Dept. of Human Services v. W. C. T. , 314 Or. App. 743 ( 2021 )

743
Argued and submitted December 31, 2020, resubmitted en banc June 9; juris-
dictional judgment affirmed, dispositional judgment affirmed in part, reversed
and remanded in part September 29, 2021
In the Matter of R. M. T.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
W. C. T.
and L. M., aka L. K. M.,
Appellants.
Grant County Circuit Court
20JU02201;
A174195 (Control), A174197
501 P3d 44
In consolidated appeals, mother and father appeal judgments of jurisdiction
and disposition. The juvenile court took jurisdiction over parents’ daughter and
directed parents to cooperate in the plan for reunification. Mother and father
assert ten assignments of error in the decision to take dependency jurisdiction.
Both parents assign error to the court’s order that they participate in psycho-
logical evaluations, arguing that a line of cases relying on ORS 419B.337(2) as
authority for such evaluations should be overruled as plainly wrong and that
under their preferred statutory authority, ORS 419B.387, the juvenile court
failed to justify psychological exams as a component of treatment or training
by tying the exams to substance abuse. In addition, mother assigns error to the
court’s order that she engage in consistent visitation, obtain safe and stable hous-
ing, sign information releases, and complete a “protective capacity assessment.”
Held: The line of cases relying on ORS 419B.337(2) and ORS 419B.343(1)(a) as
authority for the juvenile court to order parent participation in psychological
evaluations was not plainly wrong and could be harmonized with recent cases
involving ORS 419B.387. After an evidentiary hearing, a juvenile court may
order a psychological evaluation when finding that (a) the evaluation is rationally
related to the jurisdictional findings, (b) it serves as a predicate component to
the determination of treatment and training, (c) there is a need for treatment
or training to ameliorate the jurisdictional findings or to facilitate the child’s
return, and (d) the parent’s participation in needed treatment or training is in
the best interests of the child. The Court of Appeals affirmed the jurisdictional
judgment and affirmed the dispositional judgment as to mother. However, the
court agreed with father that the juvenile court erred in directing him to partic-
ipate in a psychological evaluation and reversed and remanded that part of the
dispositional judgment.
Jurisdictional judgment affirmed; dispositional judgment affirmed in part,
reversed and remanded in part.
744 Dept. of Human Services v. W. C. T.
En Banc
W. D. Cramer, Jr., Judge.
Sarah Peterson, Deputy Public Defender, argued the
cause for appellant L. M. Also on the briefs was Shannon
Storey, Chief Defender, Juvenile Appellate Section, Office of
Public Defense Services.
Aron Perez-Selsky filed the brief for appellant W. C. T.
Inge D. Wells argued the cause for respondent. On the
brief were Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Jon Zunkel-deCoursey,
Assistant Attorney General.
Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,
Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers,
Mooney, and Kamins, Judges.
DeVORE, J.
Jurisdictional judgment affirmed; dispositional judg-
ment affirmed in part, reversed and remanded in part.
DeVore, J., filed the opinion of the court in which
Armstrong, Tookey, DeHoog, Shorr, Powers, and Kamins,
JJ., joined.
Mooney, J., concurred in part and dissented in part and
filed an opinion in which Egan, C. J., Ortega, Lagesen,
James, and Aoyagi, JJ., joined.
Cite as 314 Or App 743 (2021) 745
DeVORE, J.
In consolidated appeals, mother and father appeal
judgments of jurisdiction and disposition. The juvenile court
took jurisdiction over parents’ daughter, R, and directed
parents to cooperate in the plan for reunification. Mother
and father assert 10 assignments of error in the decision
to take dependency jurisdiction. Both parents assign error
to the court’s order that they participate in psychological
evaluations and urge that one of two lines of authority for
such evaluations should be overruled as plainly wrong. In
addition, mother assigns error to the court’s order that she
engage in consistent visitation, obtain safe and stable hous-
ing, sign information releases, and complete a “protective
capacity assessment.”
We have differing opinions whether to overrule or
harmonize our cases. A concurring and dissenting opinion
would overrule, while this majority opinion harmonizes
cases, encouraged by the doctrine of stare decisis. We hold
that, after an evidentiary hearing, a juvenile court may
order a psychological evaluation when finding that (a) the
evaluation is rationally related to the jurisdictional findings,
(b) it serves as a predicate component to the determination
of treatment and training, (c) there is a need for treatment
or training to ameliorate the jurisdictional findings or to
facilitate the child’s return, and (d) the parent’s participa-
tion in needed treatment or training is in the best interests
of the child. We affirm the jurisdictional judgment, and we
affirm the dispositional judgment as to mother. However, we
agree with father that the juvenile court erred in direct-
ing him to participate in a psychological evaluation, and we
reverse and remand that part of the dispositional judgment.
I. FACTS
We review the juvenile court’s factual findings for
any evidence and its legal conclusions for errors of law. Dept.
of Human Services v. A. F., 295 Or App 69, 71, 433 P3d 459
(2018).
Mother gave birth to R two months prematurely in
August 2009. R suffered continuous developmental delays.
When she entered kindergarten in 2014, R was “very far
746 Dept. of Human Services v. W. C. T.
behind.” A learning disability necessitated an individual-
ized education plan (IEP). She has an IQ of 69 and is clas-
sified as intellectually disabled. At the time of trial in late
May and early June 2020, R was 10 years old and in the
fourth grade, but her writing and math skills were around
a first-grade level. In January 2020, the school had updated
R’s IEP, but neither mother nor father participated. Mother
did not respond to the school’s invitation, and the school
did not know father was in R’s life. Her special education
teacher testified that R was often tired and had difficulty
focusing or engaging. Mother believed that R suffered
from sleep apnea. The teacher, who had never met mother,
testified that, when a parent is not engaged, the children
struggle with academic, social, emotional, and insecurity
issues.
The juvenile court previously took jurisdiction as to
R in 2014 on the admitted allegations of the Department
of Human Services (DHS) as to each parent’s history of
substance abuse, father’s criminal history, father’s impul-
sive behavior, and mother’s allowing a person with violent
behavior to have unsupervised contact with R. After mother
engaged in a treatment program, the court returned R to
mother in February 2016.
In 2018 and 2019, Frost, a DHS employee, attempted
to visit mother. Mother refused to provide urine samples
and refused to allow Frost access to her home. Frost left
her business card three or four times, and she left telephone
voice-messages, but the calls were not returned.
In summer 2019, R and her parents lived in a “super
tiny” trailer. Father moved out, and mother’s adult daughter
C and C’s child (mother’s granddaughter), moved in. Before
he moved out, father lived in the trailer much of the time,
and, after moving, father visited R at the trailer several
mornings each week. In January 2020, mother was evicted
from the trailer for failure to pay the rent. Mother, R, adult
daughter C, and C’s child moved into a motel where a com-
munity organization paid the bill for six weeks, but mother
had no plan where to stay when the money ran out. Father
lived in a different camping trailer, caring for his 91-year-
old father nearby. The trailer lacked water or a toilet. Father
Cite as 314 Or App 743 (2021) 747
said it was an arrangement that was “not a place for [R]”
and that he could not provide care for her.
Mother suffers from primary progressive multiple
sclerosis and requires a wheelchair. She has had an ileos-
tomy and has an ostomy bag. Her sources of income are dis-
ability payments of $1,200 per month, supplemented with
food stamps. Mother admitted she used some of the money
to pay for drugs. She testified that in July 2019 she began
using methamphetamine again, reportedly once or twice a
month. Mother also smoked marijuana to alleviate pain in
her legs. Her daughter, C, used methamphetamine while
living with mother, although not in her presence. At trial,
mother testified that she is addicted to methamphetamine
and would benefit from treatment.
In April 2020, DHS removed R from mother’s care
and filed a dependency petition. Mother submitted to a men-
tal health evaluation. The evaluator, Campos, observed
that mother had characteristics associated with personal-
ity disorders but that mother did not meet the criteria for a
diagnosis of a particular personality disorder. Campos rec-
ommended that mother engage in individual therapy and
submit to a substance use disorder evaluation.
A mental health professional diagnosed R with adjust-
ment disorder with anxiety, stemming from stress caused
by unstable living circumstances. The professional testified
that R needs to feel safe and secure and have a daily struc-
ture and routine.
At the close of evidence, the attorneys for the par-
ents disputed that the evidence on the allegations sufficed to
show a present risk to R. DHS and counsel for R argued to the
contrary. The juvenile court was persuaded by the evidence
to take dependency jurisdiction. The court determined:
“A. The child is in need of structure and supervision that
the mother is not providing.
“B. The child has social functioning and developmental
problems that require structure, supervision, and treat-
ment that the mother is not providing.
“C. The child has failed to achieve appropriate devel-
opmental, educational, and social progress while in the
748 Dept. of Human Services v. W. C. T.
mother’s care and the mother is not providing the care and
treatment necessary to address the child’s condition.
“E. The mother’s chaotic lifestyle interferes with her abil-
ity to safely parent the child.
“H. The mother does not understand the basic needs of
her child and lacks skills necessary to safely parent the
child.
“I. Despite having participated in services designed to
improve the mother’s parenting skills and substance abuse
problems, she is unable to safely parent the child[.]
“J. The mother is unable to, is unwilling to, cannot pro-
vide for the educational needs of the child[.]
“K. The mother’s substance abuse interferes with her
ability to safely parent the child.
“M. The child is in need of structure and supervision that
the father is unable to provide.
“N. The child has social functioning and developmental
problems that require structure, supervision, and treat-
ment that the father is unable to provide.
“O. The child has failed to achieve appropriate develop-
mental, educational, and social progress and the father
is unable to provide the care and treatment necessary to
address the child’s condition.
“P. The father lacks the parenting skills necessary to
safely parent the child.
“Q. The father is aware that the mother cannot safely
parent the child but has done nothing to assert custody of
his child.
“R. The father failed to protect the children from mother’s
neglectful behaviors.
“S. Despite having participated in services designed to
improve the father’s parenting skills, he is unable to safely
parent the child.”
The court made R a ward of the court and placed R in the
temporary custody of DHS pending a hearing on disposition.
Two weeks after the jurisdictional trial, the court
held a dispositional hearing. Without objection, the court
Cite as 314 Or App 743 (2021) 749
considered all the evidence presented at the jurisdictional
trial for purposes of the dispositional hearing. DHS pro-
vided additional testimony and exhibits. DHS recommended
that the court’s dispositional judgment contain a number of
features.
In support of a request for psychological evaluation
of the parents, DHS permanency worker, Hire, testified. She
recounted that, when R came into DHS care in 2014 through
2016, mother had failed to successfully complete drug and
alcohol treatment. Father had done so successfully. Mother
struggled, through the life of the prior case, in acknowledg-
ing the extent that her alcohol and drug issue impacted R.
Two residential programs discharged mother as noncom-
pliant. The later program’s discharge report indicated that
mother showed passive-aggressive resistance to treatment
recommendations. The program recommended that mother
should receive an extensive cognitive behavior assessment.
In the current case, Hire reported that mother’s mental
health assessment recommended a drug and alcohol assess-
ment and, although several appointments had been sched-
uled, mother had missed the appointments.
Hire testified that father has been angry and refused
to allow DHS on his property. Father has not engaged in any
services designed toward the goal of reunification.
