Dept. of Human Services v. W. C. T.Dept. of Human Services v. W. C. T.
Held: The line of cases relying on
Jurisdictional judgment affirmed; dispositional judgment affirmed in part, reversed and remanded in part.
Aron Perez-Selsky filed the brief for appellant W. C. T.
Inge D. Wells argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General.
Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.
DeVORE, J.
Jurisdictional judgment affirmed; dispositional judgment affirmed in part, reversed and remanded in part.
DeVore, J., filed the opinion of the court in which Armstrong, Tookey, DeHoog, Shorr, Powers, and Kamins, JJ., joined.
Mooney, J., concurred in part and dissented in part and filed an opinion in which Egan, C.J., Ortega, Lagesen, James, and Aoyagi, JJ., joined.
In consolidated appeals, mother and father appeal judgments of jurisdiction and disposition. The juvenile court took jurisdiction over parents’ daughter, R, and directed parents to cooperate in the plan for reunification. Mother and father assert 10 assignments of error in the decision to take dependency jurisdiction. Both parents assign error to the court‘s order that they participate in psychological evaluations and urge that one of two lines of authority for such evaluations should be overruled as plainly wrong. In addition, mother assigns error to the court‘s order that she engage in consistent visitation, obtain safe and stable housing, sign information releases, and complete a “protective capacity assessment.”
We have differing opinions whether to overrule or harmonize our cases. A concurring and dissenting opinion would overrule, while this majority opinion harmonizes cases, encouraged by the doctrine of stare decisis. We hold that, after an evidentiary hearing, a juvenile court may order a psychological evaluation when finding that (a) the evaluation is rationally related to the jurisdictional findings, (b) it serves as a predicate component to the determination of treatment and training, (c) there is a need for treatment or training to ameliorate the jurisdictional findings or to facilitate the child‘s return, and (d) the parent‘s participation in needed treatment or training is in the best interests of the child. We affirm the jurisdictional judgment, and we affirm the dispositional judgment as to mother. However, we agree with father that the juvenile court erred in directing him to participate in a psychological evaluation, and we reverse and remand that part of the dispositional judgment.
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. A. F., 295 Or App 69, 71, 433 P3d 459 (2018).
Mother gave birth to R two months prematurely in August 2009. R suffered continuous developmental delays. When she entered kindergarten in 2014, R was “very far
The juvenile court previously took jurisdiction as to R in 2014 on the admitted allegations of the Department of Human Services (DHS) as to each parent‘s history of substance abuse, father‘s criminal history, father‘s impulsive behavior, and mother‘s allowing a person with violent behavior to have unsupervised contact with R. After mother engaged in a treatment program, the court returned R to mother in February 2016.
In 2018 and 2019, Frost, a DHS employee, attempted to visit mother. Mother refused to provide urine samples and refused to allow Frost access to her home. Frost left her business card three or four times, and she left telephone voice-messages, but the calls were not returned.
In summer 2019, R and her parents lived in a “super tiny” trailer. Father moved out, and mother‘s adult daughter C and C‘s child (mother‘s granddaughter), moved in. Before he moved out, father lived in the trailer much of the time, and, after moving, father visited R at the trailer several mornings each week. In January 2020, mother was evicted from the trailer for failure to pay the rent. Mother, R, adult daughter C, and C‘s child moved into a motel where a community organization paid the bill for six weeks, but mother had no plan where to stay when the money ran out. Father lived in a different camping trailer, caring for his 91-year-old father nearby. The trailer lacked water or a toilet. Father
Mother suffers from primary progressive multiple sclerosis and requires a wheelchair. She has had an ileostomy and has an ostomy bag. Her sources of income are disability payments of $1,200 per month, supplemented with food stamps. Mother admitted she used some of the money to pay for drugs. She testified that in July 2019 she began using methamphetamine again, reportedly once or twice a month. Mother also smoked marijuana to alleviate pain in her legs. Her daughter, C, used methamphetamine while living with mother, although not in her presence. At trial, mother testified that she is addicted to methamphetamine and would benefit from treatment.
In April 2020, DHS removed R from mother‘s care and filed a dependency petition. Mother submitted to a mental health evaluation. The evaluator, Campos, observed that mother had characteristics associated with personality disorders but that mother did not meet the criteria for a diagnosis of a particular personality disorder. Campos recommended that mother engage in individual therapy and submit to a substance use disorder evaluation.
A mental health professional diagnosed R with adjustment disorder with anxiety, stemming from stress caused by unstable living circumstances. The professional testified that R needs to feel safe and secure and have a daily structure and routine.
At the close of evidence, the attorneys for the parents disputed that the evidence on the allegations sufficed to show a present risk to R. DHS and counsel for R argued to the contrary. The juvenile court was persuaded by the evidence to take dependency jurisdiction. The court determined:
“A. The child is in need of structure and supervision that the mother is not providing.
“B. The child has social functioning and developmental problems that require structure, supervision, and treatment that the mother is not providing.
“C. The child has failed to achieve appropriate developmental, educational, and social progress while in the
mother‘s care and the mother is not providing the care and treatment necessary to address the child‘s condition. “E. The mother‘s chaotic lifestyle interferes with her ability to safely parent the child.
