Bruсe QUERBACH, Petitioner on Review, v. DEPARTMENT OF HUMAN SERVICES, Respondent on Review.
(CC 18CV06040) (CA A170325) (SC S068395)
In the Supreme Court of the State of Oregon
June 16, 2022
Argued and submitted September 22, 2021, resubmitted January 25, 2022
369 Or 786 | 512 P3d 432
Argued and submitted September 22, 2021, resubmitted January 25; decision of Court of Appeals affirmed, judgment of circuit court reversing “founded” disposition for physical abuse of son reversed but otherwise affirmed June 16, 2022
Petitioner sought judicial review of a final order of the Department of Human Services (DHS) that determined that reports to DHS that petitioner had abused two children were “founded,” meaning that there was “reasonable cause to believe [that] the abuse [had] occurred.”
The decision of the Court of Appeals is affirmed. The judgment of the circuit court reversing the “founded” disposition for physical abuse of son is reversed but is otherwise affirmed.
On review from the Court of Appeals.*
* Appeal from Washington County Circuit Court, Theodore E. Sims, Judge. 308 Or App 131, 480 P3d 1030 (2020).
Margaret H. Leek Leiberan, Jensen & Leiberan, Beaverton, argued the cause and filed the briefs for petitioner on review.
Inge D. Wells, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.**
BALMER, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court reversing the “founded” disposition for physical abuse of son is reversed but is otherwise affirmed.
** Nakamoto, J., retired December 31, 2021, and did not participate in the decision of this case.
BALMER,
In this judicial review proceeding, petitioner sought to overturn a final order of the Department of Human Services (DHS) that determined that reports to DHS that petitioner had abused two children were “founded,” meaning that there was “reasonable cause to believe [that] the abuse [had] occurred.”1
Before this court, petitioner аrgues that “probable cause” is the correct standard for determining that a report of abuse is founded and that none of DHS‘s “founded” determinations hold up when the record on review is considered under that standard. Petitioner also argues that, given that the circuit court
I. LEGAL BACKGROUND
We begin by explaining the purpose of and process for determining that a report of child abuse is “founded.”
DHS has defined the terms “founded,” “unfounded,” and “unable to determine” in its administrative rules. A “founded” determination means that “there is reasonable cause to believe [that] the abuse occurred,”
of the circumstances and based on specific and articulable facts.”
When DHS determines that an allegation of child abuse is “founded,” it must assess the risk of further abuse and the child‘s need for services and provide protective services as necessary.
When DHS determines that a report of abuse is “founded,” it must notify the person identified in the report as the “perpetrator”3 of the person‘s right to seek administrative review of that disposition and to submit information and documents that the person wishes to have considered in that review.
An order “in other than [a] contested case[]” is reviewed, as provided in
court reviews an agency‘s final order in other than a contested case under
But the fact that the record for substantial evidenсe review under
II. FACTUAL AND PROCEDURAL BACKGROUND
In the present case, DHS received a report that petitioner may have abused two of his children (“son” and “daughter“). The DHS caseworker who was assigned to the case interviewеd the two children, their mother, petitioner, and various other persons, and referred the children to Child Abuse Response and Evaluation Service (CARES) for evaluation. Based on the CARES evaluation, the interviews, DHS‘s records of its previous interactions with the family, and other materials, the caseworker determined that four allegations of “abuse” by petitioner were “founded“: an allegation that petitioner had physically abused son; an allegation that petitioner had caused a “threat” of physical harm to daughter; and allegations that petitioner had caused
“mental injury” to both son and daughter.4 DHS informed petitioner by letter of those determinations and of his right to seek administrative review.
Petitioner submitted a timely request for administrative review along with materials that he believed contradicted the “founded” determinations. DHS performed the requested review and upheld all four of the original “founded” determinations, informing petitioner of its decision in a letter that it designated as its final order. Petitioner then sought judicial review of that order as an “order in other than [a] contested case,” as provided in
The circuit court held an evidentiary hearing to create the record that it would examine for substantial evidence.