Hire explained that “a psychological evaluation gives
insight to a parent’s behavior, their level of skills, their
thoughts[,] and their personalities,” and it identifies
“strengths and weaknesses of a parent.” That insight leads
to treatment recommendations regarding case planning for
services for parents. Those services “ameliorate the circum-
stances as to why the child came into care” and, hopefully,
provide “a successful reunification.” A psychological eval-
uation determines if there are any barriers or underlying
conditions that prevent a parent from being successful. The
evaluation can discern “why the parent isn’t engaging.” The
information is relevant to case planning and can be evidence
at the time of a permanency judgment or, if return is unsuc-
cessful, the termination of parental rights. The depart-
ment’s past mental health assessment was not the same; the
750 Dept. of Human Services v. W. C. T.
psychological evaluations were needed to provide psycholog-
ical testing and diagnosis of any personality disorder.
Hire was concerned that, when DHS visited mother,
mother fell asleep—a behavior observed during the prior
case—so DHS requested a urinalysis.1 Hire knew from
the assessment Campos had done that mother had at least
unspecified adjustment disorder and unspecified personal-
ity disorder and that mother had mentioned depression in
her testimony. As a consequence, a psychological evalua-
tion would provide more information about those and other
issues that might confront mother.
Hire did not know why father has refused to engage
with DHS, and she did not know why father was not protec-
tive of R when he had been with her. In the prior case in 2016,
father had “self-referred” for a mental health assessment,
and, in that assessment by a drug and alcohol program, he
indicated that he was depressed, could not focus mentally,
and had those symptoms off and on for years. Father said
that he had been told that he was bipolar in the past but
never by a psychiatrist or doctor. According to Hire, when
an assessment is from a prior case, DHS does not neces-
sarily rely on that; DHS needs an updated assessment and
needs to get information to a psychologist about services the
parent has been in. Hire testified that this case is very sim-
ilar to the last case and that she would be missing pieces of
the puzzle without a psychological evaluation to provide a
full picture of the parents’ functioning.
DHS also asked both parents to comply with a “pro-
tective capacity assessment.” Hire described the assessment
as a conversation that she has with each parent about how
they were parented, how they parent, how they see their
child, and whether they are able to identify the child’s needs.
The assessment includes questions about health, alcohol,
and drug issues. Hire described the parent’s participation
as essential to determining appropriate services for a case
plan.
1
Mother consistently refused to cooperate in urinalysis until R came into
DHS care. A recent urinalysis was negative for controlled substances except
marijuana.
Cite as 314 Or App 743 (2021) 751
Counsel for DHS argued that psychological eval-
uations were a needed component of treatment for mother
and father. Pointing to father’s lack of “protective capacity”
and mother’s “long stint” of failed inpatient treatments, he
argued that, unless DHS and the parents have more insight
into the parents’ barriers, “there’s no reason to believe that
anything’s going to be different this time around.” “[W]ith-
out a psychological evaluation for these parents,” he con-
cluded, “we are just setting them up for failure.”
Counsel for father argued that there was not suffi-
cient evidence to order a psychological evaluation. Counsel
for mother concurred, describing psychological evaluations
as unnecessary—at least unless nine or 10 months more
passed. She argued that, at this time, an evaluation was
just “a fishing expedition” to find evidence against the par-
ents. She acquiesced in the court’s direction to engage in
substance abuse treatment, parenting classes, and R’s edu-
cation, while noting that mother had signed information
releases. However, mother’s counsel disputed the court’s
statutory authority to direct mother to work toward stable
housing or consistent visitation.
Counsel for R urged the court to order psychological
evaluations of both parents because the exams were needed
and they bore a rational relationship to the bases of juris-
diction in the case. He rejected the argument that they were
“just a fishing expedition for an anticipated termination of
parental rights somewhere down the road.” He argued:
“[T]he stated goal of DHS, the legal goal is to reunify the
parents with [R]. [R] wants to be reunified. [R] wants her
parents to be drug free, wants them to have [to] deal with
their—whatever their psychological issues to help them
remain drug free, to help [R] develop at—as a person as
she gets older. She needs that. She wants that.
“* * * We have only a limited amount of time to get the
parents lined out and get them doing what [they’re] sup-
posed to do and we need to be doing that now not standing
around.
“And [R], remember, is just not in a good spot. This poor
child is * * * way behind.”
752 Dept. of Human Services v. W. C. T.
The court made findings on the record.2 Given the
evidence at hand, the court found that R had suffered long-
term neglect that had caused discernable delays in her
development. The court found that R was nearly 11 years
old, had a low IQ, and was functioning at a first-grade
level. Yet, her IQ was still within normal range. The court
directed an evaluation of R to determine whether her devel-
opmental delays are “genetic versus environmental.” The
court found that the parents were not cooperating and not
letting DHS have access to a child who was struggling. The
court declared that DHS is to offer the proposed services
and that the parents are ordered to comply. The court com-
mented that overarching general statutes give the court
authority necessary to meet the needs of the child and to
address the issues of the family.3 The court found that each
of the proposed services for the parents was necessary “and
that the evidence in this case provides the rational basis”
that is required.4
Pressed by mother’s counsel to clarify, the court
responded, “I’m walking the line.” The court stated that it
was relying on ORS 419B.337 and ORS 419B.387. The court
indicated, “[T]hey’ve met those standards.” The court con-
cluded, “DHS is to offer those services, and I’m order[ing]
the parents to comply and meet the expected outcomes of
those services.”
The juvenile court entered a dispositional judgment
that continued R in foster care and made the case plan a
reunification with mother and father. To that end, the court
determined that mother and father are to comply with seven
or eight directions. The first item pertained only to mother;
2
The juvenile court observed, “I find that this hearing that we’ve had does
constitute an evidentiary hearing as defined under [ORS] 419B. 387.” On appeal,
mother does not dispute that the proceedings below satisfied the requirement of
ORS 419B.387 for an evidentiary hearing.
3
Reluctant to pin each service to a particular statute, the court observed,
“[W]e’re not limited to specific statutes identifying specific services. There’s no
way a legislature could ever anticipate that.”
4
The court indicated that, for the reasons offered by counsel for the state
and for R, “and the rational basis identified there, I find that that gives the basis
for each and every one of the services.” Among the services are the psychological
evaluations.
Cite as 314 Or App 743 (2021) 753
the other terms concerned both parents. Those directions
were
“1. Substance use disorder assessment and follow
recommendations, ART services;
“2. Psychological evaluation and follow recommenda-
tions;
“3. Obtain safe and stable housing;
“4. Parenting classes and parent training, if recom-
mended;
“5. Consistent visitation;
“6. Engage with child’s treatment and educational
providers to understand child’s needs;
“7. Sign all requested releases of information; and
“8. Complete Protective Capacity Assessment and
follow recommendations.”
Finally, the court set a review hearing to occur in 75 days,
by which time R’s evaluation might explain her delays, show
her needs, and how those things might “meld with the par-
ents’ skills and functioning.”
II. DEPENDENCY JUDGMENT
As an initial matter, both parents contend on
appeal that the evidence was insufficient to show a present
risk that would justify the court taking jurisdiction as to R.
DHS underscores facts, which the parents do not generally
dispute, and concludes that the juvenile court did not err.
We agree with DHS.
When reviewing dependency jurisdiction, we view
“the evidence, as supplemented and buttressed by permissi-
ble derivative inferences, in the light most favorable to the
trial court’s disposition and assess whether, when so viewed,
the record was legally sufficient to permit that outcome.”
Dept. of Human Services v. N. P., 257 Or App 633, 639, 307
P3d 444 (2013).
Under ORS 419B.100(1)(c), “the juvenile court has
exclusive original jurisdiction” in any case involving a child
“[w]hose condition or circumstances are such as to endanger
754 Dept. of Human Services v. W. C. T.
the welfare of the [child] or of others.” The juvenile court will
consider “the totality of the circumstances,” to determine if
“there is a reasonable likelihood of harm to the welfare of
the child.” State ex rel. Juv. Dep’t. v. Smith, 316 Or 646, 652-
53, 853 P2d 282 (1993). A child is endangered if exposed “to
conditions or circumstances that present a current threat
of serious loss or injury.” Dept. of Human Services v. C. J. T.,
258 Or App 57, 61, 308 P3d 307 (2013).
The record here contains substantial evidence of
circumstances that present a current threat to R. Campos,
the mental health evaluator, observed that mother had char-
acteristics associated with personality disorders. Mother
admitted at the hearing that she was addicted to meth-
amphetamine. During the prior dependency case, in 2014
through 2016, mother had failed to successfully complete
drug and alcohol treatment. In this proceeding, mother’s
adult daughter, C, told a caseworker that she and mother
had used methamphetamine as recently as March 2020.
Although mother’s income consisted of modest disability
payments, she admitted using some of the money to pay for
drugs. Mother suffered residential instability. Due to trou-
ble with rent payments, she and R were evicted from the
small trailer in which they had lived, and she did not have
a plan where to stay when the charitable money for a motel
ran out.
R is a high-needs child. She has adjustment disorder
with anxiety, stemming from stress caused by unstable liv-
ing circumstances. She has suffered developmental delays.
She was in the fourth grade but performed at first-grade
levels in reading and math. Mother and father were not
actively involved in her education. They had not attended
her special education planning meetings. Although mother
suspected that R might suffer sleep apnea, R had not had
medical care in several years.
Father had visited mother and R while they had
been living in their trailer, but he did not consider himself
a parental resource, because he lived in a primitive trailer
and needed to care for his own father.
The juvenile court took jurisdiction based on sub-
stantial evidence of housing insecurity, mother’s substance
Cite as 314 Or App 743 (2021) 755
abuse, and both parents’ inability to meet R’s medical and
educational needs. The juvenile court found that a present
risk to R was evident in delays in her social and educational
development. For those same reasons, we conclude that the
juvenile court did not err in taking dependency jurisdiction.
III. DISPOSITIONAL JUDGMENT
A. Parents’ Challenges
Parents also contend that the juvenile court erred
when it entered a dispositional judgment that, first among
other things, required psychological evaluations. Parents
argue that psychological evaluations could only be autho-
rized under ORS 419B.387; they argue that the literal terms
of ORS 419B.337(2) speak of a court’s direction to DHS, not
to parents; they argue that our cases construe the two stat-
utes to provide differing standards for ordering a psycho-
logical evaluation, as opposed to addressing related factors.5
Parents cite no cases that actually reject the applicability
of ORS 419B.387 to psychological evaluations; nevertheless,
parents contend that the cases that base psychological eval-
uations on ORS 419B.337(2) should be broadly read to ren-
der ORS 419B.387 mere surplusage. Assuming the truth of
their proposition, they conclude those cases relying on ORS
419B.337(2) should be overruled as plainly wrong when
written.
Under their preferred authority, ORS 419B.387,
parents argue that the juvenile court failed to justify psy-
chological exams as a component of treatment or training
by tying the exams to substance abuse. Similarly, mother
also argues that the juvenile court lacks statutory author-
ity to order her to sign information releases, work toward
In relevant part, ORS 419B.337(2) provides:
5
“The court may specify the particular type of care, supervision or ser-
vices 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.387 provides:
“If the court finds in an evidentiary hearing that treatment or training
is needed by a parent to correct the circumstances 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.”
756 Dept. of Human Services v. W. C. T.
stable housing, or provide consistent visitation with R. DHS
responds that statutory authority is not so narrowly written.