“H. The mother does not understand the basic needs of her child and lacks skills necessary to safely parent the child.
“I. Despite having participated in services designed to improve the mother‘s parenting skills and substance abuse problems, she is unable to safely parent the child[.]
“J. The mother is unable to, is unwilling to, cannot provide for the educational needs of the child[.]
“K. The mother‘s substance abuse interferes with her ability to safely parent the child.
“M. The child is in need of structure and supervision that the father is unable to provide.
“N. The child has social functioning and developmental problems that require structure, supervision, and treatment that the father is unable to provide.
“O. The child has failed to achieve appropriate developmental, educational, and social progress and the father is unable to provide the care and treatment necessary to address the child‘s condition.
“P. The father lacks the parenting skills necessary to safely parent the child.
“Q. The father is aware that the mother cannot safely parent the child but has done nothing to assert custody of his child.
“R. The father failed to protect the children from mother‘s neglectful behaviors.
“S. Despite having participated in services designed to improve the father‘s parenting skills, he is unable to safely parent the child.”
The court made R a ward of the court and placed R in the temporary custody of DHS pending a hearing on disposition.
Two weeks after the jurisdictional trial, the court held a dispositional hearing. Without objection, the court
In support of a request for psychological evaluation of the parents, DHS permanency worker, Hire, testified. She recounted that, when R came into DHS care in 2014 through 2016, mother had failed to successfully complete drug and alcohol treatment. Father had done so successfully. Mother struggled, through the life of the prior case, in acknowledging the extent that her alcohol and drug issue impacted R. Two residential programs discharged mother as noncompliant. The later program‘s discharge report indicated that mother showed passive-aggressive resistance to treatment recommendations. The program recommended that mother should receive an extensive cognitive behavior assessment. In the current case, Hire reported that mother‘s mental health assessment recommended a drug and alcohol assessment and, although several appointments had been scheduled, mother had missed the appointments.
Hire testified that father has been angry and refused to allow DHS on his property. Father has not engaged in any services designed toward the goal of reunification.
Hire explained that “a psychological evaluation gives insight to a parent‘s behavior, their level of skills, their thoughts[,] and their personalities,” and it identifies “strengths and weaknesses of a parent.” That insight leads to treatment recommendations regarding case planning for services for parents. Those services “ameliorate the circumstances as to why the child came into care” and, hopefully, provide “a successful reunification.” A psychological evaluation determines if there are any barriers or underlying conditions that prevent a parent from being successful. The evaluation can discern “why the parent isn‘t engaging.” The information is relevant to case planning and can be evidence at the time of a permanency judgment or, if return is unsuccessful, the termination of parental rights. The department‘s past mental health assessment was not the same; the
Hire was concerned that, when DHS visited mother, mother fell asleep—a behavior observed during the prior case—so DHS requested a urinalysis.1 Hire knew from the assessment Campos had done that mother had at least unspecified adjustment disorder and unspecified personality disorder and that mother had mentioned depression in her testimony. As a consequence, a psychological evaluation would provide more information about those and other issues that might confront mother.
Hire did not know why father has refused to engage with DHS, and she did not know why father was not protective of R when he had been with her. In the prior case in 2016, father had “self-referred” for a mental health assessment, and, in that assessment by a drug and alcohol program, he indicated that he was depressed, could not focus mentally, and had those symptoms off and on for years. Father said that he had been told that he was bipolar in the past but never by a psychiatrist or doctor. According to Hire, when an assessment is from a prior case, DHS does not necessarily rely on that; DHS needs an updated assessment and needs to get information to a psychologist about services the parent has been in. Hire testified that this case is very similar to the last case and that she would be missing pieces of the puzzle without a psychological evaluation to provide a full picture of the parents’ functioning.
DHS also asked both parents to comply with a “protective capacity assessment.” Hire described the assessment as a conversation that she has with each parent about how they were parented, how they parent, how they see their child, and whether they are able to identify the child‘s needs. The assessment includes questions about health, alcohol, and drug issues. Hire described the parent‘s participation as essential to determining appropriate services for a case plan.
Counsel for father argued that there was not sufficient evidence to order a psychological evaluation. Counsel for mother concurred, describing psychological evaluations as unnecessary—at least unless nine or 10 months more passed. She argued that, at this time, an evaluation was just “a fishing expedition” to find evidence against the parents. She acquiesced in the court‘s direction to engage in substance abuse treatment, parenting classes, and R‘s education, while noting that mother had signed information releases. However, mother‘s counsel disputed the court‘s statutory authority to direct mother to work toward stable housing or consistent visitation.
Counsel for R urged the court to order psychological evaluations of both parents because the exams were needed and they bore a rational relationship to the bases of jurisdiction in the case. He rejected the argument that they were “just a fishing expedition for an anticipated termination of parental rights somewhere down the road.” He argued:
“[T]he stated goal of DHS, the legal goal is to reunify the parents with [R]. [R] wants to be reunified. [R] wants her parents to be drug free, wants them to have [to] deal with their whatever their psychological issues to help them remain drug free, to help [R] develop at—as a person as she gets older. She needs that. She wants that.
“*** We have only a limited amount of time to get the parents lined out and get them doing what [they‘re] supposed to do and we need to be doing that now not standing around.
