Dept. of Human Services v. T. B. ( 2023 )

192
Argued and submitted April 5 on appellant’s motion to stay previous judgment/
order filed March 21, motion to stay previous judgment/order denied, affirmed
June 7, petition for review denied October 5, 2023 (371 Or 476)
In the Matter of S. A. B.,
preferred name S. B., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
S. A. B.,
preferred name S. B.,
Respondent,
v.
T. B.,
Appellant.
Union County Circuit Court
22JU01584; A179763
531 P3d 718
Father appeals a juvenile court judgment ordering him to transfer child’s
emotional support animal to child. In father’s sole assignment of error, he argues
that the juvenile court erred in ordering father to transfer child’s emotional sup-
port animal to child as the juvenile court lacked authority to order him to do so.
Held: The juvenile court had authority to order father to transfer child’s emo-
tional support animal to child under ORS 419B.385 and did not abuse its discre-
tion by doing so.
Motion to stay previous judgment/order denied; affirmed.
Wes Williams, Judge.
Elena Stross, 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.
Erica Hayne Friedman argued the cause for respondent
child. Also on the brief was Youth, Rights & Justice.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent Department of Human
Services.
Cite as 326 Or App 192 (2023) 193
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Motion to stay previous judgment/order denied; affirmed.
194 Dept. of Human Services v. T. B.
EGAN, J.
In this juvenile dependency case, father appeals
a juvenile court judgment ordering him to transfer child’s
dog to child.1 The court determined that the dog was child’s
emotional support animal and as such it was authorized to
transfer the dog to child’s care under ORS 419B.385. Father
argues that the juvenile court lacked authority to order him
to transfer possession of the dog to child as no provision of
ORS chapter 419B provides the juvenile court with author-
ity to do so. Father also asserts that the dog is his personal
property, not child’s property. This case requires that we
determine whether the juvenile court has authority to order
the transfer of an emotional support animal under ORS
419B.385. For the reasons explained below, we conclude that
the juvenile court’s order was authorized and we affirm the
juvenile court’s judgment.
Father has not requested de novo review, and this
is not an exceptional case warranting such review. See ORS
19.415(3)(b) (giving court discretion to review de novo);
ORAP 5.40(8)(c) (court exercises discretion to review de novo
“only in exceptional cases”). Whether the juvenile court has
authority to make a particular order is reviewed for legal
error. See Dept. of Human Services v. T. C. A., 251 Or App
407, 414-15, 283 P3d 956, rev den, 352 Or 665 (2012). If we
determine that the juvenile court does have the authority to
make a particular order, we review the juvenile court’s dis-
positional order for an abuse of discretion. Id. We are bound
by the juvenile court’s findings of historical fact if there is
any evidence in the record to support them. Id. Furthermore,
“we presume that the court made any necessary implicit fac-
tual findings in a manner consistent with its ultimate legal
conclusion.” Dept. of Human Services v. L. L. S., 290 Or App
132, 133, 413 P3d 1005 (2018).
Father admitted to two jurisdictional bases in May
2022: (1) that father had “previously received services but is
currently unable to safely parent child”; and (2) that father’s
“parenting is negatively affecting the child’s mental health,
1
Father moves for a stay of the trial court’s order to transfer youth’s dog to
youth’s care. That motion is denied.
Cite as 326 Or App 192 (2023) 195
placing the child at risk of harm.” Based on father’s admis-
sions, the juvenile court entered a jurisdiction and dispo-
sition judgment over child. The court ordered that father
“[p]articipate with child’s mental health providers in ser-
vices to” child and “[c]ooperate with [Oregon Department of
Human Services] for purposes of case planning, provision of
services, and visitation.”
The child, S, moved for a review hearing in August
2022, and submitted a declaration in support stating that
child “has an emotional support dog” and “[t]hat dog is
currently in the possession of father.” During the hearing,
S testified that he shared “an emotional bond” with the dog,
that he suffers from panic attacks, and that he has difficulty
sleeping at night and staying asleep because he worries
about the dog. Child explained that the dog helps him calm
down and get through his panic attacks as it is comforting
to have the dog’s presence near him.
