Dept. of Human Services v. E. J. ( 2021 )

537
Argued and submitted October 28, reversed and remanded December 22, 2021,
petition for review allowed April 7, 2022 (369 Or 507)
See later issue Oregon Reports
In the Matter of S. J.,
aka B. G. J., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
E. J.,
aka E. L. J.,
Appellant.
Multnomah County Circuit Court
19JU08234;
Petition Number 113871;
A176088
504 P3d 1262
Mother appeals from a juvenile court order denying her motion in limine
to prohibit the Department of Human Services (DHS) from using a psycholog-
ical evaluation that was created when she was a ward of the court as evidence
against her in a dependency matter involving her child. Invoking ORS 419A.255
and Kahn v. Pony Express Courier Corp., 173 Or App 127, 20 P3d 837, rev den,
332 Or 518 (2001), mother argues that material is privileged. The state concedes
that the juvenile court erred by authorizing disclosure under ORS 419A.255, but
argues that the “right for the wrong reason” doctrine allows affirmance because
the information from when mother was a ward of the court can be used under the
authority of ORS 409.225. Held: ORS 419A.255 creates a privilege that applies to
“history and prognosis” information found in either the supplemental confiden-
tial file or the record of the case. That privilege cannot be defeated by disclosing
duplicate materials in the possession of DHS. As the proponent of the records,
DHS had the burden to show that the records were not privileged. Because DHS
failed to show that the information at issue was not privileged, the Court of
Appeals reversed the juvenile court’s order.
Reversed and remanded.
Beth A. Allen, Judge.
Christa Obold Eshelman argued the cause and filed the
brief for appellant.
Inge D. Wells, Assistant Attorney General, argued
the cause for respondent. Also on the brief was Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
538 Dept. of Human Services v. E. J.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
JAMES, J.
Reversed and remanded.
Cite as 316 Or App 537 (2021) 539
JAMES, J.
In this juvenile dependency case, mother was for-
merly a ward of the court when she was a juvenile. Now,
years after mother’s wardship ended, Department of Human
Services (DHS) asserted dependency jurisdiction over moth-
er’s child, S. DHS sought to compel mother to submit to a
psychological evaluation, and as a component of that antic-
ipated evaluation, DHS sought to disclose, to the psychol-
ogist, a report from mother’s juvenile file. Mother moved,
in limine, to prohibit DHS’s use of the report “as evidence”
against her. The trial court denied mother’s motion, ruling
that disclosure of the report was permissible under ORS
419A.255(3)(b).
On appeal, DHS argues that because the report
would only be provided to a psychologist, it is premature to
conclude that it would be used as “evidence” against mother,
and therefore, mother’s challenge to the juvenile court rul-
ing is not ripe for review. Alternatively, on the merits, DHS
concedes that the juvenile court erred when it authorized
the disclosure under ORS 419A.255(3)(b) but asks us to
affirm the court’s order under the “right for the wrong rea-
son” doctrine by finding that the disclosure is permitted by
ORS 409.225. For the reasons that follow, we reverse and
remand.
We review the juvenile court’s construction and
application of a statute as a question of law. State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009). Furthermore, we
review the juvenile court’s legal conclusions for errors of
law, but we are bound by the court’s findings of historical
fact so long as there is evidence to support them. Where
findings are not made on disputed issues of fact and there
is evidence from which those facts could be decided more
than one way, we will presume that they were decided in a
manner consistent with the juvenile court’s ultimate conclu-
sion. State v. S. T. S., 236 Or App 646, 654-55, 238 P3d 53
(2010).