“And [R], remember, is just not in a good spot. This poor child is *** way behind.”
Pressed by mother‘s counsel to clarify, the court responded, “I‘m walking the line.” The court stated that it was relying on
The juvenile court entered a dispositional judgment that continued R in foster care and made the case plan a reunification with mother and father. To that end, the court determined that mother and father are to comply with seven or eight directions. The first item pertained only to mother;
“1. Substance use disorder assessment and follow recommendations, ART services;
“2. Psychological evaluation and follow recommendations;
“3. Obtain safe and stable housing;
“4. Parenting classes and parent training, if recommended;
“5. Consistent visitation;
“6. Engage with child‘s treatment and educational providers to understand child‘s needs;
“7. Sign all requested releases of information; and
“8. Complete Protective Capacity Assessment and follow recommendations.”
Finally, the court set a review hearing to occur in 75 days, by which time R‘s evaluation might explain her delays, show her needs, and how those things might “meld with the parents’ skills and functioning.”
II. DEPENDENCY JUDGMENT
As an initial matter, both parents contend on appeal that the evidence was insufficient to show a present risk that would justify the court taking jurisdiction as to R. DHS underscores facts, which the parents do not generally dispute, and concludes that the juvenile court did not err. We agree with DHS.
When reviewing dependency jurisdiction, we view “the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court‘s disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome.” Dept. of Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 (2013).
Under
The record here contains substantial evidence of circumstances that present a current threat to R. Campos, the mental health evaluator, observed that mother had characteristics associated with personality disorders. Mother admitted at the hearing that she was addicted to methamphetamine. During the prior dependency case, in 2014 through 2016, mother had failed to successfully complete drug and alcohol treatment. In this proceeding, mother‘s adult daughter, C, told a caseworker that she and mother had used methamphetamine as recently as March 2020. Although mother‘s income consisted of modest disability payments, she admitted using some of the money to pay for drugs. Mother suffered residential instability. Due to trouble with rent payments, she and R were evicted from the small trailer in which they had lived, and she did not have a plan where to stay when the charitable money for a motel ran out.
R is a high-needs child. She has adjustment disorder with anxiety, stemming from stress caused by unstable living circumstances. She has suffered developmental delays. She was in the fourth grade but performed at first-grade levels in reading and math. Mother and father were not actively involved in her education. They had not attended her special education planning meetings. Although mother suspected that R might suffer sleep apnea, R had not had medical care in several years.
Father had visited mother and R while they had been living in their trailer, but he did not consider himself a parental resource, because he lived in a primitive trailer and needed to care for his own father.
The juvenile court took jurisdiction based on substantial evidence of housing insecurity, mother‘s substance
III. DISPOSITIONAL JUDGMENT
A. Parents’ Challenges
Parents also contend that the juvenile court erred when it entered a dispositional judgment that, first among other things, required psychological evaluations. Parents argue that psychological evaluations could only be authorized under
Under their preferred authority,
This case represents our first opportunity to clarify that several statutes provide related factors; that they do not impose inconsistent standards; and that our cases should be read together, rather than in conflict. Together, related statutes provide a four-part standard that authorizes a psychological evaluation. To reach our conclusion, we survey the juvenile code for authority and perspective; we visit the case law construing those statutes; we acknowledge the canon on surplusage; we consider the doctrine of stare decisis; and, finally, we explain how the statutes dovetail rather than differ.
B. Statutory Framework
We begin with an observation that must precede our drawing any conclusions. The legislature has not provided for psychological examinations or evaluations by using those terms expressly in any provision of the juvenile code. As noted before,
“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[.]”
And,
“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.”
Because neither provision explicitly refers to psychological evaluations, the authority of the juvenile court to approve a plan, or enter an order, that directs psychological evaluations must be found to be implied or authorized by those provisions, other terms of the juvenile code, or other law. Mother and father argue that the court should recognize authority only within
““[i]n 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.“”
Dept. of Human Services v. D. R. D., 298 Or App 788, 791, 450 P3d 1022 (2019) (quoting Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997)).
Our consideration may also include consideration of case law extant when statutes were adopted. Most recently, the Oregon Supreme Court indicated that its understanding of the juvenile code was “informed” by cases on the matter at the time the juvenile code was adopted. Dept. of Human Services v. C. M. H., 368 Or 96, 116-17, 486 P3d 772 (2021). For that proposition, the court cited Lindell v. Kalugin, 353 Or 338, 349, 297 P3d 1266 (2013), for its statement, “case law existing at the time of the adoption of a rule or statute forms a part of the context.” C. M. H., 368 Or at 117. Accordingly, we consider both statutes’ text, context, and case law construing those provisions.
In C. M. H., the Oregon Supreme Court described the nature of our juvenile courts. It explained:
“Under the modern statutory framework, the ‘juvenile court’ is part of the circuit court. Each juvenile court is officially the ‘Juvenile Department’ of the particular circuit court in which it is located, and the judges of the circuit
court exercise the jurisdiction and authority of the juvenile court.”