This case represents our first opportunity to clar-
ify that several statutes provide related factors; that they
do not impose inconsistent standards; and that our cases
should be read together, rather than in conflict. Together,
related statutes provide a four-part standard that autho-
rizes a psychological evaluation. To reach our conclusion, we
survey the juvenile code for authority and perspective; we
visit the case law construing those statutes; we acknowl-
edge the canon on surplusage; we consider the doctrine of
stare decisis; and, finally, we explain how the statutes dove-
tail rather than differ.
B. Statutory Framework
We begin with an observation that must precede
our drawing any conclusions. The legislature has not pro-
vided for psychological examinations or evaluations by using
those terms expressly in any provision of the juvenile code.
As noted before, ORS 419B.337(2) provides, in relevant part:
“The court may specify the particular 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[.]”
And, ORS 419B.387 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
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.”
Because neither provision explicitly refers to psychological
evaluations, the authority of the juvenile court to approve
a plan, or enter an order, that directs psychological evalu-
ations must be found to be implied or authorized by those
provisions, other terms of the juvenile code, or other law.
Mother and father argue that the court should recognize
authority only within ORS 419B.387 and nothing else. We
determine, however, that a psychological evaluation involves
several, related provisions of the juvenile code.
Cite as 314 Or App 743 (2021) 757
We review provisions of the juvenile code to ascer-
tain the meaning most likely intended by the legislature
that adopted them. State v. Cloutier, 351 Or 68, 75, 261 P3d
1234 (2011); State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or
606, 610, 859 P2d 1143 (1993). We begin “by examining the
text of the statute in its context, along with relevant leg-
islative history, and, if necessary, canons of construction.”
Cloutier, 351 Or at 75. That is because “the text of the stat-
utory provision itself is the starting point for interpretation
and is the best evidence of the legislature’s intent.” PGE, 317
Or at 610; Hollister, 305 Or App 368, 371-72, 470 P3d 436
(2020). But our focus is not narrowed to one subsection. We
said of the statutes at issue here that
“ ‘[i]n assessing the authority that those statutes confer—
indeed, in addressing any issue of statutory construction—
we do not address each statute in isolation. Rather, we
address those statutes in context, including other parts of
the statute at issue.’ ”
Dept. of Human Services v. D. R. D., 298 Or App 788, 791,
450 P3d 1022 (2019) (quoting Lane County v. LCDC, 325 Or
569, 578, 942 P2d 278 (1997)).
Our consideration may also include consideration of
case law extant when statutes were adopted. Most recently,
the Oregon Supreme Court indicated that its understanding
of the juvenile code was “informed” by cases on the matter
at the time the juvenile code was adopted. Dept. of Human
Services v. C. M. H., 368 Or 96, 116-17, 486 P3d 772 (2021).
For that proposition, the court cited Lindell v. Kalugin, 353
Or 338, 349, 297 P3d 1266 (2013), for its statement, “case
law existing at the time of the adoption of a rule or stat-
ute forms a part of the context.” C. M. H., 368 Or at 117.
Accordingly, we consider both statutes’ text, context, and
case law construing those provisions.
In C. M. H., the Oregon Supreme Court described
the nature of our juvenile courts. It explained:
“Under the modern statutory framework, the ‘juvenile
court’ is part of the circuit court. Each juvenile court is
officially the ‘Juvenile Department’ of the particular circuit
court in which it is located, and the judges of the circuit
758 Dept. of Human Services v. W. C. T.
court exercise the jurisdiction and authority of the juvenile
court.”
368 Or at 103 (citing ORS 419B.090). As provided in ORS
3.260(1), “The circuit courts and the judges thereof shall
exercise all juvenile court jurisdiction, authority, powers,
functions and duties.”
As observed in C. M. H., 368 Or at 105, the grant of
original jurisdiction to the juvenile court can be traced to
1959 when the legislature enacted a comprehensive juvenile
code in a single set of statutes governing both dependency
and delinquency. Or Laws 1959, ch 432; see State ex rel Juv.
Dept. v. Reynolds, 317 Or 560, 567-70, 857 P2d 842 (1993)
(recounting that the 1959 revision overhauled piecemeal
legislation enacted from 1907). In 1993, the statutes on the
juvenile matters were divided into three chapters. Or Laws
1993, ch 33; see Dept. of Human Services v. T. L., 358 Or 679,
699, 369 P3d 1159 (2016) (describing 1993 revisions as “a
comprehensive reorganization of the juvenile code”). One of
those three chapters, ORS chapter 419B, dubbed “Juvenile
Code: Dependency,” becomes our primary context.
In ORS 419B.090, we find confirmation of the status
of the juvenile court, and we gain an important perspective
on the juvenile code as a whole:
“(1) The juvenile court is a court of record and exer-
cises jurisdiction as a court of general and equitable juris-
diction and not as a court of limited or inferior jurisdiction.
***
“* * * * *
“(2)(c) The provisions of this chapter shall be liberally
construed to the end that a child coming within the juris-
diction of the court may receive such care, guidance, treat-
ment and control as will lead to the child’s welfare and the
protection of the community.”
(Emphasis added.) Potentially, a liberal construction that
promotes parents’ involvement in services, better designed
for them, is one that would “lead to the child’s welfare.”
From other provisions, we learn that a person is
subject to the jurisdiction of the court when served with
Cite as 314 Or App 743 (2021) 759
summons, ORS 419B.803; that parents are to be made par-
ties to the proceedings in juvenile court, ORS 419B.875
(1)(a)(B); and that parents, when served, are subject to the
jurisdiction of the court, ORS 419B.385.
Foremost among orders affecting parents, the juve-
nile court may issue an order that a child be taken into pro-
tective custody. ORS 419B.150(6). With certain exceptions,
“the jurisdiction of the juvenile court of the county in which
a child is taken into protective custody shall attach from
the time the child is taken into custody.” ORS 419B.157. A
speedy hearing within 24 hours is required, ORS 419B.183;
and the evidentiary hearing must address what reasonable
efforts DHS has already taken to avoid removal or to facili-
tate return of the child, ORS 419B.185(1). Generally, within
60 days of a petition that a child should be within the juris-
diction of the juvenile court, ORS 419B.305, the court must
hold a hearing, receive evidence, find or reject jurisdiction,
and determine disposition of the matter, ORS 419B.310;
ORS 419B.325.
It is at this jurisdictional hearing that the court
determines whether jurisdictional allegations are proven,
and, like the shelter hearing before, whether reasonable
efforts were made to avoid removal or make it possible for
the child to return home safely. See ORS 419B.337(1). The
court may remove or continue removal of the child from the
home. Id. And, it is also at that hearing at which “[t]he court
may specify the particular type of care, supervision or ser-
vices to be provided by the Department of Human Services”
to the child and “to the parents or guardians” of the child.
ORS 419B.337(2).
Several specific provisions provide for orders to par-
ents. For one, the court may make orders, obviously directed
at a parent, “regarding visitation by the ward’s parents or
siblings.” ORS 419B.337(3). For another, “[t]he court may
order the parent or guardian to assist the court in any
reasonable manner in providing appropriate education or
counseling for the ward.” ORS 419B.385. And, as previously
noted, “the court may order the parent to participate in the
treatment or training” needed to correct the circumstances
that caused wardship or to prepare the parent to resume the
760 Dept. of Human Services v. W. C. T.
care of the ward, “if the participation is in the ward’s best
interests.” ORS 419B.387.
The court must hold a permanency hearing, gen-
erally, no later than 12 months after the court found the
child within the court’s jurisdiction. ORS 419B.470(2). At
the request of DHS, parents, or child, the permanency hear-
ing shall be held at any time—thus potentially sooner than
12 months. ORS 419B.470(6). It is that hearing at which the
court makes the often-litigated determinations: when the
plan is for the child’s return, whether DHS has made rea-
sonable efforts, or, if the Indian Child Welfare Act (ICWA)
applies, active efforts, to make it possible for the child to
safely return home, and whether the parents have made suf-
ficient progress for that to happen. ORS 419B.476(2)(a). To do
so, the juvenile court looks back at the plan imposed at the
time of the jurisdictional hearing. The court may “[d]eter-
mine the adequacy and compliance with the case plan and
case progress report.” ORS 419B.476(4)(d) (emphasis added).
Most certainly, “compliance” refers to DHS. Reasonably,
“compliance” refers to the parents, as well.
It is also at this point in statutory context at which
the legislature made most express its expectation that a
parent has been or may be compelled to cooperate in ser-
vices intended to return the child to the home. That is, ORS
419B.476(4)(c) provides explicitly that the court may,
“[i]f the court determines that further efforts will make
it possible for the ward to safely return home within a rea-
sonable time, order that the parents participate in specific
services for a specific period of time and make specific prog-
ress within that period of time[.]”
(Emphasis added.) Within 20 days after the hearing, the
court must enter an order, if it has made such a determina-
tion. ORS 419B.476(5). The legislature repeated the point by
providing that, in addition to what may have been ordered
under ORS 419B.476(4), the court may determine services in
which parents are required to participate:
“If the court determines that the permanency plan for
the ward should be to return home because further efforts
will make it possible for the ward to safely return home
within a reasonable time, the court’s determination of the
Cite as 314 Or App 743 (2021) 761
services in which the parents are required to participate,
the progress the parents are required to make and the
period of time within which the specified progress must be
made.”
ORS 419B.476(5)(c) (emphasis added).
The juvenile court does not lack the ability to enforce
its orders or the requirements it sets for parents. To be sure,
the natural bonds between parent and child motivate com-
pliance and serve the goal of the juvenile code to provide for
the safe return of the child to parents. See ORS 419B.090(5)
(policy statement for the safe return of a child where possi-
ble). But, where natural motivation falters, the juvenile code
provides:
“A court may enforce an order or judgment directing a
party to perform a specific act by punishing the party refus-
ing or neglecting to comply with the order or judgment, as
for a contempt as provided in ORS 33.015 to 33.155.”
ORS 419B.929. The juvenile code tempers the risk of con-
tempt, with ORS 419B.389, which provides:
“A parent who believes or claims that financial, health
or other problems will prevent or delay the parent’s com-
pliance with an order of the court must inform the court of
the relevant circumstances as soon as reasonably possible
and, if appropriate, seek relief from the order under ORS
419B.923.”
Thankfully, few, if any, reported cases reflect the need for
contempt sanctions against parents.
Nevertheless, the need for the court’s authority
to give direction to parents and to DHS is reflected in the
presence of statutes providing for the court’s approval for a
plan of services to be provided by DHS “to the parents” (ORS
419B.337(2) (emphasis added)), a specific reference that
would seem to necessitate their involvement. In addition, the
need for direction to parents is reflected in several specific
provisions on visitation, education, and treatment or train-
ing (ORS 419B.337(3), ORS 419B.385, and ORS 419B.387),
a provision to review the parties’ compliance with the plan
(ORS 419B.476(4)(d)), twin subsections explicitly providing
for the court’s order to parents to participate in services
762 Dept. of Human Services v. W. C. T.
(ORS 419B.476(4)(c), (5)(c)), and provisions for an unlikely
sanction of contempt (ORS 419B.929; ORS 1.010(4), (5)). Yet,
as noted at the outset, none of those provisions explicitly
reference psychological evaluations. It is our case law that
does.