The child’s therapist testified that child is diagnosed
with “reactive attachment disorder of childhood; posttrau-
matic stress disorder, complex; major depressive disorder,
recurrent; and gender identity disorder.” The therapist tes-
tified that child’s symptoms are exacerbated by separation
from the dog and that S talks about missing and worrying
about the dog on a weekly basis. Furthermore, the therapist
stated that “emotional support dogs can be a huge, huge,
huge protective factor in someone’s care and treatment” and
that it would be therapeutically beneficial for child to have
that benefit. The therapist also clarified that “[i]n theory, it
could be a different dog, but—part of the anxiety that [child]
faces stems from it being this dog.” The therapist felt that
because of the bond that child shares with the dog, child’s
emotional support dog should be this particular dog.
Child’s court-appointed special advocate (CASA)
testified that child “is in survival mode” and that he has
expressed concern for the dog every time that they have met.
Furthermore, the CASA explained that being granted the
dog is in child’s best interest and that S having the dog as
his emotional support animal “will help him to have some
security and help [his] emotional stability.”
196 Dept. of Human Services v. T. B.
Father testified that the dog is legally his as child’s
grandmother purchased the dog from the shelter for him.
Father explained that the dog is deaf and as a result he
keeps the dog tied up with twine as the dog’s behavioral
issues result in her running to the highway and possibly
being ran over by a car. Father testified that the dog’s con-
sistent barking is beneficial for him as it keeps racoons
away from his chickens and deters thieves from entering
his property. Lastly, father testified that while he supports
child being given an emotional support dog, that this dog is
his dog, and that S does not have a close enough relationship
with this dog to justify the dog being placed in child’s care
and possession.
The court determined that child shares a bond with
the dog “that may never exist with another dog” and that
child having the dog as his emotional support dog would
benefit child. The court ordered that the dog be transferred
to child’s care as an emotional support animal as a form of
counseling under ORS 419B.385, and cited ORS 419B.090 to
support that ruling.
On appeal, father argues that the court lacked
authority to order him to transfer the dog to child as an
emotional support animal and that none of the ORS chap-
ter 419B provisions granted the court authority to do so.
Father argues that an emotional support animal does not
fall within the definition of “counseling” as provided in ORS
419B.385 and that the child’s best interest is not the sole
consideration when determining the juvenile court’s author-
ity to order a parent to take a particular action. Essentially,
father’s argument is that the court’s order was tantamount
to an order that father give child father’s personal property,
as father argues that the dog was his property.
ORS 419B.385 provides that:
“A parent or legal guardian of a ward, if such parent or
guardian was served with summons under ORS 419B.812
to 419B.839 prior to the adjudication, is subject to the juris-
diction of the court for purposes of this section. The court
may order the parent or guardian to assist the court in any
reasonable manner in providing appropriate education or
counseling for the ward.”
Cite as 326 Or App 192 (2023) 197
(Emphasis added.) When interpreting a statute, our goal is
to determine the legislature’s intent by examining the stat-
utory text in context along with any legislative history that
appears useful to our analysis. State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009). “Counseling” is not defined in
the Juvenile Code and therefore we must determine what
the legislature intended when it used “counseling” in ORS
419B.385. When terms are not defined by statute, we ordi-
narily assume that the legislature intended to give words of
common usage their plain, natural, and ordinary meanings
and we often consult dictionaries for guidance in determin-
ing what the legislature would have understood a term to
mean. Dept. of Human Services v. F. J. M., 370 Or 434, 445,
520 P3d 854 (2022).
“Counseling” is defined as “a practice or professional
service designed to guide an individual to a better under-
standing of his problems and potentialities by utilizing
modern psychological principles and methods esp[ecially]
in collecting case history data, using various techniques of
the personal interview, and testing interests and aptitudes.”
Webster’s Third New Int’l Dictionary 518 (unabridged ed
2002). Child argues that the definition should be understood
to mean “various forms of professional services directed
at helping a person address their psychological problems.”
