Dep't of Human Servs. v. H. K. (In re O. K.)

• Citation: 321 Or.App. 733,517 P.3d 1044
• Decision Date: 14 September 2022
• Docket Number: A177559 (Control), A177567
• Parties: In the MATTER OF O. K., a Child. Department of Human Services, Petitioner-Respondent, v. H. K., Appellant.
• Court: Oregon Court of Appeals

321 Or.App. 733
517 P.3d 1044

In the MATTER OF O. K., a Child.

Department of Human Services, Petitioner-Respondent,
v.
H. K., Appellant.

A177559 (Control), A177567

Court of Appeals of Oregon.

Argued and submitted July 7, 2022
September 14, 2022

Holly Telerant, 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.

Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

SHORR, P. J.

321 Or.App. 735

In these consolidated dependency appeals, mother challenges two juvenile court orders arising out of a permanency hearing involving her child, J:¹ (1) an order of "Supplemental Findings Re Reasonable Efforts"² and (2) an order requiring mother to undergo a psychological evaluation. As explained below, we agree with mother that the juvenile court erred in determining that the Department of Human Services (DHS) made reasonable efforts toward reunifying J with mother. We therefore reverse the supplemental order and remand for the court to enter a new permanency judgment specifying that DHS did not make reasonable efforts. See Dept. of Human Services v. J. F. D. , 255 Or App 742, 750 n 4, 298 P.3d 653 (2013) (where parties did not dispute permanency disposition, new judgment specifying that DHS did not make reasonable efforts was necessary on remand "because changing the reasonable efforts conclusion has collateral consequences regardless of whether the approved

517 P.3d 1047

plan is changed").³ As to mother's challenge to the psychological-evaluation order, we reject DHS's contention that the appeal is moot, and we vacate and remand the order in light of Dept. of Human Services v. W. C. T. , 314 Or App 743, 501 P.3d 44 (2021).

I. ORDER FOR PSYCHOLOGICAL EVALUATION

In somewhat unconventional fashion, we begin by first disposing of mother's challenge to the juvenile court's order requiring her to submit to a psychological evaluation,

321 Or.App. 736

which she presents as her second assignment of error in this appeal. Briefly, prior to the commencement of the permanency hearing that gave rise to the appeal, DHS filed a motion requesting the court to order a psychological evaluation of mother, arguing that it was authorized under both ORS 419B.337(2) and ORS 419B.387. Mother filed a written objection to DHS's motion and also argued against it at the permanency hearing. The court rejected mother's arguments and, on November 16, 2021, entered an order requiring the psychological evaluation and providing that the completed evaluation "shall be disclosed to the court and the parties for use in the judicial proceedings." On January 8, 2022—while this appeal was pending—mother notified the juvenile court that, although she "respectfully disagree[d] with the Court's order," she would submit to the evaluation to move the case along and to "demonstrate [her] willingness to cooperate with DHS towards reunification." She subsequently completed the evaluation and shared it with DHS.

DHS then moved to dismiss mother's appeal as moot, arguing that it no longer has a practical effect on mother's rights. Mother responds that her challenge to the order is not moot because a decision in her favor could provide a basis for limiting or excluding the use of the evaluation as evidence against her in the ongoing dependency proceedings or a future termination of parental rights proceeding. We agree with mother that her appeal of the order is not moot. See Dept. of Human Services v. T. L. H. , 300 Or App 606, 613, 453 P.3d 556 (2019) (concluding that appeal was not moot in similar circumstances). Mother's letter to the court did not, as DHS contends, waive any challenge to the subsequent use of the evaluation in future proceedings. W. C. T. , a case in which the mother had already waived DHS's release of her records and had not developed any further argument as to what underlying information was still at issue, is inapposite in that respect. 314 Or App at 779, 501 P.3d 44.

As to the merits of mother's challenge to the psychological-evaluation order, DHS concedes the error, acknowledging that the juvenile court did not make the factual findings required under the four-part standard

321 Or.App. 737

articulated in W. C. T. , 314 Or App at 776, 501 P.3d 44.⁴ We agree and accept DHS's concession; accordingly, we vacate and remand the psychological-evaluation order. See, e.g., Dept. of Human Services v. B. F. , 318 Or App 536, 540, 507 P.3d 350 (2022) (vacating and remanding portion of judgment requiring the father to submit to a psychological exam); Dept. of Human Services v. M. D. , 316 Or App 820, 823, 503 P.3d 1275 (2022) (vacating and remanding for application of W. C. T. standard where court had failed to make three necessary findings derived from ORS 419B.387 ).

II. REASONABLE EFFORTS DETERMINATION

We turn to our review of the juvenile court's reasonable efforts determination, starting with our standard of review.

A. Standard of Review

In the absence of de novo review, which is neither requested nor warranted in this case,

517 P.3d 1048

"[w]e are * * * bound by the juvenile court's factual findings as to what efforts DHS has made, so long as there is any evidence in the record to support them. Dept. of Human Services v. J. F. D. , 255 Or App 742, 744, 298 P.3d 653 (2013). Whether those efforts constitute ‘reasonable efforts’ for purposes of ORS 419B.476(2)(a) is a question of law that we review for legal error. Dept. of Human Services v. V. A. R. , 301 Or App 565, 567, 456 P.3d 681 (2019)."

Dept. of Human Services v. K. G. T. , 306 Or App 368, 370, 473 P.3d 131 (2020).

B. Facts

DHS first became involved with this family in December 2019, when J, who was then 12 years old, was hospitalized for suicidal concerns. J had locked themself in a bathroom in the family home with a butcher knife and was proceeding to cut or had cut themself. At the hospital, J told hospital staff that they would harm themself if returned to mother's care. Mother indicated that she did not want J to be treated with anything but homeopathic medications.

321 Or.App. 738

Mother also initially did not want J admitted to a psychiatric hospital, as J's medical providers recommended. DHS sought protective custody to ensure that J would receive mental health services.

At the original shelter hearing, father was given temporary custody of J and DHS was dismissed. After learning that father was not able or willing to ensure that J received the mental health services that they needed,⁵ DHS filed an amended dependency petition on January 30, 2020, and J was placed in substitute care at that time.

The juvenile court took dependency jurisdiction over J in early April 2020. As to mother, jurisdiction was based on her admissions that (1) "[J] has emotional and mental health needs that require treatment that the mother has failed to provide" and (2) "the mother's mental health problems interfere with her ability to safely parent the child."⁶ Reunification with a parent was identified as the permanency plan for J.

J has been in a variety of placements over the course of this case. Between January and June 2020, they were placed in nonrelative foster care in Enterprise, they then moved to a psychiatric care facility at Trillium Family Services, where they spent a week before being returned to the foster care placement in Enterprise, followed by a brief placement with their maternal grandmother, and a nonrelative foster care placement in Baker City.

In May 2020, Dr. Dudley completed a psychological examination of J and diagnosed them with major depressive disorder, recurrent, of moderate to severe level; an unspecified anxiety disorder; and post-traumatic stress disorder. Dudley also indicated that J "was developing a characterological structure with quite maladaptive style of interpreting and responding to stress and interpersonal interactions including self-harm behaviors and heightened

321 Or.App. 739

risk of suicide." Dudley reported that, rather than a hospital or foster family setting, J needed "a more structured therapeutic setting where there is higher supervision and a program of therapeutic services for [J]" and opined that J would "likely benefit from ongoing psychiatric consultation, individual counseling, and in the residential setting, group counseling."

At that time, J was receiving individual mental health therapy from...