The facts in the case are largely procedural and
not in dispute. The following facts are taken from the juve-
nile referee and the juvenile court’s findings. The referee
540 Dept. of Human Services v. E. J.
found that on November 6, 2019, DHS filed a petition alleg-
ing that mother’s children were endangered. This informa-
tion was based on a report that listed “Prior Involvement”
incidents that included events occurring between 2006 and
2013 listed under the maternal grandfather’s case name
while mother was a ward of the court. Specifically, mother’s
wardship was between 2009 and 2016. She gave birth to S
in 2014, and mother was a ward of the court for the first
16 months of S’s life. Mother has another daughter who is
not the subject of this matter. In February 2020, mother
admitted that her children were endangered and subject to
the court’s jurisdiction. In November 2020, mother admitted
that the children were endangered because of “an ongoing
pattern [of] traumatic events she has suffered throughout her
life * * * lead[ing] to an inability to recognize unsafe indi-
viduals and chaos, which interfere with her ability to safely
parent the children.” On November 25, 2020, the referee
ordered mother to participate in a psychological evaluation
and begin any treatment recommended by that evaluation.
DHS had records in its possession about mother from when
she was a ward of the court that it wanted to provide to
the examining psychologist for consideration during that
evaluation.
On January 8, 2021, mother filed a motion in limine
with the juvenile referee to deny disclosure of “all records
and information that relate[d] to [her] history and progno-
sis appearing in the supplemental confidential file (SCF) or
record of her own case (ROC) as a ward of court based on
the limits in ORS 419A.255, ORS 419B.035, ORS 409.225,
and DHS regulations.” Mother moved the court to order that
the privileged and confidential information not be disclosed,
including the psychological evaluation conducted when she
was a ward of the court. The juvenile referee ordered that
DHS records compiled during mother’s wardship that were
relevant for understanding her past trauma were to be sub-
mitted for an in camera inspection. The court further deter-
mined that it would release those records to the psychologist
if they were necessary for the psychologist to view and rely
upon in forming a diagnosis and recommendation for ser-
vices. The referee also set other criteria for the custody of
the records if they were to be released.
Cite as 316 Or App 537 (2021) 541
Mother appealed the referee’s order to the juve-
nile court. That court denied the motion and held that “the
report at issue” could be “ ‘used as evidence’ against Mother
in the juvenile court proceeding concerning her.” The court
construed ORS 419A.255(3)(b) to provide authority for using
the report because “it is in connection with a proceeding in
a juvenile court concerning her.” Thus, the court reasoned
that the privilege did not apply. Notably, the juvenile court
did not make a finding about whether or not the “report at
issue” was “history and prognosis” information contained in
the record of the case or the supplemental confidential file.
However, the court’s construction suggested that the report
was privileged under the statute but qualified for the excep-
tion that it identified in ORS 419A.255(3)(b). In the juvenile
court, mother moved for a stay pending appeal. In response,
DHS specified the records at issue, including “summa-
ries created by the ODHS permanency worker regarding
Mother’s time as a ward of the Court, and a prior psycho-
logical evaluation of the Mother from 2015.” The juvenile
court denied mother’s motion for a stay pending appeal and
ordered the preparation of a protective order to ensure that
“the previous evaluation is for the current evaluator’s eyes
only until further order of the court, and any addendum that
results from the review by the evaluator may not be released
until further order of the court.” This appeal followed.
We begin with DHS’s argument that the issue in this
case is not ripe for review. Ripeness “depends on ‘whether
the controversy involves present facts as opposed to hypo-
thetical future events.’ ” Rowden v. Hogan Woods, LLC, 306
Or App 658, 679, 476 P3d 485 (2020) (quoting Menasha
Forest Products Corp. v. Curry County Title, 234 Or App 115,
120, 227 P3d 770 (2010), rev’d in part on other grounds, 350
Or 81, 249 P3d 1265 (2011)). Here, the trial court’s order per-
mitted production of the records to a psychologist. The pro-
duction was not benign—it was a tool to be used in litigation
and cannot be said to involve a “hypothetical future event.”
Further, mother is asserting a privilege against disclosure.
If mother is correct, and the material is privileged, such pro-
tections would be meaningless if they cannot be enforced
until the improper disclosure is turned into “evidence.” In
short, we conclude the issue is ripe.
