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FILED: February 29, 2012 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of C. M. M., a Child. DEPARTMENT OF HUMAN SERVICES and C. M. M., Petitioners-Respondents, v. W. S. C., III, Appellant. Clatsop County Circuit Court 09J5718 Petition Number 05J5718 A149189 (Control) ________________________________________________________________________ In the Matter of G. J. R. M., a Child. DEPARTMENT OF HUMAN SERVICES and G. J. R. M., Petitioners-Respondents, v. W. S. C., III, Appellant. Clatsop County Circuit Court 09J5719 Petition Number 05J5719 A149190 ______________________________________________________________________ In the Matter of L. R. M., a Child. DEPARTMENT OF HUMAN SERVICES and L. R. M., Petitioners-Respondents,

v. W. S. C., III, Appellant. EXPEDITED TERMINATION OF PARENTAL RIGHTS CASE Clatsop County Circuit Court 09J5720 Petition Number 05J5720 A149191 ______________________________________________________________________ In the Matter of W. H. C., a Child. DEPARTMENT OF HUMAN SERVICES and W. H. C., Petitioners-Respondents, v. W. S. C., III, Appellant. EXPEDITED TERMINATION OF PARENTAL RIGHTS CASE Clatsop County Circuit Court 09J5721 Petition Number 05J5721 A149192 ______________________________________________________________________ In the Matter of N. M. A. M., a Child. DEPARTMENT OF HUMAN SERVICES and N. M. A. M., Petitioners-Respondents, v. W. S. C., III, Appellant. EXPEDITED TERMINATION OF PARENTAL RIGHTS CASE Clatsop County Circuit Court 09J5722 Petition Number 03J5722 A149193

Clatsop County Circuit Court 09J5718, 09J5719, 09J5720, 09J5721, 09J5722 A149189

Cindee S. Matyas, Judge. Argued and submitted on November 07, 2011. Shannon L. Flowers, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services. Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent Department of Human Services. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Megan L. Jacquot filed the brief for respondent children, C. M. M., G. J. R. M., L. R. M., and W. H. C. Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge. WOLLHEIM, J. Motion to allow late notice of appeal denied; motion to dismiss appeal granted; appeal dismissed.

