Dept. of Human Services v. R. W. C. ( 2023 )

598
Argued and submitted December 8, 2022, affirmed March 15, petition for
review denied July 20, 2023 (371 Or 308)
In the Matter of R. W. C., Jr.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
R. W. C., Sr.,
Appellant.
Jackson County Circuit Court
20JU03120; A178905
526 P3d 1195
Father appeals from an order of the juvenile court requiring him to submit to
a psychological evaluation, arguing that the juvenile court did not have authority
under ORS 419B.387 to order the evaluation, because the permanency plan for
his child had already been changed from reunification to adoption. Alternatively,
father argues that the Department of Human Services did not meet its burden
to show that the evaluation was needed by father. Held: Whether court-ordered
treatment or training is needed by a parent for one of the purposes stated in the
statute is a question to be answered based on the circumstances of the individual
case and is not answered solely by reference to the child’s current permanency
plan. Here, the juvenile court was authorized under ORS 419B.387, as supported
by the record developed at the evidentiary hearing, to order father to submit to a
psychological evaluation.
Affirmed.
David J. Orr, Judge.
Holly Telerant, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Office of Public Defense
Services.
Inge D. Wells, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 324 Or App 598 (2023) 599
ORTEGA, P. J.
In this juvenile dependency case, father appeals
from an order of the juvenile court requiring him to sub-
mit to a psychological evaluation. On appeal, father argues
that the juvenile court did not have authority under ORS
419B.387 to order the evaluation because the permanency
plan for his child had already been changed from reunifi-
cation to adoption. Alternatively, father argues that the
Department of Human Services (DHS or department) did
not meet its burden to show under ORS 419B.387 that the
evaluation was “needed by [father] to correct the circum-
stances that resulted in wardship or to prepare [father] to
resume the care of the ward.” We conclude that the juvenile
court was authorized under ORS 419B.387, as supported by
the record developed at the evidentiary hearing, to order
father to submit to a psychological evaluation. Accordingly,
we affirm.
We set out the relevant evidence developed below. In
July 2020, the juvenile court took jurisdiction over father’s
child, R, when R was a few months old. Father admitted
allegations in the petition that his residential instability
and chaotic lifestyle, substance abuse, failure to protect R
from mother’s neglectful behaviors, and arrest for assault
interfered with his ability to safely parent and endangered
R. In July 2021, the juvenile court changed R’s permanency
plan from reunification to adoption. After that change in
plan, DHS began pursuing the plan of adoption for R, but
also continued to provide services to father.
In March 2022, the department sought a court-
ordered psychological evaluation of father, which father
opposed. At the evidentiary hearing on that motion, DHS
stated that it sought the evaluation to identify any addi-
tional barriers father might have to ameliorating the bases
for jurisdiction, identifying that father had difficulty under-
standing information given to him by his treatment pro-
viders and arguing that it would be in R’s best interests to
understand why and address that.
Father’s substance abuse counselor, Preston, testi-
fied that father was engaging in substance abuse treatment
600 Dept. of Human Services v. R. W. C.
and had maintained his sobriety for nine months. Father
had “pretty good” attendance for group sessions, although
sometimes he would show up late or leave early, and he
attended “very few” individual sessions because he would
fail to show up. Preston also testified that father was main-
taining sobriety by cutting things out of his life, and Preston
was concerned that, if father opened his life back up, he
would return to old behaviors. Preston opined that the psy-
chological evaluation could help him to work with father on
addictive behaviors father was still demonstrating, such as
isolation, avoidance, and “victim thinking,” that put him at
risk of relapse. Preston acknowledged that his colleagues
had identified father as having a low risk of relapse due to
his nine months of sobriety. Preston testified that father
was “putting in the effort, but we’re not making the gains,
and so, my concern would be that we’re not able to get the
results that he would want out of this consistent with the
efforts that he’s putting into it.”
Stewart, father’s counselor from his residential
treatment program, also testified. Father had left the pro-
gram after 30 days to avoid being placed on a behavioral
contract. Stewart testified that father struggled the whole
time he was in the program, including with following a
schedule, attending group sessions, completing chores, and
understanding information and instructions. She testified
that he was not resistant to doing those things, but rather
that he appeared to struggle to understand. Stewart testi-
fied that
“he reported he struggled with comprehending when staff
would provide him with instructions * * * [and] we had to
explain things multiple times with multiple staff to get him
to come to group, to help him understand where he was
at in his DHS case because he—like he expected that his
child would [be] returned to him very quickly.”
