In the Matter of R. A. D., a Child.
D. R. D., Appellant. 298 Or.App. 788 DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and submitted April 5, 2019
Clatsop County Circuit Court 18JU04923; Paula Brownhill,
Peterson, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Offce of Public Defense
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.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: In this juvenile dependency case, father appeals
from a review hearing judgment ordering him to submit to a
psychological evaluation. On appeal, father argues that the
juvenile court erred because, although ORS 419B.387 allows
the juvenile court to order a parent to participate in
"treatment or training," the statute does not
authorize ordering parents to submit to a psychological
evaluation that is invasive and potentially incriminatory by
nature. In response, the state argues that the juvenile court
has broad authority to make orders that further the best
interests of its wards. In particular, the state contends
that the juvenile court has specific authority under ORS
419B.387 to order a parent to participate in needed
"treatment or training," including ordering
assessments to determine the type and extent of needed
treatment or training. Held: ORS 419B.387 authorizes
the juvenile court to order a parent to participate
Or.App. App. 789] in treatment or training but conditions
that authority on a finding of need, following an evidentiary
hearing. ORS 419B.387 does not imbue the juvenile court with
the authority to order a parent to comply with a discovery
mechanism to determine if there is a need for treatment or
training. 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 review hearing.
Or.App. 790]JAMES, J.
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." 0RS 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. 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 [298 Or.App. 791] 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.
review the juvenile court's legal conclusions for errors
of law and its findings for any evidence." Dept. of
Human Services v. A. K, 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 (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.
infant became a ward of the court after both father and
mother admitted to lengthy and significant drug addictions
and current drug use. 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 [298 Or.App.
792] 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.
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."
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
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
[298 Or.App. 793] 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
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 ...