368 Or at 103 (citing
As observed in C. M. H., 368 Or at 105, the grant of original jurisdiction to the juvenile court can be traced to 1959 when the legislature enacted a comprehensive juvenile code in a single set of statutes governing both dependency and delinquency. Or Laws 1959, ch 432; see State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 567-70, 857 P2d 842 (1993) (recounting that the 1959 revision overhauled piecemeal legislation enacted from 1907). In 1993, the statutes on the juvеnile matters were divided into three chapters. Or Laws 1993, ch 33; see Dept. of Human Services v. T. L., 358 Or 679, 699, 369 P3d 1159 (2016) (describing 1993 revisions as “a comprehensive reorganization of the juvenile code“). One of those three chapters, ORS chapter 419B, dubbed “Juvenile Code: Dependency,” becomes our primary context.
In
“(1) The juvenile court is a court of record and exercises jurisdiction as a court of general and equitable jurisdiction and not as a court of limited or inferior jurisdiction.
***
“*****
“(2)(c) The provisions of this chapter shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such care, guidance, treatment and control as will lead to the child‘s welfare and the protection of the community.”
(Emphasis added.) Potentially, a liberal construction that promotes parents’ involvement in services, better designed for them, is one that would “lead to the child‘s welfare.”
From other provisions, we learn that a person is subject to the jurisdiction of the court when served with
Foremost among orders affecting parents, the juvenile court may issue an order that a child be taken into protective custody.
It is at this jurisdictional hearing that the court determines whether jurisdictional allegations are proven, and, like the shelter hearing before, whether reasonable efforts were made to avoid removal or make it possible for the child to return home safely. See
Several specific provisions provide for orders to parents. For one, the court may make orders, obviously directed at a parent, “regarding visitation by the ward‘s parents or siblings.”
The court must hold a permanency hearing, generally, no later than 12 months after the court found the child within the court‘s jurisdiction.
It is also at this point in statutory context at which the legislature made most express its expectation that a parent has been or may be compelled to cooperate in services intended to return the child to the home. That is,
“[i]f the court determines that further efforts will make it possible for the ward to safely return home within a reasonable time, order that the parents participate in specific services for a specific period of time and make specific progress within that period of time[.]”
(Emphasis added.) Within 20 days after the hearing, the court must enter an order, if it has made such a determination.
“If the court determines that the permanency plan for the ward should be to return home because further efforts will make it possible for the ward to safely return home within a reasonable time, the court‘s determination of the
services in which the parents are required to participate, the progress the parents are required to make and the period of time within which the specified progress must be made.”
The juvenile court does not lack the ability to enforce its orders or the requirements it sets for parents. To be sure, the natural bonds between parent and child motivate compliance and serve the goal of the juvenile code to provide for the safe return of the child to parents. See
“A court may enforce an order or judgment directing a party to perform a specific act by punishing the party refusing or neglecting to comply with the order or judgment, as for a contempt as provided in
ORS 33.015 to33.155 .”
“A parent who believes or claims that financial, health or other problems will prevent or delay the parent‘s compliance with an order of the court must inform the court of the relevant circumstances as soon as reasonably possible and, if appropriate, seek relief from the order under
ORS 419B.923 .”
Thankfully, few, if any, reported cases reflect the need for contempt sanctions against parents.
Nevertheless, the need for the court‘s authority to give direction to parents and to DHS is reflected in the presence of statutes providing for the court‘s approval for a plan of services to be provided by DHS “to the parents” (
C. Two Lines of Precedent
We have recognized that two lines of cases have developed on the question of statutory authority for psychological evaluations. One line is long-standing; one is recent. Dept. of Human Services v. L. J. W., 302 Or App 126, 130, 460 P3d 540 (2020). Because that is so, we declined in L. J. W. to review on a plain-error basis a father‘s unpreserved challenge to a juvenile court‘s legal authority for a psychological evaluation. Id. at 130-31.
1. “G. L. cases” under ORS 419B.337(2)
In L. J. W., we recognized that the older line of cases was founded on
“It is declared to be the policy and intent of the Legislative Assembly:
“*****
“The judges of the circuit court need adequate court services to assist them in exercising jurisdiction over the family and family-related matters.”
The Supreme Court observed, ”
The next year, this court faced a mother‘s challenge, among other complaints, that the juvenile court lacked authority to order the psychiatric evaluation that led to the termination of her parental rights. State ex rel Juv. Dept. v. Maginnis, 28 Or App 935, 937, 561 P2d 1044 (1977). In that case, we declared that in Segrest the Suprеme Court had “explicitly acknowledged that a juvenile court does, in fact, have the authority to order a psychiatric or medical evaluation of a parent where that evaluation is helpful as an aid in determining what is best for the child[.]” Id. We did not pin that statement to a particular provision in the 1977 statutes that predated the adoption of the current juvenile code.
In State ex rel Juv. Dept. v. G. L., 220 Or App 216, 221-22, 185 P3d 483 (2008), rev den, 345 Or 158 (2008), we faced the question again, this time after adoption of the juvenile code, and we applied the modern text-and-context methodology of PGE, 317 Or at 610, to locate the court‘s authority to order a parent‘s psychological evaluation in
“because mother has failed to benefit from past services designed to address her inability to protect her children, and because DHS is obligated to develop a case plan to provide mother with services to enable her to do so, the court‘s order for mother to submit to a psychological evaluation bears a rational relationship to the bases the court found for taking jurisdiction.
