Dept. of Human Services v. F. J. M.Dept. of Human Services v. F. J. M.
See later issue Oregon Reports
Affirmed.
Lung S. Hung, Judge.
Sarah Peterson, 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.
Shannon T. Reel, 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.
Affirmed.
Aoyagi, J., concurring in part and dissenting in part.
Father in these dependency cases appeals jurisdictional and dispositional judgments of the juvenile court taking jurisdiction of father‘s five children under
The family has had extensive involvement with the Department of Human Services (DHS) at least since 2016, arising out of reports of neglect and abuse of the children as a result of mother‘s mental health issues, housing instability, and both parents’ drug use. The children were first made wards of the court in January 2017, based on mother‘s mental health and her violence toward father. Father retained physical custody of the children pursuant to a safety plan to protect them from mother. But father did not comply with the safety plan, and the parents continued to have contact, despite a court order prohibiting them from doing so.
After the court assumed jurisdiction, father filed a petition for dissolution of the parents’ marriage in March 2017, and the petition alleged that mother‘s mental health problems prevented her from being able to parent the children. In September 2017, while the dissolution matter was pending, DHS dismissed the dependency petition. Then, in November 2017, pursuant to the parents’ motion, the court dismissed the dissolution petition.
Throughout 2018, the parents’ relationship was tumultuous, and DHS had multiple contacts with the family, but the children remained in parents’ care. In June 2019, the oldest child reported that mother was neglecting the children due to her mental health issues and that father was not protecting the children from mother. DHS initiated
In January 2020, the children were alone with mother when she threatened herself with a knife in front of the children. The oldest child called father at work, and he returned. The police removed mother from the house, and DHS initiated an assessment, again attempting to work with father to implement an in-home safety plan to protect the children from mother.
Father was on probation on a conviction for misdemeanor telephonic harassment of mother. He failed to report to his probation officer, and, on February 7, 2020, father‘s probation officer determined, after father submitted to a urine test, that father had used methamphetamine, in violation of his probation. Father served a sanction of six days in jail for that violation, and DHS took custody of the children and filed the instant petitions. The children were placed in foster care in February 2020.
On his release from jail, father began drug treatment but continued to use methamphetamine and marijuana. He met weekly with a mental health counselor but continued to downplay mother‘s risk to the children and to deny use of methamphetamine. When his DHS case worker challenged him to stop lying and to be honest with her, he answered, “I don‘t know how. I don‘t know how to do that. This is just how *** I was raised and I don‘t know how to fix it.” DHS identified an in-patient drug treatment program for father, but he declined to participate.
In June and July 2020, the juvenile court held jurisdictional and dispositional hearings and heard testimony from DHS witnesses describing the family‘s long involvement with DHS, father‘s failure to abide by plans to keep the children safe from mother, and father‘s drug use. Father had been receiving drug treatment since his release from custody but continued to use methamphetamine up to the time of trial. Father acknowledged that he could not be a safe
Father testified that he believed that mother could safely parent the children when her mental condition was stable and he is not home, and that he is able to recognize when she is unable to parent and to protect the children. The family‘s caseworker testified that father had a pattern of leaving the children with mother.2 DHS presented evidence that the children have severe emotional issues as a result of father‘s failure to parent and to protect them from mother.
The court found that father has continued to use drugs and associate with known drug users. It found that father‘s drug addiction continues to be a condition that harms the children. The court found that father has not kept the children safe from mother:
“The evidence also demonstrates a repeating cycle where Father continues to separate and get back together with Mother, and when they are together, Father leaves the children with Mother or allows Mother to be with the children. With or without Father present, Mother‘s presence—with or without Father present, Mother‘s presence has a substantial negative effect on the children. *** Given the historical repeating cycle and there being reason to question the father‘s credibility, the court does not find Father will protect his children from Mother.”
The court found the children to be within the court‘s jurisdiction based on allegations that: (1) father “knew that mother‘s mental health prevented her from safely parenting the [children] and he continued to leave the [children] in [mother‘s] care“; (2) “father‘s substance abuse interferes with his ability to safely parent the [children]“; and (3) “father has displayed a pattern of behavior over several years where he leaves the [children] in the care of the mother knowing that she cannot safely parent the [children].”
DHS contended that the psychological evaluation was necessary so that father could be successful in his reunification plan and drug treatment, in which he had been engaged without success for six months:
“Keep in mind it‘s been six months since these children entered care and Father still is struggling in completing alcohol and drug treatment, engaging in that. And so DHS is requesting that psychological evaluation looking really at the past six months, looking at those services that have been offered and seeing a lack of progress there, as well as the evidence presented at the jurisdictional trial that demonstrates that Father does have mental health issues, does have psychological impairment that needs to be addressed in order for him to be successful not only in a reunification plan, but his alcohol and drug treatment.”