DHS submitted material that it had gathered while investigating and evaluating the abuse reports—including the material that petitioner had submitted—and also presented the testimony of several employees who were involved in making or reviewing the “founded” determinations. Petitioner testified on his own behalf and also presented the tеstimony of his then-current wife and a babysitter, who had witnessed the incident that resulted in the abuse report; a psychologist who had evaluated petitioner and determined that he was unlikely to intentionally or maliciously hurt his children; and a forensic psychologist who suggested that CARES and DHS had not followed the best practices for evaluating accusations of child abuse, including the practice of examining and rejecting all alternative hypotheses about such an accusation before concluding that the accusation is true. In addition to presenting evidence, the parties argued about the standard of proof needed to support a “founded” determination, with petitioner arguing for a “probable cause” standard and DHS arguing for a standard that is more akin to “reasonable suspicion.” After the hearing, the circuit court issued a letter opinion that held, first, that a “founded” determination must be supported “to a probable cause standard.” The opinion then announced the court‘s determination that the record supported DHS‘s “founded” determinations as to mental injury caused to both son and daughter but did not support the “founded” determinations as to physical abuse of son and threat of physical abuse to daughter. Finally, the opinion included what appear to be findings regarding DHS‘s investigation of the report of physical abuse of son by petitioner, including a finding that DHS‘s caseworker had “analyzed interactions of petitioner with his children through a lens of assumed prior uncontrolled behavior, taking as undisputed fact that petitioner had such a history.” In response to DHS‘s request for further explanation, the court issued a second letter opinion that contained additional statements about flaws in DHS‘s assessment process.
Petitioner appealed, assigning error to the circuit court‘s determinations that two of DHS‘s “founded” dispositions, i.e., those pertaining to mental injury, were supported by substantial evidence. DHS cross-appealed, assigning
error to the circuit court‘s conclusions that (1) DHS must use a probable cause standard to determine that a report of abuse is founded; and (2) DHS‘s “founded” determinations with respect to petitioner‘s physical abuse of son and threat of harm to daughter were not supported by substantial evidence in the record.
In its decision on the appeal and cross-appeal, the Court of Appeals first addressed its own role on review, noting that the issue before it was the same issue that was before the circuit court, i.e.,
“whether substantial evidence in the record created before the circuit court supports the founded dispositiоns that DHS made in the final order on review. *** ‘Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.‘”
Querbach v. Dept. of Human Services, 308 Or App 131, 134-35, 480 P3d 1030 (2020) (quoting
“whether the whole record generated in the circuit сourt allows for the determination that it was reasonable for DHS to believe ‘under the circumstances before it’ that petitioner caused both his children to suffer mental injury, physically abused his son, and threatened harm to his daughter.”
308 Or App at 136 (quoting A. F., 251 Or App at 584). Finally, after noting that a detailed recitation of the evidence in the record would be of little benefit, the court announced its conclusions: That the evidence in the record would support a reasonable suspicion that petitioner had physically abused son and caused mental injury to both son and daughter, but that it would not support a reasonable suspicion that petitioner‘s conduct had placed daughter under threat of physical harm. Id. at 136-37. The court thus affirmed on petitioner‘s appeal and reversed in part on DHS‘s cross-appeal.
III. ANALYSIS
Petitioner now seeks review by this court, arguing that the Court of Appeals erred in various respects.
