Dept. of Human Services v. H. G. M. ( 2023 )

610
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 24; reversed and remanded for entry of judgments omitting
order for psychological evaluation, otherwise affirmed April 26, 2023
In the Matter of R. J. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
R. J. M.,
Respondent,
v.
H. G. M.,
aka H. M.,
aka H. G. M.,
aka H. M.,
Appellant.
Columbia County Circuit Court
22JU03312; A179779 (Control)
In the Matter of L. D. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
L. D. M.,
Respondent,
v.
H. G. M.,
aka H. M.,
aka H. G. M.,
aka H. M.,
Appellant.
Columbia County Circuit Court
22JU03313; A179780
Nonprecedential Memo Op: 325 Or App 610 (2023) 611
In the Matter of B. N. K. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
B. N. K. M.,
Respondent,
v.
H. G. M.,
aka H. M.,
aka H. G. M.,
aka H. M.,
Appellant.
Columbia County Circuit Court
22JU03314; A179781
Michael T. Clarke, Judge.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Elena Stross, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent Department
of Human Services.
Erica Hayne Friedman and Youth, Rights & Justice filed
the brief for respondent children.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Reversed and remanded for entry of judgments omitting
order for psychological evaluation; otherwise affirmed.
612 Dept. of Human Services v. H. G. M.
PAGÁN, J.
In this consolidated juvenile dependency appeal,
mother challenges the juvenile court’s order that she undergo
a psychological evaluation. ORS 419B.387 authorizes a
juvenile court, following an evidentiary hearing, to order
a “parent to participate in the treatment or training” that
“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.” Mother contends that the psychological
evaluation ordered by the juvenile court was not “needed”
by mother to address the jurisdictional bases she admitted.
We agree with mother and therefore reverse and remand
the judgments of jurisdiction and disposition over mother’s
children with instructions to enter judgments without the
order for mother’s psychological evaluation.
In July 2022, the Department of Human Services
(DHS) removed mother’s three children from her care fol-
lowing her arrest for driving under the influence of alcohol
while one of the children was in the car. After DHS filed the
dependency petitions, mother admitted to several bases for
dependency jurisdiction—viz., substance abuse that inter-
fered with mother’s ability to safely parent the children;
exposure to domestic violence; and communication and trust
issues between mother and children, which required thera-
peutic services.
Immediately after mother’s admissions, the juve-
nile court continued with the hearing to consider DHS’s
requests for dispositional orders, including a request that
mother submit to a “psychological evaluation that would
include parent-child interaction studies.” The court received
evidence in the form of the DHS pretrial conference report,
a report by the court-appointed special advocate, and testi-
mony of a DHS caseworker.1
At the time of the hearing, mother was already
engaged in several services, including substance abuse
treatment, mental health treatment, and domestic violence
1
The DHS pretrial conference report included evidence that mother had
been referred to substance abuse services by DHS in 2018, 2021, and 2022, and
noted concerns about mother’s dishonesty and minimization of alcohol abuse.
Nonprecedential Memo Op: 325 Or App 610 (2023) 613
education. DHS was in the process of securing skills train-
ing and counseling for each of the children.
The DHS caseworker testified that DHS wanted
mother to have the evaluation because it was concerned
that proceeding without the evaluation could “hold up” later
developments in the cases. The caseworker specifically high-
lighted the “parent-child interaction” and explained that the
children’s therapy would not cover that topic; the caseworker
also noted the two older children’s “fear of the home or fear
of what had happened” as justification for seeking the psy-
chological evaluation.
On cross-examination, the caseworker admitted
that because there would be no separate evaluation of the
children, mother’s evaluation would not necessarily explain
the reasons why her children reacted in a particular way.
The caseworker did not explain what additional services
would be recommended to mother, instead stating that
“hopefully the psychologist would be able to give [DHS] rec-
ommendations on what kind of therapy, family therapy, or
other services that might help repair that relationship.”
After testimony from the caseworker, the court
ruled on the request for a psychological evaluation and
stated:
“So, with regard to the psychological evaluation, it sure
does sound like it would be very beneficial to the reunifi-
cation process and it certainly sounds like it’s rationally
related. It’s reasonable. So, at this point the Court is going
to order that mother does follow the services or engage in
those services that ODHS has described here on the record,
including the requirement of engaging in that psychologi-
cal evaluation.
“Yeah, I think it’s important for her and for the entire
plan for her to be reunified with the children as soon as pos-
sible and with everybody I think agreeing that that is the
case, I tend to agree as well. So, the objection is overruled.”
As each juvenile case is different, determining
whether a parent needs a specific treatment is a “fact-specific
inquiry that depends on the circumstances of each individ-
ual case, and [the juvenile court’s] finding of need must
be grounded in the evidence presented at the evidentiary
614 Dept. of Human Services v. H. G. M.
hearing.” Dept. of Human Services v. F. J. M., 370 Or 434,
447, 520 P3d 854 (2022). The consequence of that reality
is that, in large part, our review is of the juvenile court’s
findings for any evidence in the record. And yet, whether
an order for treatment or training is authorized by ORS
419B.387 is ultimately a legal conclusion that we review for
errors of law. Dept. of Human Services v. D. R. D., 298 Or
App 788, 790-91, 450 P3d 1022 (2019).
Although children argue that mother’s assignments
of error are not preserved, we reject that contention for two
reasons. First, after DHS moved to order the evaluation,
mother’s counsel responded that:
“Legally, in a juvenile dependency matter, the—you
know, the reason that [the psychological evaluation] would
be done would be to determine if there are services for the
parent that needed to be in place. Right now, there’s—
every service possible that could relate to the allegations
are in place for her and she’s willing to go forward with the
family therapy, at such time as that can be put in place. So,
it’s not clear that a psychological evaluation of my client is
warranted in this particular case.”