C. Two Lines of Precedent
We have recognized that two lines of cases have
developed on the question of statutory authority for psycho-
logical evaluations. One line is long-standing; one is recent.
Dept. of Human Services v. L. J. W., 302 Or App 126, 130, 460
P3d 540 (2020). Because that is so, we declined in L. J. W.
to review on a plain-error basis a father’s unpreserved chal-
lenge to a juvenile court’s legal authority for a psychological
evaluation. Id. at 130-31.
1. “G. L. cases” under ORS 419B.337(2)
In L. J. W., we recognized that the older line of cases
was founded on ORS 419B.337(2) and its humble origins
before adoption of the current juvenile code in 1993. Id. at
131; see C. M. H., 368 Or at 106 (referring to Or Laws 1993,
ch 33). In the earliest case involving a psychological evalu-
ation of parents, the Oregon Supreme Court resolved a dis-
pute whether the state or county should pay for the services.
State ex rel Segrest v. Van Hoomissen, 276 Or 1077, 1081,
557 P2d 661 (1976). The decision’s references were statutes
on court services for juvenile matters, among other matters.
Pursuant to ORS 3.280 the circuit court may obtain “court
services.” “Court services” were and are defined by ORS
3.250(2) as including but not limited to services related to
“shelter care, investigations, study and recommendations on
disposition of cases * * * and psychological or psychiatric or
medical consultation and services provided at the request
of or under the direction of the court.” The provision for
such services was and is still founded in legislative policy
declared in ORS 3.255:
“It is declared to be the policy and intent of the
Legislative Assembly:
“* * * * *
Cite as 314 Or App 743 (2021) 763
“The judges of the circuit court need adequate court
services to assist them in exercising jurisdiction over the
family and family-related matters.”
The Supreme Court observed, “ORS 3.250(2) indicates that
the court can order such psychiatric or medical consulta-
tion as it requires as an aid in determining what is best for
the child.” Segrest, 276 Or at 1081. The dispute in Segrest,
however, did not pertain to the court’s authority to order a
parent to cooperate in such an exam.
The next year, this court faced a mother’s challenge,
among other complaints, that the juvenile court lacked
authority to order the psychiatric evaluation that led to the
termination of her parental rights. State ex rel Juv. Dept. v.
Maginnis, 28 Or App 935, 937, 561 P2d 1044 (1977). In that
case, we declared that in Segrest the Supreme Court had
“explicitly acknowledged that a juvenile court does, in fact,
have the authority to order a psychiatric or medical evalua-
tion of a parent where that evaluation is helpful as an aid in
determining what is best for the child[.]” Id. We did not pin
that statement to a particular provision in the 1977 statutes
that predated the adoption of the current juvenile code.
In State ex rel Juv. Dept. v. G. L., 220 Or App 216,
221-22, 185 P3d 483, rev den, 345 Or 158 (2008), we faced the
question again, this time after adoption of the juvenile code,
and we applied the modern text-and-context methodology of
PGE, 317 Or at 610, to locate the court’s authority to order
a parent’s psychological evaluation in ORS 419B.337(2),
augmented by ORS 419B.343(1)(a). We explained that the
court may specify the services to be provided by DHS to the
parents, under ORS 419B.337(2), in conjunction with DHS’s
responsibility to develop a case plan and provide services
that bear “a rational relationship to the jurisdictional find-
ings that brought the ward within the court’s jurisdiction,”
under ORS 419B.343(1)(a). Id. at 222. We acknowledged the
statutes’ terms that refer to the court specifying the ser-
vices that DHS must provide to the parent, but we went on
to determine the statutes provided authority for the court to
order the mother to cooperate in a psychological exam. Id. at
223. We concluded that,
764 Dept. of Human Services v. W. C. T.
“because mother has failed to benefit from past services
designed to address her inability to protect her children,
and because DHS is obligated to develop a case plan to pro-
vide mother with services to enable her to do so, the court’s
order for mother to submit to a psychological evaluation
bears a rational relationship to the bases the court found for
taking jurisdiction. ORS 419B.343(1)(a). The trial court did
not exceed its authority under ORS 419B.337(2) by ordering
mother to participate in a psychological evaluation.”
Id. at 224. We noted that we reached a similar conclusion
under a prior version of the dependency statutes in Maginnis.
Id. at n 5.
If we recognize that G. L. represents a similar con-
clusion to that reached in Maginnis in 1977 under earlier
statutes, then this court has followed that authority found
in current or prior statutes for over 40 years. See State v.
R. H., 237 Or App 245, 251, 251-55, 239 P3d 505 (2010) (citing
G. L. and holding that, because it was unclear whether sex-
ual abuse did occur or whether the child was confused, the
evaluation was a rational way to see if father did pose a risk
and, if so, what treatment was necessary); Dept. of Human
Services v. B. W., 249 Or App 123, 125, 127-29, 275 P3d 989
(2012) (relying on ORS 419B.337(2) and ORS 419B.343 and
holding that, although the allegations of jurisdiction did not
involve a mental health issue, the psychological evaluation
would aid DHS in assessing the father’s safety risk, given
his conviction for riot and assault, and would help deter-
mine what services DHS should provide); Dept. of Human
Services v. A. E. F., 261 Or App 384, 387, 323 P3d 482 (2014)
(holding that the juvenile court erred in construing too nar-
rowly when it could order parent’s psychological evaluation;
remanding to follow G. L.).
Never in that G. L. line of cases was the question pre-
sented to this court asking that we address the relationship of
ORS 419B.387 to ORS 419B.337(2) and ORS 419B.343(1)(a).
Ironically, G. L. reflected that we were fully aware from the
outset of the requirements of ORS 419B.387. In that case,
we raised the question whether the order to follow what-
ever recommendations might be included in a report on the
psychological evaluation might require a second evidentiary
hearing pursuant to ORS 419B.387. The mother waived off
Cite as 314 Or App 743 (2021) 765
the concern, saying that there were no such recommenda-
tions yet and she was not raising that issue on appeal. G. L.,
220 Or App at 221 n 3. The fact that we flagged the ques-
tion remains significant. Because we raised on our own the
requirements of ORS 419B.387 in G. L., we cannot construe
G. L. or the cases that followed, as rejecting the related role
of ORS 419B.387—whatever that role might be.
The issue here arose too late to be decided in Dept.
of Human Services v. A. F., 295 Or App 69, 71, 433 P3d 459
(2018). The mother challenged a dispositional judgment
that ordered her to submit to a psychological evaluation. We
relied on ORS 419B.337(2) for the court’s direction of ser-
vices and ORS 419B.343 for the requirement that services
bear “a rational relationship to the findings that brought
the child within the court’s jurisdiction.” Id. at 74 (internal
quotation marks omitted). We rejected the mother’s belated
assertion of ORS 419B.387 as a basis to overrule prior cases
because that argument was made too late in the appeal pro-
cess to be entertained. Id. at 75. We affirmed the juvenile
court’s disposition with its order for the psychological evalu-
ation under ORS 419B.337(2). Id. at 79.6
2. “D. R. D. cases” under ORS 419B.387
The unsuccessful attempt in A. F. to inject ORS
419B.387 into the debate about psychological evaluations
fared somewhat better with the father’s argument in D. R. D.,
298 Or App at 790-91. We declined the invitation to overrule
the G. L. line of cases under ORS 419B.337(2) because the
order for a psychological evaluation in D. R. D. was based
in ORS 419B.387 and did not require this court to confront
the G. L. cases. D. R. D., Or App at 796 n 3. Even so, we did
6
Subsequently, in Dept. of Human Services v. K. J., 295 Or App 544, 549-
50, 435 P3d 819 (2019), we demonstrated that the “rational relationship” test
does not mean any proof suffices. We concluded that the initial problems about
physical health and housing concern were not things to be addressed by a psycho-
logical evaluation. We reversed. Id. at 551-52. See also Dept. of Human Services
v. F. D. B., 289 Or App 633, 634, 407 P3d 982 (2017) (accepting DHS concession
that the order for a psychological evaluation did not bear a rational relationship
to the bases of jurisdiction); Dept. of Human Services v. D. W. W., 278 Or App 821,
822, 379 P3d 796 (2016) (expressing rational relationship standard and accepting
DHS concession); A. E. F., 261 Or App at 387 (remanding for juvenile court to
determine whether there is a rational relationship between jurisdictional allega-
tions and a psychological evaluation).
766 Dept. of Human Services v. W. C. T.
construe ORS 419B.337, ORS 419B.343, and ORS 419B.387.
We recognized that ORS 419B.337(2) “instructs, in relevant
part,” that the juvenile court may specify the services to be
provided by DHS and that ORS 419B.343 requires that case
planning bear “a rational relationship to the jurisdictional
findings.” Id. at 797-98 (internal quotation marks omitted).
We determined:
“ORS 419B.387, on its face, clearly conditions a juvenile
court’s authority to order a parent or guardian to partic-
ipate in treatment or training upon an ‘evidentiary hear-
ing’ at which point evidence must establish, to the juve-
nile court’s satisfaction, that such treatment or training is
‘needed.’ ”
Id. at 799. We further determined that “a psychological
evaluation—as a component of treatment or training—is
authorized under ORS 419B.387.” Id. (emphasis in original).
We rejected the father’s argument that a psychological eval-
uation is just a means to develop incriminating information
for termination of parental rights and is not a related pred-
icate to determining treatment. Id. at 793 (“not treatment”);
id. at 799 (father’s focus misplaced). But, acknowledging the
potential misuse of a psychological evaluation, we cautioned
that a psychological evaluation cannot be used as a “discov-
ery mechanism” to determine if services for treatment and
training are needed. Id. at 799. Yet, when an evidentiary
hearing leads to a finding of a need for such services, “that
then creates the court’s authority to order a parent to com-
ply with that treatment or training.” Id. at 799-800. Because
the father had not been able to stay drug-free, we concluded
the juvenile court did not err in ordering him to cooperate in
a psychological evaluation. Id. at 800.
In a variation on that theme, in Dept. of Human
Services v. T. L. H., 300 Or App 606, 616, 453 P3d 556 (2019),
we rejected a challenge to the juvenile court’s authority to
order a father’s psychological evaluation, because the juve-
nile court had found in an evidentiary hearing that the
child had extraordinarily high needs and that the father
would need to develop exceptional parental skills to care
for the child. The father had struggled with drug addiction
and homelessness. He had only recently engaged in housing
services, was in drug and alcohol treatment, and suffered
Cite as 314 Or App 743 (2021) 767
post-traumatic stress disorder. The psychological evaluation
would provide “a fuller picture of father’s circumstances in
order to determine how to prepare father to meet his child’s
needs.” Id. at 616. We held, under ORS 419B.387, that the
juvenile court did not err in ordering the evaluation. Id. at
616-17.
Although D. R. D. and T. L. H. were new in the
sense of grounding orders for psychological evaluations in
ORS 419B.387, that statute has been part and parcel of
the juvenile code since its adoption in 1993. Or Laws 1993,
ch 546, § 55. At least in part, D. R. D. achieved the par-
ent’s goal of injecting ORS 419B.387 into the discussion.
