Dept. of Human Services v. L. J. W. ( 2020 )

126
Argued and submitted December 19, 2019, affirmed February 5, 2020
In the Matter of R. M. L. W.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
L. J. W.,
Appellant.
Lane County Circuit Court
19JU03207; A171752
460 P3d 540
Father appeals a judgment of jurisdiction and disposition. The juvenile court
took jurisdiction over child and ordered father to submit to a psychological evalu-
ation. Father assigns error to that order, arguing that the Department of Human
Services (DHS) failed to offer evidence that the psychological evaluation was
a necessary component of “treatment or training” as ORS 419B.387 requires.
Father did not preserve that issue as he currently raises it on appeal. Held: The
juvenile court did not plainly err in ordering the examination. Although, under
ORS 419B.387, DHS must establish at an evidentiary hearing the need for the
psychological evaluation as part of “treatment or training,” that statute is not the
only basis for the juvenile court’s authority. Under ORS 419B.337(2), the court
may also order a psychological evaluation when rationally related to a basis of
the juvenile court’s jurisdiction. Given the record, the jurisdictional bases, and
two potential sources of authority for a psychological evaluation, any asserted
error is not plain.
Affirmed.
Jay A. McAlpin, Judge.
Shannon Flowers, 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.
Patricia G. Rincon, Assistant Attorney General, argued
argued the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Dashiell L. Farewell, Assistant Attorney
General.
Before DeVore, Presiding Judge, and Lagesen, Presiding
Judge, and DeHoog, Judge.
Cite as 302 Or App 126 (2020) 127
DeVORE, P. J.
Affirmed.
128 Dept. of Human Services v. L. J. W.
DeVORE, P. J.
Father appeals a judgment of jurisdiction and dis-
position. The juvenile court took jurisdiction over child and
ordered, among other things, that father submit to a psy-
chological evaluation. Father challenges the bases for the
court’s jurisdiction in six assignments of error, which we
affirm without further discussion. In a seventh assignment
of error, father argues that the court erred in ordering the
psychological examination. Father did not preserve that
issue in the form that he now raises on appeal. We conclude
that any alleged error in ordering the examination is not
plain, given the record, the jurisdictional bases, and two
potential sources of statutory authority for a psychological
evaluation. Accordingly, we affirm.
The juvenile court asserted dependency jurisdiction
over father’s child after determining that the Department of
Human Services (DHS) had proved that father’s untreated
domestic violence poses a threat of harm to child and that
father cannot safely parent due to his substance abuse,
erratic behavior, chaotic lifestyle, and criminal conduct with
related consequences. DHS had offered evidence that father
struggles with anger and has engaged in verbal and physi-
cal abuse of mother.
In the dispositional phase of the jurisdictional hear-
ing, DHS requested that the juvenile court order father to
participate in a variety of services, including a psychological
evaluation. Father accepted the recommendation as to other
services but contested the psychological evaluation. Father
objected on the ground that he had already completed an
assessment by an addiction treatment provider. The court
ordered the psychological evaluation.
On appeal, father generally assigns error to the
court’s order for a psychological evaluation. He argues that
DHS failed to offer evidence that an evaluation was neces-
sary as a component of “treatment or training” under ORS
419B.387. That statute provides:
“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
Cite as 302 Or App 126 (2020) 129
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. Recognizing that, in the juvenile court pro-
ceeding, father had not specifically disputed the court’s
authority to order the evaluation, father argues that we
should review the order for a psychological examination as a
matter of plain error.
DHS responds that father failed to preserve his
argument disputing a “treatment-or-training” basis under
ORS 419B.387 and that, in any event, DHS had presented
evidence in the juvenile court that father abused alcohol,
struggled with anger, and had been verbally and physically
abusive of mother. Consequently, DHS contends that the
record contains evidence supporting a psychological eval-
uation as a feature of treatment and training under ORS
419B.387.
We begin with the recognition that father did not
preserve in the juvenile court the issue that he raises on
appeal. Although father objected to the psychological evalu-
ation as factually unnecessary for the reason that an evalua-
tion of one sort or another had already been done, he did not
challenge the court’s legal authority to order a psychological
evaluation. He did not challenge the court’s legal authority
under either of two potentially applicable legal standards.
Consequently, we review this appeal as a question of plain
error and whether to exercise our discretion to correct plain
error. See ORAP 5.45(1) (recognizing the court’s authority
to consider plain error); Ailes v. Portland Meadows, Inc., 312
Or 376, 381-82, 823 P2d 956 (1991) (describing criteria for
such review). “To qualify as plain error, the error must (1) be
a legal error; (2) be apparent, meaning that the legal point
is obvious and not reasonably in dispute; and (3) appear on
the face of the record such that we ‘need not go outside the
record or choose between competing inferences to find it.’ ”
Dept. of Human Services v. A. W., 274 Or App 493, 500, 361
P3d 58 (2015) (quoting State v. Brown, 310 Or 347, 355, 800
P2d 259 (1990)). In assessing legal error, we consider the law
at the time of the appeal. State v. Jury, 185 Or App 132, 135-
36, 57 P3d 970 (2002), rev den, 335 Or 540 (2003).
