Dep't of Human Servs. v. D. R. D. (In re R. A. D.), A169363

• Decision Date: 07 August 2019
• Docket Number: A169363
• Parties: In the MATTER OF R. A. D., a Child. Department of Human Services, Petitioner-Respondent, v. D. R. D., Appellant.
• Court: Oregon Court of Appeals

298 Or.App. 788

450 P.3d 1022

In the MATTER OF R. A. D., a Child.

Department of Human Services, Petitioner-Respondent,

v.D. R. D., Appellant.

A169363

Court of Appeals of Oregon.

Argued and submitted April 5, 2019.

August 7, 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.

Inge D. Wells, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

JAMES, J.

In this juvenile dependency case, father appeals from the review hearing judgment wherein the juvenile court ordered that he "shall successfully complete a psychological evaluation and comply with all recommendations." ORS 419A.200(1). On appeal, father argues that the juvenile court erred in ordering him to submit to a psychological evaluation because, although ORS 419B.387 allows for "treatment or training," the statute does not authorize the juvenile court to order parents to submit to a psychological evaluation that is invasive and potentially incriminatory by nature. The Department of Human Services (DHS) responds that the juvenile court has broad authority to make orders to further the best interests of its wards and, because the juvenile court has specific authority under ORS 419B.387 to order a parent to participate in "treatment or training," that authority must also necessarily include the ability to order assessments to determine the type and extent of the treatment or training that is needed to enable a parent to resume care of a child.¹ We conclude that ORS 419B.387 authorizes the juvenile court to order a parent to participate in treatment or training, but conditions that authority on a finding of need, following an evidentiary hearing. Here, in accordance with ORS 419B.387, the juvenile court was within its statutory authority when it ordered father to participate in needed treatment or training, including a psychological evaluation, after considering the evidence presented at the hearing. 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. A. F ., 295 Or. App. 69, 71, 433 P.3d 459 (2018). "To resolve this dispute, we begin our analysis with the text and the context of the relevant provisions of the juvenile code. PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d 1143 (1993)." State ex rel. Juv. Dept. v. G. L ., 220 Or. App. 216, 221, 185 P.3d 483, rev. den. , 345 Or. 158, 190 P.3d 379 (2008). "In assessing the authority that those statutes confer—indeed, in addressing any issue of statutory construction—we do not address each statute in isolation. Rather, we address those statutes in context, including other parts of the statute at issue. See, e.g. , Lane County v. LCDC , 325 Or. 569, 578, 942 P.2d 278 (1997) (‘[W]e do not look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole.’)." Dept. of Human Services v. J. R. F. , 351 Or. 570, 579, 273 P.3d 87 (2012). The relevant facts are set out below.

Father’s infant became a ward of the court after both father and mother admitted to lengthy and significant drug addictions and current drug use.² In July 2018, the "case came before the [juvenile court] for settlement conference. The parties reached a settlement, and the case proceeded to jurisdiction and disposition hearing." As outlined in the judgment of jurisdiction and disposition, the juvenile court asserted dependency jurisdiction over the infant on the specified basis that "[f]ather’s substance abuse interferes with his ability to safely parent the child, placing the child at risk of harm." In the jurisdictional judgment, the juvenile court ordered that "DHS shall refer mother and father for services consistent with the orders in this judgment," including that "[f]ather shall successfully complete a substance abuse assessment and comply with all recommendations," that "[f]ather shall comply with all requests for alcohol/drug tests by DHS, the Court, Community Corrections, evaluators, and treatment providers," and that, "[i]f father continues to use illegal drugs for 60 days or more, he shall successfully complete a psychological evaluation to determine if there are psychological issues contributing to his drug addiction. He shall comply with all recommendations that are rationally related to his drug use." The judgment of jurisdiction and disposition is not on appeal before us.

In October 2018, the juvenile court convened a review hearing on father’s motion. Father’s counsel explained:

"We’re not contesting reasonable efforts or the placement. The jurisdictional order essentially said that if Father continues to use illegal drugs for 60 days or more, he shall complete a psych evaluation.

"My reading of that order is it essentially put DHS in the position of a fact-finder about whether or not he’s used illegal drugs, and I haven’t received any evidence that he has. And I understand DHS has referred him for a psych eval, so I want clarification about whether or not the Court is ordering him to do a psychological evaluation."

