S058285, Opinion — J. G. v. N. D. G.

525
Argued and submitted June 8, decision of Court of Appeals reversed; judgment of
circuit court reversed, and case remanded to circuit court for further proceedings
July 15, 2010
In the Matter the Adoption of A. R. G.-D.,
adopted name A. R. G.-D.,
a Minor Child.
J. G.,
Petitioner on Review,
v.
N.D.G.,
Respondent on Review.
(CC 0509-69919; CAA141787; SC 8058285)
236P3d 709
CJS, Adoption of Persons§ 114.
En Banc
On review from the Court of Appeals.*
* Appeal from Multnomah County Circuit Court, Katherine Tennyson, Judge.
233 Or App 509, 226 P3d 130 (2010).

526 	J. G. v. N. D. G.
Kathryn M. Pratt, Pratt Law Office LLC, Beaverton,
argued the cause and filed the briefs for petitioner on review.
Mark Kramer, Kramer & Associates, Portland, argued the
cause and filed the brief for respondent on review.
DE MUNIZ, C. J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court 	is reversed, 	and 	the case is
remanded to the circuit court for further proceedings.

Cite as 348 Or
DE MUNIZ, C. J.
Maternal grandmother (grandmother) obtained a
judgment of adoption of her grandson, A. G., displacing birth
mother (mother) as A. G.'s parent. Mother moved to vacate
the adoption judgment on the ground that she had not
received notice of the adoption proceeding and that the order
authorizing notice by publication was obtained through fraud
and misrepresentation. In response, grandmother moved to
dismiss mother's motion. The trial court allowed grand-
mother's motion to dismiss mother's motion to vacate the
adoption judgment. 	Mother appealed, 	and the Court of
Appeals affirmed without opinion. J. G. u. N. D. G., 233 Or
App 509, 226 P3d 130 (2010). We allowed review and now
reverse the decision of the Court of Appeals and the judgment
of the trial court, remanding to the trial court for a hearing
on the merits of mother's motion to vacate the adoption
judgment.
The facts pertinent to our review are undisputed. In
September 2005, grandmother and a maternal aunt filed a
petition to adopt A.G. In January 2006, grandmother moved
for an order authorizing service on mother by publication in
that proceeding. 1 In support of her motion, grandmother filed
an affidavit averring that grandmother had had "no contact
1 ORCP 7 0(6) outlines when service by publication is appropriate. It provides,
in part:
"(a) Court order for service by other method. On motion upon a showing by
affidavit or declaration that service cannot be made by any method otherwise
specified in these rules or other rule or statute, the court, at its discretion, may
order service by any method or combination of methods which under the cir-
cumstances is most reasonably calculated to apprise the defendant of the exis-
tence and pendency of the action, including but not limited to: publication of
summons; mailing without publication to a specified post office address of the
defendant by first class mail and any of the following: certified, registered, or
express mail, return receipt requested; or posting at specified locations. If serv-
ice is ordered by any manner other than publication, the court may order a
time for response.
'~* * * 	*
"(g) Defendant who cannot be served. Within the meaning of this subsec-
tion, a defendant cannot be served with summons by any method authorized by
subsection (3) of this section if: (i) service pursuant to subparagraph (4)(a)(i) of
this section is not authorized, and the plaintiff attempted service of summons
by all of the methods authorized by subsection (3) of this section and was una-
ble to complete service, or (ii) if the plaintiff knew that service by such methods
could not be accomplished."

528 	J. G. v.N. D. G.
* * * whatsoever" with mother since September 2005. She
also averred that she had tried unsuccessfully to serve
mother in another proceeding in June 2004, but that mother
was transient. Grandmother's affidavit did not detail any
effort to locate or serve mother within the five months pre-
ceding grandmother's request to serve mother by publication.
The trial court granted grandmother's motion for service by
publication.
Mother thereafter failed to appear at an April 2006
hearing, and the trial court entered an "order dispensing
with [mother's] consent." On June 2, 2006, the trial court
granted grandmother and aunt's petition to adopt A. G., and
a general judgment of adoption was entered on June 7, 2006.
On June 1, 2007, within one year after entry of the
adoption judgment, mother moved to vacate the adoption. As
noted earlier, mother asserted that she had not received
notice of the adoption proceeding and that the court order
authorizing notice by publication was obtained through fraud
and misrepresentation, violating her rights under the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution. 2
Mother's 	counsel 	filed 	an 	affidavit 	supporting
mother's motion to vacate the adoption judgment. Counsel's
affidavit alleged that mother did not learn of A. G.'s adoption
until an attorney who was representing mother in proceed-
ings concerning her other child, R. M., learned of it sometime
in January or February 2007, 3 approximately six months
before mother filed the motion to vacate the adoption judg-
ment. The affidavit averred that grandmother had testified,
2 The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides:
"No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any
person oflife, liberty, or property, without due process oflaw; nor deny to any
person within its jurisdiction the equal protection of the laws."
See also Armstrong u. Manzo, 380 US 545, 85 S Ct 1187, 14 L gd 2d 62 (1965) (fail-
ure to give biological parent notice of pending adoption proceedings violates the
most rudimentary demands of due process of law).
" Grandmother does not dispute that assertion, although court records indicate
that both mother and mother's attorney knew of A. G.'s adoption by December
2006.

