author: LAGESEN, P. J.

text:
    NANCY DOTY, INC., Personal Representative of the Estate of Renee Radziwon-Chapman, Deceased, Plaintiff-Appellant, v. WILDCAT HAVEN, INC., Defendant, and Michael Tuller; Cheryl Tuller; and WildCat Haven Holdings I, LLC, Defendants-Respondents.
    A164004
    Court of Appeals of Oregon.
    Argued and submitted April 26, 2018. April 17, 2019
    J. Randolph Pickett, Portland, argued the cause for appellant. Also on the briefs were R. Brendan Dummigan, Kimberly O. Weingart, Ron K. Cheng, and Pickett Dummigan McCall LLP; Jeffrey A. Bowersox and Bowersox Law Firm PC; and Todd B. Newlin and Newlin Law Offices PC.
    Jonathan Henderson, Portland, argued the cause for respondents Michael Tuller and Cheryl Tuller. Also on the brief were Daniel S. T. Hasson, Christopher Parker, and Davis Rothwell Earle & Xochihua, P.C.
    Dane E. Johnson, Portland, argued the cause for respondent WildCat Haven Holdings I, LLC. Also on the brief was Inspiration Spaceship LLC.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Linder, Senior Judge.
   LAGESEN, P. J.

The "exclusive remedy" provision of the Workers' Compensation Law, ORS 656.018, generally makes an employer that satisfies its insurance obligations for subject workers immune from civil liability for injuries to a worker arising out of the worker's employment. That immunity extends to, among others, the employer's officers, directors, and employees. ORS 656.018(3). But there is an exception to that immunity: It does not apply "[i]f the negligence of a person otherwise exempt * * * is a substantial factor in causing the injury * * * and the negligence occurs outside of the capacity that qualifies the person for exemption under this section ." ORS 656.018(3)(d) (emphasis added).

This appeal concerns the scope of that exception, and requires us to assess how it applies to an officer or director who personally owns the property where the workplace injury occurred. Plaintiff is the personal representative of the estate of Renee Radziwon-Chapman, who was killed in a cougar attack at the wildcat sanctuary that employed her, WildCat Haven, Inc. (WildCat Haven). Defendants Michael and Cheryl Tuller are officers and directors of WildCat Haven, but they personally owned the land on which the sanctuary was operated, and WildCat Haven leased it from them. After plaintiff brought claims against them individually, the Tullers invoked the immunity extended by ORS 656.018(3). As required by ORS 656.595(3), that preliminary question of immunity was tried to the court, which determined that the Tullers had not acted negligently "outside of the capacity" as officers and directors and, thus, were entitled to immunity on plaintiff's claims. The court therefore dismissed those claims and, further, dismissed a claim against a separate limited liability company owned by the Tullers, WildCat Haven Holdings I, LLC (Haven Holdings). Based on our review of ORS 656.018(3) and its legislative history, we conclude that the court was correct to dismiss the claims against the Tullers individually on the grounds of immunity, but reverse and remand the judgment dismissing the claim against Haven Holdings, which is not entitled to immunity.

I. STANDARD OF REVIEW

Our standard of review derives from the procedural posture of this appeal. The question of defendants' immunity was tried to the court pursuant to ORS 656.595(3), which provides that challenges concerning the right to bring third-party actions in cases involving an injured worker "shall be determined by the court as a matter of law." The trial court took evidence on the question of immunity over the course of two days before making factual findings and issuing its ruling. In this posture, we review the trial court's factual findings for "any evidence" to support them, and we review its legal conclusions for errors of law. See Cornelison v. Seabold , 254 Or. 401, 408-09, 460 P.2d 1009 (1969) (holding that appellate review of a trial court's factual findings in a proceeding under ORS 656.595(3) is for "any evidence"); M. K. F. v. Miramontes , 352 Or. 401, 411, 287 P.3d 1045 (2012) (discussing Cornelison and stating that the question "whether the workers' compensation statute applied to the employee's claim and provided his sole remedy" involved "a preliminary question of law" for the court).

II. BACKGROUND

With that standard of review in mind, we recite the facts consistently with the trial court's factual findings (which are supported by evidence in the record), and we provide additional procedural context to frame the narrow issues on appeal.

Michael and Cheryl Tuller started WildCat Haven, a nonprofit corporation that operates a wildcat sanctuary.

Michael Tuller is the president of WildCat Haven, and Cheryl Tuller is its executive director. At the time of the events giving rise to this action, the sanctuary operated on land in Sherwood, Oregon, that the Tullers owned themselves. They leased the land to WildCat Haven for it to use as a wildcat sanctuary, and it housed approximately 60 cats, including tigers, cougars, bobcats, and other wildcats. WildCat Haven relied on volunteer workers and, in addition, had three paid employees: the decedent in this case, Renee Radziwon-Chapman, Cheryl Tuller, and Timothy Adams. Those three employees served as the primary animal keepers for the sanctuary.

Keepers were required to enter the wildcat enclosures for cleaning and maintenance. With regard to cougars, WildCat Haven's 2009 Facility Plan stated that "contacts" with the cats required a minimum of two qualified staff members. The policy further provided that "[t]wo qualified staff members shall work together during the lockout of dangerous animals. Once the animals are locked out, one staff member can safely enter the enclosure to clean or make repairs." The lockout procedure involved keepers luring the cougars into a "lockout" chamber, closing the lockout door, and securing that door with a light-duty gate latch; at that point, the keeper would finalize the lockout process by actually entering the enclosure and attaching a carabiner to the gate latch.

On November 9, 2013, Radziwon-Chapman was working alone at the sanctuary. At approximately 6:30 p.m., Michael Tuller discovered Radziwon-Chapman's body, fatally mauled, inside an enclosure where three cougars lived. Only one of the cougars was in a lockout chamber, and the other two were roaming freely in the enclosure. Because no one was working with Radziwon-Chapman at the time of her death, the circumstances that led to it are not fully known.

On the date of the accident, Cheryl Tuller and Adams were both out of town. Cheryl Tuller was in Minnesota to assist another animal sanctuary that had experienced a shortage of workers. She had become friends with the director of that sanctuary while networking among the small wildlife sanctuaries in the United States, which exchange professional courtesies, including sharing knowledge, practices, and resources. Tuller understood that her decision, as executive director of WildCat Haven, to assist the sanctuary during crisis would help ensure that WildCat Haven would receive reciprocal courtesy if the need arose.

Adams, meanwhile, was in Scotts Mills, Oregon, building enclosures on property that was intended as a new site for WildCat Haven. The Scotts Mills property was owned by defendant Haven Holdings, a limited liability company whose sole members are the Tullers. Adams resided on the Scotts Mills property to facilitate the construction of the new enclosures necessary for the transition from Sherwood, but he was paid by WildCat Haven regardless of whether he was working in Sherwood or at Scotts Mills.

Plaintiff, the personal representative of Radziwon-Chapman's estate, subsequently brought tort claims against WildCat Haven, the Tullers, and Haven Holdings, but she settled the claims against WildCat Haven, which is not a party to this appeal. Her claim against the Tullers alleged five separate counts: one count based on a theory that the Tullers knew that they were leasing their land to WildCat Haven for a highly dangerous activity and were strictly liable for permitting it to carry on that activity in the manner it did and for failing to warn Radziwon-Chapman of the hazard of working around the animals without proper precautions; one count of negligence based on similar allegations; two counts based on a theory that the Tullers failed to furnish a safe workplace as owners of the property under Oregon's Employers' Liability Law (ELL), ORS 654.305 to 654.336 ; and one count based on the Tullers' failure as owners to comply with requirements of the Oregon Safe Employment Act (OSEA). As for the claim against Haven Holdings, plaintiff alleged that it was a joint employer of Adams and negligently exposed Radziwon-Chapman to a hazardous condition by instructing Adams to work at the Scotts Mills property, leaving Radziwon-Chapman to work alone at the sanctuary. The Tullers and Haven Holdings answered by asserting immunity under ORS 656.018(3). The immunity offered by ORS 656.018(3) has existed since ORS 656.018 was enacted in 1965, but the statute was amended effective June 2013, just before the accident in this case. Or. Laws 2013, ch. 488, §§ 2, 3. As a result of the amendments, the immunity does not apply "[i]f the negligence of a person otherwise exempt * * * is a substantial factor in causing the injury * * * and the negligence occurs outside of the capacity that qualifies the person for exemption under this section." ORS 656.018(3)(d).

The parties agreed that the preliminary question of immunity under ORS 656.018(3) was a matter for the court to decide by way of a bench trial, but they disagreed as to the law and the facts bearing on whether the Tullers had been negligent "outside of the capacity" in which they were immune. At trial, the Tullers and Haven Holdings adduced evidence that all of the Tullers' conduct-from staffing, to supervision, to policies and procedures, to the equipment used at the sanctuary-were taken as officers and directors of WildCat Haven, roles in which they are immune under ORS 656.018(3). They further argued that, under this court's decision in Varland v. Smith , 112 Or. App. 271, 274, 828 P.2d 1053, rev. den. , 313 Or. 628, 835 P.2d 917 (1992), and under generally accepted principles of workers' compensation exclusivity, an employer's principals do not lose that immunity and subject themselves to liability merely by owning the company property on which the workplace injury occurred. See Lex K. Larson, 10 Larson's Workers' Compensation Law § 113.02 (Matthew Bender rev. ed. 2018) ("[I]f the circumstances are such that a president and sole stockholder of a corporation would be immune to suit by an employee, he or she does not lose that immunity by being also the owner of the land." (Footnote omitted.)). In their view, the 2013 amendments did not alter the rule applied in Varland .