ORS 419B.343(1)(a) . The trial court did not exceed its authority underORS 419B.337(2) by ordering mother to participate in a psychological evaluation.”
Id. at 224. We noted that we reached a similar conclusion under a prior version of the dependency statutes in Maginnis. Id. at n 5.
If we recognize that G. L. represents a similar conclusion to that reached in Maginnis in 1977 under earlier statutes, then this сourt has followed that authority found in current or prior statutes for over 40 years. See State v. R. H., 237 Or App 245, 251, 251-55, 239 P3d 505 (2010) (citing G. L. and holding that, because it was unclear whether sexual abuse did occur or whether the child was confused, the evaluation was a rational way to see if father did pose a risk and, if so, what treatment was necessary); Dept. of Human Services v. B. W., 249 Or App 123, 125, 127-29, 275 P3d 989 (2012) (relying on
Never in that G. L. line of cases was the question presented to this court asking that we address the relationship of
The issue here arose too late to be decided in Dept. of Human Services v. A. F., 295 Or App 69, 71, 433 P3d 459 (2018). The mother challenged a dispositional judgment that ordered her to submit to a psychological evaluation. We relied on
2. “D. R. D. cases” under ORS 419B.387
The unsuccessful attempt in A. F. to inject
”
ORS 419B.387 , on its face, clearly conditions a juvenile court‘s authority to order a parent or guardian to participate in treatment or training upon an ‘evidentiary hearing’ at which point evidence must establish, to the juvenile court‘s satisfaction, that such treatment or training is ‘needed.‘”
Id. at 799. We further determined that “a psychological evaluation—as a component of treatment or training—is authorized under
In a variation on that theme, in Dept. of Human Services v. T. L. H., 300 Or App 606, 616, 453 P3d 556 (2019), we rejected a challenge to the juvenile court‘s authority to order a father‘s psychological evaluation, because the juvenile court had found in an evidentiary hearing that the child had extraordinarily high needs and that the father would need to develop exceptional parental skills to care for the child. The father had struggled with drug addiction and homelessness. He had only recently engaged in housing services, was in drug and alcohol treatment, and suffered
Although D. R. D. and T. L. H. were new in the sense of grounding orders for psychological evaluations in
D. An Analysis of Statutes and Cases
We are unpersuaded by the parents’ propositions that the court‘s authority lies exclusively in
No one disputes the declaration of legislative policy that judges of the juvenile courts, as judges of our circuit courts, “need adequate court services” and that such “court services” include psychological evaluations of parents. See
We reiterate that the legislature did not provide explicitly for orders to parents for psychological evaluations in either
We remember the recent acknowledgement in C. M. H. that case law existing at the time of the adoption of a statute informs our understanding of the juvenile code. 368 Or at 117. In G. L., 220 Or App at 224 n 5, we cited the 1977 decision in Maginnis, 28 Or App at 937, and recognized that in Maginnis “[w]e reached a similar conclusion under a prior version of the dependency statutes.” Maginnis had held that “a juvenile court does, in fact, have the authority to order a psychiatric or medical evaluation of a parent where that evaluation is helpful as an aid in determining what is best for the child[.]” 28 Or App at 937. Maginnis was existing case law when the legislature adopted the juvenile code in 1993, and the legislature apparently did so without a change in statutory authority that would have prevented our conclusion in G. L. that a juvenile court has authority under
Thereafter, with Maginnis still extant, the legislature amended
That understanding comports with the flow of juvenile proceedings; and that flow provides context for
Lest there be any doubt about the authority of the juvenile court to direct the parents’ cooperation,
The sequential context of the dependency process suggests that the time of a permanency judgment, up to 12 months after the petition, cannot be the first time that the court can order parents to cooperate. All those many months between jurisdictional and permanency judgments are intended as the time in which DHS provides services
If parents perceive that G. L. takes liberties with the terms of a statute that provides that the court shall specify services to be delivered by DHS to parents, then it is a liberty made sensible by sequence of the juvenile process and the context in which
Few liberties, however, are needed to understand the textual basis for the juvenile court‘s authority under
That understanding comports with the conclusions reached in Maginnis and G. L. In effect, Maginnis first recognized the authority of the court to order a psychological evaluation and then concludеd that, to be effective, the order may require the parent‘s participation. Such an order is logically and necessarily directed to a parent. In the same way,
E. Surplusage?
Parents ask us to reach a contrary conclusion based on their argument about a canon of statutory construction about surplusage. They argue that the “rational basis” standard of
We agree that statutory provisions “must be construed, if possible, in a manner that ‘will give effect to all’ of them.” Force v. Dept. of Rev., 350 Or 179, 190, 252 P3d 306 (2011) (quoting Powers v. Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (quoting
“We wish to be clear that the fact that a proposed interpretation of a statute creates some measure of redundancy is not, by itself, necessarily fatal. Redundancy in communication is a fact of life and law.”
Id. at 97. In this case, parents’ argument about surplusage is not persuasive for a pair of reasons.
First, the specific terms of the two provisions do not duplicate or subsume one another. In
“[t]he court may specify the particular typе 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[.]”
And, at
“[i]f 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 interest.”
None of the terms of the two provisions repeat the other. None of the terms of the two provisions duplicate or conflict. At the textual level, there is no surplusage.