As another example, she testified how father would continue
to spit or blow mucus out of his nose onto the ground in com-
mon areas, despite being reminded repeatedly not to do that
and him agreeing not to do it. She opined that a psychologi-
cal evaluation could help father’s providers understand why
he struggled to comprehend and remember information and
identify additional resources for him.
Cite as 324 Or App 598 (2023) 601
Rouhier, the DHS caseworker assigned to finalize
adoption for R, also testified. She explained that, although
R’s plan was adoption, DHS’s “practice [is] to continue to
make reunification efforts as long as parents still have
parental rights.” Rouhier confirmed that DHS was not
required to make reunification efforts after the change in
plan to adoption, but that it was DHS’s policy to do so when
the parent was engaged and cooperative. With father, those
continued efforts included meeting with him, offering ser-
vice referrals, offering him visitation with R, and engag-
ing in case planning. With regard to visitation, father con-
sistently showed up for weekly one-hour visits with R at a
DHS center. In January 2022, father’s visitation increased
to a two-hour in-home or community visit. Rouhier tes-
tified that a psychological evaluation would help DHS to
identify barriers for father because DHS had concerns
with father not engaging in domestic violence services,
being able to identify what is safe and not safe in parent-
ing R, and not internalizing what he learned in services.
Rouhier also testified that having father submit to the
evaluation was in R’s best interest because “having a par-
ent who is aware of what their challenges are and has sup-
ports in place to address them and is able to put his needs
ahead of their own, that is always going to be in his best
interest.”
The juvenile court ordered father to submit to a
psychological evaluation, finding that the witnesses were
credible and sincere and that an evaluation would be help-
ful for father’s treatment, particularly noting his inabil-
ity to remember information and conform his behavior to
the rules. The court stated that it easily found present the
four factors set out in Dept. of Human Services v. W. C. T.,
314 Or App 743, 776, 501 P3d 44 (2021), called into ques-
tion by Dept. of Human Services v. F. J. M., 370 Or 434, 520
P3d 854 (2022), which were (1) the evaluation is “rationally
related to the findings that bring the child into the court’s
jurisdiction”; (2) the evaluation is “a predicate component
of treatment or training of a parent”; (3) “[t]here is a need
for treatment or training to correct the circumstances that
caused the jurisdictional findings or to prepare the parent
for the child’s return”; and (4) “[t]he parent’s participation
602 Dept. of Human Services v. R. W. C.
in such treatment or training is in the best interest of the
child.”1
On appeal, father first reprises an argument that
he made below that the juvenile court did not have authority
under ORS 419B.387 to order him to submit to a psycho-
logical evaluation because R’s permanency plan had been
changed to adoption. That argument raises an issue of stat-
utory interpretation to which we apply our usual methodol-
ogy of seeking to determine the legislature’s intent by exam-
ining the statutory text in context, along with any helpful
legislative history. State v. Gaines, 346 Or 160, 171-72, 206
P3d 1042 (2009).
Here, 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.”
Father argues that the juvenile court did not have
authority to order the evaluation here because, once a child’s
plan has been changed to adoption, there can no longer be a
need for the parent to participate in treatment or training,
because the child is not returning to the parent’s home. DHS
disputes father’s reading of ORS 419B.387, pointing out that
a change in case planning to adoption is not irreversible
and that the evidence was that DHS’s policy is to continue
providing services while a parent has parental rights. DHS
argues that, here, the purpose for the evaluation was to
assist DHS in providing services for father, and the plan of
adoption did not divest the court of authority to order it.
1
After the juvenile court’s decision in this case, the Supreme Court issued its
decision in Dept. of Human Services v. F. J. M., 370 Or 434, 520 P3d 854 (2022). In
F. J. M., the court addressed whether and under what circumstances a juvenile
court could order a parent to submit to a psychological evaluation under ORS
419B.387. The court potentially left open the question of the effect of F. J. M. on
the factors announced in W. C. T., which were based on ORS 419B.337(2), ORS
419B.343(1)(a), and ORS 419B.387. See F. J. M., 370 Or at 440 n 3 (noting that the
court’s analysis “does not concern that newly recognized standard” announced in
W. C. T.). Here, however, the parties agree that F. J. M. provides the controlling
analysis for this case, which arises solely under ORS 419B.387, and, thus, we
conduct our analysis under F. J. M. and not W. C. T.