130 Dept. of Human Services v. L. J. W.
In this case, the legal point is not obvious, not
beyond reasonable dispute, and not apparent on the record
without choosing between competing inferences. We need
not describe the factors that guide the additional question
whether to exercise discretion to correct plain error, because
our analysis stops with the initial question whether any
alleged error is truly plain. The reason that father’s assign-
ment of error is “not plain” is because there are two poten-
tially applicable legal standards.
The first of those two potentially applicable legal
standards is ORS 419B.387. In D. R. D., 298 Or App 788,
790-91, 450 P3d 1022 (2019), we held that the court can
order a psychological evaluation under ORS 419B.387 as
needed for “treatment or training” to “correct the circum-
stances that resulted in wardship or to prepare the par-
ent to resume the care of the ward.” To support that order,
DHS must establish, at an evidentiary hearing, the need for
the psychological evaluation as a component of treatment
or training. Id. The evidence can be presented in a juris-
dictional hearing, as in this case. Here, neither DHS in its
evidence or argument nor the juvenile court in its judgment
expressly addressed a reason for the psychological evalua-
tion in terms of a need for treatment or training designed
for reunification. Neither DHS nor the juvenile court can be
criticized for that potential omission because the request for
an evaluation was not specifically couched in terms of ORS
419B.387 and because D. R. D. had not been decided at the
time of that hearing,
The second of two potentially applicable legal stan-
dards is found in ORS 419B.337(2). In relevant part, that
statute provides that “[t]he court may specify the particu-
lar type of care, supervision or services to be provided by
the Department of Human Services to wards placed in the
department’s custody and to the parents or guardians of
the wards.” ORS 419B.337(2). In State ex rel Juv. Dept. v.
G. L., 220 Or App 216, 223, 185 P3d 483, rev den, 345 Or 158(2008), we determined that, as a feature of directing DHS
to provide services, ORS 419B.337(2) grants the court the
authority to order a parent to submit to a psychological eval-
uation to help design services needed, if there is “a rational
connection between the service to be provided and the basis
Cite as 302 Or App 126 (2020) 131
for jurisdiction.” The specific basis of the court’s jurisdiction
in the case need not have been a parent’s mental health con-
dition. Id. We observed that a similar conclusion had been
reached under a prior version of the dependency statutes.
Id. at 224 n 5 (citing State ex rel Juv. Dept. v. Maginnis, 28
Or App 935, 937, 561 P2d 1044 (1977)). We had previously
acknowledged that “a juvenile court does, in fact, have the
authority to order a psychiatric or medical evaluation of a
parent where that evaluation is helpful as an aid in deter-
mining what is best for the child * * *.” Maginnis, 28 Or App
at 937 (citing State ex rel Segrest v. Van Hoomissen, 276 Or
1077, 1081, 557 P2d 661 (1976)).
More recently, we considered ORS 419B.337(2) and
described its authority, stating:
“Thus, the bar is low to establish a rational relation-
ship between a psychological evaluation and a parent and
a jurisdictional basis. Also, certainty about the existence
of a mental health issue is unnecessary; indeed, an evalua-
tion is typically desired precisely because DHS is uncertain
whether a parent has a mental health issue.”
Dept. of Human Services v. K. J., 295 Or App 544, 549, 435
P3d 819 (2019). In applying the authority of ORS 419B.337(2),
we have reached different conclusions in different circum-
stances whether a psychological examination was ratio-
nally related to a jurisdictional basis. Compare id. at 549-52(reversing order for psychological evaluation where physical
health and housing were jurisdictional bases) with G. L., 220
Or App at 223-24 (allowing psychological evaluation where
mother’s unwillingness or inability to protect children was
a jurisdictional basis).
In D. R. D., the father urged this court to overrule
the line of cases that found authority under ORS 419B.337(2)
for requiring a parent to cooperate with a psychological
examination. 298 Or App at 796 n 3. Given our high stan-
dard for overruling cases, State v. Civil, 283 Or App 395,
406, 388 P3d 1185 (2017), the father argued that those cases
were “plainly wrong” because they served to circumvent the
arguably more specific requirements of ORS 419B.387. Id.Whether that argument was correct or not, we did not over-
rule G. L. or cases it cited when deciding D. R. D. Instead,
132 Dept. of Human Services v. L. J. W.
in D. R. D., we noted that the juvenile court had chosen to
act under ORS 419B.387, and, as a result, the case did not
present a proper vehicle to challenge a psychological exam-
ination ordered under ORS 419B.337(2). Id.When suggesting plain error here, father assumes
that our decision in D. R. D. makes ORS 419B.387 the only
path to a psychological examination. That is necessarily
father’s premise because it would be an absence of evidence
concerning a need for “treatment or training” that would
defeat the justification for a psychological examination
under that statute. An error with regard to the absence
of such evidence could be plain only if ORS 419B.387 were
the only basis for the juvenile court to order a psycholog-
ical examination. But, under our case law, it is not. Both
ORS 419B.337(2) and ORS 419B.387 provide authority for
a psychological examination. One statute requires that a
psychological examination rationally relate to a jurisdic-
tional basis, while the other requires a showing of a need for
the examination for treatment or training directed toward
reunification. In this case, given two alternate author-
ities and the evidence received, the juvenile court did not
plainly err in directing father to cooperate in a psychologi-
cal evaluation.
Affirmed.