A. Legal Standards
We first consider petitioner‘s arguments regarding the legal rules that apply when reviewing a DHS “founded” determination under
1. The “Reasonable Cause to Believe” Standard
Petitioner contends that the Court of Appeals erred in concluding that DHS is required to use a “reasonable cause” or “reasonable suspicion” standard—rather than the higher probable cause standard used by the trial court—in determining whether a report of child abuse is founded. Petitioner‘s primary argument is that, while a “reasonableness” standard may be appropriate when the issue is whether potential abuse should be reported and, thus, investigated by DHS, it is too lax a standard to use for determining, after an investigation, that a report of abuse is founded, given that such a determination will negatively affect the purported perpetrator of the abuse in various ways. Petitioner also argues that, insofar as DHS rules pertaining to investigation and assessment of child abuse reports provide that “the standard for determining C[hild] P[rotective] S[ervice] assessment dispositions is reasonable cause to believe,”
the standard for determining “founded,” “unfounded,” and “unable to determine” dispositions. Petitioner then insists, without any substantive analysis of the DHS rules, that “reasonable cause to believe” in
Petitioner‘s first argument is that a “reasonableness” standard—whether of “cause to believe” or “suspicion” that abuse occurred—is necessarily too lax for a determination of this sort. But that argument invokes policy concerns rather than legal principles. No statute, rule, or constitutional provision that petitioner cites оr of which we are aware
To the extent that petitioner is arguing that the legislature could not have intended that DHS use anything less than a “probable cause” standard because of the serious consequences of such a determination to the person believed responsible for the alleged abuse, we are not persuaded. Although a “founded” determination may be admissible as evidence in a later proceeding, standing alone it has no independent legal significance affecting the person‘s rights. See Dept. of Human Services v. A. B., 362 Or 412, 423, 412 P3d 1169 (2018) (“founded” determination “may be factor in further legal proceedings or determinations” but does not “require[] a particular adverse decision or trigger[] an automatic prohibition“). And, while petitioner suggests that a “founded” determination, and the consequent appearance of that determination in DHS‘s registry, may ultimately affect him in other ways (by, for example, preventing him from
adopting or fostering a child or volunteering in a school or child-oriented setting), it does not appear that any of thоse impacts are likely to occur, given that a “founded” determination would not be publicly available,
However, petitioner‘s second argument—which focuses on the fact that DHS‘s child welfare rules separately define “reasonable cause” and “reasonable suspicion“—raises a valid logical point that calls into question the Court of Appeals’ assumption that “reasonable cause to believe,” as used in
“‘Reasonable suspicion’ means a reasonable belief given all of the circumstances, based upon specific and describable facts, that the suspicious physical injury may be the result of abuse. Explanation: The belief must be subjectively and objectively reasonable. In other words, the person subjectively believes that the injury may be the result of abuse, and the belief is objectively reasonable considering all of the circumstances. The circumstances that may give rise to a reasonable belief may include, but not be limited to, observations, interviews, experience, and training. The fact that there are possible non-abuse explanations fоr the injury does not negate reasonable suspicion.”
requiring the relevant decision-maker to have a subjective belief in the specified fact and that that belief be objectively reasonable considering all the circumstances. See, e.g., State v. Belt, 325 Or 6, 10-11, 932 P2d 1177 (1997) (reasonable suspicion requires that “the officer subjectively believe that the person stopped has committed a crime” and that “the officer‘s subjective belief be objectively ‘reasonable under the totality
Perhaps a more straightforward basis for questioning the Court of Appeals’ assumption that the two standards are equivalent is the wording оf the terms themselves. The term “reasonable suspicion” appears to assume an actual suspicion, while the formulation used in the applicable rule,
The Court of Appeals did not explain why the “reasonable cause to believe” standard in the DHS rules should be treated as equivalent to the “reasonable suspicion” standard of the criminal law. Its justification for doing so is that it had done so before—in A. F., 251 Or App 576, an opinion that, on that point, relies on a somewhat conclusory assertion to the same effect in an earlier Court of Appeals opinion, Berger v. State Office for Services to Children and Families, 195 Or App 587, 590, 98 P3d 1127 (2004). And DHS does not mount a defense of the suggested equivalence. In response to petitioner‘s point, it argues primarily that “reasonable cause to believe” is a “lower” standard than the “probable cause” standard that the trial court applied. Thus, we have been offered no persuasive reason for assuming that the “reasonable cause to believe” standard that determines whether an abuse report is “founded” is equivalent to the “reasonable suspicion” standard used in criminal law, and we see aspects of the phrase as it is used in this context that suggest that the two standards are not equivalent. Petitioner makes a plausible argument that there is reason to doubt the applicability of the “reasonable suspicion” standard that the Court of Appeals applied.
But we need not—and do not—resolve that question in this case. The central issue litigated below and before this court is one that petitioner‘s argument does not confront: whеther the Court of Appeals nevertheless was correct to reject the circuit court‘s application of a “probable cause” standard to DHS‘s determinations and to instead conclude that “the role of the reviewing court is simply to determine whether a reasonable person could reach the determination that DHS made.” Querbach, 308 Or App at 136. To address that issue, we begin with the standard that DHS has assigned, by rule, to the determination that a report of abuse is “founded“: “reasonable cause to believe.”
DHS has defined “reasonable cause,” by rule, in a way that is consistent with that lower standard: “‘Reasonable cause’ as defined in
it may or may not include a requirement that the DHS decision-makers have an actual, subjective belief that the abuse occurred. But that interpretative question is not before us. Petitioner has never suggested that the DHS decision-makers here did not actually or subjectively believe that the reports of abuse that they determined were founded.
