten, 236 Or 634, 637, 390 P2d 166 (1964) (explaining that, under ORS 53.090, “[u]pon appeal from the municipal court” to a circuit court, “the cause is tried de novo as if originally commenced in such court” (internal quotation marks omitted)). On the other hand, “de novo” review can also refer to a review of a matter on the record created in the prior tribunal, but without deference to that tribunal’s factual determinations. See Hannan v. Good Samaritan Hosp., 4 Or App 178, 187, 471 P2d 831, add’d to on reh’g, 4 Or App 199, 476 P2d 931 (1970) (when an appellate court conducts “de novo review” of a trial court’s decision in equity, it reviews the decision based on the record created in the trial court, but gives the trial court’s factual findings no weight, except those related to the credibility of witnesses). Thus, in the abstract, the legislature’s use of those terms — 64 — could support either party’s interpretation of ORS 419A.150. However, because ORS 419A.150(3) unambiguously grants litigants permission to present additional evidence, those terms indicate that the rehearing under ORS 419A.150 is a rehearing of the matter before the referee as if it had been originally commenced before the juvenile court. Finally, DHS argues that there is tension between our interpretation of the statute and the legislature’s use of the phrase “right of review” in ORS 419A.150(4). See Black’s at 1483 (defining “review” as “[t]o reexamine judicially. A reconsideration; second view or examination; revision; consideration for purposes of correction. Used especially of the examination of a cause by an appellate court.”). However, DHS’s redding, which would place the litigants’ opportunity to present evidence at the juvenile court’s discretion, cannot be squared with the plain text of ORS 419A.150(3). Furthermore, ORS 419A.150(4) refers to “the right of review provided in this section” (Emphasis added.) Thus, in context, the “right of review provided in” ORS 419A.150 is a rehearing that includes the opportunity to present additional evidence.3 We recognize the importance of the juvenile court’s concern that nonappearing litigants might exploit the ORS 419A.150 rehearing procedure to receive a “second bite at the apple,” as well as DHS’s concerns about the “state’s limited resources, the circuit courts’ overcrowded dockets; and the need for prompt resolution of juvenile dependency proceedings.” Those public policy arguments may inspire the legislature to change the text of ORS 419A.150. They do not persuade us that the existing text of the statute means something different than its plain meaning. Accordingly, we conclude that, pursuant to ORS 419A.150, a party to a rehearing of a referee’s decision may present additional evidence during that rehearing before the juvenile court. The juvenile court therefore erred in denying mother the opportunity to present additional evidence. Reversed and remanded. Footnotes [1] ORS 419A.150(3) provides: “When the referee conducts a hearing, the persons entitled to request rehearing as provided in subsection (7) of this section must be notified of the referee’s findings, recommendations or order, together with a notice to the effect that a rehearing may be had before a judge if requested within 10 days. A rehearing before a judge of the juvenile court may be determined on the same evidence introduced before the referee if a stenographic transcript of the proceedings was kept, but, in any case, additional evidence may be presented.” [2] ORS 419B.815 sets out rules for the contents of a summons in a juvenile dependency case and establishes the consequences of failing to appear in response to a summons. In particular, ORS 419B.815(1) requires that the juvenile court serve a “summons and a true copy of the petition” on a parent before entering an order establishing jurisdiction. ORS 419B.815(2) then provides that the summons must require that the parent “(a) * * * appear personally before the court at the time and place specified in the summons for a hearing on the allegations of the petition,” “(b) * * * appear personally before the court at the time and place specified in the summons to admit or deny the allegations of the petition,” or “(c) *** file a written answer to the petition within 30 days from the date on which the person is served with the summons.” The purpose of the pretrial conference in this case was for mother to “admit or deny the allegations in the petition.” Furthermore, ORS 419B.815(7) provides that, “[i]f a person fails to appear for any hearing related to th[e] petition, * * * the court may establish jurisdiction without further notice [.] [3] We have also reviewed the legislative history provided by DHS, and it does not alter our conclusion.