Father does not dispute the definition of “counseling” but
states that “just because something might benefit one’s emo-
tional well-being does not make it fall within the definition”
and that an “ ‘emotional support animal’ does not fit within
that definition.”
As to context, given that “[t]he context of a statute
may include other provisions of the same statute and related
statutes” we look to ORS 419B.090. Mcaughlin v. Wilson,
292 Or App 101, 105, 423 P3d 133 (2018), aff’d, 365 Or 535,
449 P3d 492 (2019) (internal quotation marks omitted). ORS
419B.090(c) provides that: “[t]he provisions of this chapter
shall be liberally construed to the end that a child coming
within the jurisdiction of the court may receive such care,
guidance, treatment and control as will lead to the child’s
welfare and the protection of the community.” Furthermore,
ORS 419B.090(3) provides, in relevant part, that: “[i]t is the
198 Dept. of Human Services v. T. B.
policy of the State of Oregon to safeguard and promote each
child’s right to safety, stability and well-being.”
We conclude that the term “counseling” in ORS
419B.385 does include the use of emotional support animals
based on the definition provided in Webster’s as well as the
guidance provided in ORS 419B.090. The requirement that
we “liberally construe[ ]” the provisions of ORS chapter 419B
in order to “lead to the child’s welfare” demonstrates that
the legislature intended that the juvenile court have author-
ity to make orders, that while not explicitly provided for by
statute, fall under the provisions in ORS chapter 419B. In
our view, giving child his emotional support dog is consis-
tent with the State of Oregon’s policy to “safeguard and pro-
mote each child’s right to safety, stability and well-being.”
ORS 419B.090(3). ORS 419B.385 provides that “[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.” (Emphases added.) Therefore, the
court is authorized under ORS 419B.385 to order a parent
to support efforts in providing counseling for a child by pro-
viding the child’s emotional support animal, as that is a rea-
sonable request that parent provide support to meet child’s
counseling needs. Especially where, as explained below, the
evidence would permit a finding that the dog in question is
in fact child’s emotional support animal.
The evidence in this case would permit a finding
that child would highly benefit from having this particu-
lar dog as his emotional support dog. First, child’s thera-
pist testified that it “would be therapeutically beneficial
for child” as child shares a strong bond with the dog and
that child’s symptoms are exacerbated by separation from
the dog. Second, child’s therapist testified that even though
child may be able to benefit from another dog as his emo-
tional support animal, that it is in the best interests of child
that this particular dog be granted as his emotional support
animal because the anxiety experienced by child is partly
due to separation from this particular dog. Furthermore,
as child explained, he shares an “emotional bond” with this
particular dog and his mental health symptoms are less-
ened by the dog’s presence. In addition, the CASA testi-
fied that child brings up his concern for this particular dog
Cite as 326 Or App 192 (2023) 199
during every encounter and that being granted this dog as
his emotional support animal will provide child with emo-
tional stability and security which will help child navigate
his mental health symptoms. Therefore, the evidence in this
case allowed for a determination that this particular dog
is not just a pet, but rather is an emotional support animal
for child, as evidenced by child’s strong emotional bond with
this particular dog and various testimony demonstrating
that this particular dog will contribute to child’s well-being
by providing child with emotional stability and security.
Therefore, we conclude that the juvenile court had
the authority to order father to transfer possession of child’s
emotional support dog to child under ORS 419B.385 because
the use of emotional support animals is a form of “counsel-
ing” and that the court did not abuse its discretion by doing
so.
As for father’s argument that the court was not
authorized to make such an order because the dog was his
personal property, we disagree. Courts routinely order par-
ents in dependency proceedings to provide support for their
children. In this case, we conclude ordering father to trans-
fer possession of the dog to child was reasonable under ORS
419B.385.
In sum, the juvenile court had authority to order
father to transfer child’s emotional support animal to child
under ORS 419B.385 and did not abuse its discretion by
doing so.
Motion to stay previous judgment/order denied;
affirmed.