Dept. of Human Services v. T. L. H. , 300 Or. App. 606 ( 2019 )

606
Argued and submitted August 27; on respondent’s motion to dismiss filed
July 9, and appellant’s response filed July 23, motion to dismiss as moot denied,
affirmed November 20, 2019
In the Matter of A. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. L. H.,
Appellant.
Columbia County Circuit Court
17JU03457; A170602
453 P3d 556
In this juvenile dependency case, father appeals from a review hearing judg-
ment, assigning error to the juvenile court’s order that he submit to a psycho-
logical evaluation. Father contends that, under ORS 419B.387, the court lacked
authority to order the evaluation, arguing that an evaluation did not qualify as
“treatment or training” and that sufficient proof had not been established in a
hearing to require the evaluation. Held: In light of Dept. of Human Services v.
D. R. D., 298 Or App 788, 791, 450 P3d 1022 (2019), the Court of Appeals concludes
that ORS 419B.387 authorizes a psychological evaluation when the evidence indi-
cates that the parent may require it as a component of additional treatment or
training needed to “prepare the parent to resume the care” of a child because
of the child’s particular needs. In an evidentiary hearing, the Department of
Human Services established that father needed a psychological evaluation as a
component of such treatment or training to resume care.
Motion to dismiss as moot denied; affirmed.
Cathleen B. Callahan, Judge.
Sarah Peterson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Office of Public
Defense Services.
Judy C. Lucas, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
Powers, Judge.
Cite as 300 Or App 606 (2019) 607
DeVORE, J.
Motion to dismiss as moot denied; affirmed.
608 Dept. of Human Services v. T. L. H.
DeVORE, J.
In this juvenile dependency case, father appeals from
a review hearing judgment, assigning error to the juvenile
court’s order that he submit to a psychological evaluation.
Father argues that, under ORS 419B.387, the court lacked
authority or evidence to order the evaluation, as related to
“treatment or training.” In light of our recent decision, Dept.
of Human Services v. D. R. D., 298 Or App 788, 450 P3d 1022
(2019), we conclude that ORS 419B.387 authorizes a psy-
chological evaluation when the evidence indicates that the
parent may require it as a component of additional treat-
ment or training needed to “prepare the parent to resume
the care” of a child because of the child’s particular needs.1
Because Department of Human Services (DHS) established
in an evidentiary hearing that father needed a psychological
evaluation as a component of such treatment or training to
resume care, we affirm.
“We review the juvenile court’s legal conclusions for
errors of law and its findings for any evidence.” Id. at 791(quoting Dept. of Human Services v. A. F., 295 Or App 69,
71, 433 P3d 459 (2018)). Father’s child became a ward of the
court after removal from his mother in April 2017, when he
was two years old. The jurisdictional judgment, as to father,
asserted dependency jurisdiction over the child due to
(1) father having done nothing to assert custody of his child
despite his awareness of the allegations against mother, and
(2) his residential instability which interfered with his abil-
ity to provide for his child. The child was placed in foster
care, and the case plan was to reunify the child with his
parents. As part of the disposition, father was ordered to:
(a) participate in a drug and alcohol assessment and follow
all related recommendations; (b) engage in a psychological
evaluation 60 days after sobriety and follow all related rec-
ommendations; and (c) complete a parenting course.
Over the following year-and-a-half, father struggled
with drug addiction and homelessness. However, he par-
ticipated in services and, ultimately, secured housing.
Meanwhile, the child—who was diagnosed with adjustment
1
D. R. D. was decided after briefing in this case.
Cite as 300 Or App 606 (2019) 609
disorder with anxiety, attention deficit/hyperactivity disor-
der, speech sound disorder, and child neglect—was receiving
speech and occupational therapy, as well as mental health
counseling. Child also suffered from asthma so severe that,
on one occasion, it led to hospitalization.
Despite progress towards reunification, DHS had
concerns regarding father’s ability to provide appropri-
ate care for his child. The child began therapeutic visits
at father’s residence, supervised by a counselor, who sub-
sequently recommended overnight visits. Father was also
invited to participate in his son’s therapy appointments, but
missed about half. When he did attend, he appeared “scat-
tered,” and he came in and out during the therapy time.
That, as well as reports of father’s continued substance
abuse, and diluted and missed urinalysis (UA) tests, raised
red flags for DHS.
In November 2018, DHS filed a motion requesting
that the juvenile court order father to submit to a psycho-
logical evaluation. DHS noted the child’s several diagnoses
and argued that the evaluation was necessary because “the
child has high behavioral needs, and the evaluation will
assess the father’s ability to maintain a stable residence
while trying to parent a child whose needs are as high as
this child’s needs.” DHS highlighted that father had only
recently started engaging in services addressing “his ability
to maintain a stable and safe residence for the child” and
that he had done so without “parenting the child full time.”