Second, the parents’ argument is more abstract, addressed to case law, not to the statutory terms themselves; and theirs is an argument that posits a problem that does not exist. Their argument misconstrues the provisions’ related factors to be differing standards; and they assume one statute (
F. Plainly Wrong?
Because there is no problem with redundancy, there is no reason to think that the G. L. line of cases are plainly wrong. Nevertheless, parents further argue that the G. L. line of cases are plainly wrong because
We have noted, “Whatever the ultimate meaning of ‘plainly wrong,’ to be ‘plainly wrong’ a holding must first be wrong.” State v. Civil, 283 Or App 395, 406, 388 P3d 1185 (2017). The “‘plainly wrong’ requirement” is “not absolute.” Id. at 416. Yet, we do not “lightly overrule” our precedents. Id. (internal quotation marks omitted). We have cautioned that
“[m]ere disagreement, however, is not—and cannot be—a sufficient justification for overruling precedent. Rather, the prudential principles that undergird stare decisis as well as practical institutional considerations, require more. Much more.”
Id. at 415. The Oregon Supreme Court has explained that
“the principle of stare decisis dictates that this court should assume that its fully considered prior cases are correctly decided. Put another way, the principle of stare decisis means that the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.”
Farmers Ins. Co. v. Mowry, 350 Or 686, 692, 261 P3d 1 (2011) (internal quotation marks omitted). That is no easy task, and for good reason.
“[T]he application of stare decisis is not mechanistic. Rather, stare decisis is a prudеntial doctrine that is defined by the competing needs for stability and flexibility in Oregon law. Stability and predictability are important values in the law; individuals and institutions act in reliance on this court‘s decisions, and to frustrate reasonable expectations based on prior decisions creates the potential for uncertainty and unfairness. Moreover, lower courts depend on consistency in this court‘s decisions in deciding the myriad cases that come before them. Few legal principles are so central to our tradition as the concept that courts should ‘[t]reat like cases alike,’ H.L.A. Hart, The Concept of Law 155 (1st ed 1961), and stare decisis is one means of advancing that goal.”
In Mowry, the court articulated three alternative bases that could cause the court to reconsider precedent. 350 Or at 694. They are
“(1) that an earlier case was inadequately considered or wrong when it was decided; (2) that surrounding statutory law or regulations have altered some essential legal element assumed in the earlier case; or (3) the earlier rule was grounded in and tailored to specific factual conditions, and that some essential factual assumptions of the rule have changed.”
Id. (internal quotation marks omitted). The parents assert the first basis only. The latter two bases are not in play. That is because, in material part,
As noted, parents insist that G. L. was wrongly decided at the time it was written because it failed to discuss
To the extent that parents or DHS imagine that G. L. and succeeding cases stand for the implausible proposition that G. L. set the sole requirement for an order for a psychological evaluation—especially the sole requirement that displaces other requirements—we reject that notion. To the extent that parents posit that G. L. is “plainly wrong,” it is their exaggeration of G. L. that is mistaken. Aware of prior precedent in Maginnis, G. L. attributed the court‘s authority to direct parents to cooperate in a psychological evaluation to the court‘s authority to specify services “to parents” under
IV. APPLICATION
A. Standard for a Psychological Evaluation
Until now, we have been presented only with appeals addressed to one statute or another. With this case, however, we can address the requirements of several related
- The psychological evaluation is for a service that is rationally related to the findings that bring the child into the court‘s jurisdiction (
ORS 419B.337(2) ;ORS 419B.343(1)(a) ); - The psychological evaluation is a predicate component of treatment or training of a parent (
ORS 419B.387 ); - There is a need for treatment or training to correct the circumstances that caused thе jurisdictional findings or to prepare the parent for the child‘s return (
ORS 419B.343(1)(a) ;ORS 419B.387 ); and - The parent‘s participation in such treatment or training is in the best interest of the child (
ORS 419B.387 ).
Thus gathered, that four-part standard harmonizes our cases from Maginnis, through G. L. and D. R. D.
Parenthetically, we acknowledge that the concurring and dissenting opinion contends that the first requisite—that an evaluation must be rationally related to jurisdictional findings—is duplicative, unnecessary, and merely “spackling compound” to cover over G. L.‘s “mistake.” Dept. of Human Services v. W. C. T., 314 Or App 789-90, (Mooney, J., concurring in part, dissenting in part). No one claims, however, that G. L. was wrong, let alone plainly wrong, in concluding that
B. Psychological Evaluation of Mother
All that said, we apply that standard to this case with differing results as to the parents. The parents do not dispute that the juvenile court satisfied the requirement of
During the previous case in 2014 through 2016, mother had failed to successfully complete drug and alcohol treatment. Mother had been passive-aggressive in resisting treatment recommendations. In this case, she had missed appointments for a drug and alcohol assessment. A report indicated that mother suffered at least an unspecified adjustment disorder and unspecified personality disorder; and she had mentioned depression in her testimony. Mother admitted she used some of her limited income to pay for drugs. She testified that in July 2019 she began using methamphetamine again, reportedly once or twice a month. Mother admitted that she was addicted to methamphetamine and would benefit from treatment.