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WOLLHEIM, J. The juvenile court terminated father's and mother's parental rights with respect to five of their children: N, C, G, L, and W. Mother timely appealed the termination judgments, and we affirmed those judgments on this date. Dept. of Human Services v. T. M. M., ___ Or App ___, ___ P3d ___ (Feb 29, 2012). Father, however, did not timely appeal because his trial counsel mishandled the filing of his notices of appeal. He asks that we nonetheless allow his late appeal and reverse the termination judgments. For the reasons that follow, we are not authorized to create a judicial remedy for father's attorney's errors in initiating the appeal, and we are not persuaded that father, as a result of his trial counsel's failure, was denied a fundamentally fair termination proceeding under the Due Process Clause of the United States Constitution. We therefore deny father's motion for a late appeal and dismiss the appeal as untimely. The preliminary question in this case is whether father's appeal is procedurally barred because his notices of appeal were filed more than 90 days after the entry of judgment. See ORS 419A.200(3)(c) ("The notice must be filed not later than 30 days after the entry of the court's judgment."); ORS 419A.200(5) (authorizing appeal to be filed within 90 days after entry of judgment, where failure to file notice within 30 days is not personally attributable to the appellant and appellant demonstrates colorable error). Thus, we begin by setting out the facts pertinent to the filing of the notices of appeal. The termination hearing spanned 11 days, concluding on December 15, 2010, at which point the trial court announced in open court that it was terminating both parents' rights to their children. Father, at that point, informed his trial counsel, Timothy
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Pizzo, of his intent to appeal. According to Pizzo, he returned to his office and "called the Public Defense Appellate Division to notify them of [father's] desire to appeal," and was told by that office to "wait for a written order before beginning the appeal process." Proposed judgment forms were sent to Pizzo in early January 2011, and Pizzo did not object to them. Judgments terminating father's parental rights to N, C, G, L, and W were signed on January 19, 2011,1 and they were entered the following day. Copies were mailed to Pizzo but, he avers, were "misfiled by [his] relatively new legal assistant." On February 9, 2011, mother's counsel telephoned Pizzo and left a message asking whether father had filed his notice of appeal. Pizzo returned her call six days later, and they discussed the filing deadline. On February 22, 2011, Pizzo "prepared and served the Notices of Appeal." Pizzo, however, never filed the notices of appeal with this court; instead, he filed them in Clatsop County Circuit Court. (OJIN reflects that the notices were received by that court on February 23, 2011.) On June 13, 2011--almost four months after preparing and misfiling his notices of appeal--Pizzo received a call from an Oregon Public Defense Services (OPDS) supervisor and "discovered for the first time that [he] had failed to get the Notices to the Court of Appeals." According to Pizzo, "[s]hortly thereafter, on the advice of OPDS, [he] contacted Angela Sherbo" at Youth, Rights, & Justice (formerly Juvenile Rights Project).
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In his affidavit, Pizzo states that the judgments "were signed on January 21, 2011 and mailed to my office." The judgments, on their face, are signed January 19 and, according to the Oregon Judicial Information Network (OJIN), were entered on January 20, 2011.
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Sherbo suggested the possibility of filing a motion for a late appeal and asked that Pizzo call her back with more information about the case. Pizzo states that "[a] family emergency arose and [he] left town and did not follow-up with Ms. Sherbo." Sherbo then called Pizzo sometime around the week of July 11, 2011, to inquire whether he had resolved the appeal issue. Pizzo told her that he had been out of town and had not resolved the matter. On July 14, Sherbo again called Pizzo to say that she had conferred with the appellate division of OPDS and that she would file a motion for a late appeal on behalf of father. She asked that Pizzo instruct father to call her so that she could discuss the case and determine whether father wanted to pursue that course of action. On July 15, 2011, Sherbo requested Pizzo's affidavit to file in support of her motion for a late appeal. Between July 18 and July 22, Sherbo made multiple calls and sent two emails to Pizzo to remind him of his obligation. According to Pizzo, "On Friday, July 22, 2011, after a telephone conversation with Ms. Sherbo, [he] emailed a draft to her office"; "at approximately 9:00 pm that evening, [Pizzo] realized [he] had sent it to the wrong email address." The following week, Sherbo filed an emergency motion to file a late appeal, along with an affidavit from Pizzo, dated July 25, 2011, describing the circumstances set out above. In the meantime, mother had filed her opening brief on June 27, 2011, and oral argument had been scheduled for September 6, 2011. Counsel for the children (except N, who had his own attorney below but was not represented on appeal) and counsel for the Department of Human Services (DHS) had requested extensions of time
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in which to file their responses to mother's brief; as a result of those requests, their response briefs were due on August 8, 2011. Counsel for C, G, L, and W did not oppose father's motion for a late appeal; in fact, father's appellate counsel represented in her motion that the children's counsel "also supports the motion." DHS, however, did oppose the motion and, in response, filed a motion to dismiss the late appeal. On August 8, 2011, the Appellate Commissioner deferred "ruling on the motions to the department that hears these cases on their merits." The Appellate Commissioner postponed oral argument in mother's case and ordered that mother's and father's cases be scheduled for argument before the same department on the same date. DHS sought reconsideration of that order by the Chief Judge, but the motion for reconsideration was denied. Mother's and father's cases were ultimately argued on November 7, 2011, and it now falls upon us to resolve father's request for leave to file a late appeal and DHS's motion to dismiss father's late appeal. Father advances two bases for considering his untimely appeal. First, he invites this court to fashion a judicial remedy to vindicate his statutory right to adequate assistance of counsel, the course taken in State ex rel SOSCF v. Hammons, 169 Or App 589, 10 P3d 310 (2000). Second, father argues that, as a matter of due process under the federal constitution, he is entitled "to a mechanism to raise the substantive issues of his fitness on direct appeal." Father's first argument--that this court may fashion its own exception to the statutory timelines in ORS 419A.200 in order to vindicate his right to adequate assistance