The result was our recognition that an evidentiary hearing
is required to establish a need for services—treatment and
training—of which psychological evaluation is a predicate
component. However, D. R. D. did not overrule the G. L. line
of cases, nor question the authority of ORS 419B.337(2) and
ORS 419B.343(1) for psychological evaluations as part of a
court-approved plan for services rationally related to the
bases of jurisdiction.
D. An Analysis of Statutes and Cases
We are unpersuaded by the parents’ propositions
that the court’s authority lies exclusively in ORS 419B.387,
that ORS 419B.337(2) and ORS 419B.343(1)(A) render ORS
419B.387 mere surplusage, and that the G. L. line of cases
is somehow plainly wrong.
No one disputes the declaration of legislative policy
that judges of the juvenile courts, as judges of our circuit
courts, “need adequate court services” and that such “court
services” include psychological evaluations of parents. See
ORS 3.255(2) (legislative policy); ORS 3.250 (definitions); see,
e.g., Segrest, 276 Or at 1081. No one disputes that at the time
of a jurisdictional hearing the juvenile court has authority
to specify the “care, supervision or services to be provided”
by DHS to the child and “to parents or guardians.” See ORS
419B.337(2) (although “the actual planning and provision
of such care, supervision or services is the responsibility of
the department,” the court may specify “care, supervision
or services to be provided”). No one disputes that a psycho-
logical evaluation may be included as a feature of a case
768 Dept. of Human Services v. W. C. T.
plan for services to parents. See D. R. D., 298 Or App at 798
(citing ORS 419B.337(2)); G. L., 220 Or App at 222 (same).
And, no one disputes that a psychological evaluation may be
a “component of treatment or training” to determine or tai-
lor services needed. D. R. D., 298 Or App at 799 (emphasis
omitted).
We reiterate that the legislature did not provide
explicitly for orders to parents for psychological evaluations
in either ORS 419B.337(2), ORS 419B.387, or elsewhere.
Therefore, it is difficult to assume hastily that the legisla-
ture intended ORS 419B.387 to be the sole reference con-
cerning orders to parents for psychological evaluations. That
difficulty is great because this court first fixed the authority
for orders for psychological evaluations in ORS 419B.337(2)
and ORS 419B.343(1)(a) with our decision in G. L., 220 Or
App at 223-24.
We remember the recent acknowledgement in
C. M. H. that case law existing at the time of the adoption
of a statute informs our understanding of the juvenile code.
368 Or at 117. In G. L., 220 Or App at 224 n 5, we cited the
1977 decision in Maginnis, 28 Or App at 937, and recognized
that in Maginnis “[w]e reached a similar conclusion under
a prior version of the dependency statutes.” Maginnis had
held that “a juvenile court does, in fact, have the author-
ity to order a psychiatric or medical evaluation of a parent
where that evaluation is helpful as an aid in determining
what is best for the child[.]” 28 Or App at 937. Maginnis was
existing case law when the legislature adopted the juvenile
code in 1993, and the legislature apparently did so without
a change in statutory authority that would have prevented
our conclusion in G. L. that a juvenile court has authority
under ORS 419B.337(2) and ORS 419B.343(1)(a) to order a
parent to cooperate in a psychological evaluation.
Thereafter, with Maginnis still extant, the legisla-
ture amended ORS 419B.337 five times before G. L. and
once after G. L. Or Laws 1999, ch 859, § 10; Or Laws 2003,
ch 396, § 57; Or Laws 2005, ch 679, § 1; Or Laws 2007,
ch 806, § 6; Or Laws 2015, ch 254, § 6. At the time when
the legislature made its last revision in 2015, three more
decisions following G. L. had been added to the books.
Cite as 314 Or App 743 (2021) 769
R. H., 237 Or App 245; B. W., 249 Or App 123; A. E. F., 261
Or App 384. That case law, existing at the time of enactment
and amendments, informs our understanding of the con-
struction of ORS 419B.337(2) as the legislature would have
understood it. The legislature would have understood ORS
419B.337(2) and ORS 419B.343(1)(a) to provide the juvenile
court authority to specify services to the child and parents
and, within that authority, to understand that services
to the parents directs their cooperation in a psychological
evaluation.
That understanding comports with the flow of juve-
nile proceedings; and that flow provides context for ORS
419B.337(2). Closely related, ORS 419B.476(4)(d) requires at
a permanency hearing that the juvenile court determine the
“adequacy and compliance” with the case plan and case prog-
ress report. (Emphasis added.) That retrospective review of
“compliance” fairly implies that parents have already been
required to comply with the case plan by cooperating with
services—just as DHS is required to comply by providing
services.
Lest there be any doubt about the authority of
the juvenile court to direct the parents’ cooperation, ORS
419B.476(4)(c) provides that, if further efforts will make pos-
sible the safe return of the child, then the court may “order
that the parents participate in specific services” and that
they “make specific progress.” Likewise, ORS 419B.476(5)(c)
refers to “the court’s determination of the services in which
the parents are required to participate.” (Emphasis added.)
At the very least, those provisions demonstrate, contrary to
parents’ view, that ORS 419B.387 cannot be the sole source
of authority to order a parent to cooperate in services, such
as a psychological evaluation. Instead, those subsections of
ORS 419B.476 show that the several statutes are related or
complimentary.
The sequential context of the dependency process
suggests that the time of a permanency judgment, up to
12 months after the petition, cannot be the first time that
the court can order parents to cooperate. All those many
months between jurisdictional and permanency judgments
are intended as the time in which DHS provides services
770 Dept. of Human Services v. W. C. T.
and the parents have been directed to make sufficient prog-
ress for the return of the child. Therefore, a practical under-
standing of legislative intent, reflected in the sequence
of the process, is that, just as G. L. determined, the juve-
nile court has authority under ORS 419B.337(2) and ORS
419B.343(1)(a), at the time of a jurisdictional judgment, to
approve a plan of services that includes directions for the
parents’ cooperation in those services, such as a psycholog-
ical evaluation.
If parents perceive that G. L. takes liberties with
the terms of a statute that provides that the court shall
specify services to be delivered by DHS to parents, then it is
a liberty made sensible by sequence of the juvenile process
and the context in which ORS 419B.337(2) appears in ORS
chapter 419B. That liberty reflects the “liberal construction”
that the legislature declared should guide construction of
ORS chapter 419B. ORS 419B.090(2)(c); see generally ORS
3.255(2) (judges need court services, including psychological
services, in the exercise of jurisdiction over juvenile mat-
ters). After all, ORS chapter 419B “shall be liberally con-
strued” to promote the care of the child, and a psychological
evaluation promotes that goal by discerning the services
needed to improve the parents’ care of the child.
Few liberties, however, are needed to understand
the textual basis for the juvenile court’s authority under
ORS 419B.337(2) to direct a parent’s cooperation in a reuni-
fication plan that includes a psychological evaluation. As
noted before, the statute provides that “[t]he court may
specify the particular type of * * * services to be provided
by [DHS] * * * to the parents[.]” (Emphasis added.) To specify
services provided by DHS to parents means that DHS must
provide those services and the parents must participate in
receiving those services. That is to say, the court’s direction
is as much an order to parents as it is to DHS.
That understanding comports with the conclusions
reached in Maginnis and G. L. In effect, Maginnis first rec-
ognized the authority of the court to order a psychological
evaluation and then concluded that, to be effective, the order
may require the parent’s participation. Such an order is log-
ically and necessarily directed to a parent. In the same way,
Cite as 314 Or App 743 (2021) 771
G. L. first recognized that ORS 419B.337(2) provides that
the court may order services to be provided to parents and
then concluded that a plan, which includes a psychological
evaluation, to be effective, may require the parent’s partici-
pation. An order for services, including a psychological eval-
uation, is logically and necessarily directed to a parent. To
construe the statutes otherwise makes the statute ineffec-
tual and renders the plan ineffective—at a critical juncture
in a process when a court has intervened to protect a child
and promote reunification.
E. Surplusage?
Parents ask us to reach a contrary conclusion based
on their argument about a canon of statutory construction
about surplusage. They argue that the “rational basis” stan-
dard of ORS 419B.337(2) and ORS 419B.343(1)(a) would ren-
der meaningless or unnecessary the evidentiary showing of
“need” for treatment or training in ORS 419B.387. Therefore,
they insist, the G. L. line of cases should be declared to be
plainly wrong when decided.
We agree that statutory provisions “must be con-
strued, if possible, in a manner that ‘will give effect to all’ of
them.” Force v. Dept. of Rev., 350 Or 179, 190, 252 P3d 306
(2011) (quoting Powers v. Quigley, 345 Or 432, 438, 198 P3d
919 (2008) (quoting ORS 174.010)). Our Supreme Court has
observed that, “at the least, an interpretation that renders
a statutory provision meaningless should give us pause.”
Cloutier, 351 Or at 98. And, that court has also observed:
“We wish to be clear that the fact that a proposed interpre-
tation of a statute creates some measure of redundancy is
not, by itself, necessarily fatal. Redundancy in communica-
tion is a fact of life and law.”
Id. at 97. In this case, parents’ argument about surplusage
is not persuasive for a pair of reasons.
First, the specific terms of the two provisions do not
duplicate or subsume one another. In ORS 419B.337(2), the
legislature has provided that
“[t]he court may specify the particular type of care, super-
vision or services to be provided by the Department of
772 Dept. of Human Services v. W. C. T.
Human Services to wards placed in the department’s cus-
tody and to the parents or guardians of the wards[.]”
And, at ORS 419B.387, the legislature has provided that
“[i]f 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 interest.”
None of the terms of the two provisions repeat the other.
None of the terms of the two provisions duplicate or conflict.
At the textual level, there is no surplusage.
Second, the parents’ argument is more abstract,
addressed to case law, not to the statutory terms them-
selves; and theirs is an argument that posits a problem that
does not exist. Their argument misconstrues the provisions’
related factors to be differing standards; and they assume
one statute (ORS 419B.337(2)) somehow subsumes another
(ORS 419B.387). However, the problem is less a matter of
redundancy than reconciliation. The gist of ORS 419B.337(2)
is that the juvenile court may specify the services that will
comprise the case plan, ORS 419B.343(1)(a) requires that
services be rationally related to jurisdictional findings, and
ORS 419B.387 adds that, before the court orders treatment
or training, the court must hold an evidentiary hearing,
determine that there is a need for treatment or training to
correct circumstances necessitating the court’s involvement
or to prepare the parents for the child’s return, and that the
parents’ participation is in the child’s best interest. Nothing
in ORS 419B.337(2) or ORS 419B.343(1)(a) precludes the
need for an evidentiary determination of need for services
like treatment or training. And, nothing in ORS 419B.387
precludes the court’s authority to order a parent’s coopera-
tion with a plan that directs a psychological evaluation when
“rationally related” to the jurisdictional findings, as ORS
419B.343(1)(a) requires. The provisions are complementary.
ORS 419B.337(2) and ORS 419B.343(1)(a) do not render
meaningless ORS 419B.387. Those several provisions may
be said to be redundant only insofar as they all relate to
psychological evaluations, but they do not duplicate. They do
not reflect a faulty interpretation of one or the other.