Cite as 324 Or App 598 (2023) 603
In addressing the parties’ arguments, we begin
with the Supreme Court’s recent opinion in Dept. of Human
Services v. F. J. M., 370 Or 434, 520 P3d 854 (2022). In that
case, the court held that a juvenile court could order a par-
ent to submit to a psychological evaluation as treatment
or training under ORS 419B.387, as long as the statutory
requirements were met. The court explained that those
requirements placed a limitation on the court’s authority to
order treatment or training:
“The legislature’s use of the term ‘needed’ demonstrates
an intent to circumscribe the juvenile court’s authority and
prevent a court from ordering evaluations and testing in
every case to determine if a parent has a need for treat-
ment. The legislature further circumscribed the juvenile
court’s authority by requiring that the ordered treatment
be needed by the parent for a particular purpose—that
is, the purpose of ameliorating the circumstances that
resulted in the wardship or preparing the parent to resume
care of the ward. However, even though what is ‘needed’ is
often a matter of degree, the legislature did not impose a
requirement of absolute need in the sense that the juvenile
court must find that it would be impossible for the parent
to correct the circumstances resulting in wardship without
engaging in the ordered treatment.”
Id. at 447 (internal citation omitted; emphasis in original).
Thus, as explained in F. J. M., to order a psycho-
logical evaluation under ORS 419B.387, the court must find
that the parent “needed” the evaluation for “the purpose of
ameliorating the circumstances that resulted in the ward-
ship or preparing the parent to resume care of the ward.”
Id. The crux of father’s argument here is that an evalua-
tion can never be “needed” when the case planning for the
child is adoption because, at that point, DHS is proceeding
with terminating parental rights, which removes any need
to address parenting deficits or the circumstances that
resulted in the wardship. We do not agree that the statute
operates in such a stark manner.
As further explained in F. J. M., the question of
whether treatment is needed by a parent is “a fact-specific
inquiry that depends on the circumstances of each individ-
ual case.” Id. That is no less true when the plan for a child
604 Dept. of Human Services v. R. W. C.
has been changed from reunification to adoption. We can
readily imagine case-specific circumstances where treat-
ment or training is needed by the parent for the purposes
provided in the statute, even when the case planning for the
child is adoption. Such circumstances could include a party
advocating for a change in plan either back to reunification
or to a guardianship plan with continued contact between
the parent and child. As pointed out by the state, a change
in plan to adoption is not necessarily irreversible.2 See Dept.
of Human Services v. S. S., 283 Or App 136, 144, 388 P3d
1178 (2016) (rejecting issue preclusion argument because
“[a] meaningful [permanency hearing] evaluation neces-
sarily means that the prior evaluation is not automatically
preclusive”); see also ORS 419B.470(6) (“Unless good cause
otherwise is shown, the court shall also conduct a perma-
nency hearing at any time upon the request of the depart-
ment, an agency directly responsible for care or placement
of the child or ward, parents whose parental rights have not
been terminated, an attorney for the child or ward, a court
appointed special advocate, a citizen review board, a tribal
court or upon its own motion.”). There are any number of
circumstances that could occur in an individual case that
may prevent, or significantly delay, termination of paren-
tal rights after a change in plan to adoption. Based on the
particular circumstances of the case, it may be in the child’s
best interest for a court to order the parent to undertake
treatment or training needed to address the circumstances
that led to the child’s wardship, even after a change in plan
away from reunification.
Conversely, nothing in the text of ORS 419B.387
supports father’s position that a juvenile court is categor-
ically stripped of authority to order a parent to engage in
needed treatment or training while a parent still retains
parental rights to the child, but after a change in plan
away from reunification, when such treatment or training
is in the child’s best interests. Rather, the statute says that
permissible purposes for the treatment or training are “to
correct the circumstances that resulted in wardship or to
2
We take judicial notice that that circumstance, in fact, subsequently
occurred in this case. In August 2022, the juvenile court entered a permanency
plan that changed R’s plan to reunification with father.
Cite as 324 Or App 598 (2023) 605
prepare the parent to resume the care of the ward.” ORS
419B.387 (emphasis added). To prepare the parent for the
return of the child to the parent’s care is only one of the two
permissible purposes. We conclude that whether the ordered
treatment is “needed” for one of the purposes stated in the
statute is a question to be answered based on the circum-
stances in the individual case and is not answered solely by
reference to the child’s current permanency plan.3
Father also argues that the department failed
to meet its burden to show that he “needed” a psychologi-
cal evaluation as required by ORS 419B.387. As an initial
matter, father asserts that the question we must answer—
whether father “needed” the treatment—is a legal one; while
the state asserts that it is a factual finding. This issue, how-
ever, is no different than other issues we must confront in
juvenile dependency that require us to determine whether a
juvenile court could find that a statutory requirement was
met based on the record before it. Thus, we apply our usual
standard of review and view “the evidence, as supplemented
and buttressed by permissible derivative inferences, in the
light most favorable to the [juvenile] court’s disposition and
assess whether, when so viewed, the record was legally suf-
ficient to permit that outcome.” Dept. of Human Services v.