542 Dept. of Human Services v. E. J.
Turning to the statutes at issue, mother argues that
ORS 419A.255 grants a privilege that should apply to the
records at issue from her wardship thereby making them
inaccessible to DHS for use in the dependency matter involv-
ing her child. ORS 419A.255 is found in the juvenile code
and pertains to the juvenile court’s records. Mother claims
that ORS 419A.255(2) and (3) provide authority for the
privilege she asks this court to recognize. Subsection (2)(a)
codifies the kinds of materials that are subject to that
privilege:
“Reports and other material relating to the child, ward,
youth or youth offender’s history and prognosis in the record
of the case or the supplemental confidential file are privi-
leged and, except at the request of the child, ward, youth
or youth offender, shall be withheld from public inspection
except that inspection is permitted as set forth in subsec-
tion (1)(b) of this section and paragraph (b) of this subsec-
tion. The offer or admission of reports and other material in
the record of the case or the supplemental confidential file
as exhibits in a hearing or trial does not waive or otherwise
change the privileged status of the reports and other mate-
rial, except for purposes of the hearing or trial in which the
reports and other material are offered or admitted. Once
offered as an exhibit, reports and other material relating
to the child, ward, youth or youth offender’s history and
prognosis that were maintained in the supplemental con-
fidential file become part of the record of the case but are
subject to paragraph (e) of this subsection.”
ORS 419A.255(2)(a) (2019).1
Subsection (3) sets forth the circumstances in which
this privilege applies and the exceptions to it:
“Except as otherwise provided in subsection (5) of this
section, no information appearing in the record of the case
or in the supplemental confidential file may be disclosed to
any person not described in subsections (1)(b) and (2)(b) of
this section, respectively, without the consent of the court,
except for purposes of evaluating the child, ward, youth
or youth offender’s eligibility for special education as pro-
vided in ORS chapter 343, and no such information may
1
ORS 419A.255 was recently amended by Or Laws 2021, ch 489, § 52, but
those changes do not alter the analysis here.
Cite as 316 Or App 537 (2021) 543
be used in evidence in any proceeding to establish crimi-
nal or civil liability against the child, ward, youth or youth
offender, whether such proceeding occurs after the child,
ward, youth or youth offender has reached 18 years of age
or otherwise, except for the following purposes:
“(a) In connection with a presentence investigation
after guilt has been admitted or established in a criminal
court.
“(b) In connection with a proceeding in another juve-
nile court concerning the child, ward, youth or youth
offender or an appeal from the juvenile court.”
ORS 419A.255(3) (2019).
Both parties agree that the juvenile court erred by
interpreting ORS 419A.255(3)(b) as authority for granting
DHS access to mother’s records. We agree. The juvenile
court reasoned that
“the statute makes clear that regardless whether ‘the child’
has reached the age of majority, the ROC [(record of the
case)] and SCF [(supplemental confidential file)] may be
used in a proceeding in another juvenile court (not the same
juvenile court that had jurisdiction over ‘the child’) if it con-
cerns ‘the child.’ In other words, a person who was once a
‘child’ as designated by the court for juvenile proceedings,
continues to be denominated as ‘child’ regardless of attain-
ing the age of majority. As it pertains to this case, Mother,
now an adult, is ‘the child’ and evidence concerning her may
be used in this juvenile hearing because it is in connection
with a proceeding in a juvenile court concerning her.”
This interpretation is troubled by the plain lan-
guage of the statute because mother is not “the child” that
concerns the juvenile court in this statute. Paragraph (3)(b)
reads plainly that it applies “[i]n connection with a proceed-
ing in another juvenile court concerning the child, ward,
youth or youth offender or an appeal from the juvenile
court.” This case does not concern mother in these terms:
it concerns her daughter. Similarly, ORS 419A.255(1)(b)
and (2)(b) provides a list of parties for which the record of
the case and the supplemental confidential file are “open to
inspection.” This includes “[t]he judge of the juvenile court
and those acting under the judge’s direction” in addition to
“[a]ny other person or entity allowed by the court pursuant
544 Dept. of Human Services v. E. J.
to ORS 419A.258.” Again, these provisions regard the juve-
nile court and parties acting in connection with the juvenile
matter related to the ward, and mother is not the ward in
this action.