We return to the crux of the dispute between petitioner and DHS: whether the “reasonable cause” standard requires something akin to “probable cause,” as petitioner contends. As discussed at length above, there is no mention of “probability” in any relevant statutory or regulatory definition, and the only standards that are set out there are the familiar standards of subjective and objective “reasonableness.” Accordingly, whether or not the Court of Appeals was wrong to hold that DHS is to use the “reasonable suspicion” standard of criminal law as a proxy for “reasonable cause to believe” when determining whether reports of child abuse are founded, as petitioner argues, we conclude that it was correct when it rejected the trial court‘s use of a “probable cause” standard and held that the relatively lower “reasonаble cause” standard set out in the rule applies.
2. “Under the Circumstances Before It”
Petitioner observes that the Court of Appeals framed the “substantial evidence” issue that was before it in terms of whether “the whole record generated in the circuit court allows for the determination that it was reasonable for DHS to believe ‘under the circumstances before it’ that the reported abuse had occurred.” Querbach, 308 Or App at 136 (quoting A. F., 251 Or App at 584). Petitioner maintains that that framing effectively undermines a principle established in Norden—that substantial evidence review of an order “in other than [a] contested case” is not limited to the evidence before the agency at the time it made its decision but is directed at the record developed in the circuit court. See Norden, 329 Or at 647-49.
It is not entirely clear what the Court of Appeals meant when it used the phrase “under the circumstances before it.” Particularly when considered in light of other statements in the Court of Appeals opinion, the phrase
might suggest an intention to look only at the evidence that was before DHS at the time of its “founded” determinations when assessing whether those determinations were supported by substantial evidence in the record. If that was what the Court of Appeals intended, the notion may have arisen out of reference to the “reasonable suspicion” standard. As we have explained, however, there is no clear indication that “reasonable cause,” as defined in DHS‘s rules, is similarly focused on the decision-maker‘s actual beliefs at the time of his or her decision. In any event, Norden makes clear that judicial review of an order in other than a contested case, whether by the circuit court or an appellate court, is based on the entire record as developed in the circuit court and is conducted apрlying the substantial evidence standard. If the Court of Appeals did erroneously consider only the evidence that was before DHS at the time that it made its “founded” determinations, then that error did not cause that court to reach any different conclusion about the ultimate issue in this case than we reach when properly considering the entire record developed in the circuit court.
3. Role of Factual Findings by the Circuit Court
Petitioner argues that this court and the Court of Appeals are “bound” by certain “factual findings” made by the circuit court—that DHS was “inappropriately biased” against him and “used faulty methods in its evaluation“—because there is evidence in the record that supports those findings. Petitioner contends that the Court of Appeals erred in “ignoring” those findings and insists that, if it had given proper deference to the findings, it would have been compelled to reverse DHS‘s “founded” determinations.
That аrgument assumes that the principle of deference to a circuit court‘s factual findings—a feature of some other aspects of appellate review of circuit court decisions—is applicable in an appeal from a circuit court‘s
court identified as its “findings” nor petitioner‘s sometimes inaccurate characterization of those statements are the kind of factual findings that could affect whether there is substantial evidence to support DHS‘s “founded” determinatiоns here.
In addition to holding that the evidence must support DHS‘s “founded” determinations to a probable cause standard and applying that standard to conclude that the record did not support two of DHS‘s four determinations, the circuit court‘s initial letter opinion included a statement that petitioner describes as a “finding” that is binding on review. That statement began with an assertion that “DHS [had] analyzed the interactions of petitioner with his children through a lens of assumed prior uncontrolled conduct, taking as undisputed fact that petitioner had such a history” and then went on to assert that certain specified shortcomings in DHS‘s analysis of the evidence might have resulted from that questionable assumption. In a second letter opinion, the circuit court set out certain “clarifications and additions” that petitioner also appears to regard as findings: that the initial DHS decision-maker was aware of a certain exculpatory fact but “completely disregarded that in making her evaluation,” that “DHS‘s assessment process was flawed in adopting the CARES report conclusions at their face value,” and that DHS‘s “refusal” to interview certain witnesses suggested by petitioner was not “objective and impartial.” Petitioner suggests that those statements amount to or include a factual finding that DHS was “biased” against him. But the trial court made no finding that DHS was “biased” against petitioner, and none of the trial court‘s statements, alone or in combination, constitute a finding of general bias, although they restate evidence that was admitted in the circuit court proceeding and thus became part of the record for judicial review. Petitioner also characterizes those statements as constituting a factual finding by the trial court that DHS had “used faulty methods in its evaluation“—although the statements appear to mix facts, legal conclusions, and opinions. Indeed, petitioner‘s characterization of the trial court as “finding” that DHS was “biased” against him is inconsistent, at least in part, with the court‘s decision upholding two of the four “founded” determinations.
