Dep't of Human Servs. v. A. F. (In re D. G.)

433 P.3d 459, 295 Or. App. 69
CourtCourt of Appeals of Oregon
DecidedNovember 21, 2018
DocketA167318
StatusPublished
Cited by6 cases

This text of 433 P.3d 459 (Dep't of Human Servs. v. A. F. (In re D. G.)) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dep't of Human Servs. v. A. F. (In re D. G.), 433 P.3d 459, 295 Or. App. 69 (Or. Ct. App. 2018).

Opinion

AOYAGI, J.

*71In this juvenile dependency case, mother appeals a disposition judgment ordering her to submit to a psychological evaluation. The Department of Human Services (DHS) requested the evaluation to help it determine whether there is a mental-health component to mother neglecting her three-year-old child, D. Mother argues that there is no rational relationship between the ordered evaluation and the jurisdictional bases and that the juvenile court therefore exceeded its authority under ORS 419B.337(2). DHS contends that the evidence was sufficient to meet the low threshold to establish a rational relationship. As discussed below, we agree with DHS that the minimal standard for a *461rational relationship is met. In so ruling, we limit our consideration to ORS 419B.337(2) and do not consider mother's untimely-raised alternative argument that the court should have applied ORS 419B.387 instead of or in addition to ORS 419B.337(2). Accordingly, we affirm.

We review the juvenile court's legal conclusions for errors of law and its findings for any evidence. Dept. of Human Services v. B. W. , 249 Or.App. 123, 125, 275 P.3d 989 (2012).

D was born in 2014. Father is incarcerated in Michigan and is unavailable as a custodial resource; he is not a party to this appeal. Mother lives in Oregon and has been D's primary caregiver, but she is addicted to methamphetamine. In May 2017, police responded to a domestic violence incident between mother and her boyfriend and, later the same month, to a report of loud pounding from mother's apartment and a possible theft. D was present on both occasions. After those incidents, DHS received multiple reports about D's living situation, including that D was living at one point in a vehicle with mother and her boyfriend, despite a no-contact order; that D was living in a home where a "huge amount" of methamphetamine use was happening and where drug paraphernalia was within D's reach; and that D was living at another time with mother's sister and her partner, who had a sex abuse conviction. In October 2017, DHS located D and removed him from mother's care. Upon removal, D tested positive for methamphetamine. He was *72covered in scars, was thin, and suffered gastrointestinal problems. One of D's foster parents-with whom D has been living since about a week after the removal-testified that D was "extremely violent" and "very afraid" when he arrived and repeatedly attacked his foster parents and other people. He was "afraid of everybody and everything and hit everybody." Before scheduled visits with mother, D would express happiness initially but later say that mother was "mean," ask whether mother was "going to freak out on [him]," ask if mother was going to hurt him, and express fear of being left alone with mother.

In January 2018, the juvenile court asserted jurisdiction over D on three bases: (1) "mother has exposed child to unsafe and unsanitary living conditions, including exposure to drugs, drug paraphernalia, and unsafe persons"; (2) "mother has left child with unsafe caregivers without making appropriate plans for the care of the child"; and (3) mother has "an alcohol and/or drug problem which impairs her ability to safely parent" child. Mother admitted to those jurisdictional bases. Mother objected, however, to DHS's request that she be ordered to undergo a psychological evaluation. Mother, who was 20 years old at the time of the jurisdictional hearing, argued that the cause of her poor parenting was obvious-her untreated use of methamphetamine for approximately two years-and that there was no need for a psychological evaluation.

The juvenile court initially agreed with mother that it could not order a psychological evaluation. At the January hearing, the court stated that it had "no power to order a psychological evaluation in this case or, for that matter, a mental health evaluation," because there was no factual basis in the record to do so. At DHS's request, however, the court continued the matter for an evidentiary hearing in February 2018.

By the time of the February hearing, mother had participated in a drug and alcohol assessment, but she had not followed through with treatment, had attended only three of at least 10 offered visits with D, and was in only "sporadic" contact with DHS. DHS argued that a psychological evaluation was appropriate because D's circumstances *73prior to removal were so bad that they "speak to a level of neglect that rises beyond that which * * * is likely to have been caused by simply a drug addiction alone." In response, mother again argued against a psychological evaluation and asserted that "the problem" was her methamphetamine use. D's attorney then agreed with DHS that the circumstances went "far beyond this just being a drug case" and argued that a psychological evaluation also would help identify "the barriers faced by mother" that caused her to be "slow to engage in services." *462After the evidentiary hearing, the juvenile court ordered mother to undergo a psychological evaluation. It specifically did so in connection with the first and second bases for jurisdiction, which it referred to collectively as "neglect." In a letter opinion, the court noted that "a psychological evaluation is a very intrusive provision that can expose a parent to significant risk in a case (as well as possibly benefit them)."1 It expressed the view that DHS should have to prove necessity, not mere helpfulness, for the court to order a psychological evaluation, and it expressly found that DHS had not proved necessity here. Under our existing case law, however, particularly B. W. , 249 Or.App. 123, 275 P.3d 989, the juvenile court concluded that DHS needed to prove only that a psychological evaluation would be "beneficial" in determining services. Applying that standard, the court concluded that, "based on the evidence," an evaluation "would be beneficial and helpful to the agency's determination of services to be provided" and therefore ordered one. (Boldface in original.) Mother assigns error to that order.

We begin with a brief overview of the relevant legal framework.

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Cite This Page — Counsel Stack

Bluebook (online)
433 P.3d 459, 295 Or. App. 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-human-servs-v-a-f-in-re-d-g-orctapp-2018.