Cite as 314 Or App 743 (2021) 773
F. Plainly Wrong?
Because there is no problem with redundancy, there
is no reason to think that the G. L. line of cases are plainly
wrong. Nevertheless, parents further argue that the G. L.
line of cases are plainly wrong because ORS 419B.337(2) does
not speak to the court ordering a parent to receive services
and because G. L. somehow fails to consider or give effect
to ORS 419B.387. We have, however, already explained how
case law at the time of adoption of the juvenile code and its
subsequent amendments, the flow of the juvenile process,
the context of other statutory provisions, and the underly-
ing authority of the court to control conduct of the parties
engaged in a judicial process together authorize the juvenile
court to approve a plan of services that directs the parents
to cooperate in those services. And, we have explained that
there is no reason to assume that the standards of ORS
419B.337(2), ORS 419B.343(1)(a), and ORS 419B.387 are not
in harmony.
We have noted, “Whatever the ultimate meaning of
‘plainly wrong,’ to be ‘plainly wrong’ a holding must first be
wrong.” State v. Civil, 283 Or App 395, 406, 388 P3d 1185
(2017). The “ ‘plainly wrong’ requirement” is “not absolute.”
Id. at 416. Yet, we do not “lightly overrule” our precedents.
Id. (internal quotation marks omitted). We have cautioned
that
“[m]ere disagreement, however, is not—and cannot
be—a sufficient justification for overruling precedent.
Rather, the prudential principles that undergird stare deci-
sis as well as practical institutional considerations, require
more. Much more.”
Id. at 415. The Oregon Supreme Court has explained that
“the principle of stare decisis dictates that this court should
assume that its fully considered prior cases are correctly
decided. Put another way, the principle of stare decisis
means that the party seeking to change a precedent must
assume responsibility for affirmatively persuading us that
we should abandon that precedent.”
Farmers Ins. Co. v. Mowry, 350 Or 686, 692, 261 P3d 1 (2011)
(internal quotation marks omitted). That is no easy task,
and for good reason.
774 Dept. of Human Services v. W. C. T.
“[T]he application of stare decisis is not mechanistic.
Rather, stare decisis is a prudential doctrine that is defined
by the competing needs for stability and flexibility in
Oregon law. Stability and predictability are important val-
ues in the law; individuals and institutions act in reliance
on this court’s decisions, and to frustrate reasonable expec-
tations based on prior decisions creates the potential for
uncertainty and unfairness. Moreover, lower courts depend
on consistency in this court’s decisions in deciding the myr-
iad cases that come before them. Few legal principles are
so central to our tradition as the concept that courts should
‘[t]reat like cases alike,’ H.L.A. Hart, The Concept of Law
155 (1st ed 1961), and stare decisis is one means of advanc-
ing that goal.”
Id. at 697-98.
In Mowry, the court articulated three alternative
bases that could cause the court to reconsider precedent.
350 Or at 694. They are
“(1) that an earlier case was inadequately considered or
wrong when it was decided; (2) that surrounding statutory
law or regulations have altered some essential legal ele-
ment assumed in the earlier case; or (3) the earlier rule was
grounded in and tailored to specific factual conditions, and
that some essential factual assumptions of the rule have
changed.”
Id. (internal quotation marks omitted). The parents assert
the first basis only. The latter two bases are not in play.
That is because, in material part, ORS 419B.337(2), ORS
419B.343(1)(a), and ORS 419B.387 have not changed since
the adoption of the juvenile code, and no factual bases for
G. L. have changed in the ensuing years.
As noted, parents insist that G. L. was wrongly
decided at the time it was written because it failed to dis-
cuss ORS 419B.387. However, nothing in G. L. denies the
requirements of ORS 419B.387 that the court must conduct
an evidentiary hearing to determine a need for treatment
and training. Further, nothing is inconsistent about the
determination in G. L. that a psychological evaluation must
be rationally related to the jurisdictional findings that cre-
ate the need for the court’s involvement. By definition, under
ORS 419B.387, the “treatment or training [that] is needed
Cite as 314 Or App 743 (2021) 775
by a parent to correct the circumstances that resulted in
wardship or to prepare the parent to resume the care of the
ward,” involves the same jurisdictional findings that created
the need for the court’s involvement. In other words, ORS
419B.337(2), ORS 419B.343(1)(a), and ORS 419B.387 are
addressed to the same thing—remedying the circumstances
causing the court’s involvement. Thus, the “rationally
related” requirement of services under ORS 419B.337(2)
and ORS 419B.343(1)(a) is inherent in and required by ORS
419B.387.
To the extent that parents or DHS imagine that
G. L. and succeeding cases stand for the implausible prop-
osition that G. L. set the sole requirement for an order for
a psychological evaluation—especially the sole requirement
that displaces other requirements—we reject that notion. To
the extent that parents posit that G. L. is “plainly wrong,”
it is their exaggeration of G. L. that is mistaken. Aware of
prior precedent in Maginnis, G. L. attributed the court’s
authority to direct parents to cooperate in a psychological
evaluation to the court’s authority to specify services “to
parents” under ORS 419B.337(2) (where there is no plain
language to the contrary); G. L. required a finding that such
services be “rationally related” to the jurisdictional find-
ings under ORS 419B.343(1)(a) (a requirement that should
remain unarguable); and G. L. acknowledged in its footnote 3
that other requirements exist as in ORS 419B.387 (an
acknowledgement that cannot be ignored). G. L. may not
have been a complete exegesis, but it was a start. It correctly
highlighted one necessary finding from ORS 419B.343(1)(a).
D. R. D. cited ORS 419B.343(1)(a), too, and highlighted oth-
ers from ORS 419B.387. Contrary to the parents’ view, G. L.
never denied other statutes; G. L. is not “plainly wrong.” We
conclude that parents have not carried their burden to show
that G. L. and ensuing cases were plainly wrong at the time
that they were decided.
IV. APPLICATION
A. Standard for a Psychological Evaluation
Until now, we have been presented only with
appeals addressed to one statute or another. With this case,
however, we can address the requirements of several related
776 Dept. of Human Services v. W. C. T.
statutes. Thus, we conclude that the court may order a psy-
chological evaluation of a parent, after an evidentiary hear-
ing, by making findings that:
1. The psychological evaluation is for a service that
is rationally related to the findings that bring the child into
the court’s jurisdiction (ORS 419B.337(2); ORS 419B.343
(1)(a));
2. The psychological evaluation is a predicate com-
ponent of treatment or training of a parent (ORS 419B.387);
3. There is a need for treatment or training to cor-
rect the circumstances that caused the jurisdictional find-
ings or to prepare the parent for the child’s return (ORS
419B.343(1)(a); ORS 419B.387); and
4. The parent’s participation in such treatment or
training is in the best interest of the child (ORS 419B.387).
Thus gathered, that four-part standard harmonizes
our cases from Maginnis, through G. L. and D. R. D.
Parenthetically, we acknowledge that the concurring
and dissenting opinion contends that the first requisite—
that an evaluation must be rationally related to jurisdic-
tional findings—is duplicative, unnecessary, and merely
“spackling compound” to cover over G. L.’s “mistake.” Dept.
of Human Services v W. C. T., 314 Or App 789-90, (Mooney, J.,
concurring in part, dissenting in part). No one claims, how-
ever, that G. L. was wrong, let alone plainly wrong, in con-
cluding that ORS 419B.343(1)(a) imposes a requirement
that a psychological evaluation must be rationally related to
the factual reasons for the court’s intervention in the family.
As we have already discussed, that requirement is implicit
in ORS 419B.387. But, that requirement is not a conflict-
ing standard, nor is it confusing or duplicative. Instead, it
is necessary, and it is properly understood as a part of the
governing standard that is the juvenile court’s checklist.
The requirement is the first protection for parents against
ill-advised psychological evaluations, as is demonstrated by
the line of cases, following G. L., in which orders for psycho-
logical evaluations were denied.7
7
See 314 Or App at 765 n 6.
Cite as 314 Or App 743 (2021) 777
B. Psychological Evaluation of Mother
All that said, we apply that standard to this case
with differing results as to the parents. The parents do not
dispute that the juvenile court satisfied the requirement of
ORS 419B.387 for an evidentiary hearing. That hearing pro-
vided relevant evidence about a need for services and a rea-
son for psychological evaluations to design those services.
The juvenile court found that the parents were not cooper-
ating and not letting DHS have access to a child who was
struggling. As noted, the court found that R had suffered
long-term neglect that had caused discernable delays in her
development. No one disputed that she had special needs.
No one disputed that services to her parents, so as to facili-
tate her safe return, was in her best interest. Beyond those
facts the evidence as between the two parents, however, was
not the same.
During the previous case in 2014 through 2016,
mother had failed to successfully complete drug and alcohol
treatment. Mother had been passive-aggressive in resisting
treatment recommendations. In this case, she had missed
appointments for a drug and alcohol assessment. A report
indicated that mother suffered at least an unspecified adjust-
ment disorder and unspecified personality disorder; and she
had mentioned depression in her testimony. Mother admit-
ted she used some of her limited income to pay for drugs.
She testified that in July 2019 she began using metham-
phetamine again, reportedly once or twice a month. Mother
admitted that she was addicted to methamphetamine and
would benefit from treatment.
Those facts provided substantial evidence for the
juvenile court’s explicit and implicit findings that there
was a need for “every one of the identified services” that
DHS recommended as to mother, that those services had a
“rational basis” in the jurisdictional findings, that a psycho-
logical evaluation would provide insight in determining ser-
vices (i.e., serve as a predicate component of services to be
provided), and that it was in R’s best interests that mother
engage in those services. Although every case is decided on
its own unique facts, those facts were, in sum and substance,
the same facts that warranted a psychological evaluation in
778 Dept. of Human Services v. W. C. T.
D. R. D. See 298 Or App at 794, 800 (finding substantial evi-
dence for order regarding addicted parent “not able to stay
clean and sober” who admitted he had “no good excuse” to
have failed to engage in treatment). At least as to mother,
the four-part standard for a psychological evaluation was
satisfied.
C. Psychological Evaluation of Father
The same conclusion cannot be reached as to
father’s psychological evaluation. In the prior juvenile case
in 2016, father had self-referred for a mental-health assess-
ment, and he had expressed some concerns, but DHS’s wit-
ness Hire testified that those records were old and that DHS
did not rely on them to make determinations in this case. In
contrast to mother, father had successfully completed drug
and alcohol treatment. He had also successfully completed
parental training. There was no present indication of sub-
stance abuse by father. DHS characterized him as not being
protective of R when with her and when not. Father had
moved away to attend to his 91-year-old father. Father was
not engaging in services. He was reported to be angry at
DHS, but DHS had no evidence to infer a potential that a
disorder contributed to that anger. Hire did not venture any
reasons why father was uncooperative. She had not had con-
tact with father since the inception of the current case in
2020.
Except in broad, generic terms that made no refer-
ence to father, DHS did not offer testimony how a psycholog-
ical evaluation related to father’s need for services. Absent
something more specific, DHS failed to offer evidence upon
which the juvenile court could have made a finding that
a psychological evaluation was a predicate component to
treatment or training. Accordingly, the juvenile court lacked
the requisite evidence to make a finding necessary to direct
father’s participation in a psychological evaluation.
D. Other Dispositional Orders
Finally, we address mother’s challenges to the court’s
authority to issue orders for consistent visitation, obtaining
safe and stable housing, signing information releases, and
completing a “protective capacity assessment.” We address
each in turn.
Cite as 314 Or App 743 (2021) 779
The court’s authority to direct visitation is expressed
in ORS 419B.337(3): “The court may make an order regard-
ing visitation by the ward’s parents or siblings.” Accordingly,
the juvenile court may direct a parent’s visitation with a
child.