The accuracy of petitioner‘s characterizations aside, none of the trial court‘s actual findings would affect the substantial evidence analysis on review, even if we were to treat them as binding. The asserted facts—that DHS made an inappropriate assumption about petitioner‘s history, was unaware of or disregarded certain facts during its investigation, and used flawed methods to evaluate the evidence—do not affect the contents of the record that was made in the circuit court. When a court reviews an agency determination under
Here, during the circuit court proceedings, petitioner was able to place factual evidence in the record that would counter the adverse effects of what he viewed as “flaws” in DHS‘s evaluation. Petitioner presented evidence that disputed that he had a history of prior uncontrolled behavior; he presented testimony from witnesses whom he had recommended to DHS and DHS had not interviewed; and he presented evidence about the proper way to evaluate a child‘s accusation of abuse—all of which evidence can be and presumably was considered by the trial court and by the Court of Appeals in determining whether DHS‘s “founded” determinations were supported by substantial evidence.
Our conclusion does not mean that record evidence indicating significant flaws in DHS‘s analysis does not have a role in a substantial evidence review. While the substantial evidence standard of
evidence that petitioner offered in the circuit court) is insufficient to permit reversal of the agency‘s order under
4. Summary: The Standard for Reviewing DHS‘s “Founded” Orders
As discussed above, DHS‘s final order is an order in other than a contested case, and judicial review of the “founded” determinations in the order therefore is for “substantial evidence in the record.” Under that standard, the issue is whether the record developed in the circuit court, when viewed as a whole, would permit a reasonable person to make the determinations that the agency did here. See Norden, 329 Or at 649 (stating that standard). Also as discussed, the “founded” determinations are not determinations that petitioner in fact abused the children in the ways that were alleged, but rather that DHS had “reasonable cause to believe” that he had done so—meaning that, given the evidencе in the record, an objectively and subjectively reasonable person could believe that petitioner had abused the two children in the ways alleged. Accordingly, to hold that DHS‘s “founded” determinations are not supported by substantial evidence,
B. Application to DHS‘s “Founded” Determinations
As described above, DHS determined that four allegations of child abuse were “founded“—that petitioner had caused a “threat of harm” to daughter, had “physically abused” son, and had caused “mental injury” to both
children. The Court of Appeals concluded that the latter three “founded” determinations were supported by substantial evidence in the record and that the first—pertaining to “threat of harm” to daughter—was not. DHS has not challenged the Court of Appeals decision as to the “threat of harm” determination. Therefore, we need only consider the determinations that petitioner challenges—that the reports that petitioner had physically abused son and caused mental injury to both son and daughter were “foundеd.” For each of those three determinations, we ask whether the record developed in the circuit court would permit a reasonable person to find that there is a reasonable basis for believing that the alleged abuse had occurred.
Like the Court of Appeals, we believe that there is little to be gained from setting out a detailed description of the evidence. Suffice it to say that, although the record contains evidence that could support a different disposition with respect to each of the allegations of abuse under review, we cannot say that the record as a whole would not permit a reasonable person to determine, as DHS did, that the allegations were “founded“—that is, that there was reasonable cause to believe them to be true.8 Accordingly, we reject petitioner‘s
The decision of the Court of Appeals is affirmed. The judgment of the circuit court reversing the “founded” disposition for physical abuse of son is reversed but is otherwise affirmed.
Notes
“(A) Any assault, as defined in ORS chapter 163, of a child and any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.
“(B) Any mental injury to a child, which shall include only observable and substantial impairment of the child‘s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.
“*****
“(G) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child‘s health or welfare.”