Dep't of Human Servs. v. N. S. C. (In re B. H. S.)

• Decision Date: 05 January 2022
• Docket Number: A176084
• Citation: 316 Or.App. 755,503 P.3d 1277
• Parties: In the MATTER OF B. H. S., a Child. Department of Human Services, Petitioner-Respondent, v. N. S. C., Appellant.
• Court: Oregon Court of Appeals

316 Or.App. 755

503 P.3d 1277

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

v.N. S. C., Appellant.

A176084

Court of Appeals of Oregon.

Submitted November 29, 2021.

January 5, 2022

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Daniel J. Casey, Deputy Public Defender, Office of Public Defense Services, filed the briefs 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.

AOYAGI, J.

Mother appeals a permanency judgment continuing the plan of reunification for her child, B, who is currently a ward of the court. Mother contends that the juvenile court erred in ordering mother to (1) undergo a psychological evaluation and (2) complete domestic violence "aggressor" counseling. Reviewing the juvenile court's legal conclusions for errors of law and its findings for any evidence, Dept. of Human Services v. W. C. T. , 314 Or. App. 743, 745, 501 P.3d 44 (2021), we reject mother's second argument without written discussion, and we reject her first argument for the reasons explained below. Accordingly, we affirm the permanency judgment.

In July 2020, the juvenile court asserted dependency jurisdiction over B, finding as to mother that substance abuse and a chaotic lifestyle interfere with mother's ability to safely parent B and that mother exposes B to domestic violence. The court ordered mother to engage in alcohol and substance-abuse treatment, domestic violence counseling, and parent training.

In April 2021, the juvenile court held a permanency hearing. The Department of Human Services (DHS) took the position that mother had not sufficiently progressed toward the goal of reunification and asked the court to order a psychological evaluation. There was evidence that mother had completed her substance-abuse course but not participated in "after care," and DHS was concerned about a possible relapse based on observations of sweatiness, jitteriness, black fingernails, and lack of emotional control. The caseworker believed that a psychological evaluation could help DHS to identify a "better service" for mother or an "underlying mental health issue" that had prevented mother from engaging in services. The juvenile court continued the plan of reunification, finding that further efforts would make it possible for B to safely return home within a reasonable time, but it ordered mother to complete "follow up care" and "DV services" and to "cooperate in [a] psychological evaluation and follow any treatment recommendations."

We recently clarified the legal requirements to order a parent to submit to a psychological evaluation in a dependency case. In W. C. T. , 314 Or. App. at 756, 501 P.3d 44, we reconciled different strands of our case law regarding the sources of juvenile court authority for such orders, particularly ORS 419B.337 and ORS 419B.387. Regarding ORS 419B.337, we had held in Dept. of Human Services v. G. L. , 220 Or. App. 216, 222-23, 185 P.3d 483, rev. den. , 345 Or. 158, 190 P.3d 379 (2008), that ORS 419B.337 permits ordering a parent to submit to a psychological evaluation if it bears a "rational relationship" to the jurisdictional findings. Regarding ORS 419B.387, we had held in Dept. of Human Services v. D. R. D. , 298 Or. App. 788, 799, 450 P.3d 1022 (2019), that ORS 419B.387 permits ordering a parent to submit to a psychological evaluation "as a component of treatment or training," but not as a discovery mechanism to determine if treatment or training is needed. In recent years, numerous parents have asked that we overturn G. L. as plainly wrong and recognize ORS 419B.387 as the sole authority to order a parent to submit to a psychological evaluation. Indeed, mother does so in this case.

We rejected that approach in W. C. T. , instead articulating a new unified standard derived from several statutes. Ultimately, we held that a juvenile court "may order a psychological evaluation of a parent, after an evidentiary hearing, by making findings that" (1) the psychological evaluation is for a service that is rationally related to the findings that bring the child into the court's jurisdiction; (2) the psychological evaluation is a predicate component of treatment or training of a parent; (3) there is a need for treatment or training to correct the circumstances that caused the jurisdictional findings or to prepare the parent for the child's return; and (4) the parent's participation in such treatment or training is in the best interest of the child. W. C. T. , 314 Or. App. at 776, 501 P.3d 44. The first required finding derives from ORS 419B.337(2) and ORS 419B.343(1)(a), the second and fourth required findings derive from ORS 419B.387, and the third required finding derives from ORS 419B.387 and ORS 419B.343(1)(a). Id .