DHS also noted father’s past insobriety. DHS concluded that
it needed “to ensure that [father] has all services that he
needs in order to parent his son for an extended period of
time.” DHS emphasized that it was “imperative for the child
to have a stable caretaker in order for his high behavioral
needs to be met.”
In support of that motion, DHS submitted the case-
worker’s affidavit. In that affidavit, the caseworker agreed
that the psychological evaluation was “necessary to deter-
mine whether the father will be able to meet the high needs
of the child and, if so, what services may be necessary to help
him meet the child’s high needs.” There were multiple exhib-
its attached to the affidavit demonstrating the child’s high
610 Dept. of Human Services v. T. L. H.
needs: a neuropsychological report from a children’s hospi-
tal regarding services necessary to meet the child’s needs;
a psychological report from the Children’s Program stat-
ing, in part, that the child requires a caregiver with higher
than average parenting skills; and a Child and Adolescent
Needs and Strengths (CANS) assessment identifying addi-
tional needs for the child. The caseworker noted that those
reports were consistent with those that DHS and the Court
Appointed Special Advocate had provided to the juvenile
court.
The caseworker also attached a drug and alcohol
assessment of father from nine months earlier, in which an
evaluator had noted the following: father had experienced
childhood abuse; he had post-traumatic stress disorder
(PTSD); he needed treatment for his use of methamphet-
amine, which he may be using to “self-medicate and address
long-standing issues”; and he was “difficult to track and
immature for his age.” The caseworker included a recent
treatment update showing father was doing well in drug
and alcohol treatment but suffered from PTSD. She con-
cluded that DHS needed a complete and accurate evaluation
of father to “ensure that [his] treatment gains are sustain-
able after his child is placed in his home given the child’s
high needs.”
The juvenile court held a hearing on the state’s
motion for a psychological evaluation in February 2019.
At that time, the caseworker testified to issues the child
faces on a daily basis: speech problems, trauma responses,
heightened anxiety, food hoarding, and difficulty sleeping.
To address those issues, she reported that he received occu-
pational and speech therapy and mental health counseling.
The caseworker testified that she had concerns
about father’s ability to be “proactive” and “planful” with
respect to ensuring his son’s treatment. She was unsure that
the child would make it to his appointments consistently.
The caseworker said that she had received information
bringing her to question father’s ability to understand and
participate in his child’s treatment appointments. Namely,
when father did attend appointments, he was “either not in
the appointment with [his child] the entire time or not fully
Cite as 300 Or App 606 (2019) 611
engaged or coming in and out of the appointments, things
like that,” and he “appeared scattered.” She said that, with-
out a proper psychological evaluation, she would be unable
to assess father’s ability to process specialized information.
The caseworker testified that she supported a psy-
chological evaluation for the following reasons:
“I think from the agency’s perspective, this child is
extremely high needs and would be a lot for any parent to
handle.
“He has needs that I personally see, not that other kids
in care have not exhibited, that are pretty rare and that
we’ve had even a hard time finding specialists who know
how to handle these issues.
“And so just knowing that, I would want the psychologi-
cal evaluation to be able to tell the agency if [father] is able
to understand and meet those needs that are rare and ever
present in his daily life.”
The caseworker further noted father’s diluted and
a missed UA tests, and agreed that those, “in combination
with the community reports of snorting pills and doing knife
hits,” raised “concern regarding the strength of [father’s]
recovery.” She said that even those UAs which were “clean”
and negative for illicit drugs showed that father continued
using marijuana. The caseworker was concerned that smoke
related to father’s marijuana and tobacco use could endan-
ger the health of the child who was asthmatic and had a
recent related hospitalization.
Father presented evidence in opposition to the psy-
chological evaluation. He called witnesses to testify to his
progress towards reunifying with his son, including his
having secured housing, the supervised residential visits
with his child, the recommendation by the counselor that
DHS allow overnight visits, and his completion of drug and
alcohol treatment and a parent mentorship program. Father
also tried to explain his challenges in attending appoint-
ments, showing that he had no driver’s license or vehicle,
and that he was struggling to obtain consistent transpor-
tation, relying on public transportation and the assistance
of others. Some evidence was presented that undermined
612 Dept. of Human Services v. T. L. H.
father’s case. The record showed that father was still look-
ing for housing quite recently and, the same month as the
hearing, he was struggling to pay rent and his landlord had
called him “irresponsible.” It also contained an email from
the counselor indicating that, although she recommended
overnight visits, father “needs to work on making appoint-
ments and scheduling.” Testimony was elicited from the
caseworker, who noted limitations to the counselor’s knowl-
edge regarding father’s UA tests and his psychological back-
ground and needs. The caseworker expressed that she had
reservations regarding father’s graduation from drug and
alcohol treatment in light of his continued substance use.