Cite as 348 Or 525
at a January 2007 hearing concerning R. M., that between
December 2005 and February 2006, around the time grand-
mother signed the affidavit requesting service by publication,
grandmother regularly was taking R. M. to the Department
of Human Services (DHS) to visit with mother. According to
the affidavit, grandmother also had attended hearings at
which mother was present. Counsel's affidavit asserted that
grandmother had omitted that information from her affidavit
supporting her request for an order for service by publication,
and that grandmother's failure to disclose that information
was an intentional misrepresentation designed to circum-
vent the adoption notice requirements. The affidavit further
alleged that, by providing a misleading affidavit, grand-
mother had perpetrated a fraud on the court. 4
In 	December 	2007, 	the 	parties 	unsuccessfully
engaged in mediation. Ten months later, in September 2008,
mother requested a conference with the trial court to discuss
setting a hearing on her motion to vacate the adoption judg-
ment. In response, grandmother moved to dismiss mother's
motion 	to 	vacate 	the 	adoption judgment. 	Grandmother
advanced two reasons for dismissing mother's motion. First,
she argued that mother had failed to comply with Multnomah
County Supplementary Local Rule (SLR) 8.012(2), 5 which
requires in part that "motions not settled or reset within
5 months of filing" be "automatically dismissed." Second,
grandmother relied on the doctrine of laches, arguing that
the doctrine should be extended to apply to the delayed adju-
dication of motions, as well as to the delayed filing of claims.
In February 2009, the trial court held a hearing on
grandmother's motion to dismiss. Following the hearing, at
which grandmother testified, the trial court concluded that
grandmother's affidavit in support of her request to accom-
plish service by publication had misled the trial court.
4 We note that counsel for grandmother in this court did not represent grand-
mother when she submitted the allegedly false affidavit in support of her motion to
serve mother by publication.
5 SLR 8.012 was amended effective February 1, 2009, after grandmother filed
the motion to dismiss, but before the court held a hearing and granted the motion.
Although those changes do not affect our analysis of the local rule, we nevertheless
consider the 2008 version of the rule that was in effect when the events in this case
took place.

530 	J. G. v. N. D. G.
Nevertheless, the trial court granted grandmother's motion
to dismiss mother's motion to vacate the adoption judgment,
stating:
"[T]he court * * * needs to take a look at the longer view for
[A. G.]. I don't mean to belabor the point, but we're talking
about one to two years plus at the Court of Appeals if either
sets of issues are appealed to determine finality for [A.G.],
and that's not fair to him.
"* * * * *
"[T]his court was stunned-I guess is the right word to
use-that grandmother and/or her lawyer at the time was
filing an affidavit in [A. G.]'s adoption case that represented
that grandmother did not know an address for mother when
* * * there definitely was a location where she could have
been served.
"* * * * *
"[T]here was a definite basis for having a court take a look
at [mother's due process claims].***
"* * * * *
"But the fact remains that we have this little guy who
spent the vast majority of his life, if not all of his life, with
his grandmother, and at some point this particular dispute
has got to end, and he's got to know where he's going to grow
up. * * * I think that the local rule and laches are both
applicable in this case. Mother should have brought this to
the court's attention much, much sooner, and this case
should have been resolved much, much sooner.
"So while I deeply regret what I have to do today, I think
that the facts of this case and the equities of this case weigh
in favor of [A. G.'s] stability rather than mother's rights,
and I will grant the motion to dismiss * * *."
On March 5, 2009, the trial court entered a supple-
mental judgment dismissing mother's motion to vacate the
adoption judgment. Mother appealed that ruling. As noted
above, the Court of Appeals affirmed without opinion. This
court allowed review to consider whether the trial court prop-
erly granted grandmother's motion to dismiss based on
Multnomah County SLR 8.012(2) and the doctrine oflaches.