Mother filed her opening brief before the publication of W. C. T. , and some of her arguments are now foreclosed by W. C. T. In her reply brief, mother asks us to overrule W. C. T. as "plainly wrong." See State v. Civil , 283 Or. App. 395, 417, 388 P.3d 1185 (2017) (describing our "rigorous" standard for overruling our own precedent, including that it must be "plainly wrong"). We decline to revisit an en banc decision of this court, especially one that was highly divided and on which the ink is barely dry. As such, we limit our consideration to mother's arguments that parts of the W. C. T. standard were not satisfied in this case.

As for DHS, it makes two arguments. First, DHS argues that, because the juvenile court entered a permanency judgment that continued the plan of reunification, the relevant source of authority to order mother to submit to a psychological evaluation is ORS 419B.476, which provides, in relevant part, that, at a permanency hearing, "if the court determines that further efforts will make it possible for the ward to safely return home within a reasonable time," the court may "order that the parents participate in specific services for a specific period of time and make specific progress within that period of time[.]" In DHS's view, if the juvenile court relies on ORS 419B.476 to order a parent to submit to a psychological evaluation and follow any resulting treatment recommendations, then only a "rational relationship" to the jurisdictional bases is required. That is, DHS contends that the W. C. T. standard does not apply here.

In the alternative, DHS argues that the W. C. T. standard was met here. Among other things, DHS points out that, at the time of the permanency hearing, DHS had been involved in B's care for 14 months and that mother's progress during that time had been insufficient to ameliorate the jurisdictional bases. DHS argues that a psychological evaluation will help to identify any underlying issues impeding mother's progress in substance-abuse and domestic-violence services and will aid DHS in tailoring the services provided to mother.

We address first whether the court erred in ordering mother to submit to a psychological evaluation under the standard articulated in W. C. T. See State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002) ("Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial."). The juvenile court did not expressly identify the statutory authority on which it relied to order mother to submit to a psychological evaluation, but we discern from the record that it relied on ORS 419B.387. The court therefore expressly or implicitly made three of the four findings required under W. C. T. See W. C. T. , 314 Or. App. at 776, 501 P.3d 44 (identifying three required findings as derived from ORS 419B.387 ). Mother challenges those findings.

Having reviewed the record, we conclude that there is evidence to support each of those findings. With regard to the second W. C. T. requirement—that the psychological evaluation is a predicate component of treatment or training of a parent—there is evidence to support the juvenile court's findings regarding mother's lack of progress in ordered services for domestic violence and substance abuse. A growing body of our case law establishes that, when a parent has failed to sufficiently engage in services over time, at some point the court may find a psychological evaluation to have become a necessary component of the ordered services. See, e.g. , id. at 777, 501 P.3d 44 (parent had failed to successfully complete drug and alcohol treatment); Dept. of Human Services v. M. O. B. , 312 Or. App. 472, 485, 493 P.3d 553, rev. dismissed , 368 Or. 788, 498 P.3d 297 (2021) (parent had exhibited a pattern of assaultive and impulsive behaviors); Dept. of Human Services v. F. J. M. , 312 Or. App. 301, 311-12, 493 P.3d 59, rev. allowed , 368 Or. 510, 492 P.3d 70 (2021) (parent had not succeeded in ordered treatment and training); D. R. D. , 298 Or. App. at 800, 450 P.3d 1022 (parent had been unable to stay clean and sober); Dept. of Human Services v. T. L. H. , 300 Or. App. 606, 615-16, 453 P.3d 556 (2019) (parent struggled to maintain residential stability, had difficulty attending and participating in child's...