Plaintiff, on the other hand, argued that the plain text of the new exception in ORS 656.018(3)(d) had precisely that effect, expressly creating an exception to immunity whenever an officer or director owes legal duties to the worker in another capacity. And, plaintiff argued, by entering into a lease with WildCat Haven, the Tullers had "dual responsibilities" in which they assumed certain nondelegable duties as landowners under the ELL and OSEA. Moreover, plaintiff argued that Cheryl Tuller had left Oregon on the weekend of November 9 to volunteer in a personal capacity in Minnesota out of friendship rather than professional courtesy, that Michael Tuller had directed Adams to Scotts Mills in his capacity as a member of Haven Holdings rather than president of WildCat Haven, and that, in any event, Haven Holdings was not Radziwon-Chapman's employer or otherwise entitled to the extension of immunity.

After the parties presented their cases, the trial court issued a letter opinion in which it largely rejected plaintiff's legal and factual theory and concluded that "[t]he evidence proved that in this case, neither Michael Tuller nor Cheryl Tuller acted negligently outside the capacity that qualified them for exemption as the plaintiff's employers. This applies to the Tullers individually, collectively as landlords of the Sherwood property, and in their incarnation as [Haven Holdings]."

The court, however, invited additional briefing from the parties with regard to plaintiff's ELL and OSEA claims against the Tullers. The letter opinion stated, "If the plaintiff believes that Michael and Cheryl Tuller lose their immunity under workers' compensation law on the no fault claims, regardless of the court's ruling that their actions in this case were only those of the President and Executive Director of WildCat Haven, Inc., then plaintiff must make its argument on that theory more clear."

In supplemental briefing, plaintiff reiterated her argument that the 2013 amendments had changed the legal framework and that, as a matter of law, the Tullers could be sued as landlords: "[A]ny action [the Tullers] took-or legally relevant omission they made-in furtherance of their lessee-lessor relationship with WildCat Haven Inc. is by definition 'outside the capacity' as officer or director." The Tullers continued to rely on Varland and Larson's Workers' Compensation to argue that "[i]t is blackletter law that a corporate officer does not lose her immunity merely because she also owns the land where the injury occurs."

After receiving the supplemental briefing, the trial court issued a second letter opinion. In it, the court explained that plaintiff still had not identified "precisely what actions the plaintiff believes the Tullers took as landlords to implicate those claims" and that the Tullers had presented "stronger legal authority" that they were immune as landowners. The court then confirmed that its previous findings "encompass and extinguish the ELL and OSEA claims against the Tullers in their personal capacities as well." The court entered limited judgments dismissing with prejudice the claims against the Tullers and Haven Holdings, which plaintiff now appeals.

III. ANALYSIS

A. Claims Against the Tullers as Individuals

On appeal, plaintiff argues that the trial court's ultimate finding-that neither of the Tullers acted "outside of the capacity" of their immunity-resulted from the court's erroneous view of the exception in ORS 656.018 (3)(d). According to plaintiff, the Tullers' ownership of the Sherwood property meant that they were acting outside their immune capacity as a matter of law . As a result of leasing the property to WildCat Haven, the Tullers are landlords, "and plaintiff's decedent was not employed by them in that capacity. As such, any acts and omissions which the Tuller defendants undertook with respect to their role as landlords are 'outside the capacity' of their immunity" for purposes of the exception and expose the Tullers to strict premises liability, negligence, ELL, and OSEA claims.

An implicit premise of plaintiff's argument is that, for purposes of ORS 656.018(3)(d), acts or omissions occur in either an immune capacity or a nonimmune capacity, and the immunity afforded by ORS 656.018 to an individual turns on whether a plaintiff has alleged that the individual has breached a legal duty owed in the person's nonimmune capacity. The Tullers disagree with that premise. In their view, the availability of immunity turns on the conduct underlying the claims, not the claims themselves. Further, they contend, the same conduct can occur in multiple capacities and still remain within a person's immune capacity. That is, the Tullers argue that the exception was intended to address circumstances in which an otherwise immune person's negligent conduct occurs exclusively "outside of" the immune capacity.

Thus, the central question in this appeal is one of statutory construction: What did the legislature intend when it created the exception to immunity in ORS 656.018(3)(d) if "the negligence occurs outside of the capacity that qualifies the person for exemption under this section"? To answer that question, we review the statutory text and context, while giving appropriate weight to any pertinent legislative history. See State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

1. The "capacity" exception

We begin with the text of ORS 656.018(3), which provides:

"The exemption from liability given an employer under this section is also extended to the employer's insurer, the self-insured employer's claims administrator, the Department of Consumer and Business Services, and to the contracted agents, employees, partners, limited liability company members, general partners, limited liability partners, limited partners, officers and directors of the employer, the employer's insurer, the self-insured employer's claims administrator and the department, except that the exemption from liability shall not apply :
"(a) If the willful and unprovoked aggression by a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition;
"(b) If the worker and the person otherwise exempt under this subsection are not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives;
"(c) If the failure of the employer to comply with a notice posted pursuant to ORS 654.082 is a substantial factor in causing the injury, disease, symptom complex or similar condition; or
"(d) If the negligence of a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition and the negligence occurs outside of the capacity that qualifies the person for exemption under this section ."

(Emphases added.)

Starting with that text, the meaning of one key word in paragraph (d), "capacity," is relatively straightforward: "Capacity" is "a position, character, or role either duly assigned or assumed without sanction < in his ~ as legal adviser> < served the government in several capacities>." Webster's Third New Int'l Dictionary 330 (unabridged ed. 2002); Black's Law Dictionary 235 (9th ed. 2009) (defining "capacity" as "[t]he role in which one performs an act < in her corporate capacity>").

The term "negligence" is more opaque. It can mean two related but different things in the law. It is commonly understood to refer to "[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights." Black's at 1133; accord. Woolston v. Wells , 297 Or. 548, 557, 687 P.2d 144 (1984) ("Negligence is conduct falling below the standard established for the protection of others, or oneself, against unreasonable risk of harm."); Webster's at 1513 (defining "negligence" as "a failure to exercise the care that a prudent person usu. exercises"). Yet, it also can be used to describe the tort of negligence. See Black's at 1133 (providing, as a second definition of "negligence," "[a] tort grounded in this failure, usu. expressed in terms of the following elements: duty, breach of duty, causation, and damages").

The context of the term, however, signals that the legislature intended the term "negligence" to be understood in the former sense, that is, to refer to conduct rather than a legal theory or tort claim. The paragraph begins, "If the negligence of a person otherwise exempt under this subsection is a substantial factor in causing the injury * * *." That initial use of the term "negligence" describes conduct that plays a role in the injury, not a tort claim or theory, and there is no reason to think the legislature used the term differently later in the same sentence. See Coos Waterkeeper v. Port of Coos Bay , 363 Or. 354, 364, 423 P.3d 60 (2018) ("We presume that the legislature intends the same word to have a consistent meaning throughout a statute."). Likewise, the other statutory exceptions to immunity, in paragraphs (a) through (c), focus on the conduct by the otherwise immune person, further indicating that the term "negligence" refers to conduct rather than a tort theory that may flow from that conduct. Cf. Schutz v. La Costita III, Inc. , 364 Or. 536, 547, 436 P.3d 776 (2019) (concluding that a server or social host is immune from liability under ORS 471.565(1) only when alleged to be acting as a server or social host, and not in another role, such as property owner or employer, where the statute specifically referred to "claims for relief").

Finally, the fact that, in ORS 656.595(3), the legislature has provided for the issue of immunity to be resolved by way of a preliminary bench trial further corroborates this understanding of the term. If the legislature intended for immunity to turn, as a matter of law, on the nature of the claims against a person, and the particular legal duties the person was alleged to have violated, the legislature's decision to provide for a preliminary bench trial to resolve the immunity issue would not make much sense. See Cornelison , 254 Or. at 404, 460 P.2d 1009 (explaining that ORS 656.595(3) involves a bench trial of factual issues in addition to legal questions).

That leaves the issue of what it means for negligence to occur "outside of" a person's immune capacity. That phrase ordinarily means "beyond the limits or compass of." Webster's at 1604. Because the statute is focused on conduct, and because a single negligent act or omission can violate duties owed in multiple capacities, the phrase "outside of"

yields an ambiguity that can be illustrated by a simple diagram:

The question is what did the legislature intend with regard to acts or omissions falling within the intersection between the person's immune capacity and the person's nonimmune capacity? The legislature could have intended for conduct to be automatically "outside of" the immune capacity whenever it is required by or violates legal obligations that arise from a relationship or theory different from the immune capacity, as plaintiff contends. See Larson, 10 Larson's Workers' Compensation Law § 113.01 ("[A] few courts have stretched the [dual-capacity] doctrine so far as to destroy employer immunity whenever there was, not a separate legal person, but merely a separate relationship or theory of liability ." (Emphasis added.)). Or, the legislature could have understood the exception, as the Tullers argue, to apply only where the negligent acts or omissions occurred wholly "outside of" the immune capacity.

Although both readings of the text are plausible, the broader context of the statute and its history persuade us that the legislature intended the exception to have the more limited scope described by the Tullers. Part of that context includes the case law preceding the adoption of the exception. See Schutz , 364 Or. at 548, 436 P.3d 776 (context includes case law leading to the adoption of the changes). ORS 656.018(3) was originally enacted in 1965, as part of a revision that made the workers' compensation scheme compulsory rather than elective. See Bundy v. NuStar GP, LLC , 362 Or. 282, 287-88, 407 P.3d 801 (2017) (describing some of that history). The statute extended an employer's immunity to "the employer's insurer, the board, and the employe[e]s, officers and directors of the employer, the employer's insurer and the board," and then included exceptions for injuries "proximately caused by wilful and unprovoked aggression by the person otherwise exempt under this subsection" and where the "workman and the person otherwise exempt under this subsection are not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives." Or. Laws 1965, ch. 285, § 6.

