Dep't of Human Servs. v. A. F. (In re D. G.)

• Citation: 433 P.3d 459,295 Or.App. 69
• Decision Date: 21 November 2018
• Docket Number: A167318
• Parties: In the MATTER OF D. G., a Child. Department of Human Services, Petitioner-Respondent, v. A. F., Appellant.
• Court: Court of Appeals of Oregon

295 Or.App. 69

433 P.3d 459

In the MATTER OF D. G., a Child.Department of Human Services, Petitioner-Respondent,

v.A. F., Appellant.

A167318

Court of Appeals of Oregon.

Argued and submitted September 6, 2018.

November 21, 2018

Tiffany Keast, Deputy Public Defender, Office of Public Defense Services, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section.

Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

AOYAGI, J.

In this juvenile dependency case, mother appeals a disposition judgment ordering her to submit to a psychological evaluation. The Department of Human Services (DHS) requested the evaluation to help it determine whether there is a mental-health component to mother neglecting her three-year-old child, D. Mother argues that there is no rational relationship between the ordered evaluation and the jurisdictional bases and that the juvenile court therefore exceeded its authority under ORS 419B.337(2). DHS contends that the evidence was sufficient to meet the low threshold to establish a rational relationship. As discussed below, we agree with DHS that the minimal standard for a rational relationship is met. In so ruling, we limit our consideration to ORS 419B.337(2) and do not consider mother’s untimely-raised alternative argument that the court should have applied ORS 419B.387 instead of or in addition to ORS 419B.337(2). Accordingly, we affirm.

We review the juvenile court’s legal conclusions for errors of law and its findings for any evidence. Dept. of Human Services v. B. W. , 249 Or.App. 123, 125, 275 P.3d 989 (2012).

D was born in 2014. Father is incarcerated in Michigan and is unavailable as a custodial resource; he is not a party to this appeal. Mother lives in Oregon and has been D’s primary caregiver, but she is addicted to methamphetamine. In May 2017, police responded to a domestic violence incident between mother and her boyfriend and, later the same month, to a report of loud pounding from mother’s apartment and a possible theft. D was present on both occasions. After those incidents, DHS received multiple reports about D’s living situation, including that D was living at one point in a vehicle with mother and her boyfriend, despite a no-contact order; that D was living in a home where a "huge amount" of methamphetamine use was happening and where drug paraphernalia was within D’s reach; and that D was living at another time with mother’s sister and her partner, who had a sex abuse conviction. In October 2017, DHS located D and removed him from mother’s care. Upon removal, D tested positive for methamphetamine. He was covered in scars, was thin, and suffered gastrointestinal problems. One of D’s foster parents—with whom D has been living since about a week after the removal—testified that D was "extremely violent" and "very afraid" when he arrived and repeatedly attacked his foster parents and other people. He was "afraid of everybody and everything and hit everybody." Before scheduled visits with mother, D would express happiness initially but later say that mother was "mean," ask whether mother was "going to freak out on [him]," ask if mother was going to hurt him, and express fear of being left alone with mother.

In January 2018, the juvenile court asserted jurisdiction over D on three bases: (1) "mother has exposed child to unsafe and unsanitary living conditions, including exposure to drugs, drug paraphernalia, and unsafe persons"; (2) "mother has left child with unsafe caregivers without making appropriate plans for the care of the child"; and (3) mother has "an alcohol and/or drug problem which impairs her ability to safely parent" child. Mother admitted to those jurisdictional bases. Mother objected, however, to DHS’s request that she be ordered to undergo a psychological evaluation. Mother, who was 20 years old at the time of the jurisdictional hearing, argued that the cause of her poor parenting was obvious—her untreated use of methamphetamine for approximately two years—and that there was no need for a psychological evaluation.

The juvenile court initially agreed with mother that it could not order a psychological evaluation. At the January hearing, the court stated that it had "no power to order a psychological evaluation in this case or, for that matter, a mental health evaluation," because there was no factual basis in the record to do so. At DHS’s request, however, the court continued the matter for an evidentiary hearing in February 2018.