In response, the juvenile court stated, "I’ll need some evidence before I can make that determination" and confirmed with DHS that it had referred father for a psychological evaluation. The juvenile court also received, as Exhibit No. 1, report from DHS and allowed witness testimony.

Father’s counsel examined DHS caseworker Amanda Palmer regarding father’s engagement in services:

"[FATHER’S COUNSEL]: Okay. So the Court’s jurisdiction order allows for the agency to refer Father for a psychological evaluation if it was more than 60 days after the jurisdictional [judgment] and he was continuing to use illegal drugs. What information do you have that [father] was continuing to use illegal drugs?

"[PALMER]: [Father] has not engaged in any service referrals that have been made for him.

"* * * * *

"[FATHER’S COUNSEL]: Do you believe that this psychological evaluation would assist Father in addressing his substance abuse issue? Do you believe in some form of treatment for him?

"[PALMER]: I believe that the psychological evaluation will give some insight as to why he is not engaging in substance abuse treatment so that we could get him the proper services, so that he can engage in treatment and remain clean and sober to be a parental resource for this child.

"* * * * *

"[FATHER’S COUNSEL]: Does [the psychologist] offer what’s called feedback sessions, where the evaluator will get together with the parent to discuss the findings he made?

"[PALMER]: I do not know. I’m willing to have that conversation with him. I normally go over those psych evals with them."

Father’s counsel argued to the juvenile court as follows:

"Your Honor, I think, you know, essentially ordering a psychological evaluation is really drifting far away from the statute, which is ORS 419B.387, that allows the Court to order essentially services that are treatment or training. * * * [Although] the Court [may] order anything that’s rationally related to the jurisdictional basis, and I still maintain that substance abuse should be ameliorated through substance abuse treatment.

"I think that ordering a psychological evaluation is giving license to the State to look for other issues that may arise. * * *

"I would maintain that a psychological evaluation is not treatment, as Ms. Palmer testified that [the psychologist] does not offer any form of feedback session. I don’t think it is training to ameliorate the parenting concerns that the agency has.

"And so I think that when we order a psychological evaluation when it’s a situation where the only issue is substance abuse, we’re drifting far away from the statute, and I don’t think there is a rational relationship between a psychological evaluation and substance abuse."

DHS later called father as a witness. On the stand, father was asked:

"[DHS’ COUNSEL]: And in response to the Court’s orders, DHS requested you engage in what’s called a color line to determine when you needed to take UAs. Were you aware that you needed to do that?

"[FATHER]: No.

"[DHS’ COUNSEL]: You were not?

"[FATHER]: Well, I mean, eventually I knew I would.

"[DHS’ COUNSEL]: I’m sorry?

"[FATHER]: I knew I would once I started treatment, but I don’t—

"* * * * *

"[DHS’ COUNSEL]: [W]hy have you failed to engage in treatment?

"[FATHER]: Well, there’s no good excuse. I just—I haven’t. I live out in the middle of nowhere, and I have no transportation and no money.

"* * * * *

"[DHS’ COUNSEL]: Do you recall having a conversation with a DHS caseworker on one occasion since jurisdiction?

"[FATHER]: Amanda [Palmer].

"* * * * *

"[DHS’ COUNSEL]: You told her you were doing good, despite using methamphetamine?

"[FATHER]: No. At the time I was doing good. I was not using.

"[DHS’ COUNSEL]: Okay.

"[FATHER]: So I wouldn’t have told her I was.

"[DHS’ COUNSEL]: I’m sorry, are you denying that you told her that you were using methamphetamine?

"[FATHER]: I guess I am, yeah, because I don’t remember telling her that at all. I said I was doing good, is what I said.

"[DHS’ COUNSEL]: When [was] the last time you used methamphetamine?

"[FATHER]: Last Thursday."

After father’s testimony, the juvenile court ruled on the issue of whether father needed a psychological evaluation and offered the following findings. The juvenile court spoke to father, stating:

"THE COURT: I would really like you to do the psych eval because when you were here at the jurisdictional hearing, you said you wanted to raise this child, right? And I really want you to be able to do that, but you’re not—it appears to me that you’re not able to stay clean and sober on your own, so there might be some underlying reasons why you’re

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