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of counsel--is foreclosed by our decision in State ex rel Juv. Dept. v. M. U., 229 Or App 35, 210 P3d 254 (2009). In M. U., the mother's court-appointed counsel failed to timely file a notice of appeal from a judgment establishing dependency jurisdiction with respect to her daughter. The mother sought leave to pursue an otherwise untimely appeal, relying on this court's decision in Hammons, a case in which we had allowed a late appeal as a judicial remedy to vindicate a parent's right to adequate assistance of counsel. We denied the motion to allow a late appeal, on the ground that ORS 419A.200 had been amended after Hammons and, as amended, "effectively preempts the relief that mother seeks here." M. U., 229 Or App at 42. As we explained in M. U., it was a legislative gap in ORS 419A.200(4) (1999) that had allowed us to fashion in Hammons a judicial remedy for counsel's untimely appeal: "The determination of appellate jurisdiction in Hammons thus reduced to whether we '"may fashion an appropriate procedure" in the absence of "legislative procedure for vindicating the statutory right to adequate counsel[.]"' [Hammons, 169 Or at 593] (quoting [State ex rel Juv. Dept. v. Geist, 310 Or 176, 185, 796 P2d 1193 (1990)]) * * *. We observed that no such legislative procedure existed because the delayed appeal provisions contained in ORS 419A.200(4) (1999), were, at that time, available only to parents who were unrepresented by counsel--and not those who were represented by counsel, albeit inadequately. For that reason, we concluded that it was permissible for us to fashion a remedy and, as in Geist, to do so in the context of a direct appeal." 229 Or App at 41 (footnote omitted; emphasis in M. U.). In 2001, the legislature closed that gap by extending the right to a late appeal to represented parties as well. As amended in 2001--and as it now reads--ORS 419A.200 provides:
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"(5)(a) Upon motion of a person, other than the state, entitled to appeal under subsection (1) of this section, the appellate court shall grant the person leave to file a notice of appeal after the time limits described in subsection (3) of this section if: "(A) The person shows a colorable claim of error in the proceeding from which the appeal is taken; and "(B) The person shows that the failure to file a timely notice of appeal is not personally attributable to the person. "(b) A person other than the state is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to ORS 419A.208. "(c) The request for leave to file a notice of appeal after the time limits prescribed in subsection (3) of this section must be filed no later than 90 days after entry of the judgment being appealed and must be accompanied by the notice of appeal sought to be filed. A request for leave under this subsection may be filed by mail and is deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260. "(d) The court may not grant relief under this subsection unless the state has notice and opportunity to respond to the person's request for relief." As a result of those amendments, we no longer have the authority to craft, as a judicial, gap-filling remedy, a different procedure to vindicate the right to adequate assistance of counsel in the filing of a notice of appeal: "Thus, the decisive factor upon which our authority to craft a remedy in Hammons was predicated--that is, 'the absence of [a] "legislative procedure for vindicating the statutory right to adequate counsel[,]"' Hammons, 169 Or App at 593 (quoting Geist, 310 Or at 185)--no longer exists. At least with respect to claims of inadequate assistance of counsel based on the failure to timely file an appeal of a judgment of the juvenile court, the legislature has provided a specific procedure in ORS 419A.200(5). As a result, mother's statutory right to adequate counsel--if, indeed, she has one under ORS 419B.205--would not be 'illusory,' as was the case in Hammons, 169 Or App at 593-94, due to the lack of any procedure for remedying the asserted inadequacy. Rather, even assuming
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mother has a statutory right to adequate counsel analogous to the right derived by the court in Hammons, mother's remedy for vindication of that right is now governed by ORS 419A.200(5)." M. U., 229 Or App at 43-44. Because the mother in M. U. did not satisfy the requirements for filing a delayed appeal under ORS 419A.200(5), we dismissed her appeal. "The fact that mother did not timely invoke, and, thus, qualify for, that remedy," we reasoned, "does not nullify its existence and allow us to, instead, craft, under the rationale of Hammons, a more extensive remedy, circumventing the legislatively prescribed restrictions." 229 Or App at 44. The same is true here. Father did not satisfy the requirements of ORS 419A.200(5) for filing a late appeal--namely, he did not file his request for leave to file a notice of appeal within 90 days after entry of the termination judgments being appealed. And for the reasons explained in M. U., we are not authorized, now that the legislature has provided a remedy for late appeals by represented parties, to fashion our own, more extensive remedy under the rationale in Hammons.2 Alternatively, father argues that, even if Hammons does not authorize a judicial remedy for a late appeal, he nevertheless must be permitted to "raise substantive
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In this posture, when the legislature has already established a 90-day period for pursuing an untimely appeal, the remedy father seeks would effectively require us to rewrite the statute to accommodate his circumstances--something we are not permitted to do. See US West Communications v. City of Eugene, 336 Or 181, 188, 81 P3d 702 (2003) (explaining that courts may not rewrite statutes to insert what the legislature has omitted). The legislature routinely establishes filing requirements--statutes of limitation, for example--that can have harsh consequences for particular litigants; it is not the role of this court to second-guess those legislative decisions in the guise of "gap-filling."
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issues of his fitness on direct appeal" as a matter of procedural due process under the Fourteenth Amendment. US Const, Amend XIV,

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