By the time of the February hearing, mother had participated in a drug and alcohol assessment, but she had not followed through with treatment, had attended only three of at least 10 offered visits with D, and was in only "sporadic" contact with DHS. DHS argued that a psychological evaluation was appropriate because D’s circumstances prior to removal were so bad that they "speak to a level of neglect that rises beyond that which * * * is likely to have been caused by simply a drug addiction alone." In response, mother again argued against a psychological evaluation and asserted that "the problem" was her methamphetamine use. D’s attorney then agreed with DHS that the circumstances went "far beyond this just being a drug case" and argued that a psychological evaluation also would help identify "the barriers faced by mother" that caused her to be "slow to engage in services."

After the evidentiary hearing, the juvenile court ordered mother to undergo a psychological evaluation. It specifically did so in connection with the first and second bases for jurisdiction, which it referred to collectively as "neglect." In a letter opinion, the court noted that "a psychological evaluation is a very intrusive provision that can expose a parent to significant risk in a case (as well as possibly benefit them)."¹ It expressed the view that DHS should have to prove necessity, not mere helpfulness, for the court to order a psychological evaluation, and it expressly found that DHS had not proved necessity here. Under our existing case law, however, particularly B. W. , 249 Or.App. 123, 275 P.3d 989, the juvenile court concluded that DHS needed to prove only that a psychological evaluation would be "beneficial" in determining services. Applying that standard, the court concluded that, "based on the evidence," an evaluation "would be beneficial and helpful to the agency’s determination of services to be provided" and therefore ordered one. (Boldface in original.) Mother assigns error to that order.

We begin with a brief overview of the relevant legal framework. In Oregon, "children are individuals who have legal rights," including the rights to permanency with a safe family, freedom from abuse, and freedom from substantial neglect of basic needs. ORS 419B.090(2)(a). "Oregon’s dependency statutes serve to protect and enforce those rights while, at the same time, safeguarding parents’ Fourteenth Amendment liberty interests in parenting their children." Dept. of Human Services v. T. L. , 279 Or.App. 673, 677, 379 P.3d 741 (2016). One example of balancing those interests is "that Oregon’s policy is to remove an endangered child from his or her parents, but to then make reasonable efforts ‘to allow [the parents] the opportunity to adjust their circumstances, conduct or conditions to make it possible for the child to safely return home within a reasonable time.’ " Id. at 677-78, 379 P.3d 741 (quoting ORS 419B.090(5) ).

When the juvenile court asserts jurisdiction over a child and places the child in the legal custody of DHS, the court may "specify the particular type of care, supervision or services" that DHS is to provide both to the child and to the child’s parents or guardians. ORS 419B.337(2). DHS, however, is responsible for the "actual planning and provision of such care, supervision or services." Id. Further, ORS 419B.343(1)(a) requires DHS to ensure that its case planning for family reunification "bears a rational relationship" to the findings that brought the child within the court’s jurisdiction. In light of the latter requirement, we have interpreted ORS 419B.337(2) as only allowing the juvenile court to order DHS to provide those services that bear a "rational relationship to the jurisdictional findings." State ex rel. Juv. Dept. v. G. L. , 220 Or.App. 216, 222, 185 P.3d 483, rev. den. , 345 Or. 158, 190 P.3d 379 (2008).

Finally, ORS 419B.387 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."

In her opening brief on appeal, mother posits the question presented as whether "either ORS 419B.337(2)or ORS 419B.387" authorized the juvenile court to order her to undergo a psychological evaluation. (Emphases added.) She thus appears to suggest that authority under either of those statutes would be sufficient to affirm the order.

Mother does not argue that both statutes must be satisfied and, indeed, proceeds to address only ORS 419B.337(2) and makes no substantive argument about ORS 419B.387. In its answering brief, the state therefore understandably does not even mention ORS 419B.387. Only in her reply brief does mother make a substantive argument about ORS 419B.387 —and it is significantly different than the "either/or" argument in her opening brief. In her reply brief, mother argues for the first time that, even if a rational relationship exists for purposes of ORS 419B.337(2), the juvenile court lacks authority to order a parent to submit to a psychological evaluation unless the court finds that the evaluation is "needed...