DHS then called as a witness the caseworker‘s supervisor to provide testimony in support of DHS‘s request for a psychological evaluation. The witness explained that DHS sought a psychological evaluation to understand why, in the previous six months, father had failed to progress in either his drug treatment or his ability to protect the children from mother:
“We‘ve had I believe it‘s 13 reports regarding this family since 2014. Multiple of those reports were concerning Mom‘s mental health, domestic violence, substance use, the instability in the household, [father‘s] physical abuse of the children. And what we‘re seeing is a pattern of behavior that has played out over years of violence in the home, drug use, and instability. [Father] when contacted previously had agreed to work with the agency in a prior case and he struggled to maintain implementing the safety plan that he had agreed upon in the home. And then most recently
has admitted to not being honest with the Court and with the agency regarding statements that he‘s made. So it‘s hard to trust that [father] at this point would be able to continue to work with the agency in a forthcoming manner based on his behavior. He hasn‘t been willing *** to work with the agency and that has not allowed the agency to fully understand his behaviors. Based on the pattern of his behaviors it may appear, based on my experience, that his substance use has affected his mental health. But at this point, we‘re *** unsure about what his underlying mental health concerns may be and a psychological evaluation would help us guide case planning, reunification, and fully understand what his needs are.”
In addressing the disposition, the juvenile court incorporated its findings on jurisdiction. The court declined to order father to submit to a mental health evaluation, explaining that there was no diagnosed mental health condition that would support such an evaluation. But the court ordered father to take parenting classes and to submit to substance abuse and psychological evaluations. The court‘s stated reasoning for requiring the psychological evaluation focused on father‘s long-term failure to protect the children from mother:
“There was ample testimony regarding the father‘s repeated attempts to separate himself or keep the children safe from the mother and repeated failures to do so, both by prior DHS cases, prior divorce filings, prior other things that were done either by Father on his own or through with the assistance or urging of DHS that (indiscernible) simply failed to bring that forward at least until now. And I think a psychological evaluation would be helpful in determining the rationally related (indiscernible) determine what—what else needs to be done, what can be done to assure that Father can keep the children safe and away from their mother. So I do find that a psychological evaluation is rationally related and based on both the evidence presented at adjudication and disposition.”
Father contends on appeal that the evidence is not sufficient to support the court‘s requirement that he participate in a psychological evaluation. Father has not requested de novo review, and this is not an exceptional case warranting such review. See
“If the court finds in an evidentiary hearing that treatment or training is needed by a parent to correct the circumstances that resulted in wardship or to prepare the parent to resume the care of the ward, the court may order the parent to participate in the treatment or training if the participation is in the ward‘s best interests.”
In D. R. D., we had before us the question of what must be shown under
On the father‘s appeal, we rejected DHS‘s argument that
We concluded in D. R. D. that a psychological evaluation is authorized under
There is another statutory provision that we have held can authorize a court to order a parent to submit to a psychological evaluation.
“The court may specify the particular type of care, supervision or services to be provided by the Department of Human Services to wards placed in the department‘s custody and to the parents or guardians of the wards[.]”
In State ex rel Juv. Dept. v. G. L., 220 Or App 216, 223, 185 P3d 483, rev den, 345 Or 158 (2008), we held that, as a feature of directing DHS to provide services,
“Both
ORS 419B.337(2) andORS 419B.387 provide authority for a psychological examination. One statute requires that a psychological examination rationally relate to a jurisdictional basis, while the other requires a showing of a need for the examination for treatment or training directed toward reunification.”
Here, the juvenile court did not state explicitly whether it was relying on
We appreciate the dissent‘s frustration with the lack of clarity in the statutes and the case law concerning the court‘s authority to require a parent to submit to a psychological evaluation. But, as we observed in L. J. W., there are two potentially applicable standards, one of which is
Affirmed.
AOYAGI, J., concurring in part and dissenting in part.
I agree with the majority that the juvenile court did not err in asserting dependency jurisdiction over the children. I disagree, however, that the juvenile court properly ordered father to submit to a psychological evaluation.
On this record, I understand the juvenile court to have ordered father to submit to a psychological evaluation under authority of
But we are not writing on a clean slate. To the contrary, at this point, the slate could not be messier.
We first relied on
We have cited and relied on G. L. intermittently but consistently for the past 13 years, typically with no analysis. See, e.g., Dept. of Human Services v. L. J. W., 302 Or App 126, 130, 460 P3d 540, rev den, 367 Or 75 (2020); Dept. of Human Services v. K. J., 295 Or App 544, 548, 435 P3d 819 (2019);
In recent years, we have seen more and more challenges to juvenile court orders requiring parents to submit to psychological evaluations, often with confusing records as to whether the court was relying on
Meanwhile, we have also struggled with the scope of the juvenile court‘s authority to order a psychological evaluation under
In this particular case, I would tackle father‘s challenge to the trial court‘s reliance on
For those reasons, I respectfully concur in part and dissent in part.