2017 ORS 419B.923¹
Modifying or setting aside order or judgment

(1) Except as otherwise provided in this section, on motion and such notice and hearing as the court may direct, the court may modify or set aside any order or judgment made by it. Reasons for modifying or setting aside an order or judgment include, but are not limited to:

(a) Clerical mistakes in judgments, orders or other parts of the record and errors in the order or judgment arising from oversight or omission. These mistakes and errors may be corrected by the court at any time on its own motion or on the motion of a party and after notice as the court orders to all parties who have appeared. During the pendency of an appeal, an order or judgment may be corrected as provided in subsection (7) of this section.

(b) Excusable neglect.

(c) Newly discovered evidence that by due diligence could not have been discovered in time to present it at the hearing from which the order or judgment issued.

(2) A motion to modify or set aside an order or judgment or request a new hearing must be accompanied by an affidavit that states with reasonable particularity the facts and legal basis for the motion.

(3) A motion to modify or set aside an order or judgment must be made within a reasonable time except no order or judgment pursuant to ORS 419B.527 (Disposition of ward after termination) may be set aside or modified during the pendency of a proceeding for the adoption of the ward, nor after a petition for adoption has been granted.

(4) Except as provided in subsection (6) of this section, notice and a hearing as provided in ORS 419B.195 (Appointment of counsel for child or ward), 419B.198 (Responsibility for payment of costs related to provision of appointed counsel for child or ward), 419B.201 (Compensation for court-appointed counsel for child or ward under ORS 135.055), 419B.205 (Appointment of counsel for parent or legal guardian), 419B.208 (Other law applicable to appointment of counsel), 419B.310 (Conduct of hearings), 419B.325 (Disposition required) and 419B.893 (Subpoenas generally) must be provided in any case when the effect of modifying or setting aside the order or judgment will or may be to deprive a parent of the legal custody of the child or ward, to place the child or ward in an institution or agency or to transfer the child or ward from one institution or agency to another. The provisions of this subsection do not apply to a parent whose rights have been terminated under ORS 419B.500 (Termination of parental rights generally) to 419B.524 (Effect of termination order) or whose child has been permanently committed by order or judgment of the court unless an appeal from the order or judgment is pending.

(5) When an Indian child is involved, notice must be provided as required under the Indian Child Welfare Act.

(6) Except when the child or ward is an Indian child, notice and a hearing are not required when the effect of modifying or setting aside the order or judgment will be to transfer the child or ward from one foster home to another.

(7) A motion under subsection (1) of this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court’s order or judgment in the appellate court within seven days of the date of the trial court order or judgment. Any necessary modification of the appeal required by the court order or judgment must be pursuant to rule of the appellate court.

(8) This section does not limit the inherent power of a court to modify an order or judgment within a reasonable time or the power of a court to set aside an order or judgment for fraud upon the court. [2001 c.622 §33; 2003 c.396 §97]

Notes of Decisions

In evaluating whether mo­tion to modify or set aside order or judg­ment was filed within reasonable time, court may consider length of delay, reason for delay and other circumstances surrounding filing. State ex rel Juvenile Depart­ment v. D.J., 215 Or App 146, 168 P3d 798 (2007)

Whether mo­tion to modify or set aside order or judg­ment was filed within “reasonable time” is matter committed to discre­tion of court. State ex rel Juvenile Depart­ment v. D.J., 215 Or App 146, 168 P3d 798 (2007)

Excusable neglect encompasses parent’s reasonable, good faith mis­take as to time or place of a dependency pro­ceed­ing. State ex rel Dept. of Human Services v. G.R., 224 Or App 133, 197 P3d 61 (2008)

Considera­tions reasonably guiding and restricting exercise of discre­tion to deny a mo­tion to set aside order or judg­ment include (1) nature and magnitude of interest adjudicated and “forfeited” in movant’s absence; (2) movant’s promptness in at­tempting to rectify his or her nonappearance; (3) extent to which interests of other parties and court would be prejudiced if mo­tion were granted, including because of intervening detri­mental reliance on judg­ment; and (4) whether movant can present colorable de­fense on merits. State ex rel Dept. of Human Services v. G.R., 224 Or App 133, 197 P3d 61 (2008)

Inherent power of court to modify order or judg­ment is subject to express pro­hi­bi­­tion against modifying order that places child in state custody or otherwise directs disposi­tion of child after termina­tion of parental rights. Depart­ment of Human Services v. B.A.S./J.S., 232 Or App 245, 221 P3d 806 (2009), Sup Ct review denied

Juvenile court has broad authority in termina­tion of parental rights pro­ceed­ing to modify or set aside its own order or judg­ment for reasons other than listed in subsec­tion (1)(a) of this sec­tion, including colorable claim of viola­tion of parent’s due process rights caused by juvenile court’s misinterpreta­tion of court authority. Dept. of Human Services v. A.D.G., 260 Or App 525, 317 P3d 950 (2014)

Where standing is limited, under this statute, to per­sons or entities with status as party to pro­ceed­ing at time mo­tion to set aside is filed and state’s party status is terminated by court order, state has no entitle­ment to due process or standing to challenge applica­tion of statute to it on constitu­tional grounds. Dept. of Human Services v. B.M.C., 272 Or App 255, 355 P3d 190 (2015)

Under interpretive method of ejusdem generis, specific examples provided as “reasons” for modifying or setting aside order or judg­ment listed under subsec­tion (1) of this sec­tion serve to narrow scope of reasons authorizing juvenile court to act under this statute. Dept. of Human Services v. K.W., 273 Or App 611, 359 P3d 539 (2015), Sup Ct review denied

Allega­tions of changed circumstances since entry of judg­ment terminating parental rights does not authorize court to set aside judg­ment because change in circumstance does not share common characteristic with specific examples provided as “reasons” to set aside judg­ment under subsec­tion (1) of this statute. Dept. of Human Services v. K.W., 273 Or App 611, 359 P3d 539 (2015), Sup Ct review denied

Where father’s appointed counsel failed to appear at permanency hearing, this sec­tion allowed father to bring inadequate assistance of counsel claim for first time on direct ap­peal from judg­ment re­gard­ing place­ment of father’s children. Depart­ment of Human Services v. T. L., 358 Or 679, 369 P3d 1159 (2016)

Notes of Decisions

Under Former Similar Statutes

Due process does not require the appoint­ment of “independent counsel” to represent the child in every adop­tion or termina­tion of parental rights pro­ceed­ing. F. v. C., 24 Or App 601, 547 P2d 175 (1976)

When sec­ond termina­tion of parental rights pro­ceed­ing was not itself barred, proof was not limited by res judicata or collateral estoppel principles to facts or evidence which was not considered in or which came in to being after first pro­ceed­ing. State ex rel Juvenile Dept. v. Newman, 49 Or App 221, 619 P2d 901 (1980), Sup Ct review denied

Chapter 419B

Notes of Decisions

Due process rights of parents are al­ways implicated in construc­tion and applica­tion of pro­vi­sions of this chapter. Depart­ment of Human Services v. J.R.F., 351 Or 570, 273 P3d 87 (2012)

1 Legislative Counsel Committee, CHAPTER 419B—Juvenile Code: Dependency, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors419B.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 419B, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano419B.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.