However, DHS argues that ORS 409.225—not ORS
419A.255—should control the disclosure of the records
because DHS possesses the records, not the court. DHS
advances a “right for the wrong reason” argument that ORS
409.225 makes the records confidential unless an exception
is met.2 That statute provides:
“In the interest of family privacy and for the protection
of children, families and other recipients of services, the
Department of Human Services shall not disclose or use
the contents of any child welfare records, files, papers or
communications that contain any information about an
individual child, family or other recipient of services for
purposes other than those directly connected with the
administration of child welfare laws or unless required
or authorized by ORS 419A.255 or 419B.035. The records,
files, papers and communications are confidential and are
not available for public inspection. General information,
policy statements, statistical reports or similar compila-
tions of data are not confidential unless such information
is identified with an individual child, family or other recip-
ient of services or protected by other provision of law.”
ORS 409.225(1) (2019). Specifically, DHS claims that it can
use mother’s juvenile records in the dependency matter
involving her child because it is “directly connected with the
administration of child welfare laws.” Id.That argument requires us to read ORS 419A.255
in concert with ORS 409.225(1) to identify the nature of the
privilege at issue and whether or not it applies to the adult
mother’s juvenile records in a separate juvenile court pro-
ceeding involving her daughter. This task extends our work
in Kahn v. Pony Express Courier Corp., 173 Or App 127, 20
P3d 837, rev den, 332 Or 518 (2001), where we determined
2
We can affirm a “ruling on appeal, even if the trial court’s legal reasoning
for the ruling was erroneous, if another legally correct reason and, to the extent
necessary, the record developed in the trial court support the ruling.” Outdoor
Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659, 20 P3d 180 (2001)
(quoting State v. Rogers, 330 Or 282, 295, 4 P3d 1261 (2000)).
Cite as 316 Or App 537 (2021) 545
that ORS 409.225(1) must be read along with ORS 419A.255
because the latter statute is cited in the former. Kahn
understood ORS 409.225 as applying to DHS records in
the possession of DHS; under that statute, such records are
confidential but not privileged. However, Kahn found that
a certain type of juvenile record—so-called “history and
prognosis” records—were privileged generally under ORS
419A.255 regardless of their location. Kahn, 173 Or App at
141-42. Thus, even “history and prognosis” records solely in
the possession of DHS would be privileged.
Under Kahn, both parties agree that mother’s juve-
nile records are privileged and could not be used. However,
the language of ORS 419A.255 has changed since our deci-
sion in Kahn. Mother has staked the claim that Kahn con-
tinues to control the interpretation of these statutes by priv-
ileging all “history and prognosis” information contained in
DHS records; DHS responds that Kahn no longer grants a
broad privilege for history and prognosis records generally
because of the 2013 amendments to the relevant statutory
sections.
The defendants in Kahn, which was a wrongful
death action, sought the production of SCF (now DHS)
records that were in the possession of the plaintiff’s legal
counsel. Kahn, 173 Or App at 130. They argued that they
were entitled to discovery of those records under ORCP 36
B(1) and that ORS 409.225 did not prohibit their disclosure.
Id. at 131. Defendants understood ORS 409.225 to prohibit
SCF from disclosing its own records and not other parties
who were in possession of such records.
In Kahn, we considered the threshold question of
whether, as a matter of law, there was a privilege against the
discovery of SCF records under ORS 409.225 or any other
statute. We determined the legislature’s intended meaning
of the statute by first looking at its text and context by fol-
lowing the analysis set out in PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). ORS
409.225 provides for DHS’s use of records:
“In the interest of family privacy and for the protection
of children, families and other recipients of services, the
Department of Human Services shall not disclose or use
546 Dept. of Human Services v. E. J.
the contents of any child welfare records, files, papers or
communications that contain any information about an
individual child, family or other recipient of services for
purposes other than those directly connected with the
administration of child welfare laws or unless required
or authorized by ORS 419A.255 or 419B.035. The records,
files, papers and communications are confidential and are
not available for public inspection. General information,
policy statements, statistical reports or similar compila-
tions of data are not confidential unless such information
is identified with an individual child, family or other recip-
ient of services or protected by other provision of law.”