In 1992, we held in Varland that immunity under ORS 656.018(3) turned on whether the conduct occurred in an immune capacity, not on whether the same conduct was alleged to breach duties owed in a nonimmune capacity. Varland involved wrongful death claims by the family of an employee of Coos Head Lumber and Plywood (Coos Head), who was crushed when the front-end loader he was driving rolled over while he was working. The defendant, Smith, was part owner, president, and an employee of Coos Head, but he personally owned the front-end loader. The plaintiffs alleged that, by permitting the loader to be operated without a roll cage, the defendant had acted negligently, violated the Employers' Liability Act, and was subject to third-party liability under ORS 656.154 notwithstanding the fact that Coos Head had accepted a compensation claim and was paying death benefits. Varland , 112 Or. App. at 273, 828 P.2d 1053.

Looking to the text of ORS 656.018(3), we concluded that the defendant was immune:

"It is undisputed that defendant was both an officer and employee of Coos Head. It is also undisputed that, in his supervision of the decedent, defendant was acting in his capacity as president of Coos Head . Accordingly, defendant is exempt from liability under ORS 656.018, and plaintiffs' exclusive remedy is under the Workers' Compensation Act.
"Plaintiffs contend that their claims are against defendant as an individual and as the owner and person in control of the loader, not in his capacity as an officer or employee of Coos Head. Even so, defendant is entitled to the exemption provided by ORS 656.018, because he is both an officer and employee of the decedent's employer, and the decedent was injured in the course and scope of his employment . Compare Perkins v. Gehlar , 107 Or. App. 158, 811 P.2d 650, rev. dismissed , 312 Or. 554 [821 P.2d 1093] (1991)."

112 Or. App. at 274, 828 P.2d 1053 (emphases added).

That holding in Varland -that the employer's president could not be liable as an owner for conduct that occurred in his immune capacity-was consistent with how many other courts had approached the issue at the time. See generally Annotation, Workers' Compensation: Third-party Tort Liability of Officer to Injured Worker , 76 ALR 4th 365 (1989) (listing cases in which an employer's officers were held to be immune even in an ownership capacity); Jackson v. Gibson , 409 N.E.2d 1236, 1238 (Ind. Ct. App. 1980) (rejecting the argument that the employer's president, who personally owned the building, could be liable as a landowner to the injured worker); see also Sharp v. Gallagher , 95 Ill. 2d 322, 328, 447 N.E.2d 786, 788 (1983) (" 'It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structural work acts.' " (Quoting Arthur Larson, 2A Workmen's Compensation § 72.82 (1982).). But see, e.g. , Robards v. Kantzler's Estate , 98 Mich. App. 414, 419-20, 296 N.W.2d 265, 268 (1980) ("We find that in leasing a machine to the corporation which he controlled, [the president] was not acting in the course of his employment. * * * In this posture, he is subject to the same liabilities as any lessor who provides an allegedly defective product.").

The legislative history of ORS 656.018(3)(d) indicates that, in enacting it, the legislature did not intend to displace Varland 's rule that conduct occurring in both an immune and a nonimmune capacity is immune. For two decades after Varland , the relevant text of ORS 656.018(3) was basically unchanged, but statutes concerning corporate structures in Oregon evolved. Specifically, the legislature authorized the use of limited liability companies (LLCs). See Or. Laws 1993, ch. 173 (enacting the "Oregon Limited Liability Act"). Under that corporate form, an LLC is owned by "members," who can manage the LLC themselves or appoint a manager or group of managers to manage the company. ORS 63.001(17), (19), (20), (21). To integrate that corporate form with existing law, the legislature provided that, whenever a section of the Oregon Revised Statutes applies to "both 'partners' and 'directors,' " the section shall also apply to the member-managers or appointed managers. ORS 63.002(2).

In Cortez v. Nacco Materials Handling Group , 248 Or. App. 435, 274 P.3d 202 (2012), rev'd in part on other grounds , 356 Or. 254, 337 P.3d 111 (2014), we were presented with a case involving the intersection of workplace liability and that new corporate form. The plaintiff was employed by Sun Studs, LLC, a "member-managed LLC." Id . at 437, 407 P.3d 801. The defendant, Swanson Group, Inc., was the sole member of Sun Studs. After the plaintiff was injured by a forklift owned and operated by Sun Studs, he filed a workers' compensation claim against Sun Studs and filed a civil action against Swanson Group that included claims based on negligence and violation of the ELL. Among other defenses, Swanson Group asserted immunity under ORS 656.018, arguing that it extended to the members of the LLC. The trial court agreed and dismissed the claims. Id . at 437-48, 274 P.3d 202.

On appeal, we reversed that ruling after concluding that the text of ORS 656.018(3) did not cover LLC members. We explained that, "[h]ad the legislature intended to exempt LLC members from liability, it could have easily done so, either by listing partners or by expressly including members in ORS 656.018(3). The legislature did not do so." Cortez , 248 Or. App. at 442, 274 P.3d 202. Thus, we held "that the exclusive remedy provision provided to employers in ORS 656.018 does not apply to members of an LLC employer." Id.

Our decision in Cortez , not Varland , was the impetus for the legislative amendments to ORS 656.018(3) that are the subject of this dispute. During the 2013 legislative session, while review of our decision in Cortez was pending in the Supreme Court, identical bills were introduced in the House and Senate for a " Cortez fix." See SB 678 (Introduced Feb. 26, 2013); HB 2923 (Introduced Feb. 18, 2013); Exhibit 5, House Committee on Business and Labor, SB 678, May 22, 2013 (letter submitted by House Small Business Task Force) (stating that, as a result of Cortez , businesses were operating under a "cloud of uncertainty" concerning their potential liability). As originally introduced, the legislation did no more than add the terms "partners, limited liability company members, general partners, limited liability partners, limited partners" to the listed persons in ORS 656.018(3). See SB 678 (Introduced Feb. 26, 2013); HB 2923 (Introduced Feb. 18, 2013).

However, after the legislation was introduced, interested stakeholders negotiated a set of compromise amendments, which were then approved by the Workers' Compensation Management-Labor Advisory Committee (MLAC). See Audio Recording, House Committee on Business and Labor, HB 2923, Apr. 1, 2013, at 3:15 (testimony of Rep Bruce Hanna describing collaborative process among stakeholders), https://olis.leg.state.or.us (accessed Apr. 10, 2019). Those compromise amendments were eventually enacted by the legislature, and they rephrased existing exceptions in ORS 656.018(3)(a) through (c) and added a fourth exception-the "capacity" exception:

"(3) The exemption from liability given an employer under this section is also extended to the employer's insurer, the self-insured employer's claims administrator, the Department of Consumer and Business Services, and to the contracted agents, employees, partners, limited liability company members, general partners, limited liability partners, limited partners, officers and directors of the employer, the employer's insurer, the self-insured employer's claims administrator and the department, except that the exemption from liability shall not apply:
"(a) [Where ] If the willful and unprovoked aggression by a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition [is proximately caused by willful and unprovoked aggression by the person otherwise exempt under this subsection ];
"(b) [Where ] If the worker and the person otherwise exempt under this subsection are not engaged in the furtherance of a common enterprise or the accomplishment of the same or related objectives; [or ]
"(c) [Where ] If the failure of the employer to comply with a notice posted pursuant to ORS 654.082 is a substantial factor in causing the injury, disease, symptom complex or similar condition [is proximately caused by failure of the employer to comply with the notice posted pursuant to ORS 654.082 .]; or
"(d) If the negligence of a person otherwise exempt under this subsection is a substantial factor in causing the injury, disease, symptom complex or similar condition and the negligence occurs outside of the capacity that qualifies the person for exemption under this section ."

Or. Laws 2013, ch. 488, § 1 (additions in boldface; deletions italicized and bracketed).

Thus, the new exception corresponded with an expansion of exclusivity to include persons who had ownership interests in an employer but not necessarily roles like officers, directors, or employees. By expanding the pool that way, the amendments increased the possibility that an employee could be injured by someone with no actual connection to the workplace, but who might nonetheless claim immunity based merely on an ownership status. That enactment history suggests that the exception in paragraph (d) was intended to operate as a limitation on the corresponding expansion in subsection (3), so that persons whose conduct occurred exclusively outside their immune capacity would not be immunized merely because of their ownership interests in the employer.

Additional legislative history confirms that reading of the exception. As previously noted, the amendments were approved by MLAC, a committee that includes representatives of workers and employers. During a committee meeting, one of the stakeholders who negotiated the compromise, Chris Davie of SAIF Corporation, was asked to explain the amendments, and he provided exactly that example-an injury to an employee by an owner with no connection to the workplace. With regard to the "capacity" exception, he stated:

"The [Oregon] Trial Lawyers Association was concerned about the situation where a person who might be exempt because of an ownership relationship with the business that employs somebody who is injured, if that person causes an injury to a person outside of the normal work environment. And the example that we've used, we've talked about a few times is, let's say you have a law firm where one of the owners of the law firm isn't working that day and they're driving down the street in their personal car and an employee of the law firm is taking some materials to another law firm * * * but they're working and the owner of the law firm is not working that day. And they come to an intersection and they crash, and it's the owner of the law firm who is negligent in causing that crash. And what, I think, the trial lawyers' concern was, that in a situation like that and other similar situations, that the exclusive remedy protection would not protect the owner of the law firm from liability because what they did was really outside the work environment. So that's one of the examples that we've discussed. And we had conversations with the trial lawyers' association, I've been in contact with the Department of Justice about how to accurately express that, and we agreed on the words that are in the amendment."

