Dept. of Human Services v. M. D. ( 2022 )

820
Submitted November 29, 2021, vacated and remanded January 5, 2022
In the Matter of A. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. D.,
aka M. M., aka M. H.,
Appellant.
Clackamas County Circuit Court
20JU04429; A176299 (Control)
In the Matter of I. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. D.,
aka M. M., aka M. H.,
Appellant.
Clackamas County Circuit Court
20JU04430; A176300
In the Matter of P. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. D.,
aka M. M., aka M. H.,
Appellant.
Clackamas County Circuit Court
20JU04433; A176301
503 P3d 1275
Heather Karabeika, Judge.
Cite as 316 Or App 820 (2022) 821
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Sarah Peterson, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
PER CURIAM
Vacated and remanded.
822 Dept. of Human Services v. M. D.
PER CURIAM
In this juvenile dependency case, the juvenile court
ordered that mother undertake a psychological evaluation
pursuant to ORS 419B.337(2) after finding that there was
a “rational relationship” between the jurisdictional bases
and the psychological evaluation. But, when ordering the
psychological evaluation, the juvenile court did not consider
the requirements imposed by ORS 419B.387. Mother argues
that that was plain error because ORS 419B.387 governs the
juvenile court’s authority to order psychological evaluations
in dependency proceedings. As explained below, because
the juvenile court plainly erred in ordering a psychological
evaluation without considering the requirements imposed
by ORS 419B.387, we exercise our discretion to correct that
error and we vacate and remand.
During the pendency of this appeal, we decided Dept.
of Human Services v. W. C. T., 314 Or App 743, 501 P3d 44
(2021). In W. C. T., we recognized that two lines of cases
had developed on the question of statutory authority for the
juvenile court to order psychological evaluations. Id. at 762.
One line of cases was premised on authority under ORS
419B.337(2); the other was premised on authority under
ORS 419B.387. Id. at 762, 765. In W. C. T., we harmonized
those two lines of cases, explaining that a four-part stan-
dard, which reflects requirements arising under both ORS
419B.337(2) and ORS 419B.387, governs the juvenile court’s
authority to order psychological evaluations. Id. at 776.
We conclude that mother did not preserve her claim
of error in this case. Therefore, we can only consider it if it
“qualifies as plain error.” State v. Perez, 340 Or 310, 315,
131 P3d 168 (2006). We determine whether an error is plain
with reference to the law existing at the time of the appellate
decision. State v. Jury, 185 Or App 132, 139-40, 57 P3d 970
(2002), rev den, 335 Or 504 (2003). “For an error to be plain
error, it must be an error of law, obvious and not reasonably
in dispute, and apparent on the record without requiring
the court to choose among competing inferences.” State v.
Ulery, 366 Or 500, 503, 464 P3d 1123 (2020) (internal quota-
tion marks omitted). Here, as noted above, the juvenile court
ordered that mother undertake a psychological evaluation
Cite as 316 Or App 820 (2022) 823
pursuant to ORS 419B.337(2), without considering the
requirements imposed by ORS 419B.387. In light of W. C. T.
that error, which is one of law, is obvious and not reasonably
in dispute, and it is an error which is apparent on the face of
the record.
Further, we exercise our discretion to correct the
error. See Ulery, 366 Or at 503 (providing nonexclusive list
of factors to consider in deciding whether to exercise discre-
tion). In our view, here, the “nature of the case,” the “gravity
of the error,” and “the ends of justice,” all militate toward
exercising our discretion. Id.; see also W. C. T., 314 Or App
at 788 (Mooney, J., concurring in part, dissenting in part)
(“A court-ordered psychological evaluation represents a sig-
nificant, unconsented intrusion by the state into the life
and psyche of the person subjected to it. Failure to comply
with the court’s order could result in * * * disruption of the
family and loss of one’s children.”). Moreover, given the two
lines of cases that had developed prior to our decision in
W. C. T., “our allowance of relief in this case will not subvert
the comity considerations that underlie the preservation
requirement.” Jury, 185 Or App at 139-40.
Vacated and remanded.