Those facts provided substantial evidence for the juvenile court‘s explicit and implicit findings that there was a need for “every one of the identified services” that DHS recommended as to mother, that those services had a “rational basis” in the jurisdictional findings, that a psychological evaluation would provide insight in determining services (i.e., serve as a predicate component of services to be provided), and that it was in R‘s best interests that mother engage in those services. Although every case is decided on its own unique facts, those facts were, in sum and substance, the same facts that warranted a psychological evaluation in
C. Psychological Evaluation of Father
The same conclusion cannot be reached as to father‘s psychological evaluation. In the prior juvenile case in 2016, father had self-referred for a mental-health assessment, and he had expressed some concerns, but DHS‘s witness Hire testified that those records were old and that DHS did not rely on them to make determinations in this case. In contrast to mother, father had successfully completed drug and alcohol treatment. He had also successfully completed parental training. There was no present indication of substance abuse by father. DHS characterized him as not being protective of R when with her and when not. Father had moved away to attend to his 91-year-old father. Father was not engaging in services. He was reported to be angry at DHS, but DHS had no evidence to infer a potential that a disorder contributed to that anger. Hire did not venture any reasons why father was uncooperative. She had not had contact with father since the inception of the current case in 2020.
Except in broad, generic terms that made no reference to father, DHS did not offer testimony how a psychological evaluation related to father‘s need for services. Absent something more specific, DHS failed to offer evidence upon which the juvenile court could have made a finding that a psychological evaluation was a predicate component to treatment or training. Accordingly, the juvenile court lacked the requisite evidence to make a finding necessary to direct father‘s participation in a psychological evaluation.
D. Other Dispositional Orders
Finally, we address mother‘s challenges to the court‘s authority to issue orders for consistent visitation, obtaining safe and stable housing, signing information releases, and completing a “protective capacity assessment.” We address each in turn.
As for information releases, mother‘s counsel elicited testimony from Hire that mother had already signed the information releases for her own records and for medical records—after R‘s removal and prior to the jurisdictional hearing. On appeal, mother does not suggest a controversy remaining other than those releases that she had already signed. Seemingly, the record would indicate that mother had already knowingly and intentionally waived objection to the releases DHS sought. See State v. Hunter, 316 Or 192, 201, 850 P2d 366 (1993) (waiver is the intentional relinquishment of a known right, for which there is no particular formula).
Mother does not develop an argument beyond a summary conclusion. She does not specify what records are at issue, whether future records may be sought, what information the releases purport to provide, or what added legal concerns might be involved. See Walters v. Hill, 221 Or App 357, 361, 189 P3d 1273 (2008) (rejecting cursory argument citing no relevant rules or statutes as presenting no developed argument). Assuming information releases remain at issue, we conclude that such directions are part of a plan of services “to parents” under
As for the direction to cooperate in finding stable housing, essentially the same conclusion follows. Mother asserted a summary conclusion without examination of statutes or any developed argument. Again, such directions are part of a plan of services “to parents” under
Finally, as for the “protective capacity assessment,” Hire explained the purpose of the assessment was to gather information from parents themselves, concerning their background and their parenting behavior. With that purpose, the assessment is justified as information-gathering that serves to tailor needed services. As such, the assessment rests on the same authority as does a psychological evaluation but without the same depth or breadth of intrusion. No psychological testing or professional evaluation of potential psychological disorders is involved. The staff‘s assessment of the parents’ protective capacity is the equivalent of a timely, relevant, focused interview with a parent, given a history of neglect of R‘s developmental needs. In that light, we recognize that mother is subject to the jurisdiction of the court (
V. CONCLUSION
We conclude that the juvenile court did not err in taking dependency jurisdiction. The court did not err in its dispositional judgment that approved a plan of services that directed mother to participate in a psychological evaluation. However, the court erred in directing father to participate in a psychological evaluation. Mother failed to show that the court erred in directing her cooperation in the other challenged aspects of the plan. We affirm the jurisdictional judgment, affirm the dispositional judgment as to mother, but reverse and remand as to the psychological evaluation of father.
Jurisdictional judgment affirmed; dispositional judgment affirmed in part, reversed and remanded in part.
MOONEY, J., concurring in part, dissenting in part.
The juvenile court ordered R‘s parents to submit to psychological evaluations at the conclusion of the dispositional hearing. I agree that one of those orders was lawful and that one was not. The court explained that it did not believe that it was required to cite to any particular statutory provision and that it was issuing the orders on the basis of its authority under the “overarching general statutes” to address the needs and issues of the ward and her family. It nevertheless went on to say that it was relying on
This case illustrates the confusion that we have created through our case law, and it exemplifies the type of inconsistent outcomes that result from that confusion. The confusion persists despite the efforts of juvenile court judges and lawyers who tread carefully through the juvenile code and our case law, striving to follow the law when psychological evaluations are requested. But today the majority refuses to remove the confusion and uncertainty when it declines to overrule State ex rel Juv. Dept. v. G. L., 220 Or App 216, 185 P3d 483 (2008), rev den, 345 Or 158 (2008). The majority amplifies the confusion in the name of stare decisis by issuing an opinion that defers to prior cases that were wrongly decided. It professes to “harmonize” but, importantly, does not identify the melody it attempts to complement. I would confront the language of the code that was enacted by the legislature to govern judicial decisions in dependency cases. It is a matter of statutory—not musical—interpretation. Our goal should be to clearly state what the law is; not simply to arrange pieces of the law in a pleasing way. And, because our interpretation of
“until and unless we receive some Supreme Court guidance regarding the proper construction of
ORS 419B.337(2) andORS 419B.387 with respect to parental psychological evaluations in juvenile dependency cases, we will only continue to dig ourselves deeper into a hole.”