Audio Recording, Management-Labor Advisory Committee, Full Meeting, Mar. 22, 2013 at 4:30 (comments of Chris Davie, SAIF Corporation (emphases added)). Shortly after that explanation, MLAC approved the compromise amendments; that approval was then conveyed to the legislators who were considering the amendments in committee. Audio Recording, Senate Committee on Business and Transportation, SB 678, Apr. 18, 2013, at 33:20 (testimony of Drew Hagedorn, Associated General Contractors and the Self Insurers Association, explaining that the -1 amendments to SB 678 encapsulated an agreed-upon consensus among stakeholders that was approved by the Workers' Compensation Management-Labor Advisory (MLAC)), https://olis.leg.state.or.us (accessed Apr. 10, 2019); Audio Recording, House Committee on Business and Labor, SB 678, May 22, 2013, at 12:35 (testimony of Drew Hagedorn, Associated General Contractors and Self Insurers Association, explaining that the amendments to SB 678 had already been discussed and approved by legislators considering HB 2923), https://olis.leg.state.or.us (accessed Apr. 10, 2019); accord. Staff Measure Summary, HB 2923, 2013 ("The Management-Labor Advisory Committee voted on March 22 to support the measure as amended."). And, on the Senate Floor, the bill's carrier explained that the language was "unanimously approved by the MLAC board." Audio Recording, Senate Floor Debate, SB 678, Apr. 30, 2013, at 42:00 (statement of Sen. Chuck Thompson), https://olis.leg.state.or.us (accessed Apr. 10, 2019).

Moreover, although we are cautious about inferring too much from silence, we place some weight on the fact that there is not a single mention of Varland in the legislative history of the amendments. See State v. Stout , 362 Or. 758, 774, 415 P.3d 567 (2018) (concluding that, despite ordinary reluctance to draw inferences from legislative silence, the court would have expected to find some evidence of the state's proffered construction). The amendments were spurred by a Court of Appeals decision regarding LLC members that the business community and the House Small Business Task Force viewed as upending settled expectations about workers' compensation coverage. See Exhibit 5, House Committee on Business and Labor, SB 678, May 22, 2013 (letter from House Small Business Task Force stating that "[w]e need to let small businesses know that indeed they have the protection under which they always believed they operated"). It seems unlikely that the legislature, as part of that fix, intended to overturn another Court of Appeals decision, Varland , that had been settled law in Oregon for two decades regarding the scope of immunity for officers, directors, and coemployees, without a single mention of that case.

That is especially true considering the complexity of the legal and policy issues surrounding the multiple capacity question presented in Varland . Courts around the country have struggled for decades to develop and articulate coherent standards for whether immunity should give way when an otherwise immune person has multiple capacities or legal personas, in part because of the potential effect on the overall balance struck by the workers' compensation system. See generally Larson, 10 Larson's Workers'

Compensation Law § 113.01 (describing complexities and jurisprudence concerning "dual capacity" and "dual persona" doctrines, and observing, with respect to California law, that "little would be left of exclusiveness * * * if exclusiveness were to be forfeited every time one of these 'additional' relationships figured in an accident"). Even courts that have recognized an exception to immunity that allows for a person to be held liable for conduct that occurs in both an immune and nonimmune capacity have attempted to cabin the doctrine in various ways, such as limiting it to circumstances in which the obligations and duties of the two capacities are unrelated and not inextricably linked. See, e.g. , Kolacki v. Verink , 384 Ill. App. 3d 674, 678, 323 Ill.Dec. 445, 893 N.E.2d 717, 722 (2008) (holding that a plaintiff cannot satisfy the "dual capacity" test when "the defendant's duties are so intertwined that the defendant's conduct in the second capacity does not generate any obligations that are unrelated to the duties flowing from the defendant's first capacity as employer, coemployee, or agent"); Gaspard v. Graves , 934 So.2d 158, 161 (La. Ct. App. 2006), writ den. , 929 So.2d 1286 (La. 2006), writ den. , 929 So.2d 1289 (La. 2006) (the plaintiff failed to overcome exclusivity bar with respect to the individual owners of the employer where "their second capacity as owners of the building leased to [employer] is inextricably intertwined with their capacity as [the plaintiff's] employer such that they cannot be held liable in tort" (emphasis added)); accord. Garelle v. Geinitz , 145 A.D.3d 1383, 1384, 44 N.Y.S. 3d 575, 577 (2016) (holding that, "where the defendant is both the property owner and a corporate officer of the plaintiff's employer, the defendant's responsibility to provide the plaintiff with a safe place to work may be merged, in which case, workers' compensation benefits are the sole remedy for the plaintiff"; the defendant is subject to suit only if the "defendant's duty of care toward [the] plaintiff was owed purely in [the] capacity as owner of the property at the accident site, and not at all as a coemployee" (internal quotation marks and citations omitted)). In other words, it is not an issue where we would expect the legislature to legislatively overrule longstanding precedent to adopt what appears to be a minority rule without any discussion or debate on the topic.

For those reasons, we conclude that the legislature's amendments to ORS 656.018(3) were most likely intended to limit the " Cortez fix" by excepting situations in which an otherwise immune person's negligent acts or omissions occurred exclusively "outside of" the immune capacity, as the example before MLAC suggested, and not as a broader repudiation of Varland or a more dramatic revision of the balance struck by Oregon's workers' compensation statutes. See Audio Recording, House Floor Debate, SB 678, June 12, 2013, at 3:14:56 (statement of Rep Brad Witt, describing the trade-offs of no-fault liability and exclusivity under the workers' compensation scheme as one of the "great compromises" of the past century; and explaining that the bill is necessary to extend the exclusive remedy protections to all employers operating in the state and preserve the workers' compensation system for the next 100 years), https://olis.leg.state.or.us (accessed Apr. 10, 2019).

We therefore conclude that the immunity afforded by ORS 656.018(3) continues to operate in the way that we expressed in Varland , which appears to be consistent with the majority rule among other jurisdictions: Persons listed in the statute enjoy a broad grant of immunity for workplace injuries, even if they are acting in more than one capacity at the time of the injury. 112 Or. App. at 274, 828 P.2d 1053. ORS 656.018 (3)(d) carves out an exception to that broad grant in circumstances in which a person's negligent conduct occurs wholly outside the immune capacity-i.e. , when the negligent conduct is not inextricably intertwined with conduct giving rise to the immunity.

2. Whether the Tullers acted outside of their immune capacity

With that understanding of ORS 656.018(3)(d), we reject plaintiff's contention that the trial court erred in dismissing her claims against the Tullers individually. The court found that all of the Tullers' decisions regarding staffing, supervision, policies and procedures, and the equipment used at the sanctuary were made in their capacity as officers and directors of WildCat Haven. Plaintiff's ELL, OSEA, and premises liability claims are based on acts and omissions involving those very same decisions, albeit grounded in different legal obligations. Essentially, plaintiff alleges that the Tullers permitted activities that exposed the employees of WildCat Haven to dangerous risks and a dangerous workplace; however, that negligent conduct is inextricably bound up with the Tullers' decision-making as officers and directors.

As the trial court observed, plaintiff has never identified precisely what actions the Tullers took or failed to take as landlords that were separate and distinct from acts or omissions in their capacity as the officers and directors of WildCat Haven. The closest plaintiff comes is her reliance on two provisions of the lease agreement between the Tullers and WildCat Haven. One provision states, "[Tenant]

shall not conduct a business deemed extra hazardous, a nuisance or requiring an increase in fire insurance premiums. Tenant warrants the leased premises shall be used only for the following type business: captive wildcat sanctuary." The second states, "In the event of any breach of the payment of rent or any other allowed charge, or other breach of this Lease, Landlord shall have full rights to terminate this Lease in accordance with state law and reenter and claim possession of the leased premises in addition to such other remedies available to Landlord arising from said breach." Plaintiff argues that the Tullers' failures with regard to those provisions depend exclusively on omissions in their capacity as landlords. But, on this record, even those omissions regarding lease obligations are indistinguishable from the Tullers' decisions concerning staffing, supervision, policies and procedures, and the equipment at the sanctuary-decisions that the trial court found were made as officers and directors. Accordingly, we reject plaintiff's contention that her claims against the Tullers as landlords-even to the extent they involve lease obligations-are based on negligent acts or omissions "outside of" the Tullers' immune capacity. We therefore affirm the judgment dismissing those claims.

B. Claims Against Haven Holdings

Last, we turn to plaintiff's claim against Haven Holdings, which alleged that the LLC was negligent in (a) taking Adams away from the Sherwood facility to build the Scotts Mills enclosures and (b) failing to warn Radziwon-Chapman of the dangers of working at the Sherwood facility. The trial court dismissed that claim after ruling that the court's capacity determination also applied to the Tullers "in their incarnation" as Haven Holdings. On appeal, plaintiff argues that the trial court erred in that respect, because Haven Holdings was not Radziwon-Chapman's employer and does not fall anywhere in the list of persons to whom the employer's immunity is extended under ORS 656.018(3).

From the outset of the trial, Haven Holdings' theory of immunity was somewhat unclear; it did not file a trial memorandum or make an opening statement. During closing arguments, however, it acknowledged that it "is somewhat in a unique position compared to the other defendants here." It then proceeded to argue that, "[s]ince the LLC can only act through Mr. Tuller, it just makes sense that the extension should apply" to it as well.

Although the trial court apparently agreed with that contention, Haven Holdings does not attempt to defend the court's judgment on that ground. That implicit concession is well taken. Plaintiff correctly points out, as she did below, that ORS 656.018 provides immunity to a discrete group: the employer and "the employer's insurer, the self-insured employer's claims administrator, the Department of Consumer and Business Services, and to the contracted agents, employees, partners, limited liability company members, general partners, limited liability partners, limited partners, officers and directors of the employer, the employer's insurer, the self-insured employer's claims administrator and the department." Haven Holdings does not fall anywhere on that list.

Rather than defend the trial court's ruling concerning immunity, Haven Holdings argues that we should affirm the trial court's judgment because plaintiff cannot prevail on the merits of a negligence claim. It contends that the court's factual finding that the Tullers " 'made no demands on [any] WildCat Haven, Inc., employees in their separate capacity as members * * *' binds this Court." According to Haven Holdings, if the Tullers, the LLC's only members, were not acting as its agents, then "Holdings cannot be held vicariously liable for those actions." Thus, "[d]ismissal of the vicarious liability claim against Holdings where no agency relationship could be found was proper."