ORS 409.225(1) (2019).3
We interpreted the foregoing language to establish
the requirements relating to the disclosure of DHS records
by DHS. Kahn, 173 Or App at 138-39. The second sentence
of subsection (1) makes such records generally confiden-
tial. However, as we said in Kahn, this directive is supple-
mented by, and an exception is provided in, the first sen-
tence of subsection (1), which expressly prohibits DHS from
disclosing or using such records except “for purposes * * *
directly connected with the administration of child welfare
laws or unless required or authorized by ORS 419A.255 or
ORS 419B.035.” Kahn, 173 Or App at 137-38. We found no
authority under the statute for the disclosure of the records
by plaintiff’s counsel to defendants, although we did deter-
mine that they were not invulnerable to discovery under
ORCP 36 B(1) because we did not read ORS 409.225 as
privileging DHS records. Therefore, the confidential records
could be subject to discovery. However, we concluded that
the related statutes cited in ORS 409.225(1) regard the dis-
closure of juvenile records generally under ORS 419A.255,
and the requirements for the confidentiality of child abuse
reporting records under ORS 419B.035. Kahn, 173 Or App
at 137-40. We interpreted ORS 419A.255(2) to mean “that
records—including [DHS] records—containing information
about a child’s medical, psychological, and personal and
family background and predicted future condition or status
were privileged[.]” Id. at 141-42. Therefore, we concluded
3
ORS 409.225 has been amended since Kahn, but those changes do not alter
the analysis here.
Cite as 316 Or App 537 (2021) 547
that given the omission of the term “privileged” from ORS
409.225, DHS records are not privileged unless they are
also records relating to a child’s history and prognosis as
defined under ORS 419A.255. Id. at 142.
The statutory language we relied on in Kahn was
found in the former version of ORS 419A.255 (1997):
“(2) Reports and other material relating to the child’s
or youth’s history and prognosis are privileged and, except
at the request of the child or youth, shall not be disclosed
directly or indirectly to anyone other than the judge of the
juvenile court * * *.
“(3) Except as otherwise provided in subsection (7) of
this section, no information appearing in the record of the
case or in reports or other material relating to the child’s
or youth’s history or prognosis may be disclosed to any per-
son not described in subsection (2) of this section without
the consent of the court, except for purposes of evaluating
the child’s or youth’s eligibility for special education as pro-
vided in ORS chapter 343, and no such information may
be used in evidence in any proceeding to establish crim-
inal or civil liability against the child or youth, whether
such proceeding occurs after the child or youth has reached
18 years of age or otherwise, except for the following
purposes:
“(a) In connection with a presentence investigation
after the guilt of the youth has been admitted or estab-
lished in a criminal court.
“(b) In connection with a proceeding in another juve-
nile court concerning the child or youth or an appeal from
the juvenile court.”
ORS 419A.255(2), (3) (1997) (emphasis added). In 2013, the
legislature changed the phrasing to enumerate the locations
of these records in the “supplemental confidential file” or the
“record of the case”:
“Reports and other material relating to the child, ward,
youth or youth offender’s history and prognosis in the sup-
plemental confidential file or record of the case are privi-
leged and, except at the request of the child, ward, youth or
youth offender, shall be withheld from public inspection.”
ORS 419A.255(2)(a) (2013) (emphasis added).
548 Dept. of Human Services v. E. J.
In contrast to the former version, the amendments
to the statute specify that the privilege extends to material
about the youth’s “history and prognosis in the supplemental
confidential file or record of the case.” ORS 419A.255(2)(a)
(2013). We must now address the consequence of these statu-
tory changes on Kahn’s holding to determine if DHS records
related to history and prognosis information generally con-
tinue to be privileged.
Our interpretation of a statute is governed by
Gaines, 346 Or at 171-72. The first and most important step
is an examination of the text and context. This is followed
by a consideration of the legislative history if it is useful
for the court’s analysis, and we must determine its “evalu-
ative weight.” Id. If the legislature’s intent remains unclear
after examining text, context, and legislative history, the
court may resort to general maxims of statutory construc-
tion to aid in resolving the remaining uncertainty. Id. at
172.