N. P., 257 Or App 633, 639, 307 P3d 444 (2013).
Before addressing father’s specific arguments, we
return to the guidance provided in F. J. M. for ordering
treatment or training under ORS 419B.387:
“[A]s with many other questions, in determining whether
treatment is needed by the parent, a juvenile court must
engage in a fact-specific inquiry that depends on the cir-
cumstances of each individual case, and its finding of need
must be grounded in the evidence presented at the evi-
dentiary hearing. In making that finding, a juvenile court
may typically consider a variety of factors, such as (1) the
circumstances that resulted in wardship (e.g., substance
abuse, mental health issues, other circumstances); (2) the
3
We decline father’s invitation to extend our holding in Dept. of Human
Services v. P. W., 302 Or App 355, 460 P3d 1044 (2020), beyond the specific facts
of that case, which were that mother’s parental rights had already been termi-
nated at the time that the juvenile court ordered her to submit to a psychological
evaluation.
606 Dept. of Human Services v. R. W. C.
extent to which the treatment that the court is consider-
ing will correct those circumstances or otherwise prepare
the parent to resume the ward’s care; (3) the availability of
alternatives to the treatment that the court is considering
that will correct the circumstances that resulted in ward-
ship or otherwise prepare the parent to resume the ward’s
care; (4) the effectiveness of a parent’s prior attempts, if
any, to ameliorate those circumstances; and (5) the length
of time over which those prior attempts were made. We
construe the statute to require that a juvenile court’s find-
ing that particular treatment (e.g., a psychological eval-
uation) is needed by the parent must be connected more
than tenuously to the jurisdictional bases that the treat-
ment is being ordered to correct, and that it must be based
in and supported by the evidentiary record. As we have
explained, the circumstances of each case must be evalu-
ated independently.”
370 Or at 447-48 (emphasis in original).
Against that backdrop, father argues that DHS
failed to meet its burden to show that he needed the psycho-
logical evaluation to address his parenting deficits. Father
argues that the testimony identified generalized concerns
about his ability to remember information and that the eval-
uation was sought to help “identify barriers” father might
have. However, father asserts, that generalized concern was
not more than “tenuously” connected to the jurisdictional
bases as neither of father’s service providers described
father as having a barrier to his substance abuse treatment.
In addition, father argues that the unspecified barriers or
services referred to at the hearing were not related to the
jurisdictional bases, as he was already successfully address-
ing his substance abuse, and were not related to his resum-
ing care of R as long as the plan for R remained adoption.
DHS argues that the record supports the juvenile
court’s finding that father needed the evaluation because,
although father had maintained sobriety for nine months,
he was at risk of relapse if he did not address his underly-
ing behaviors. Preston, Stewart, and Rouhier all expressed
concerns about father’s ability to remember and understand
information and opined that an evaluation could identify
approaches that would allow father to be successful in his
recovery. See F. J. M., 370 Or at 445 (stating that treatment
Cite as 324 Or App 598 (2023) 607
and training encompasses evaluation and testing compo-
nents and “such components can assist (1) in determining
the cause or nature of the circumstances resulting in ward-
ship, (2) in managing those circumstances, (3) in tailoring
how a treatment can be effectively delivered, (4) in gaug-
ing a treatment’s effectiveness, and (5) in identifying other
treatment components”).
In view of the record, we conclude that the juvenile
court was authorized under ORS 419B.387 to order father
to participate in a psychological evaluation. At the hear-
ing, the juvenile court tied the psychological evaluation to
father’s treatment for substance abuse, because relapse
remained a danger, and specifically referenced the testi-
mony that father was unable to conform his behavior to the
rules and could not remember information given to him. The
court also stated that it found the testimony sincere and
that it did not believe DHS was seeking the evaluation as
part of a fishing expedition or to use in the termination of
parental rights case. As such, we understand the juvenile
court to have ordered the evaluation as treatment, given the
court’s finding that father has evinced barriers to taking
in information and addressing his concerning behavior, and
not as a discovery tool to determine if father had such bar-
riers to treatment, as asserted by father. Viewing the rea-
sonable inferences from the evidence in favor of the court’s
disposition, we conclude that the juvenile court finding that
father needed the psychological evaluation to address his
substance abuse, which was one of the jurisdictional bases
for R’s wardship, was not in error. As a result, we affirm the
juvenile court’s order.
Affirmed.