We cannot affirm the trial court's ruling on that basis. The question of the exclusivity of plaintiff's workers' compensation remedy is one that is committed to the trial court under ORS 656.595(3). See Cornelison , 254 Or. at 406, 460 P.2d 1009 (holding that "whether or not plaintiff's sole remedy is compensation benefits awarded pursuant to the Workmen's Compensation Act" is "not one known to the common law"). The question of Haven Holdings' vicarious liability , however, is not. See M. K. F. , 352 Or. at 412, 287 P.3d 1045 (" Cornelison is properly understood as standing only for the narrow proposition that a statute that permits a court to decide the preliminary legal question of the applicability of the procedure that it creates is not unconstitutional."). Whether or not plaintiff can ultimately prevail on the claim on the merits, it was not subject to dismissal based on judicial factfinding in a preliminary trial under ORS 656.595(3). We therefore reverse the limited judgment dismissing plaintiff's claim against Haven Holdings and remand for further proceedings.

Limited judgment dismissing plaintiff's claims against Michael Tuller and Cheryl Tuller affirmed; limited judgment dismissing plaintiff's claim against WildCat Haven Holdings I, LLC, reversed and remanded.

      Plaintiff is Nancy Doty, Inc. The record reflects that Nancy Doty is a professional fiduciary, and we refer to plaintiff as "her" throughout the opinion.

      Although the parties essentially agree on our standard of review, plaintiff argues that the trial court engaged in impermissible factfinding by going beyond the question of the capacity in which the Tullers were acting and actually determining whether those actions were negligent-a question that plaintiff argues is reserved to the jury and is not one that can be decided by a court under ORS 656.595(3). As we will later explain, 297 Or. App. at 102 n. 4, we understand the trial court's ruling more narrowly than plaintiff contends, so we do not reach plaintiff's argument about the right to a jury trial with regard to claims against the Tullers.
      Plaintiff also at times in her brief states that the trial court "abused its discretion" in making certain factual findings. To the extent that plaintiff is arguing that the court's findings are unsupported by evidence in the record, we reject that contention without discussion.

      Plaintiff withdrew its other count against Haven Holdings, which had alleged a strict liability claim.

      As noted earlier, 297 Or. App. at 98 n. 2, 439 P.3d at 1019 n. 2, plaintiff asserts that the trial court violated her right to a jury trial by deciding whether the Tullers acted negligently. Although some phrases in the court's initial letter opinion could be read that way in isolation, the remainder clarifies that the trial court was ruling on the capacity issue, not whether the acts themselves met the relevant standard of care. In recapping its opinion, the court stated, "The court has found that neither of the Tullers acted outside their roles as President and Director of WildCat Haven, Inc., therefore they retain immunity as the plaintiff's employers."

      That construction is consistent, in fact, with plaintiff's contention that the exception to immunity is not confined to the common-law tort of "negligence" but would encompass any conduct that falls below the applicable standard of care, including the standard for her strict liability and statutory claims.

      Before 1965, an employer could decide whether to participate in the workers' compensation system, and an injured worker could decide to accept compensation from the state accident fund or bring an action against the employer; if the injured worker accepted compensation, the injured worker was barred from bringing an action against the employer. See, e.g. , Kowcun v. Bybee , 182 Or. 271, 296, 186 P.2d 790 (1947) ("An injured workman cannot have both an award of compensation and an action for damages against a purported tortfeasor except in the specific instances mentioned in the act."). ORS 656.018 included that "exclusive remedy" concept but adapted it to the compulsory scheme. See Martelli v. R.A. Chambers and Associates , 310 Or. 529, 534-35, 800 P.2d 766 (1990) ("The immunity of an employer from any worker's claims, other than for workers' compensation, was continued in section 6 of the 1965 act, as worded in the 1913 Act * * * and now phrased in modern terms, in ORS 656.018(1) [.]").

      Perkins , which plaintiff cites generally in her briefing, involved a different type of "capacity" question. In that case, the defendant was the plaintiff's coemployee but had been sued in a purely representative capacity as the trustee of the trust who leased property to their common employer. We held that the trustee was a legally distinct entity and therefore not the same legal person as the employee. 107 Or. App. at 162, 811 P.2d 650 ("We reject defendant's argument that, because Gehlar, the individual, is also the trustee, the trustee and the individual are the same entity and that the trustee is, therefore, plaintiff's coemployee. * * * There is no showing whatsoever that defendant [Gehlar as trustee, as opposed to Gehlar as an individual,] is an employee of the company and, therefore, a coemployee of plaintiff."). Varland did not involve claims against an individual acting in a representative capacity for a legally distinct person, and neither does this case. Our decision therefore does not address that circumstance.

      MLAC is a 10-member committee appointed by the Governor, with five members representing labor and five representing employers. ORS 656.790(1). The committee reports findings and recommendations to the Legislative Assembly on various matters. ORS 656.790(3).

      Although both the House and Senate versions of the bills were amended to reflect the compromise, SB 678 was the bill passed by the legislature.

      We do not mean to imply an endorsement of the approach in those cases, or of the policy analysis in Professor Larson's treatise. We simply note the competing viewpoints and the complexity of the issue as context for our conclusion that the legislature likely did not intend to wade into the matter in this particular piece of legislation.


source: Caselaw Access Project

author: POWERS, P. J.

license: Public Domain

text:
    In the MATTER OF A. G., a Child.
    Department of Human Services, Petitioner-Respondent,
    v.
    D. L. G. and J. C. C., Appellants.
    A167739 (Control), A167740
    Court of Appeals of Oregon.
    Argued and submitted September 20, 2018. March 27, 2019
    George W. Kelly, Eugene, argued the cause and filed the brief for appellant J. C. C.
    Valerie Colas, Deputy Public Defender, argued the cause for appellant D. L. G. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and Ortega, Judge.

      Ortega, J. vice Garrett, J. pro tempore.

   POWERS, P. J.

Mother and father appeal from permanency judgments in which the juvenile court changed the permanency plan for their child, A, from reunification to adoption. Mother and father assert that there was insufficient evidence to support a finding that no other permanent plan contemplated by the permanency statutes would have better met child's needs under the circumstances. As explained below, because the underlying premise of mother's and father's arguments has been foreclosed by the Oregon Supreme Court's recent decision in Dept. of Human Services v. S. J. M. , 364 Or. 37, 430 P.3d 1021 (2018), we affirm the judgments of the juvenile court.

At the time of the permanency hearing, A was five years old. She first came into contact with DHS in September 2016 because of concerns that mother and father were using controlled substances and the unsanitary condition of their house. In November 2016, the juvenile court asserted jurisdiction over A on the grounds that parents had not "met the basic medical, dental and physical needs of [their] child, and need[ ] the assistance" of DHS to safely parent. In May 2017, the juvenile court asserted jurisdiction on additional grounds that mother's untreated mental health issues in combination with her traumatic brain injury impaired her ability to safely parent and that father's mental health issues without treatment impaired his ability to safely parent. At the time of removal, A, who was about four years old, was obese, had considerable tooth erosion that required surgery for cavities in 11 out of 20 existing teeth, had a significant diaper rash consistent with a yeast infection, and lacked gross motor skills such as climbing and jumping.

As a result of the dependency cases, DHS referred mother and father to various resources, including parenting classes and training, mental health services, and neuropsychological evaluations, and provided for supervised visits with coaching, modeling, and support. Ultimately, however, DHS moved to change the plan from reunification to adoption based on its assertion that mother and father had not made sufficient progress.

At the time of the permanency hearing in this case, our cases held that DHS, who initiated the change of plan, had the burden of proving that there were no compelling reasons to forgo the filing of a petition to terminate the parents' parental rights. See Dept. of Human Services v. J. M. T. M. , 290 Or. App. 635, 638, 415 P.3d 1154 (2018) ; Dept. of Human Services v. S. J. M. , 283 Or. App. 367, 393-94, 388 P.3d 417 (2017), rev'd , 364 Or. 37, 430 P.3d 1021 (2018) ; see also Dept. of Human Services v. M. S. , 284 Or. App. 604, 609, 393 P.3d 270, rev. dismissed , 361 Or. 804, 401 P.3d 1181 (2017). On appeal, mother and father both assert that the evidence in the record was insufficient for the juvenile court to conclude that none of the other permanency plans contemplated by the permanency statutes would better meet A's needs under the circumstances.

After briefing and argument in this case, the Oregon Supreme Court issued its decision in S. J. M. , which held that, under ORS 419B.476(5)(d), the person or entity seeking to assert one of the exceptions in ORS 419B.498(2) bears the burden of proving that an exception to the prompt filing of a termination petition applies. 364 Or. at 53, 430 P.3d 1021. In this case, mother and father were the ones asserting that an exception to the prompt filing of a termination petition applies, relying primarily on perceived deficiencies in the evidence presented by DHS. Because the parents did not make a case sufficient to meet the burden of showing that an exception applies to the filing of a prompt petition for termination of their parental rights, we reject their arguments on appeal.

As noted earlier, the parties briefed and argued this case before the Supreme Court issued its decision in S. J. M. Subsequently, DHS asserted in a memorandum of additional authorities that "the Supreme Court's holding in S. J. M. is dispositive of parents' 'compelling interest' argument in this appeal or, at the very least, will substantially affect this court's review of the record." Sometime later, father filed his own memorandum of additional authorities, in which he also cited S. J. M. , and asserted that the proper remedy would be for us to remand the case to the juvenile court "so that father would have the opportunity to meet his burden of proof on the question of whether compelling reasons exist to forgo changing [A's] permanency plan from reunification to adoption". DHS responds that a remand is neither necessary nor appropriate because father "had every incentive to [ensure] that the record was as favorable to his position as possible, regardless of who bore the ultimate burden of proof, and the record shows that father presented evidence of his present circumstances."

