In re O. A. M. B., A 175708

• Decision Date: 01 December 2021
• Docket Number: A 175708
• Citation: 316 Or.App. 39
• Parties: In the Matter of O. A. M. B., a Child. v. T. L. M., aka T. P., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
• Court: Oregon Court of Appeals

316 Or.App. 39

In the Matter of O. A. M. B., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. T. L. M., aka T. P., Appellant.

A 175708

Court of Appeals of Oregon

December 1, 2021

Argued and submitted September 7, 2021

Multnomah County Circuit Court 19JU08825; Petition Number 113906; Beth A. Allen, Judge.

Kristen G. Williams argued the cause and fled the briefs for appellant.

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 Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi Judge.

TOOKEY, J.

In this juvenile dependency case, mother appeals a juvenile court judgment requiring that she undertake a psychological evaluation. On appeal, mother argues, among other points that the juvenile court erred by ordering her to undertake the psychological evaluation, because the record is insufficient to show that a "psychological evaluation is 'rationally related' to the established jurisdictional bases." For the reasons that follow, we agree with mother, and we reverse and remand.^[1]

I. FACTS

"We review the juvenile court's factual findings for any evidence and its legal conclusions for errors of law." Dept. of Human Services v. W. C. T., 314 Or.App. 743, 745, __P.3d__(2021).

In November 2019, mother and father brought O, an infant, to the hospital. O tested positive for methamphetamine, and neither mother nor father could provide an explanation about how O had ingested the methamphetamine.

In January 2020, the juvenile court found that it had jurisdiction over O based on parents' admissions. Mother admitted to two jurisdictional bases: (1) that "mother's substance abuse interferes with her ability to safely parent [O]," and (2) that "[w]hile in the care of the parents the child tested positive for methamphetamine and the mother was not able to protect the child from the unsafe environment."

Over the following months, mother's attempt to ameliorate her substance abuse problem progressed in fits and starts: In January 2020, mother was engaged in outpatient treatment but was discharged from that treatment in March 2020 due to "lack of engagement." Mother was then referred to another treatment provider, but, in May 2020, mother's treatment was "closed" for "lack of engagement." In July 2020, mother completed an assessment with a third provider, engaged in treatment, and provided urinalysis (UA) tests that were negative for controlled substances. By September 2020, however, mother was only "minimally engaged" in treatment and provided a UA test that was positive for methamphetamine and THC. And, in October 2020, the juvenile court expressed concern that mother was not "solidly" in treatment.

In November 2020, mother and father were not living together, O was returned to father's care, and mother had reengaged with drug treatment. Mother began unsupervised visits with O in December 2020.

Shortly thereafter, however, when father tried to pick up O from mother to take O to an appointment, mother "would not give" O to father. Both parents called a DHS caseworker and father left the DHS caseworker voicemails. The caseworker heard mother "yelling in the background" of father's voicemails. DHS "prompted" mother and father "numerous" times to reach a custodial agreement regarding O, but the parents "did not follow through" on that prompting.

On January 8, 2021, a DHS worker received an update from mother's drug treatment service provider, stating that mother was "close to the end" of treatment. The treatment provider stated that clients need to provide "12-13 consecutive UAs" to complete treatment and that mother had provided 12; that mother had been consistently attending group meetings; and that mother could potentially complete treatment in 3-4 weeks.

On February 1, 2021, at a review hearing, DHS "hesitantly" recommended that the juvenile court dismiss jurisdiction over O because there was "no active safety threat" to O. DHS believed, however, that the "child would benefit if the parents had a custodial agreement" to ensure O would be "returned to his father in a safe and conflict-free manner." At the February 1, 2020, hearing, the juvenile court agreed to dismiss the case "with hesitation," expressing concern that the parents would not be able to "work out parenting time without an order in place." The juvenile court also expressed concern that "when things don't work out, things get hostile quickly," and that O could become "the rope in [a] tug-of-war" between mother and father.