That response raised the issue (whether the eval-
uation was warranted) and identified an argument (that
the evaluation was not related to the jurisdictional basis
alleged), which was certainly sufficient to put the ques-
tion squarely before the juvenile court, and thus, preserve
the matter for appellate argument. See State v. McKinney/
Shiffer, 369 Or 325, 332-33, 505 P3d 946 (2022) (citing State
v. Hitz, 307 Or 183, 188-89, 766 P2d 373 (1988), for explana-
tion of three tiers for preservation and rationale for pruden-
tial preservation rule).
Second, the children’s contention that mother argued
only that the decision to order the evaluation should be “held
in abeyance” is contextually inaccurate and misses the legal
significance of mother’s argument. Although it is true that
mother suggested that the decision on the evaluation could
be deferred until later, that suggestion occurred in the
broader discussion of whether the juvenile court should on
that day order the evaluation. The suggestion that the court
could “revisit [the evaluation order] as we see how services
go forward” cannot be fairly read in context as waiving the
Nonprecedential Memo Op: 325 Or App 610 (2023) 615
argument as to whether the psychological evaluation was
supported by evidence that demonstrated a present need for
the evaluation order. Moreover, the touchstone for questions
regarding a court’s jurisdiction over a child is whether the
conditions and circumstances present a threat of harm that
is “current and nonspeculative.” Dept. of Human Services v.
L. E. F., 307 Or App 254, 258, 476 P3d 119 (2020), rev den,
367 Or 559 (2021). A juvenile court is without authority over
a parent unless and until the court finds the child within
its jurisdiction under ORS 419B.100. State ex rel SOSCF v.
Burke, 177 Or App 24, 30, 33 P3d 354 (2001). It follows that if
the threat of present harm is the touchstone for jurisdiction
over a child, when a parent argues that a certain treatment
is not warranted on that day, the court must assess whether,
at the time of the dispositional hearing, the treatment is
needed to ameliorate the conditions giving rise to the court’s
jurisdiction over a child. Thus, when mother argued that the
psychological evaluation was not warranted at the time of
the hearing and the decision could be made later, she chal-
lenged the present need for that treatment, and thus pre-
served her argument for appeal.
After the jurisdictional hearing was held and juris-
dictional and dispositional judgments were entered in these
cases, the Oregon Supreme Court issued its opinion in
F. J. M., which clarified the standard for a juvenile court to
order certain treatments. After concluding that a psycholog-
ical evaluation can indeed constitute a “treatment” within
the meaning of ORS 419B.387, the Supreme Court then
explained that a juvenile court may only order treatments
that are needed by the parent. F. J. M., 370 Or at 447-48.
To be “needed” by the parent, the treatment must be “more
than tenuously” linked to the jurisdictional bases that the
treatment is being ordered to correct, and the reasons for
treatment must be “based in and supported by the eviden-
tiary record.” Id. at 448.
In F. J. M., the father was ordered to undergo a
psychological evaluation, despite already participating in
mental health and substance abuse counseling, because
the evidence tended to show that the father was not able
to separate himself, and keep the children safe, from the
mother. Id. at 452. The Supreme Court concluded that, in
616 Dept. of Human Services v. H. G. M.
the particulars of that case, the juvenile court’s order was
not a “discovery tool to determine if [the] father had a need
for treatment or training,” rather the evaluation was needed
as a diagnostic tool to determine why the father was unsuc-
cessful in correcting the circumstances that gave rise to the
wardship, despite the family’s years-long history with DHS
intervention.2 Id. (emphasis in original).
Here, mother admitted to jurisdictional bases
involving substance abuse, domestic violence, and severely
strained communication and trust between herself and chil-
dren. The DHS caseworker’s testimony consistently referred
to how the psychological evaluation might help in the future
of the dependency cases, but without tying those future
potentials back to the present jurisdictional bases admitted
by mother. Although, like in F. J. M., there was evidence
that mother had not completed DHS-referred substance
abuse services in the past, that evidence did not provide a
basis to infer why mother was unsuccessful in substance
abuse services. In contrast, the father in F. J. M. admitted
that he did not “know how to fix” his substance abuse, which
provided a basis to infer that the evaluation would help the
father rectify his substance abuse. Id. at 452.
It may well be that a psychological evaluation could
help mother and children in the future, but based on the
record before the juvenile court, there was an insufficient
nexus between the jurisdictional bases, the evidence, and
the treatment ordered by the court. There was no evidence
presented that explained why the psychological evaluation
was a predicate component of other services mother was
already engaged with or required to enhance the efficacy of
those services, nor was there a suggestion that those other
services left any of the admitted jurisdictional bases unad-
dressed. See, e.g., Dept. of Human Services v. W. C. T., 314 Or
App 743, 776, 501 P3d 44 (2021) (psychological evaluation
may be ordered if predicate to other treatment and treatment
is needed to correct circumstances for juvenile jurisdiction).
2
The father in F. J. M. acknowledged to a DHS caseworker that he did not
“know how to fix” his substance abuse and prior rejection of resources and ser-
vices. Id. at 452. That acknowledgment provided a nonspeculative basis to infer
that the evaluation was needed to correct some of the bases for jurisdiction over
the children.
Nonprecedential Memo Op: 325 Or App 610 (2023) 617
In other words, the evidence that was presented here did
not demonstrate that mother “needed” the psychological
evaluation to rectify any condition giving rise to the juve-
nile court’s jurisdiction over her children. The juvenile court
erred by ordering mother to participate in the psychological
evaluation without a sufficient evidentiary basis to do so.
Reversed and remanded for entry of judgments omit-
ting order for psychological evaluation; otherwise affirmed.