Cite as 348 Or 525
On review, mother urges this court to vacate the
adoption judgment because, according to mother, it is clear
from the record that her due process rights were violated and
that the underlying adoption judgment is "void." Mother
asserts that the trial court improperly permitted service by
publication based on grandmother's misleading affidavit.
According to mother, lack of notice deprived her of her consti-
tutional right to due process, and that deprivation should
outweigh the application of both the doctrine oflaches and of
the application of the SLR 8.012(2) timeline.
Similarly, mother argues that, because she never
received proper notice of the adoption proceeding, the trial
court never had subject matter jurisdiction. Mother asserts
that, as a result, the trial court's entry of the order dispensing
with her consent pursuant to ORS 109.324 6 was ineffective,
and this court should declare the adoption judgment void. See
Hughes v. Aetna Casualty Co., 234 Or 426, 435, 383 P2d 55
(1963) (quoting Furgeson v. Jones, 17 Or 204, 218, 383 P2d 55
(1889) (" 'consent lies at the foundation of statutes of adop-
tion, and * * * the court cannot take jurisdiction of the
subject-matter without it' ").
We agree that mother's due process and jurisdic-
tional claims potentially raise significant questions regard-
ing the validity of the adoption judgment. See Armstrong v.
Manzo, 380 US 545, 85 S Ct 1187, 14 L Ed 2d 62 (1965) (when
a birth parent does not receive notice of an adoption proceed-
ing, the only way to fully accord birth parent due process is to
vacate the adoption judgment and consider the case anew).
6 ORS 109.324 provides, in part:
"( 1) If a parent is believed to have willfully deserted the child or neglected
without just and sufficient cause to provide proper care and maintenance for
the child for one year next preceding the filing of the petition for adoption, and
if the parent does not consent in writing to the adoption, the petitioner, in
accordance with ORS 109.330, shall serve on the parent a summons and a
motion and order to show cause why the adoption of the child should not be
ordered without the parent's consent.
"(2) Upon hearing or when the parent has failed to file a written answer as
required in ORS 109.330(3), if the court finds that the parent has willfully
deserted the child or neglected without just and sufficient cause t-0 provide
proper care and maintenance for the child for one year next preceding the filing
of the petition for adoption, the consent of the parent at the dis(,Tetion of the
court is not required and, if the court determines that the parent's consent is
not required, the court may proceed regardless of the objection of the parent."

532 	J. G. v. N. D. G.
However, the question before us at this stage of the proceed-
ing is a more narrow one. As we explained earlier, the trial
court dismissed mother's motion to set aside the adoption
judgment relying on both Multnomah County SLR 8.012(2)
and the doctrine oflaches. 7 If, as we conclude, the court erred
in dismissing mother's motion on those grounds, then it is for
the trial court to decide on remand whether to set aside the
adoption judgment for 	lack of notice. See Middleton 	u.
Chaney, 335 Or 58, 57 P3d 893 (2002) (setting aside guardi-
anship for lack of notice). 8
We first address whether the trial court properly
relied on Multnomah County SLR 8.012(2) in dismissing
mother's motion to vacate the adoption judgment. SLR
8.012(2) provides, in part:
"Motion hearings may be reset twice * * *. Subsequent
requests to reset a hearing must be made by motion to the
Chief Family Law Judge***. Motions not settled or reset
within 5 months of filing will be automatically dismissed
without notice to the parties."
SLR 8.012(2) explicitly refers to the resetting of motions hear-
ings several times; it does not address explicitly the initial
setting of hearings on motions. 9
The text of SLR 8.012(2) arguably is broad enough to
apply to motions that have not been heard within five months
of filing. Reading the rule in that manner, however, essen-
tially requires that we insert a term in the rule so that it
reads "Motions not heard, settled or reset within five months
of filing will be automatically dismissed without notice to the
7 Because the trial court did not consider mother's motion to vacate the adop-
tion, we cannot decide in this proceeding whether the adoption should be vacated;
we may only reverse the trial court's dismissal of mother's motion to do so.
8 In Middleton, this court directed the trial court to set aside the guardianship
order for lack of notice to the father without regard to whether doing so was in the
best interests of the child. 335 Or at 64. The court, however, recognized that, once
the order was set aside, the court could consider, under established standards,
whether the father or maternal relatives should have custody of the child.
" Here, mother did not receive a hearing on her motion to vacate the adoption
judgment. It was never set and .. as such, could not have been reset. Cf Brown u.
Gatti, 195 Or App 695, 709-10, 99 P3d 299 (2004) (concluding that Multnomah
County SLR 5.045(1), which provided that" '[n]o Motion for Reconsideration***
shall be heard,'" was inapplicable in that case because "[t]he court had yet to con-
sider [the] request, so there was nothing to reconsider" (emphasis in original)).

