Dep't of Human Servs. v. L. J. W. (In re R. M. L. W.)

• Decision Date: 05 February 2020
• Docket Number: A171752
• Parties: In the MATTER OF R. M. L. W., a Child. Department of Human Services, Petitioner-Respondent, v. L. J. W., Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 126

460 P.3d 540

In the MATTER OF R. M. L. W., a Child.Department of Human Services, Petitioner-Respondent,

v.L. J. W., Appellant.

A171752

Court of Appeals of Oregon.

Argued and submitted December 19, 2019.

February 5, 2020

Shannon Flowers, 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.

Patricia G. Rincon argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Dashiell L. Farewell, Assistant Attorney General.

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

DeVORE, P. J.

Father appeals a judgment of jurisdiction and disposition. The juvenile court took jurisdiction over child and ordered, among other things, that father submit to a psychological evaluation. Father challenges the bases for the court’s jurisdiction in six assignments of error, which we affirm without further discussion. In a seventh assignment of error, father argues that the court erred in ordering the psychological examination. Father did not preserve that issue in the form that he now raises on appeal. We conclude that any alleged error in ordering the examination is not plain, given the record, the jurisdictional bases, and two potential sources of statutory authority for a psychological evaluation. Accordingly, we affirm.

The juvenile court asserted dependency jurisdiction over father’s child after determining that the Department of Human Services (DHS) had proved that father’s untreated domestic violence poses a threat of harm to child and that father cannot safely parent due to his substance abuse, erratic behavior, chaotic lifestyle, and criminal conduct with related consequences. DHS had offered evidence that father struggles with anger and has engaged in verbal and physical abuse of mother.

In the dispositional phase of the jurisdictional hearing, DHS requested that the juvenile court order father to participate in a variety of services, including a psychological evaluation. Father accepted the recommendation as to other services but contested the psychological evaluation. Father objected on the ground that he had already completed an assessment by an addiction treatment provider. The court ordered the psychological evaluation.

On appeal, father generally assigns error to the court’s order for a psychological evaluation. He argues that DHS failed to offer evidence that an evaluation was necessary as a component of "treatment or training" under ORS 419B.387. That statute provides:

"If the court finds in an evidentiary hearing that treatment or training 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, the court may order the parent to participate in the treatment or training if the participation is in the ward’s best interests."

ORS 419B.387. Recognizing that, in the juvenile court proceeding, father had not specifically disputed the court’s authority to order the evaluation, father argues that we should review the order for a psychological examination as a matter of plain error.

DHS responds that father failed to preserve his argument disputing a "treatment-or-training" basis under ORS 419B.387 and that, in any event, DHS had presented evidence in the juvenile court that father abused alcohol, struggled with anger, and had been verbally and physically abusive of mother. Consequently, DHS contends that the record contains evidence supporting a psychological evaluation as a feature of treatment and training under ORS 419B.387.

We begin with the recognition that father did not preserve in the juvenile court the issue that he raises on appeal. Although father objected to the psychological evaluation as factually unnecessary for the reason that an evaluation of one sort or another had already been done, he did not challenge the court’s legal authority to order a psychological evaluation. He did not challenge the court’s legal authority under either of two potentially applicable legal standards. Consequently, we review this appeal as a question of plain error and whether to exercise our discretion to correct plain error. See ORAP 5.45(1) (recognizing the court’s authority to consider plain error); Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991) (describing criteria for such review). "To qualify as plain error, the error must (1) be a legal error; (2) be apparent, meaning that the legal point is obvious and not reasonably in dispute; and (3) appear on the face of the record such that we ‘need not go outside the record or choose between competing inferences to find it.’ " Dept. of Human Services v. A. W. , 274 Or. App. 493, 500, 361 P.3d 58 (2015) (quoting State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990) ). In assessing legal error, we consider the law at the time of the appeal. State v. Jury , 185 Or. App. 132, 135-36, 57 P.3d 970 (2002), rev. den. , 335 Or. 540, 73 P.3d 917 (2003).

In this case, the legal point is not obvious, not beyond reasonable dispute, and not apparent on the record without choosing between competing inferences. We need not describe the factors that guide the additional question whether to exercise discretion to correct plain error, because our analysis stops with the initial question whether any alleged error is truly plain. The reason that father’s assignment of error is "not plain" is because there are two potentially applicable legal standards.

The first of those two potentially applicable legal standards is ORS 419B.387. In Dept. of Human Services v. D. R. D. , 298 Or. App. 788, 790-91, 450 P.3d 1022 (2019), we held that the court can order a psychological evaluation under ORS 419B.387 as needed for "treatment or training" to "correct the circumstances that resulted in wardship or to prepare the parent to resume the care of the ward." To support that order, DHS must establish, at an evidentiary hearing, the need for the psychological evaluation as a component of treatment or training. Id. The evidence can be presented in a jurisdictional hearing, as in this case. Here, neither DHS in its evidence or argument nor the juvenile court in its judgment expressly addressed a reason for the psychological evaluation in terms of a need for treatment or training designed for reunification. Neither DHS nor the juvenile court can be criticized for that potential omission because the request for an evaluation was not specifically couched in terms of ORS 419B.387 and because D. R. D. had not been decided at the time of that hearing,

The second of two potentially applicable legal standards is found in ORS 419B.337(2). In relevant part, that statute provides that "[t]he court may specify the particular type of care, supervision or services to be provided by the Department of Human Services to wards placed in the department’s custody and to the parents or guardians of the wards." ORS 419B.337(2). In State ex rel. Juv. Dept. v. G. L. , 220 Or. App. 216, 223, 185 P.3d 483, rev. den. , 345 Or. 158, 190 P.3d 379 (2008), we determined that, as a feature of directing DHS to provide services, ORS 419B.337(2) grants the court the authority to order a parent to submit to a psychological evaluation to help design services needed, if there is "a rational connection between the service to be provided and the basis for jurisdiction." The specific basis of the court’s jurisdiction in the case need not have been a parent’s mental health condition. Id. We observed that a similar conclusion had been reached under a prior version of the dependency statutes. Id . at 224, 185 P.3d 483 n 5 (citing State ex rel Juv. Dept. v....