Recently in Dept. of Human Services v. S. J. K. , 296 Or. App. 416, 439 P.3d 578 (2019), and Dept. of Human Services v. G. P. B. , 296 Or. App. 391, 438 P.3d 477 (2019), we declined to exercise our discretion to remand those cases back to the underlying juvenile courts following the Supreme Court's decision in S. J. M . We explained that, although "a significant change in the law may, at times, counsel in favor of a remand in order to ensure that a party has a fair opportunity to litigate a case under the correct legal standards," those cases did not present such an instance.

S. J. K. , 296 Or. App. at 420, 439 P.3d 578 ; see also G. P. B., 296 Or. App. at 395, 438 P.3d 477. This was true, especially in light of ORS 419B.470(6), which grants specified parties, including parents, a right to a new permanency hearing upon request "unless good cause is otherwise shown." Given the availability of a hearing under ORS 419B.470(6), we decline to exercise our discretion to remand this case.

Finally, we have considered and reject without discussion the remaining challenges by mother and father to the juvenile court's decision. Accordingly, we conclude that the juvenile court did not err in changing the permanency plan for A from reunification to adoption under the circumstances.

Affirmed.

      ORS 419B.476(5)(d) provides that, "[i]f the court determines that the permanency plan for the ward should be adoption, the court's determination of whether one of the circumstances in ORS 419B.498(2) is applicable."

      ORS 419B.498(2) provides:
      "The department shall file a petition to terminate the parental rights of a parent in the circumstances described in subsection (1) of this section unless:
      "(a) The child or ward is being cared for by a relative and that placement is intended to be permanent;
      "(b) There is a compelling reason, which is documented in the case plan, for determining that filing such a petition would not be in the best interests of the child or ward. Such compelling reasons include, but are not limited to:
      "(A) The parent is successfully participating in services that will make it possible for the child or ward to safely return home within a reasonable time as provided in ORS 419B.476(5)(c) ;
      "(B) Another permanent plan is better suited to meet the health and safety needs of the child or ward, including the need to preserve the child's or ward's sibling attachments and relationships; or
      "(C) The court or local citizen review board in a prior hearing or review determined that while the case plan was to reunify the family the department did not make reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child or ward to safely return home; or
      "(c) The department has not provided to the family of the child or ward, consistent with the time period in the case plan, such services as the department deems necessary for the child or ward to safely return home, if reasonable efforts to make it possible for the child or ward to safely return home are required to be made with respect to the child or ward."

      Mother has not filed a response to DHS's initial memorandum or otherwise briefed the effect of S. J. M. on our analysis or disposition.

      ORS 419B.470(6) provides:
      "Unless good cause otherwise is shown, the court shall also conduct a permanency hearing at any time upon the request of the department, an agency directly responsible for care or placement of the child or ward, parents whose parental rights have not been terminated, an attorney for the child or ward, a court appointed special advocate, a citizen review board, a tribal court or upon its own motion. The court shall schedule the hearing as soon as possible after receiving a request."


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Richard Lee MARTSCH, Defendant-Appellant.
    A164974
    Court of Appeals of Oregon.
    Submitted November 2, 2018. April 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for failure to perform the duties of a driver, ORS 811.700 (Count 1); recklessly endangering another person, ORS 163.195 (Counts 2 and 3); reckless driving, ORS 811.140 (Count 4); and criminal mischief in the second degree, ORS 164.354 (Count 5).

Counts 2 through 5 required the state to prove that defendant had acted "recklessly" in committing the charged crimes. Defendant challenges his convictions on Counts 2 through 5 contending that there was insufficient evidence to support a finding that he had acted recklessly. The state concedes error on Counts 2 through 5. We agree, accept the state's concession, and reverse defendant's convictions on Counts 2, 3, 4, and 5 and otherwise affirm.

To prove that a defendant acted recklessly for purposes of the crimes charged in Counts 2 through 5, the state had to prove (1) the existence of a substantial and unjustifiable risk that a particular result would occur or that a particular circumstance existed; (2) the defendant was aware of that risk; (3) the defendant consciously disregarded that risk; and (4) the act of disregarding the risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. ORS 161.085(9) (defining "recklessly" for purposes of state criminal code); see State v. Clark , 256 Or. App. 428, 435-36, 300 P.3d 281 (2013) (discussing import of recklessness under ORS 161.085(9) ).

Here, the charges against defendant arose from an incident in which defendant drove his car into the side of a neighbor's home when he fell asleep while driving home. The only evidence of recklessness was that defendant began to feel drowsy about one mile from his home, when his "eyelids dropped, and he snapped back up awake." We agree with the state that defendant's decision to drive an additional mile home after becoming drowsy could not be found to constitute a gross deviation from the standard of care that a reasonable person would observe in the situation. See State v. S. N. R. , 260 Or. App. 728, 739, 320 P.3d 569 (2014) (defendant's decision to look for the next appropriate place to pull over did not constitute a gross deviation from the standard of care that a reasonable person would observe in the situation). Therefore, we conclude that the state failed to prove that defendant acted recklessly for purposes of the crimes charged in Counts 2 through 5.

Convictions on Counts 2, 3, 4, and 5 reversed; otherwise affirmed.

      Recklessly endangering another person occurs when a defendant "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." ORS 163.195(1).

      Reckless driving occurs when a defendant "recklessly drives a vehicle upon a highway * * * in a manner that endangers the safety of persons or property." ORS 811.140(1).

      As relevant here, second-degree criminal mischief occurs when a defendant, "having no right to do so nor reasonable grounds to believe [he or she] has such a right," "recklessly damages property of another in an amount exceeding $500." ORS 164.354(1)(b).


text:
    Carvel Gordon DILLARD, Petitioner-Appellant, v. Steve BROWN, Superintendent, Warner Creek Correctional Facility, Defendant-Respondent.
    A156060
    Court of Appeals of Oregon.
    Submitted on remand November 21, 2018. May 1, 2019
    Jed Peterson filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kathleen Cegla, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Schuman, Senior Judge.
   PER CURIAM

Reversed and remanded. Dillard v. Premo , 296 Or. App. 798, --- P.3d ---- (2019).


text:
    In the MATTER OF Y. B., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. Y. B., Appellant.
    A165883
    Court of Appeals of Oregon.
    Submitted January 18, 2019. March 27, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.
   LAGESEN, P. J.

Appellant appeals a judgment of commitment and a firearms-prohibition order. ORS 426.130(1)(a)(C) and (D). He seeks reversal, arguing that he was not advised by the trial court of certain rights and information as required by ORS 426.100(1). Although he did not preserve his claim of error, he argues that we should review it as plain error. The state responds that the claim of error does not satisfy the plain-error requirement that the record demonstrate the error irrefutably, because the record affirmatively demonstrates that additional proceedings occurred off the record. Because appellant has not supplied us with the record needed to permit review of the claimed error, under a plain-error standard or otherwise, we affirm.

Appellant assigns error to the trial court's failure to comply with ORS 426.100(1). We have held that, "to comply with ORS 426.100(1), a trial court in a civil commitment proceeding must either advise the allegedly mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made." State v. S. J. F. , 247 Or. App. 321, 324, 269 P.3d 83 (2011) (internal quotation marks omitted). Appellant argues that, here, "the circuit court did not directly advise the appellant of the rights or information contained in ORS 426.100(1)(a-e) or conduct an examination to determine a valid waiver of the rights." He contends that "[t]here is *** no evidence that the court read any of the rights contained in ORS 426.100(1) to the appellant or that the appellant was present during his civil commitment hearing." That, he argues, constitutes plain error. Appellant does not argue that the trial court committed procedural error, either by failing to place the advice of rights on the record, or by failing to record all portions of the commitment hearing. See State v. B. K. , 295 Or. App. 697, 434 P.3d 512 (2019) (holding error was not plain when court gave the appellant advice of rights in off-the-record discussion, and made a record after-ward that it had done so).

The state argues in response that the record does not irrefutably establish that the trial court plainly erred, because there is an apparent gap in the record, during which the court might have complied with ORS 426.100(1). See State v. M. M. , 288 Or. App. 111, 114, 405 P.3d 192 (2017) (among other requirements, for an error to be plain, it must "appear[ ] on the record so that we need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error [must be] irrefutable" (internal quotation marks omitted)). Appellant did not reply to the state's argument concerning the record.

We conclude that appellant cannot establish that the trial court reversibly erred, because he has not supplied us with an adequate record to review the assignment of error. The portion of the record that appellant has provided demonstrates affirmatively that some portion of the commitment proceedings took place off the record or, at least, outside of the record that has been provided to us. The record we do have reveals that the court heard directly from appellant, but does not capture that exchange. That lack of a record precludes our review of appellant's claim of error.

Here is what the record provided tells us. At the outset of the commitment hearing, the trial court asked those present to identify themselves. In addition to the judge, the state's counsel, appellant's counsel, and a mental health examiner identified themselves. Appellant did not identify himself, and it appears that he was not in the room. We know that because the court said, "I understand we're going to go up to the patient's room to do the rest of the hearing. Did you want to do the evidence down here?" The state's counsel answered in the affirmative, and two exhibits were then admitted into evidence. The court subsequently indicated that it would go off the record until they were "upstairs." The court then went off the record. When the court came back on the record, neither the court nor the parties requested to make a record of any off-the-record proceedings that had taken place in the interim. Yet, the on-the-record proceedings reflect that off-the-record discussions involving appellant had taken place between the time that the court went off the record and came back on it. When the record resumed, a judicial assistant stated, "We're back on the record[,]" the state's counsel then called two witnesses, and the lawyers made arguments for and against appellant's commitment. Appellant was not called as a witness on the record at that point, he is never addressed by anyone or referred to as being present, and there are no transcribed statements attributed to him. Yet, during cross-examination of one of the witnesses, and in closing argument, appellant's lawyer referred to what the witness and the court had heard from appellant. Appellant's lawyer, cross-examining a witness and referring to appellant, stated, "Well, and he explained to us this morning though that he had not-the-he had not-the explanation for the drugs and what they did and what they were used for had not been given to him." (Emphasis added.) Appellant's counsel stated in closing, "As the Court's aware my client would like to be discharged. He doesn't feel he has a mental illness. He explained that. He explained why he didn't want to take medication." The mental health examiner also referred to interviewing appellant "today," and her report from the hearing, under the heading "examination," states that appellant was "seen in his room." At the conclusion of the hearing, the court made findings and subsequently entered the judgment of commitment and firearms order. Those references (in particular, the reference to the fact that appellant had "explained" things to the trial court) indicate that a portion of the proceeding occurred off the record, and the only time the court interacted with appellant was during that off the record portion. An account of those proceedings would be necessary to resolve appellant's claim of error that the trial court did not provide the advice of rights to appellant.