As for information releases, mother’s counsel elic-
ited testimony from Hire that mother had already signed
the information releases for her own records and for medical
records—after R’s removal and prior to the jurisdictional
hearing. On appeal, mother does not suggest a controversy
remaining other than those releases that she had already
signed. Seemingly, the record would indicate that mother
had already knowingly and intentionally waived objection
to the releases DHS sought. See State v. Hunter, 316 Or 192,
201, 850 P2d 366 (1993) (waiver is the intentional relin-
quishment of a known right, for which there is no particular
formula).
Mother does not develop an argument beyond a
summary conclusion. She does not specify what records are
at issue, whether future records may be sought, what infor-
mation the releases purport to provide, or what added legal
concerns might be involved. See Walters v. Hill, 221 Or App
357, 361, 189 P3d 1273 (2008) (rejecting cursory argument
citing no relevant rules or statutes as presenting no devel-
oped argument). Assuming information releases remain at
issue, we conclude that such directions are part of a plan
of services “to parents” under ORS 419B.337(2), “compli-
ance” with which will be reviewed under ORS 419B.476 at
the time of any permanency hearing. To the extent that any
issue is presented on this limited record, the court did not
lack authority to give such directions to elicit cooperation
in the service plan. We do not, however, preclude a different
answer if presented with a developed record and argument.
As for the direction to cooperate in finding stable
housing, essentially the same conclusion follows. Mother
asserted a summary conclusion without examination of
statutes or any developed argument. Again, such direc-
tions are part of a plan of services “to parents” under ORS
419B.337(2), “compliance” with which will be reviewed under
ORS 419B.476 at the time of any permanency hearing. To
780 Dept. of Human Services v. W. C. T.
the extent that any issue on this limited record is presented
about the juvenile court’s direction to mother to cooperate in
finding housing, the court did not lack authority to give such
direction. We do not, however, preclude a different answer if
presented with a developed record and argument.
Finally, as for the “protective capacity assessment,”
Hire explained the purpose of the assessment was to gather
information from parents themselves, concerning their
background and their parenting behavior. With that pur-
pose, the assessment is justified as information-gathering
that serves to tailor needed services. As such, the assess-
ment rests on the same authority as does a psychological
evaluation but without the same depth or breadth of intru-
sion. No psychological testing or professional evaluation
of potential psychological disorders is involved. The staff’s
assessment of the parents’ protective capacity is the equiv-
alent of a timely, relevant, focused interview with a parent,
given a history of neglect of R’s developmental needs. In that
light, we recognize that mother is subject to the jurisdiction
of the court (ORS 419B.803; ORS 419B.875(1)(a)(B); ORS
419B.385); that use of the assessment serves as a component
of prescribing the services to be provided (ORS 419B.337(2);
ORS 419B.343(1)(a); ORS 419B.387); and that substantial
evidence supported the court’s direction that mother cooper-
ate in providing such information to assist the determina-
tion of services that she most needs.
V. CONCLUSION
We conclude that the juvenile court did not err in
taking dependency jurisdiction. The court did not err in its
dispositional judgment that approved a plan of services that
directed mother to participate in a psychological evaluation.
However, the court erred in directing father to participate
in a psychological evaluation. Mother failed to show that
the court erred in directing her cooperation in the other
challenged aspects of the plan. We affirm the jurisdictional
judgment, affirm the dispositional judgment as to mother,
but reverse and remand as to the psychological evaluation
of father.
Jurisdictional judgment affirmed; dispositional judg-
ment affirmed in part, reversed and remanded in part.
Cite as 314 Or App 743 (2021) 781
MOONEY, J., concurring in part, dissenting in
part.
The juvenile court ordered R’s parents to submit to
psychological evaluations at the conclusion of the disposi-
tional hearing. I agree that one of those orders was lawful
and that one was not. The court explained that it did not
believe that it was required to cite to any particular statu-
tory provision and that it was issuing the orders on the basis
of its authority under the “overarching general statutes” to
address the needs and issues of the ward and her family.
It nevertheless went on to say that it was relying on ORS
419B.337 and ORS 419B.387. When pressed by counsel, the
court explained that it was “walking the line.” It made a
rational relationship finding under ORS 419B.337(2), and
it concluded that the dispositional hearing was an “eviden-
tiary hearing” under ORS 419B.387.
This case illustrates the confusion that we have cre-
ated through our case law, and it exemplifies the type of
inconsistent outcomes that result from that confusion. The
confusion persists despite the efforts of juvenile court judges
and lawyers who tread carefully through the juvenile code
and our case law, striving to follow the law when psychologi-
cal evaluations are requested. But today the majority refuses
to remove the confusion and uncertainty when it declines to
overrule State ex rel Juv. Dept. v. G. L., 220 Or App 216, 185
P3d 483, rev den, 345 Or 158 (2008). The majority amplifies
the confusion in the name of stare decisis by issuing an opin-
ion that defers to prior cases that were wrongly decided. It
professes to “harmonize” but, importantly, does not identify
the melody it attempts to complement. I would confront the
language of the code that was enacted by the legislature to
govern judicial decisions in dependency cases. It is a matter
of statutory—not musical—interpretation. Our goal should
be to clearly state what the law is; not simply to arrange
pieces of the law in a pleasing way. And, because our inter-
pretation of ORS 419B.337 in G. L. and its progeny is plainly
wrong, we have an obligation to correct our prior interpreta-
tion. See State v. Olive, 259 Or App 104, 107-08, 312 P3d 588
(2013) (explaining when stare decisis must give way in a case
involving the interpretation of a statute).
782 Dept. of Human Services v. W. C. T.
We sought to explore the respective roles of ORS
419B.337(2) and ORS 419B.387 in the context of court-
ordered psychological evaluations as far back as G. L. itself,
when we invited the parties to provide additional briefing
on ORS 419B.387. They declined to do so. 220 Or App at 221
n 3. In the years since G. L. was decided, we have applied
both ORS 419B.337(2) and ORS 419B.387 as the basis for
court-ordered psychological evaluations. In doing so, we
have created confusion about the legal standard to apply
and about the proof requirements that must be met before
parents may be ordered to submit to psychological evalua-
tions. In our most recent case, the panel majority acknowl-
edged “the lack of clarity in the statutes and the case law
concerning the court’s authority to require a parent to sub-
mit to a psychological evaluation.” Dept. of Human Services
v. F. J. M., 312 Or App 301, 312, 493 P3d 59, rev allowed, 368
Or 510 (2021). The dissenting member of that panel wrote
that,
“until and unless we receive some Supreme Court guidance
regarding the proper construction of ORS 419B.337(2) and
ORS 419B.387 with respect to parental psychological eval-
uations in juvenile dependency cases, we will only continue
to dig ourselves deeper into a hole.”
Id. at 315 (Aoyagi, J., dissenting). Not long before that, we
declined plain-error review in a case where the father was
ordered to submit to a psychological evaluation, concluding
that ORS 419B.337 and ORS 419B.387 provide “two poten-
tial sources of statutory authority for a psychological evalu-
ation.” Dept. of Human Services v. L. J. W., 302 Or App 126,
128, 460 P3d 540, rev den, 367 Or 75 (2020).1 I would remove
1
We recently cited L. J. W. as concluding that “[t]here are two statutes under
which a juvenile court may order a parent to participate in a psychological evalu-
ation in connection with a dependency case: ORS 419B.387 and ORS 419B.337(2).”
Dept. of Human Services v. M. O. B., 312 Or App 472, 474 n 1, 493 P3d 553 (2021).
But we did so in a footnote included solely for the purpose of explaining why we
were declining to address the father’s argument that G. L. was plainly wrong
and should be overruled. In fact, we declined plain-error review in L. J. W. pre-
cisely because the law is neither obvious nor certain given that we have treated
ORS 419B.337(2) and ORS 419B.387 as “potential” sources of statutory authority
for psychological evaluations. In other words, our statement about L. J. W. in
M. O. B. did not fully capture what L. J. W. stated, and, when considered in con-
junction with what L. J. W. in fact stated, cannot be understood as an affirmation
that both statutes supply authority for ordering a psychological evaluation.
Cite as 314 Or App 743 (2021) 783
the uncertainty and confusion today by overruling G. L. as
plainly wrong. I offer this separate opinion to explain why.2
In addition to addressing father’s first assignment
of error and mother’s tenth assignment of error, which chal-
lenge the court-ordered psychological evaluations—the
focus of this separate opinion—I disagree with the major-
ity’s rejection of mother’s eleventh (requiring her to obtain
safe and stable housing), thirteenth (requiring her to sign
all requested releases of information), and fourteenth (order-
ing her to submit to a protective capacity assessment “and
follow recommendations”) assignments of error. Mother
argues that the juvenile court erred in ordering her to “per-
form those tasks in the absence of statutory authority in the
juvenile code to do so.” The Department of Human Services
(DHS) counters that the court “had inherent authority” to
issue those orders. But the briefing on the issue was not
as developed as it might have been, with the parties’ focus
being primarily on the question of court-ordered psycholog-
ical evaluations.
To say, as mother does, that the juvenile court may
only issue orders expressly provided for in the juvenile code
itself is as extreme as saying, as DHS does, that the juve-
nile court has inherent authority to issue any and all orders
it deems necessary to protect wards of the court. Neither
argument rings entirely true. Psychological evaluations are
not mentioned in ORS chapter 419B, and yet mother does
not argue that the court is altogether without authority to
order her to submit to such an evaluation. And, certainly,
one can imagine any number of orders that a juvenile court
would simply not have the authority to issue in a depen-
dency case.
The majority describes the juvenile court’s author-
ity, but it does not actually resolve the tension between the
parties’ respective positions on inherent authority versus
express statutory authority. Additional briefing might have
been helpful on that point. But, in any event, I would not
2
I have no quarrel with the facts recited by the majority. I agree that the
evidence was sufficient to support the court’s assertion of jurisdiction over R.
I agree with the majority’s disposition of mother’s twelfth assignment of error,
which challenges the court’s order that she maintain consistent visitation with
R, and, therefore, do not address that assignment in this separate opinion.
784 Dept. of Human Services v. W. C. T.
affirm the housing order without some evidence that it was
not ordered solely on the basis of parental homelessness.
And an order to sign “all requested releases of information”
is, at a minimum, overly broad, and, as such, raises stat-
utory and constitutional questions about privacy, consent,
and waiver. The order for a protective capacity assessment
by itself is not necessarily concerning from a sufficiency of
the evidence standpoint, but the order to “follow recommen-
dations” raises questions about the court’s authority to dele-
gate its judicial decision-making authority to third parties.
I would not affirm those orders on this record.
At the core of the parties’ dispute concerning the
court-ordered psychological evaluations is a fundamental
disagreement about the source of the juvenile court’s author-
ity, the applicable standard, and evidentiary requirements
necessary to order parents to submit to psychological eval-
uations. I begin with ORS 419B.337(2), first “examining the
text of the statute in its context, along with relevant leg-
islative history, and, if necessary, canons of construction.”
