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In re R. A. D.

Court of Appeals of Oregon

August 7, 2019

In the Matter of R. A. D., a Child.
v.
D. R. D., Appellant. 298 Or.App. 788 DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted April 5, 2019

          Clatsop County Circuit Court 18JU04923; Paula Brownhill, Judge.

          Sarah 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 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.

         Case 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

         [298 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.

         Affirmed.

         [298 Or.App. 790]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." 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.[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 [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.

         "We 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.

         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 [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.

         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 [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 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 ...

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