Dep't of Human Servs. v. T. L. H. (In re A. H.)

• Decision Date: 20 November 2019
• Docket Number: A170602
• Citation: 300 Or.App. 606,453 P.3d 556
• Parties: In the MATTER OF A. H., a Child. Department of Human Services, Petitioner-Respondent, v. T. L. H., Appellant.
• Court: Oregon Court of Appeals

300 Or.App. 606

453 P.3d 556

In the MATTER OF A. H., a Child.Department of Human Services, Petitioner-Respondent,

v.T. L. H., Appellant.

A170602

Court of Appeals of Oregon.

Argued and submitted August 27, 2019; on respondent’s motion to dismiss filed July 9, 2019, and appellant’s response filed July 23, 2019. November 20, 2019

Sarah Peterson, 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.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.

DeVORE, J.

In this juvenile dependency case, father appeals from a review hearing judgment, assigning error to the juvenile court’s order that he submit to a psychological evaluation. Father argues that, under ORS 419B.387, the court lacked authority or evidence to order the evaluation, as related to "treatment or training." In light of our recent decision, Dept. of Human Services v. D. R. D. , 298 Or. App. 788, 450 P.3d 1022 (2019), we conclude that ORS 419B.387 authorizes a psychological evaluation when the evidence indicates that the parent may require it as a component of additional treatment or training needed to "prepare the parent to resume the care" of a child because of the child’s particular needs.¹ Because Department of Human Services (DHS) established in an evidentiary hearing that father needed a psychological evaluation as a component of such treatment or training to resume care, we affirm.

"We review the juvenile court’s legal conclusions for errors of law and its findings for any evidence." Id. at 791, 450 P.3d 1022 (quoting Dept. of Human Services v. A. F. , 295 Or. App. 69, 71, 433 P.3d 459 (2018) ). Father’s child became a ward of the court after removal from his mother in April 2017, when he was two years old. The jurisdictional judgment, as to father, asserted dependency jurisdiction over the child due to (1) father having done nothing to assert custody of his child despite his awareness of the allegations against mother, and (2) his residential instability which interfered with his ability to provide for his child. The child was placed in foster care, and the case plan was to reunify the child with his parents. As part of the disposition, father was ordered to: (a) participate in a drug and alcohol assessment and follow all related recommendations; (b) engage in a psychological evaluation 60 days after sobriety and follow all related recommendations; and (c) complete a parenting course.

Over the following year-and-a-half, father struggled with drug addiction and homelessness. However, he participated in services and, ultimately, secured housing. Meanwhile, the child—who was diagnosed with adjustment disorder with anxiety

, attention deficit/hyperactivity disorder, speech sound disorder, and child neglect—was receiving speech and occupational therapy, as well as mental health counseling. Child also suffered from asthma

so severe that, on one occasion, it led to hospitalization.

Despite progress towards reunification, DHS had concerns regarding father’s ability to provide appropriate care for his child. The child began therapeutic visits at father’s residence, supervised by a counselor, who subsequently recommended overnight visits. Father was also invited to participate in his son’s therapy appointments, but missed about half. When he did attend, he appeared "scattered," and he came in and out during the therapy time. That, as well as reports of father’s continued substance abuse, and diluted and missed urinalysis (UA) tests, raised red flags for DHS.

In November 2018, DHS filed a motion requesting that the juvenile court order father to submit to a psychological evaluation. DHS noted the child’s several diagnoses and argued that the evaluation was necessary because "the child has high behavioral needs, and the evaluation will assess the father’s ability to maintain a stable residence while trying to parent a child whose needs are as high as this child’s needs." DHS highlighted that father had only recently started engaging in services addressing "his ability to maintain a stable and safe residence for the child" and that he had done so without "parenting the child full time." DHS also noted father’s past insobriety. DHS concluded that it needed "to ensure that [father] has all services that he needs in order to parent his son for an extended period of time." DHS emphasized that it was "imperative for the child to have a stable caretaker in order for his high behavioral needs to be met."