She also said that father failed to pick up free bus passes for
public transportation set aside for him.
At the conclusion of the hearing, the juvenile court
granted DHS’s motion and ordered father to submit to a
psychological evaluation. The court found that “it is in the
child’s best interest that [father] participate in a psychologi-
cal evaluation.” The court told father, “Bottom line is a high-
risk kid needs more than 50 percent of your time for doctor
appointments. So, you have come a long way, but you got
started late.” In April 2019, father completed the psycholog-
ical evaluation.
Father now appeals the juvenile court’s order, argu-
ing the psychological evaluation does not qualify as treat-
ment or training necessary to effectuate family reunifica-
tion, as authorized under ORS 419B.387. DHS moves for
dismissal of the appeal, arguing that, in light of father sub-
mitting to the psychological evaluation, his appeal is moot.
With respect to the merits, DHS responds that the juvenile
court’s authority to order treatment or training necessar-
ily encompasses assessments to determine the type and
extent of treatment or training needed in a particular case;
the court must have the ability to order such assessments
and evaluations in order to exercise its authority under ORS
419B.387.
We address the mootness issue first. As the party
moving for dismissal, DHS has the burden of proving
mootness, including that “the decision being challenged on
appeal will have no further practical effect on the rights of
Cite as 300 Or App 606 (2019) 613
the parties.” Dept. of Human Services v. A. B., 362 Or 412,
426, 412 P3d 1169 (2018). To meet that burden, DHS “need
not imagine all potential collateral consequences that could
result and prove their nonexistence.” Id. Rather, father must
first “identify any continuing practical effects or collateral
consequences that, in [his] view, render the appeal justicia-
ble.” Id. DHS then bears the responsibility of demonstrating
that those effects or consequences are either legally insuf-
ficient or factually incorrect. Id. DHS must persuade the
reviewing court that dismissal is warranted, for the appeal
to be deemed moot. Id. at 426-27.
Here, DHS’s motion to dismiss is predicated on
the fact that father has already submitted to the contested
psychological evaluation. Father counters that the appeal
could nevertheless have a practical effect on his rights.
Specifically, he contends that a decision by this court in
his favor regarding the lawfulness of the order would pro-
vide a basis by which he could seek to limit or prevent the
introduction of the evaluation as evidence in the ongoing
dependency proceeding or during a future proceeding to ter-
minate parental rights. Father explains, a forensic report
based on such an evaluation “can be the most damning evi-
dence against a parent in dependency and termination-of-
parental-rights proceedings.” DHS provides no response to
father’s argument regarding the collateral consequences of
this appeal. Ultimately, we are not persuaded that dismissal
is warranted, and we conclude that the appeal is not moot.
The merits of father’s appeal turn on ORS 419B.387.
That statute provides, in relevant part:
“If the court finds in an evidentiary hearing that treat-
ment or training is needed by a parent to correct the cir-
cumstances that resulted in wardship or to prepare the
parent to resume the care of the ward, the court may order
the parent to participate in the treatment or training if the
participation is in the ward’s best interests.”
ORS 419B.387. Under that provision, the juvenile court’s
authority to order “treatment or training” includes the
power to order a psychological evaluation as a component of
that treatment or training. D. R. D., 298 Or App at 799. The
statute, however, does not authorize “the juvenile court to
614 Dept. of Human Services v. T. L. H.
order a parent’s compliance with a psychological evaluation
to determine if treatment or training is needed in the first
instance.” Id. Rather, “it is the establishment of a need for
treatment or training at the evidentiary hearing that then
creates the court’s authority to order a parent to comply
with that treatment or training.” Id. at 799-800.
In D. R. D., we considered whether ORS 419B.387
authorized the juvenile court to order a psychological eval-
uation when it was a component of treatment needed by
the parent to correct the circumstances that resulted in
wardship—that is, to address the basis for its jurisdiction.
298 Or App 788. In that case, we concluded in the affir-
mative. Id. at 799. The juvenile court asserted dependency
jurisdiction over the father’s infant on the basis that the
father’s substance abuse interfered with his ability to safely
parent and placed the infant at risk of harm. Id. at 791.
In its jurisdictional judgment, the court ordered the father
to complete a substance abuse assessment and comply with
its recommendations, to submit to various alcohol and drug
tests, and, if he continued to use, to complete a psychological
evaluation “to determine if there are psychological issues
contributing to his drug addiction.” Id. at 791-92.
The father filed a motion seeking a review hearing.