Id. at 315 (Aoyagi, J., dissenting). Not long before that, we declined plain-error review in a case where the father was ordered to submit to a psychological evaluation, concluding that
In addition to addressing father‘s first assignment of error and mother‘s tenth assignment of error, which challenge the court-ordered psychological evaluations—the focus of this separate opinion—I disagree with the majority‘s rejection of mother‘s eleventh (rеquiring her to obtain safe and stable housing), thirteenth (requiring her to sign all requested releases of information), and fourteenth (ordering her to submit to a protective capacity assessment “and follow recommendations“) assignments of error. Mother argues that the juvenile court erred in ordering her to “perform those tasks in the absence of statutory authority in the juvenile code to do so.” The Department of Human Services (DHS) counters that the court “had inherent authority” to issue those orders. But the briefing on the issue was not as developed as it might have been, with the parties’ focus being primarily on the question of court-ordered psychological evaluations.
To say, as mother does, that the juvenile court may only issue orders expressly provided for in the juvenile code itself is as extreme as saying, as DHS does, that the juvenile court has inherent authority to issue any and all orders it deems necessary to protect wards of the court. Neither argument rings entirely true. Psychological evaluations are not mentioned in ORS chapter 419B, and yet mother does not argue that the court is altogether without authority to order her to submit to such an evaluation. And, certainly, one can imagine any number of orders that a juvenile court would simply not have the authority to issue in a dependency case.
The majority describes the juvenile court‘s authority, but it does not actually resolve the tension between the parties’ respective positions on inherent authority versus express statutory authority. Additional briefing might have been helpful on that point. But, in any event, I would not
At the core of the parties’ dispute concerning the court-ordered psychological evaluations is a fundamental disagreement about the source of the juvenile court‘s authority, the applicable standard, and evidentiary requirements necessary to order parents to submit to psychological evaluations. I begin with
“The court may specify the particular type of care, supervision or services to be provided by the Department of Human Services *** to the parents or guardians of the ward[], but the actual planning and provision of such care, supervision or services is the responsibility of the department.”
Although, by its plain terms,
“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.”
The if-then structure of
But we declined an invitation in D. R. D. to overrule G. L., because the court-ordered psychological evaluation in D. R. D. was based on
This case presents the opportunity to answer the question left open in D. R. D. and, further, to correct our misstep in G. L. I do not fault the G. L. court for making the misstep that it did; it appears that the parties to the case never questioned that
But that is precisely what the majority opinion does. To be sure, the majority opinion goes to great lengths to incorporate the requirements of
The standard for overruling a prior case as “plainly wrong” is stringent and is not satisfied merely because we might disagree with the result reached by our predecessors: “[D]ue regard for stare decisis and our predecessors’ collegial commitment demands that ‘plainly wrong’ be a rigorous standard, satisfied only in exceptional circumstances.” State v. Civil, 283 Or App 395, 396, 416-18, 388 P3d 1185 (2017). In other words, we may not substitute our thinking for the thinking of those who served on this court before us simply because we are confident that we are right. But where, as here, we employ the standard mode of statutory construction, and cannot reconcile the text of
We have noted that, “[w]hatever the ultimate meaning of ‘plainly wrong,’ to be ‘plainly wrong’ a holding must first be wrong.” Civil, 283 Or App at 406. As we have already explained, G. L. was wrongly decided because the words in
G. L. set a standard for ordering parents to submit to psychological evaluations—a rational relationship to the jurisdictional bases—that falls short of the requirements set forth in
A court-ordered psychological evaluation is forensic. It is not the result of a private, informed-consent discussion between a patient and his or her chosen family physician, psychologist, therapist, or mental health provider. It is instead a mental health evaluation requested by DHS, a government agency, and ordered by the court, acting with the authority of the judicial branch of government. A court-ordered psychological evaluation represents a significant, unconsented intrusion by the state into the life and psyche of the person subjected to it. Failure to comply with the court‘s order could result in contempt proceedings and, more significantly, permanent disruption of the family and loss of one‘s children.
Moreover, psychological evaluations might differ depending upon a host of variables, such as the administering practitioner‘s credentials and licensure, institutional or clinical protocols, tests and inventories administered, whether third-party interviews are conducted, questions asked, and observations made. Although we concluded that the psychological evaluation ordered in D. R. D. was justified
Given the nature of the intrusion and the innate variability of the evaluation that is the mechanism of intrusion, it is difficult to conclude that the privacy and parental liberty interests protected by the state and federal constitutions could be authorized on a rational relationship basis without the additional findings required under
I would hold that the juvenile court may order a parent to participate in a psychological evaluation under
I concur in part and, respectfully, dissent in part.
Egan, C. J., and Ortega, Lagesen, James, and Aoyagi, JJ., join in this concurrence in part, dissent in part.
Notes
“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[.]”
“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.”