453 P.3d 556
Or. Ct. App.2019Background
- Child (age 2 at removal) became a ward after mother’s removal; dependency jurisdiction over father for not asserting custody and residential instability. Case plan sought reunification.
- Juvenile court ordered father to complete substance treatment, a psychological evaluation (60 days after sobriety), and parenting classes; father struggled with addiction and homelessness but engaged in some services and obtained housing.
- Child diagnosed with adjustment disorder with anxiety, ADHD, speech sound disorder, neglect, and severe asthma; receiving speech/OT and mental health therapy; assessments described the child as having "high" and "rare" needs requiring an above-average caregiver.
- DHS moved to compel a psychological evaluation of father, citing missed/partial therapy attendance, "scattered" engagement, diluted/missed UAs and reports of ongoing substance use, and concerns whether father could consistently meet the child’s specialized needs.
- At an evidentiary hearing DHS presented caseworker testimony and multiple assessments; father presented evidence of progress (housing, treatment completion, overnight visit recommendation) and transportation/engagement difficulties; the juvenile court found the evaluation in the child’s best interest and ordered it.
- Father appealed, arguing a psychological evaluation is not "treatment or training" under ORS 419B.387 and that the hearing lacked proof; DHS moved to dismiss as moot because father already completed the evaluation. The Court of Appeals denied mootness and affirmed the order.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Mootness: Is the appeal moot after father completed the ordered evaluation? | Appeal is moot because father already submitted to the evaluation. | Not moot; collateral consequences (use of the forensic report in dependency/TPR proceedings) preserve a justiciable interest. | Not moot; appellate review can have practical effects and DHS did not rebut collateral-consequence claims. |
| Statutory authority/evidence: May the court order a psychological evaluation under ORS 419B.387, and did evidence support doing so? | ORS 419B.387 authorizes assessments as components of treatment/training when an evidentiary hearing establishes a need to prepare the parent to resume care given the child’s particular needs; hearing evidence supported the order. | A psychological evaluation is not "treatment or training" and the court lacked statutory authority; insufficient proof at hearing. | Affirmed: Court may order a psychological evaluation as part of treatment/training when an evidentiary hearing establishes such need to prepare the parent for the child’s particular needs; the record supported that finding. |
Key Cases Cited
- Dept. of Human Services v. D. R. D., 298 Or App 788 (Or. Ct. App. 2019) (holds ORS 419B.387 can authorize psychological evaluations as components of required treatment once need is established at an evidentiary hearing)
- Dept. of Human Services v. A. B., 362 Or 412 (Or. 2018) (allocates burdens for mootness: moving party must prove lack of practical effect and rebut asserted collateral consequences)
- Dept. of Human Services v. A. F., 295 Or App 69 (Or. Ct. App. 2018) (articulates standard of review: legal conclusions for errors of law; findings reviewed for evidence)