Dep't of Human Servs. v. F. J. M. (In re A. B. M.)

312 Or.App. 301

493 P.3d 59

In the MATTER OF A. B. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.F. J. M., Appellant.

In the Matter of Z. K. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.F. J. M., Appellant.

In the Matter of O. R. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.F. J. M., Appellant.

In the Matter of K. J. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.F. J. M., Appellant.

In the Matter of F. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.F. J. M., Appellant.

A174486 (Control), A174487, A174488, A174489, A174490

Court of Appeals of Oregon.

Argued and submitted March 8, 2021.

June 16, 2021

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.

ARMSTRONG, P. J.

Father in these dependency cases appeals jurisdictional and dispositional judgments of the juvenile court taking jurisdiction of father's five children under ORS 419B.100(1)(c) (juvenile court has exclusive jurisdiction over a child "[w]hose condition or circumstances are such as to endanger the welfare of the [child]"), and directing father to participate in services, including a psychological evaluation.¹ We affirm the jurisdictional and dispositional determinations without discussion and write only to address father's challenge to the court's requirement that he submit to a psychological evaluation.

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 dismiss 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 an assessment and attempted to work with father on an in-home safety plan, but father was unwilling to do that. DHS recommended that the children be removed, but the court declined to issue a removal order at that time, and the assessment was closed.

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 down-play 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 parent while high on methamphetamine but testified that he would leave the family home to take methamphetamine and leave the children with a babysitter or in mother's care.

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]."

The court then held a dispositional hearing to determine placement for the children and services. DHS requested that the court order father to participate in parental training and in-home services to create a safety plan, and submit to a psychological evaluation, a mental health evaluation, and a substance abuse evaluation. Father objected to the mental health and psychological evaluations, contending that they were not warranted by the allegations of the petition or the evidence or relevant to the other services to be provided to father.

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

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