Id. at 792. At that hearing, the father admitted to recent
drug use, and a DHS caseworker testified that he had not
engaged in the substance abuse treatment. Id. at 793-95. A
DHS caseworker said that a psychological evaluation would
“give some insight as to why” and allow DHS to “get him
proper services so he can engage in treatment and remain
clean and sober to be a parental resource for this child.”
Id. at 793. The court found that the father had continued
abusing drugs and that the evaluation would “help DHS
determine what it can do to motivate father to engage and
what services are best to help father maintain sobriety and
develop a relationship with the child.” Id. at 796. It ordered
the father to submit to the evaluation, and he appealed that
decision. Id.We determined that the juvenile court acted within
its authority under ORS 419B.387 in ordering the father to
submit to the psychological evaluation. Id. at 800. We noted
Cite as 300 Or App 606 (2019) 615
that the juvenile court held an evidentiary hearing on the
matter and that DHS presented evidence on the father’s
drug use and his need for an evaluation. Id. The court made
factual findings that the father was unable to stay sober
and that the evaluation would help DHS determine how to
help him engage in treatment. Id. We concluded that the
court did not err in ordering the evaluation because, on that
record, it was clear that “the juvenile court found that DHS
had presented evidence to establish a need for substance
abuse treatment and that the psychological evaluation was
a component of that needed treatment.” Id.In this case, we conclude that the juvenile court did
not exceed its authority under ORS 419B.387 in ordering
father to submit to a psychological evaluation. The record
contains evidence to support the conclusion that the evalu-
ation was a component of additional treatment or training
that father needed to resume care of his child. The court
based that decision on factual findings supported by evi-
dence presented at an evidentiary hearing.
That evidence showed that father’s child had extraor-
dinarily high needs and addressing those needs and resum-
ing care would require exceptional parental skills. DHS
introduced multiple assessments establishing the child’s
notable neuropsychological issues, including adjustment
disorder with anxiety, attention deficit/hyperactivity disor-
der, speech sound disorder, and child neglect. It presented
evidence that, on a daily basis, the child struggled with
speech problems, trauma responses, heightened anxiety,
food hoarding, and difficulty sleeping. Assessments also
showed that the child would need services to address his
high behavioral needs, like speech and occupational ther-
apy and mental health counseling. The child also suffered
from asthma severe enough to lead to hospitalization. The
caseworker testified that the child’s issues and needs were
“pretty rare” and even specialists were having difficulty
“know[ing] how to handle these issues.” An assessment con-
cluded that, “the child requires a caregiver with higher than
average parenting skills.”
Given the child’s high needs, the court permissi-
bly determined that treatment or training was needed to
616 Dept. of Human Services v. T. L. H.
prepare father to resume care of the child, especially in view
of the evidence of father’s impediments to parenting. As
described above, there was evidence that, at the time of the
hearing, father continued to struggle to maintain residen-
tial stability, had difficulty consistently attending and par-
ticipating effectively in his son’s appointments, and was suf-
fering from PTSD. There was evidence that a psychological
evaluation was necessary to get a fuller picture of father’s
circumstances in order to determine how to prepare father
to meet his child’s needs. The caseworker testified that the
evaluation would help assess father’s ability to plan, be pro-
active, understand specialized information, and meet his
child’s needs “that are rare and ever present in [the child’s]
daily life.” She said that it would be “necessary to determine
whether the father will be able to meet the high needs of the
child and, if so, what services may be necessary to help him
meet the child’s high needs.”
The juvenile court, noting the particular needs and
demands of a “high-risk kid,” and alluding to father’s delayed
engagement in services, ordered father to submit to the
psychological evaluation because it was in “the child’s best
interest.” The court did not err in ordering the evaluation
because this record contains evidence to establish a need
for treatment or training to meet the needs, and resume the
care, of the child and that the psychological evaluation was
a component of that needed treatment or training.
Father asserts that the psychological evaluation
cannot be a part of treatment or training because it was
forensic in nature, not therapeutic, lacking confidentiality
and intended as evidence against him in a judicial proceed-
ing. However, we rejected that very argument in D. R. D.,
298 Or App at 799, concluding,
“It is the determination of a need for treatment or training,
following an evidentiary hearing establishing such need,
that is the legislatively imposed limitation of the juvenile
court’s authority, not the potentially incriminating nature
of such treatment or training.”
In sum, the juvenile court did not exceed its author-
ity in ordering father to submit to a psychological evaluation.
Under ORS 419B.387, the court may order a psychological
Cite as 300 Or App 606 (2019) 617
evaluation when the evidence indicates that the parent may
require it as a component of additional treatment or train-
ing needed to prepare the parent to resume the care of the
child because of the child’s particular needs. This record
satisfied that standard.
Motion to dismiss as moot denied; affirmed.