In support of that motion, DHS submitted the caseworker’s affidavit. In that affidavit, the caseworker agreed that the psychological evaluation was "necessary to determine whether the father will be able to meet the high needs of the child and, if so, what services may be necessary to help him meet the child’s high needs." There were multiple exhibits attached to the affidavit demonstrating the child’s high needs: a neuropsychological report from a children’s hospital regarding services necessary to meet the child’s needs; a psychological report from the Children’s Program stating, in part, that the child requires a caregiver with higher than average parenting skills; and a Child and Adolescent Needs and Strengths (CANS) assessment identifying additional needs for the child. The caseworker noted that those reports were consistent with those that DHS and the Court Appointed Special Advocate had provided to the juvenile court.

The caseworker also attached a drug and alcohol assessment of father from nine months earlier, in which an evaluator had noted the following: father had experienced childhood abuse; he had post-traumatic stress disorder

(PTSD); he needed treatment for his use of methamphetamine, which he may be using to "self-medicate and address long-standing issues"; and he was "difficult to track and immature for his age." The caseworker included a recent treatment update showing father was doing well in drug and alcohol treatment but suffered from PTSD. She concluded that DHS needed a complete and accurate evaluation of father to "ensure that [his] treatment gains are sustainable after his child is placed in his home given the child’s high needs."

The juvenile court held a hearing on the state’s motion for a psychological evaluation in February 2019. At that time, the caseworker testified to issues the child faces on a daily basis: speech problems, trauma responses, heightened anxiety, food hoarding, and difficulty sleeping. To address those issues, she reported that he received occupational and speech therapy and mental health counseling.

The caseworker testified that she had concerns about father’s ability to be "proactive" and "planful" with respect to ensuring his son’s treatment. She was unsure that the child would make it to his appointments consistently. The caseworker said that she had received information bringing her to question father’s ability to understand and participate in his child’s treatment appointments. Namely, when father did attend appointments, he was "either not in the appointment with [his child] the entire time or not fully engaged or coming in and out of the appointments, things like that," and he "appeared scattered." She said that, without a proper psychological evaluation, she would be unable to assess father’s ability to process specialized information.

The caseworker testified that she supported a psychological evaluation for the following reasons:

"I think from the agency’s perspective, this child is extremely high needs and would be a lot for any parent to handle.

"He has needs that I personally see, not that other kids in care have not exhibited, that are pretty rare and that we’ve had even a hard time finding specialists who know how to handle these issues.

"And so just knowing that, I would want the psychological evaluation to be able to tell the agency if [father] is able to understand and meet those needs that are rare and ever present in his daily life."

The caseworker further noted father’s diluted and a missed UA tests, and agreed that those, "in combination with the community reports of snorting pills and doing knife hits," raised "concern regarding the strength of [father’s] recovery." She said that even those UAs which were "clean" and negative for illicit drugs showed that father continued using marijuana. The caseworker was concerned that smoke related to father’s marijuana and tobacco use could endanger the health of the child who was asthmatic and had a recent related hospitalization.

Father presented evidence in opposition to the psychological evaluation. He called witnesses to testify to his progress towards reunifying with his son, including his having secured housing, the supervised residential visits with his child, the recommendation by the counselor that DHS allow overnight visits, and his completion of drug and alcohol treatment and a parent mentorship program. Father also tried to explain his challenges in attending appointments, showing that he had no driver’s license or vehicle, and that he was struggling to obtain consistent transportation, relying on public transportation and the assistance of others. Some evidence was presented that undermined father’s case. The record showed that father was still looking for housing quite recently and, the same month as the hearing, he was struggling to pay rent and his landlord had called him "irresponsible." It also contained an email from the counselor indicating that, although she recommended overnight visits, father "needs to work on making appointments and scheduling." Testimony was elicited from the caseworker, who noted limitations to the counselor’s knowledge regarding father’s UA tests and his psychological background and needs. The caseworker...