State v. Cloutier, 351 Or 68, 75, 261 P3d 1234 (2011). That
is because “the text of the statutory provision itself is the
starting point for interpretation and is the best evidence
of the legislature’s intent.” PGE v. Bureau of Labor and
Industries, 317 Or 606, 610, 859 P2d 1143 (1993); see also
Hollister, 305 Or App 368, 371-72, 470 P3d 436 (2020). Here,
the text leaves nothing to the imagination:
“The court may specify the particular type of care, supervi-
sion or services to be provided by the Department of Human
Services * * * to the parents or guardians of the ward[ ], but
the actual planning and provision of such care, supervision
or services is the responsibility of the department.”
ORS 419B.337(2).
ORS 419B.337(2) is declaratory. As grammatically
structured, it says that (1) the court may “specify” ser-
vices, (2) that DHS will provide. It goes on to define par-
ents or guardians as the recipient of those services, but ORS
419B.337(2) does not say that (1) the court may “specify” ser-
vices, (2) that the parents shall submit to. ORS 419B.337(2)
does not authorize direct orders to parents. In fact, we have
held that ORS 419B.337 confers fairly limited power on the
Cite as 314 Or App 743 (2021) 785
juvenile court to indicate the types of services DHS must
offer, as distinct from directing generally what DHS must
do. See Dept. of Human Services v. S. E. K. H. / J. K. H., 283
Or App 703, 709-10, 389 P3d 1181 (2017) (juvenile court
lacked authority under ORS 419B.337 to direct DHS to
make particular placement).
Although, by its plain terms, ORS 419B.337 does
not authorize orders directed at parents, including orders
requiring them to participate in psychological evaluations,
a different statute, with its own standard, does. In Dept.
of Human Services v. D. R. D., 298 Or App 788, 790, 450
P3d 1022 (2019), we held that ORS 419B.387 “authorizes
the juvenile court to order a parent to participate in treat-
ment or training, but conditions that authority on a finding
of need, following an evidentiary hearing.” ORS 419B.387
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
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.”
The if-then structure of ORS 419B.387 is clear: “If the court
finds [X], the court may order the parent to [Y].”
But we declined an invitation in D. R. D. to over-
rule G. L., because the court-ordered psychological evalu-
ation in D. R. D. was based on ORS 419B.387 and not on
ORS 419B.337(2), so we had no occasion to address the role,
if any, of ORS 419B.337. D. R. D., 298 Or App at 796 n 3.
We held that a “psychological evaluation—as a component of
treatment or training—is authorized under ORS 419B.387.”
Id. at 799 (emphasis in original). We cautioned that a psy-
chological evaluation should not be used as a discovery tool
to determine “if there is a need for treatment or training.
Rather, as the statute sets forth, it is the establishment of
a need for treatment or training at the evidentiary hear-
ing that then creates the court’s authority to order a parent
to comply with that treatment or training.” Id. at 799-800
(emphasis in original). We affirmed the court-ordered psy-
chological evaluation in D. R. D. because the need for it was
786 Dept. of Human Services v. W. C. T.
established at an evidentiary hearing as a component of the
father’s drug treatment. Id. at 800. D. R. D. did not overrule
G. L. In the short time that has passed since we decided
D. R. D., we have declined to address the question left open—
whether G. L. correctly determined that ORS 419B.337 pro-
vided authority for a court-ordered psychological evalua-
tion—in at least four cases. See L. J. W., 302 Or App at 132(declining plain-error review of court-ordered psychological
evaluation given two alternate sources of authority for such
an evaluation); Dept. of Human Services v. D. L., 303 Or App
286, 288, 462 P3d 781, rev den, 367 Or 257 (2020) (plain-
error review was foreclosed by our holding in L. J. W.); Dept.
of Human Services v. D. M., 307 Or App 456, 456, 476 P3d 125
(2020), rev den, 367 Or 535 (2021) (affirming court-ordered
psychological evaluations and citing L. J. W.); F. J. M.,
312 Or App at 312 (affirming court-ordered psychological
evaluation under ORS 419B.387 and acknowledging that we
rejected an unpreserved challenge to the court’s authority
in L. J. W. because there are two potential standards under
ORS 419B.337 and ORS 419B.387).
This case presents the opportunity to answer the
question left open in D. R. D. and, further, to correct our
misstep in G. L. I do not fault the G. L. court for making
the misstep that it did; it appears that the parties to the
case never questioned that ORS 419B.337 supplied a source
of authority for a court-ordered psychological evaluation,
undoubtedly contributing to the court’s reliance on what
turns out to be an unfounded assumption about the opera-
tion of the juvenile code. But the issue is now squarely before
us, and we are obliged to construe the statutes as written,
not construct new law upon the shaky foundation of an
incorrect assumption.
But that is precisely what the majority opinion
does. To be sure, the majority opinion goes to great lengths
to incorporate the requirements of ORS 419B.387 into its
final conclusion about what it takes to authorize a direct
order to parents to submit to psychological evaluations. But
it holds on to G. L. with unwavering allegiance and, in so
doing, effectively rewrites the statutory scheme crafted by
the legislature, something we have an affirmative obligation
Cite as 314 Or App 743 (2021) 787
not to do: “In the construction of a statute, the office of the
judge is simply to ascertain and declare what is, in terms
or in substance, contained therein, not to insert what has
been omitted, or to omit what has been inserted * * *.” ORS
174.010.
The standard for overruling a prior case as “plainly
wrong” is stringent and is not satisfied merely because we
might disagree with the result reached by our predecessors:
“[D]ue regard for stare decisis and our predecessors’ colle-
gial commitment demands that ‘plainly wrong’ be a rigorous
standard, satisfied only in exceptional circumstances.” State
v. Civil, 283 Or App 395, 396, 416-18, 388 P3d 1185 (2017).
In other words, we may not substitute our thinking for the
thinking of those who served on this court before us simply
because we are confident that we are right. But where, as
here, we employ the standard mode of statutory construc-
tion, and cannot reconcile the text of ORS 419B.337(2) with
G. L.’s assumption and implicit conclusion that the statute
authorizes court-ordered psychological evaluations for par-
ents, then we are obligated to reach a correct interpretation
of the statute, declare that G. L. is plainly wrong, and over-
rule it. See id.; Assoc. Unit Owners of Timbercrest Condo. v.
Warren, 352 Or 583, 598, 288 P3d 958 (2012).
We have noted that, “[w]hatever the ultimate mean-
ing of ‘plainly wrong,’ to be ‘plainly wrong’ a holding must
first be wrong.” Civil, 283 Or App at 406. As we have already
explained, G. L. was wrongly decided because the words in
ORS 419B.337(2) do not support the meaning attributed to
them by the majority. ORS 419B.337(2) authorizes the court
to direct the types of services that DHS must offer to par-
ents. It says nothing about the power to order parents to
do anything. The words of the statute are directed to the
court’s power to manage DHS’s conduct, not at the power to
manage the conduct of a parent.
ORS 419B.387 provides some context and is signif-
icant to a proper understanding of ORS 419B.337. It shows
that, when the legislature intended to authorize a juvenile
court to order a parent to take a particular action, it knew
how to do so and it did so. More importantly, the plain text
of ORS 419B.387 shows that the legislature established
788 Dept. of Human Services v. W. C. T.
standards for issuing orders to parents to participate in
“treatment or training”: (1) an evidentiary hearing; (2) a
finding “that treatment or training” is needed by a parent
to correct the circumstances that resulted in wardship or to
prepare the parent to resume the care of the ward; and (3) a
finding that it is in the ward’s best interest for the parent to
participate in the treatment or training.
G. L. set a standard for ordering parents to submit
to psychological evaluations—a rational relationship to the
jurisdictional bases—that falls short of the requirements
set forth in ORS 419B.387 and has potential constitutional
implications. It is not incorrect that services offered to par-
ents must be rationally related to the jurisdictional bases. As
a practical matter, there must be some connection between
a court’s orders and the case in which the orders are issued,
and the court cannot order DHS to provide a psychological
evaluation unless there is a rational relationship. But G. L.’s
conclusion that a rational relationship alone would support
ordering parents to submit to psychological evaluations in a
dependency case was incorrect.
A court-ordered psychological evaluation is foren-
sic. It is not the result of a private, informed-consent discus-
sion between a patient and his or her chosen family physi-
cian, psychologist, therapist, or mental health provider. It
is instead a mental health evaluation requested by DHS, a
government agency, and ordered by the court, acting with
the authority of the judicial branch of government. A court-
ordered psychological evaluation represents a significant,
unconsented intrusion by the state into the life and psy-
che of the person subjected to it. Failure to comply with the
court’s order could result in contempt proceedings and, more
significantly, permanent disruption of the family and loss of
one’s children.
Moreover, psychological evaluations might differ
depending upon a host of variables, such as the adminis-
tering practitioner’s credentials and licensure, institutional
or clinical protocols, tests and inventories administered,
whether third-party interviews are conducted, questions
asked, and observations made. Although we concluded that
the psychological evaluation ordered in D. R. D. was justified
Cite as 314 Or App 743 (2021) 789
as a component of treatment or training needed to address
the underlying reasons for wardship and to help prepare the
parent to resume care of his child, a court may reach a dif-
ferent conclusion on a different record in a different case. It
might also reach the same conclusion but require entry of
an appropriate protective order to ensure protection of the
parents’ privacy or to limit the use of the evaluation to the
purpose for which it was sought and ordered—to assist with
the process of reunification.
Given the nature of the intrusion and the innate
variability of the evaluation that is the mechanism of intru-
sion, it is difficult to conclude that the privacy and paren-
tal liberty interests protected by the state and federal con-
stitutions could be authorized on a rational relationship
basis without the additional findings required under ORS
419B.387. I am not alone in making observations like these.3
I would hold that the juvenile court may order a par-
ent to participate in a psychological evaluation under ORS
419B.387 if, after conducting an evidentiary hearing, the
court determines that (1) “treatment or training” is needed
to correct an adjudicated basis of jurisdiction or to prepare
the parent to resume the child’s care; (2) the requested psy-
chological evaluation is itself the needed “treatment or train-
ing” or a component of the needed “treatment or training”
program; and (3) the parent’s participation in the requested
evaluation is in the child’s best interests. The majority
includes a “rational relationship” finding in its ultimate test
for court-ordered psychological evaluations. It would be dif-
ficult to disagree with the proposition that any time a court
issues a direct order to a party, it must have some rational
relationship to the pending case. But the majority need not
add “rational relationship” as a separate element of the test
because it is covered by the requirement that the requesting
party prove that “treatment or training” is needed to correct
an adjudicated basis of jurisdiction or to prepare the parent
3
See, e.g., In re T. R., 557 Pa 99, 108, 731 A2d 1276, 1281 (1999) (“Compelling
a psychological evaluation in this context is nothing more or less than social
engineering in derogation of constitutional rights, and where, as here, there is an
abundance of information about the ability of the parent to be a parent, there is
no state interest, much less a compelling state interest, in the ordering of paren-
tal psychological evaluations.”).
790 Dept. of Human Services v. W. C. T.
to resume the child’s care. Inclusion of a “rational relation-
ship” prong is duplicative and unnecessary and, it seems to
me, simply part of the spackling compound applied by the
majority as it smooths over and harmonizes conflict instead
of acknowledging our prior mistake based on an unfounded
assumption that no one questioned at the time.
I concur in part and, respectfully, dissent in part.
Egan, C. J., and Ortega, Lagesen, James, and
Aoyagi, JJ., join in this concurrence in part, dissent in part.