Ordinarily, it is the appellant's burden "to furnish a sufficient record to demonstrate that the trial court[ ]" erred. State v. Lavert , 164 Or. App. 280, 283, 991 P.2d 1067 (1999) ; see also King City Realty v. Sunpace , 291 Or. 573, 582, 633 P.2d 784 (1981). And "[t]he burden of creating and providing a record rests with the party seeking to alter the decision." Foust v. American Standard Ins. Co. , 189 Or. App. 125, 134 n. 8, 74 P.3d 1111 (2003) ; see also Ibarra v. Conn , 261 Or. App. 598, 602-03, 323 P.3d 539 (2014) (the appellant failed to supply a record sufficient to review claim of error when trial court's determination was influenced by unrecorded discussion in chambers); Russell v. Nikon, Inc. , 208 Or. App. 606, 611, 145 P.3d 312 (2006) ("without a transcript or an 'agreed narrative statement,' ORS 19.380 ; ORAP 3.45, we are unable to say with confidence that we know what took place" at pertinent unrecorded hearing). Included in that burden is the obligation to put on the record an account of any critical proceedings occurring off of the record. This is especially important in civil commitment cases because ORS 426.095(1) authorizes commitment hearings to be held in a wide range of places: "a hospital, the person's home or in some other place convenient to the court and the person alleged to have a mental illness." As we observed in B. K. , 295 Or. App. at 700 n. 1, 434 P.3d 512, "some of these places might pose logistical challenges to recording a hearing in full," and that is "some indication that the legislature may have understood that, at times," a record might have to be made later of events that occurred off the record.

Here, appellant has not satisfied that burden because he has not supplied a record of what took place during the trial court's direct interaction with him, even though there are procedural mechanisms that would have enabled him to do so. If proceedings take place off the record, a party may seek to have the proceedings recorded or to make a record of what occurred once the proceedings are back on the record. There are additional ways that an appellant can seek to provide a record in an appeal that might be sufficient for our review, even when portions of a proceeding were unrecorded, or a recording, or part of it, was lost or destroyed. For example, ORS 19.380 provides, in part:

"In lieu of or in addition to a transcript, the parties may prepare an agreed narrative statement of the proceedings below or parts thereof. The narrative statement shall be signed by the parties or their attorneys and shall be filed with the trial court administrator within 30 days after the filing of the notice of appeal."

See also ORS 7.150 (procedure for obtaining "an order reciting what was the substance and effect of [a] lost or destroyed record"). Appellant has not provided an account of the events that are missing from the record by one of these alternate means. Without such an account, we cannot review the claimed error regarding the advice of rights.

Although neither party addresses the point, we would be remiss were we not to observe expressly that the procedural law of civil commitment appeals has changed in this area. The statutes governing civil commitment hearings used to place the obligation of creating a full record of any proceedings squarely on the trial judge, relieving appellants in civil commitment cases of the usual obligation to ensure completeness of the record below. Before it was amended in 2011, ORS 426.160 (2009) provided, in part, that "[t]he judge shall cause to be recorded in the court records a full account of proceedings had at all hearings and examinations conducted pursuant to ORS 426.005, [and] 426.060 to 426.170." (Emphasis added.) See Or. Laws 2011, ch. 332, § 1. In at least three cases, we reversed commitment orders when the trial courts failed to create a "full account" of the proceedings, based on the pre-2011 version of ORS 426.160. State v. Anderson , 21 Or. App. 263, 264, 534 P.2d 1159 (1975) ; State v. Rowe , 9 Or. App. 500, 497 P.2d 1230 (1972) ;

Statev. Collman , 9 Or. App. 476, 489, 497 P.2d 1233 (1972) ; but see State v. Obelo , 179 Or. App. 684, 687, 41 P.3d 458 (2002) (holding it was not necessary to resolve whether a gap in the record constituted a violation of ORS 426.160, because, even if it did, " ORS 19.420(3) governs how we and the parties are to address the gap[,]" and the appellant did not make the required showing under that statute). But the legislature chose to eliminate that requirement in 2011, and the legislature has not, to date, supplied a similar requirement elsewhere. ORS 426.160 no longer places the same obligation on the trial judge in a civil commitment hearing to create a "full account" of the proceedings. The legislature's elimination of the requirement that the trial judge make a "full account" of any civil commitment proceedings changed the potential effect of the lack of a complete record of the proceedings below. Absent a statutory or constitutional mandate that requires the trial court to document what transpired during off-the-record proceedings, an appellant fails to meet that burden when, as here, the record on appeal affirmatively demonstrates that off-the-record proceedings occurred that bear on the claimed error, the available methods of addressing a record gap have not been employed, and we determine that the incomplete record precludes review. See, e.g. , Ibarra , 261 Or. App. at 603, 323 P.3d 539 (where record affirmatively demonstrated that off-the-record discussion had occurred that may have influenced court's decision, appellant's failure to provide a memorialization of off-the-record proceedings precluded appellate review).

In sum, because the record on appeal is not sufficient to resolve appellant's claim of error, we affirm.

Affirmed.

      ORS 426.100(1) provides:
      "At the time the person alleged to have a mental illness is brought before the court, the court shall advise the person of the following:
      "(a) The reason for being brought before the court;
      "(b) The nature of the proceedings;
      "(c) The possible results of the proceedings;
      "(d) The right to subpoena witnesses; and
      "(e) The person's rights regarding representation by or appointment of counsel."

      The record suggests that there might have been concerns or issues with holding "the rest of the hearing" in appellant's room. Appellant's treating psychiatrist described in her testimony during the hearing a safety plan involving precautions that the staff observed with appellant. The plan included precautions that staff not see him alone; when interacting with him, doing so in an open area rather than a small enclosed room; and having a "harm reduction specialist" assigned to him one-on-one. There is no record, however, of any decision by the court or by appellant concerning his presence for or absence from the hearing, aside from the initial intention to go to his room.

      As noted earlier, appellant does not raise a claim of procedural error, that is, a claim that some source of law required the advice of rights to be provided on the record or, alternatively, that some source of law made it the trial court's obligation to make a full record of the proceedings.

      As we have said in Obelo and in State v. Cutri , 184 Or. App. 625, 628, 56 P.3d 955 (2002), ORS 19.420(3) governs how we and the parties are to address a gap in the record "[w]henever it appears that an appeal cannot be prosecuted, by reason of the loss or destruction, through no fault of the appellant, of the reporter's notes or audio records *** necessary to the prosecution of the appeal[.]" ORS 19.420(3). We may reverse and remand for a new trial under that provision if the appellant (1) "show[s] that they have made every reasonable effort to secure a substitute for the missing portion of the record and (2) *** make[s] a prima facie showing of error, of unfairness at trial, or of a miscarriage of justice." Obelo , 179 Or. App. at 687, 41 P.3d 458.

      We have examined the legislative history of the 2011 amendment of ORS 426.160, but found no explanation for the elimination of the requirement that the trial judge make a "full account of proceedings" in civil commitment cases. The history of the amendment indicates that the changes were primarily motivated by the need to update involuntary commitment statutes relating to court records in preparation for the implementation of electronic filing and records systems.

      Again, appellant in this case has not identified any source of law imposing that obligation on the trial court or otherwise asserted a claim that the court committed procedural error by not creating an adequate record of the off-the-record proceedings involving appellant.


text:
    Jeffrey D. HALLADAY, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
    A168497
    Court of Appeals of Oregon.
    Submitted February 1, 2019. March 20, 2019
    Jeffrey D. Halladay filed the brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

At issue in this administrative rule review proceeding under ORS 183.400 are sections (2) and (3) of OAR 255-060-0012. That rule governs the use of psychological and psychiatric reports by the Board of Parole and Post-Prison Supervision in determining whether to affirm or defer an inmate's parole release date. Petitioner contends that the challenged provisions are invalid on their face, arguing that section (2) is contrary to ORS 144.125, and that section (3) offends the state and federal constitutional prohibitions on ex post facto laws. We agree and, for that reason, hold OAR 255-060-0012(2) and (3) invalid.

We first consider OAR 255-060-0012(2), which allows the board to summarily postpone an offender's parole release date for the purpose of obtaining a psychological or psychiatric evaluation. It provides:

"Pursuant to ORS 144.223, the Board may postpone the parole release date administratively and order a psychiatric/psychological evaluation of any inmate any time prior to release, except for inmates convicted of murder committed on or between November 1, 1989, and June 29, 1995, and not designated a dangerous offender at sentencing."