The legislature changed the language of the stat-
ute to identify the location of “history and prognosis” infor-
mation in either “the supplemental confidential file or the
record of the case.” ORS 419A.255(2)(a) (2013). This is a
significant narrowing of the language that we relied on in
Kahn. Mother argues that the legislative history demon-
strates that the intent was to leave the privilege intact to
cover all “history and prognosis” DHS records. Indeed, tes-
timony before the Judiciary Committee by a representative
of the Oregon Law Commission (OLC) demonstrated an
intent to clear up the confusing language used to describe
the so-called “social file,” which would be termed the “sup-
plemental confidential file” in the amended statute. That
same testimony mentioned a desire by the commission to
continue the “history and prognosis phrasing that case-
law has so developed.” Audio Recording, Senate Committee
on Judiciary, SB 622, Apr 10, 2013, at 16:20 (comments by
Wendy Johnson) https://olis.oregonlegislature.gov (accessed
Nov 24, 2021). Furthermore, the OLC report submitted to
the committee makes its objective explicit for the new provi-
sions to maintain the strength of the privilege. For example,
the proposed amendment to subsection (2)(a)
Cite as 316 Or App 537 (2021) 549
“provides that ‘history and prognosis’ reports and material
will continue to be privileged—whether maintained in the
supplemental confidential file or whether they ultimately
become part of the record of the case. Attaching ‘history
and prognosis’ material to a motion will not make the
material lose its privileged status. The work group found it
very important to keep this material privileged to preclude
public access to these sensitive records.”
Oregon Law Commission, Juvenile Records Work Group
Report 14 (2013). The testimony and report make clear the
legislative intent to demarcate both the legal file and the
supplemental confidential file as the juvenile court records.
Indeed, the very language of the statute demonstrates this
intention.
Because the legislative history offered here neither
reveals a latent ambiguity in the words nor contradicts our
understanding of the import of the words themselves, the
text conveys its plain meaning, which is that “history and
prognosis” information found in the supplemental confiden-
tial file or the record of the case is privileged—not all “his-
tory and prognosis” information contained in DHS’s files.
Our interpretive task, however, does not end there. We must
consider the “history and prognosis” information that is
located in the juvenile court files in addition to other places
such as DHS’s files.
ORS 419A.252(5) defines the materials in the sup-
plemental confidential file that “includes reports and other
material relating to the child, ward, youth or youth offender’s
history and prognosis, including but not limited to reports
filed under ORS 419B.440.” Furthermore, the “record of the
case” includes such items as the summons, petitions, and
“affidavits and other papers that are filed with the court,
including supporting documentation.” ORS 419A.252(4).
Other statutes require that DHS provide its records for
inclusion in the supplemental confidential file and court file.
See ORS 419B.440.
ORS 419A.255(2)(a) references a broad range of
materials that can qualify for the privilege. It would con-
tradict the plain meaning of that language if the privilege
could be defeated by finding the same materials in duplicate
550 Dept. of Human Services v. E. J.
from the originating source such as DHS’s files. Therefore,
we interpret the statute to mean that if any “history and
prognosis” material is located in either the supplemen-
tal confidential file or the record of the case, the privilege
attaches to this material, and it applies regardless if these
same materials exist in duplicate elsewhere. The narrow
issue in this case does not call upon us to delineate the full
range of instances when the privilege would apply, or how
it might be waived. Here, DHS sought to disclose the mate-
rial; regardless of what other situations and actors may or
may not fall under the statute’s ambit, DHS clearly does.
And DHS cannot defeat the privilege because the particu-
lar report or other material relating to the ward originated
from its own files that it still possesses. By the same token,
if the material that DHS seeks to disclose is not “history
and prognosis” information found in the supplemental con-
fidential file or the record of the case, it is not privileged for
the purposes of ORS 419A.255, although it might still be
confidential under ORS 409.225(1).
Here, DHS, as the proponent of the records, has not
demonstrated that the records at issue overcome the privi-
lege codified in ORS 419A.255. DHS had the burden to show
that the records were not (1) history and prognosis informa-
tion and (2) that they were not located in the supplemental
confidential file or record of the case. The record here fails to
establish either. Accordingly, the trial court erred in order-
ing disclosure.
Reversed and remanded.