Cite as 348 Or 525
parties." In construing statutes, we are prohibited from
inserting words the legislature has omitted. ORS 174.010.
Similarly, here we decline to insert a term not expressed in
the rule, particularly where we perceive that the real issue is
whether the rule put mother on notice that her motion would
be subject to automatic dismissal if not heard within five
months of filing. In our view, the text of SLR 8.012(2) does not
provide adequate notice to a party that a motion that has
never been set for a hearing in the first place is subject to
automatic dismissal. To the extent that the trial court relied
on SLR 8.012(2) as authority to dismiss mother's motion to
vacate the adoption judgment, it erred.
Grandmother also argues that the doctrine of laches
justifies the trial court's decision. Her argument in that
regard, however, is limited. Grandmother does not contend
that laches barred mother from filing her motion to vacate
the adoption judgment; that is, grandmother does not dispute
that mother filed her motion to set aside the adoption judg-
ment in a timely fashion. 10 Grandmother asserts instead that
mother unduly delayed in pursuing her motion, once filed,
and that the trial court properly relied on the doctrine of
laches to dismiss mother's motion for, essentially, want of
prosecution. 	Grandmother, 	however, 	does 	not 	cite 	any
authority that establishes that the doctrine oflaches applies
in that way to motion practice, and we conclude that it does
not. 11
10 ORS 109.381(3) provides:
"After the expiration of one year from the entry of a judgment of adoption
in this state the validity of the adoption shall be binding on all persons, and it
shall be conclusively presumed that the child's natural parents and all other
persons who might claim to have any right to, or over the child, have aban-
doned the child and consented to the entry of such judgment of adoption, and
that the child became the lawful child of the adoptive parents or parent at the
time when the judgment of adoption was rendered, all irrespective of jurisdic-
tional or other defects in the adoption proceeding. After the expiration of the
one-year period no one may question the validity of the adoption for any rea-
son, either through collateral or direct proceedings, and all persons shall be
bound thereby. However, the provisions of this subsection shall not affect the
right of appeal from a judgment of adoption as may be provided by law."
11 If any legal theory applied, it would be dismissal for want of prosecution;
however, grandmother did not advance that theory below, and the trial court did
not rely on it. We note that ORCP 54 B(3) requires courts to mail notice to parties
"in each pending case in which no action has been taken for one year immediately
prior to the mailing of such notice, that a judgment of dismissal will be entered in

534 	J.G. v.N. D. G.
We note that, in the course of ruling on grand-
mother's laches argument, the trial court reasoned that prej-
udice to the child (i.e., the child's best interests) bore on the
question whether mother had failed to prosecute her motion
with reasonable diligence. One difficulty with the trial court's
reasoning is that laches does not apply in this situation. And,
without some legal or equitable theory that would warrant
dismissing mother's motion, the trial court could not rely, at
this stage of the proceedings, on a free-floating concern for
the child's best interests in order to dismiss mother's motion
to vacate the adoption judgment.
Because neither of the two reasons relied upon by
the trial court provided a basis for dismissal of mother's
motion to vacate the adoption judgment, the trial court erred
in granting grandmother's motion to dismiss, and the Court
of Appeals erred in affirming that judgment.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
each such case by the court for want of prosecution." ORCP 54 B(3). Here, the delay
in adjudication was ten months (between Decemher 2007, when mediation
attempts failed, and September 2008, when mother requested a conference with
the trial court to discuss setting a hearing}. The ten-month period "in which no
action" was taken to move forward mother's motion to vacate the adoption judg-
ment is short of the one-year period permitted before a claim may be dismissed for
want of prosecution. The rule appears to us to cover precisely the matter that
grandmother now wishes to have subject to the doctrine oflaches. We think, how-
ever, that the rule's one-year limit establishes the applicable law.