OAR 255-060-0012(2). Petitioner contends that the provision contravenes ORS 144.125 because that statute, which identifies the circumstances under which a release date may be deferred, does not authorize postponement of a release date for the purpose of obtaining a psychiatric or psychological evaluation. The board-correctly-concedes the point. In Porter v. Board of Parole , 281 Or. App. 237, 242-45, 383 P.3d 427 (2016), rev. den. , 361 Or. 100, 391 P.3d 132 (2017), we held that the board does not have the statutory authority under ORS 144.125 to summarily rescind a parole release date for the purpose of obtaining a psychiatric or psychological evaluation. Id . Rather, in the absence of one of the three statutory grounds for postponement specified in ORS 144.125, an " 'inmate has a legal right to release on the scheduled release date.' " Id . at 243, 383 P.3d 427 (quoting Gordon v. Board of Parole , 343 Or. 618, 622, 175 P.3d 461 (2007) ). OAR 255-060-0012(2), which purports to authorize postponement for a ground not specified in ORS 144.125, is therefore invalid.

Next is OAR 255-060-0012(3), which directs the board to consider psychological or psychiatric reports as well as other information in assessing whether an offender presents a danger that warrants the deferral of the person's release date. It provides:

"After review of the psychiatric/psychological reports, and all other information or documents presented during the hearing the Board may defer parole release until a specified future date upon finding: The inmate has a present severe emotional disturbance, such as to constitute a danger to the health or safety of the community."

OAR 255-060-0012(3). The terms of OAR 255-060-0012 instruct us that that directive (and five others) must guide the board's decision-making with respect to a large class of offenders: "Sections (1)-(6) of this rule apply to: inmates whose crimes were committed before November 1, 1989; all inmates convicted of aggravated murder; and inmates convicted of murder committed on or after June 30, 1995." OAR 255-060-0012.

According to petitioner, it is this broad temporal sweep (and a few other things) that renders the rule facially invalid. Petitioner observes that, in Peek v. Thompson , 160 Or. App. 260, 980 P.2d 178, rev. dismissed , 329 Or. 553, 994 P.2d 130 (1999), we held that, for offenders who committed their offenses between May 19, 1988 and April 4, 1990, it would violate the state and federal constitutional prohibitions on ex post facto laws for the board to rely on information other than a psychological or psychiatric evaluation in determining whether an offender's parole release date should be deferred on the ground that the offender had a present severe emotional disturbance that made the offender dangerous to the health or safety of the community. Peek , 160 Or. App. at 266, 980 P.2d 178. That was because, under the board's operative administrative rule during that time period, the board was limited to considering psychiatric and psychological evaluations in making its deferral determination. Id . The limitation on the information that the board could consider was "favorable" to offenders in a way that, under the applicable ex post facto analysis, precluded the board from expanding the scope of information that it could consider. Id . But, petitioner asserts, that is what the challenged version of OAR 255-060-0012 does when it directs that OAR 255-060-0012(3) applies to all "inmates whose crimes were committed before November 1, 1989." In response, the board asserts that the rules in effect at the time of a petitioner's crime are what govern its release date deferral decisions, not the current version of OAR 255-060-0012(3). Therefore, the challenged provision is not invalid.

That argument falters on the plain terms of the rule. Although the board may in practice be applying the rules in effect at the time of crime commission to offenders covered by the Peek decision, OAR 255-060-0012 states explicitly that OAR 255-060-0012(3) applies to "inmates whose crimes were committed before November 1, 1989." OAR 255-060-0012(3). By its very terms, then, the rule directs the board to consider information in addition to psychological or psychiatric evaluations for those offenders who committed their crimes from May 19, 1988 through October 31, 1989. That renders the rule invalid because, on its face, the rule conflicts with the ex post facto ruling in Peek. If the board did not want OAR 255-060-0012(3) to apply to offenders who committed their offenses from May 19, 1988 through October 31, 1989, then that is what it should have said in the rule. Instead, it said the opposite.

OAR 255-060-0012(2) and (3) held invalid.

      ORS 144.125 requires postponement on three grounds: for serious misconduct during confinement; if an inmate is diagnosed with a "present severe emotional disturbance that would make him a danger to the community"; or if the inmate's release plan is not adequate. See also Porter , 281 Or. App. at 242-44, 383 P.3d 427.

      Article I, section 21, of the Oregon Constitution states, in relevant part, that "[n]o ex-post facto law * * * shall ever be passed." Article I, section 10, of the United States Constitution likewise provides, in relevant part, that "[n]o [s]tate shall * * * pass any * * * ex post facto Law."

      In its brief, the board notes its disagreement with our decision in Peek , but does not ask that it be overruled.


author: ARMSTRONG, P. J.

text:
    In the MATTER OF Z. S. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. P. W., Appellant.
    A168763
    Court of Appeals of Oregon.
    Argued and submitted February 8, 2019. March 20, 2019
    Sarah Peterson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Inge D. Wells, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

Mother appeals an order that denied her motion to set aside a judgment that had terminated her parental relationship with her son. The juvenile court had entered the termination judgment based on a prima facie presentation of evidence that the court had allowed the Department of Human Services (DHS) to make after mother had failed to appear at a "trial readiness" hearing in the termination case. Mother moved under ORS 419B.923 to set the termination judgment aside, and the court scheduled a hearing on the motion. Mother's counsel appeared at the hearing, but mother did not. The court thereafter entered an order denying mother's motion. On appeal, mother raises for the first time a claim that her trial counsel provided her with inadequate legal assistance in litigating her set-aside motion. Because mother's claim turns on factual questions that have not been sufficiently developed in the record, we vacate and remand for the juvenile court to hold an evidentiary hearing under ORS 419B.923 on mother's inadequate-assistance claim.

When reviewing a claim of inadequate assistance of counsel, we consider whether the underlying proceeding was "fundamentally fair." State ex rel. Juv. Dept. v. Geist , 310 Or. 176, 187-88, 796 P.2d 1193 (1990). If we conclude that the evidentiary record is insufficient for us to resolve on appeal an unpreserved claim of ineffective assistance of counsel, we can, "where appropriate," remand to the juvenile court for an evidentiary hearing on the claim.

Dept. of Human Services v. T. L ., 358 Or. 679, 703-04, 369 P.3d 1159 (2016). A parent raising such a claim bears the burden of proving it. T. L. , 358 Or. at 702, 369 P.3d 1159. To be entitled to relief, the parent "must show not only that trial counsel was inadequate, but also that the inadequacy prejudiced [the parent's] rights to the extent that the merits of the juvenile court's decision are called into serious question." Id . Thus, the parent must prove both deficient performance and prejudice.

With those principles in mind, we turn to the facts of this case. DHS filed a petition on July 21, 2017, to terminate mother's parental rights with her son, Z. Mother appeared in court on September 26, 2017, as required by the summons, and contested the petition. During that appearance, the court scheduled a "trial readiness" hearing for December 5, 2017, but that hearing was later rescheduled for April 6, 2018. Although mother received notice of the April 6 hearing, she did not appear for it. DHS moved at the hearing to proceed with a prima facie case against mother, to which mother's counsel objected and stated that he did not know why mother was not in court. Mother's counsel did not raise an objection based on any deficiency in the notice required to be given to support entry of a default judgment terminating mother's parental rights. See ORS 419B.820. The court denied a request by mother's counsel to set the hearing over, and, after DHS's presentation of evidence, the court orally granted the termination petition.

The court entered its termination judgment on May 1, 2018. In its judgment, the court found that mother "did not appear as summoned, although served as required by law," and that the court had "granted the state's oral motion to proceed with a prima facie case in mother's absence, over mother's attorney's objection." On May 11, 2018, mother filed a motion to set aside the termination judgment "pursuant to ORS 419B.923." In a declaration accompanying the motion, mother's counsel stated that mother's failure to appear at the "trial readiness" hearing was due to the fact that she had moved to Prineville and "was having transportation problems."

A hearing on the motion was held on July 27, 2018. Mother failed to appear at the hearing. Mother's counsel represented that he had "hired a private investigator to find" mother, but he did not know where she was. The court denied mother's motion, stating that

"[t]he declaration of the attorney that's attached does not comply with ORS 419B.923(2) and the fact that the person objecting [to the termination judgment] has not made it to the hearing once again speaks volumes. There is not excusable neglect. The court will deny the motion."

Now, on appeal, mother contends that her trial counsel provided inadequate legal assistance to her in three respects on her motion to set aside the termination judgment: (1) counsel failed to adequately plead the "excusable neglect" theory under ORS 419B.923(1)(b) that he had raised in the written set-aside motion; (2) counsel did not advance a well-settled theory under ORS 419B.820 on the notice required to be given mother to support entry of a default termination judgment against her; and (3) counsel abandoned his prosecution of the set-aside motion at the hearing because he could not "find" mother. In her brief, mother argues that the evidentiary record is sufficient for us to resolve the inadequate-assistance claim that she has advanced on appeal, and she asks us to reverse the order denying her motion to set aside the termination judgment.

DHS disputes that mother is entitled to the relief that she seeks on appeal. It contends, among other things, that resolution of mother's inadequate-assistance claim requires the development of an evidentiary record and that we should vacate the order denying mother's set-aside motion and remand for that purpose. See T. L. , 358 Or. at 702, 369 P.3d 1159 ("[I]t is a 'rare' case in which the question whether counsel was inadequate will not require the development of an evidentiary record."). See also Dept. of Human Services v. M. U. L. , 281 Or. App. 120, 128, 380 P.3d 1232 (2016) (declining to reach merits of claim that counsel provided inadequate assistance by failing to request the removal of a guardian ad litem when the claim turns on "factual questions that have not been fully developed").

At oral argument, both parties agreed that the record is insufficiently developed for us to resolve mother's inadequate-assistance claim and asked us to vacate and remand the case for an evidentiary hearing under the terms stated in M. U. L . We agree with the parties that the record on appeal is insufficient for our review. Thus, we vacate the order on mother's set-aside motion and remand with instructions consistent with those given in M. U. L. If the trial court determines that mother received inadequate assistance of counsel that prejudiced mother's rights regarding the set-aside motion, the court shall enter an order granting the motion; otherwise the court shall reinstate the order denying the motion.

Vacated and remanded.