Following the February 1, 2021, hearing-but before a judgment dismissing the case was entered-father filed an "immediate danger motion" regarding O, which prompted a juvenile court hearing on February 5, 2021. In a declaration attached to father's immediate danger motion, father averred that on January 30, 2021, at 2:00 a.m., mother came to father's home; mother began "banging on the doors and on the windows"; mother threatened to "wreck our cars if I did not let her in"; mother shouted at father; and mother attempted to remove O from father's home.

In that same declaration, father also averred that he had let mother spend the night on the couch in his home; that the following morning mother "resumed her tirade" and called father "unfit"; that mother "started throwing things at [father] and hit [father] in the back of the head with the remote control for the TV"; and that mother then took O and left. According to father, mother also "made it clear that she has no intention of ever returning [O] to [father]." Father described mother as "behaving like she is under the influence of some sort of drug."

In response to father's motion, a DHS caseworker spoke with mother. Mother explained to the caseworker that she had called father on January 30 around 3:00 p.m. to arrange to visit O and that father confirmed his understanding regarding that planned visit; that father had not subsequently answered calls from mother and she went to his home around 8:00 p.m. or 9:00 p.m.; that father's roommate let mother inside; that mother played with O, had a conversation with father, and then left; that, after mother left, mother and father exchanged text messages; that mother returned to father's home around 1:30 a.m.; that father let mother in and the two spoke then "had relations"; that the next morning mother told father "we're going to go," and then "got the baby ready"; and when mother got to her home, mother's sister informed mother that father "said he was going to call the police," and mother told mother's sister that father was scheduled to have O the following day.

At the February 5, 2021, hearing, the DHS caseworker testified that it was unclear whether mother's or father's version of the events of January 30, 2021, was accurate, but that, "regardless of whose version of events you believe regarding the night of January 30th, either version of events puts [O] in a harmful situation." In addition, at the February 5, 2021, hearing, evidence was presented by DHS that mother had missed a UA on January 28, 2021, because the temperature of the urine sample she provide was too hot to be accepted by her treatment provider.

Additionally, at the February 5, 2021, hearing, DHS requested that the court order mother and father to participate in psychological evaluations. That request led to the following exchange between counsel for DHS and the DHS caseworker:

"Q Do you believe that a psychological evaluation would be appropriate for both the mother and the father in this case in order for them to resume wardship of their children?

"A: Yes.

"Q: First, could you start by testifying as to why you believe it would be appropriate for the mother to engage in a psychological evaluation that complied with those recommendations?

"A: The agency believes that it would be appropriate for the mother to undergo a psychological evaluation to get a fuller understanding of her behaviors, not only surrounding [the night of January 30, 2021, ] but as a protective parent and if she was able to provide unsupervised care for her child.

"And if the substance use is an ongoing issue, if she needs treatment recommended or follow-up with counseling or whatever that psychologist would recommend at that evaluation.

"Q: Do you believe it would also benefit not only in terms of assessing the reasons why it appears she cannot maintain her sobriety but also in terms of assessing the relationship between the father and the mother?

"A: Yes. "Q: And specifically in regard to the father, do you believe a psychological evaluation would be appropriate and necessary for him to safely have the child in his care going forward?

"A: Yes.

"Q: Can you please testify to the Court why you believe that that is completely necessary?

"A: As I've worked with the family and specifically [father] and [mother], it has been difficult to get an understanding of their relationship and their parenting practices.

"Mostly based off of when we had placed the child with [father], it was unclear at times because sometimes it was reported to me that everything was fine between the two and they could work on parenting time between the two of them.

"And then other times he would call and-sounding distressed, saying that things such as [mother] was not giving the child back to him and he was worried. And so it would be helpful to have a fuller understanding of that relationship.

"Q And do you also believe that the psychological evaluation would assist in identifying the issues which DHS has ultimately had a great deal of difficulty in being able to identify, specifically in regards to parents being less than...