Dep't of Human Servs. v. W. C. T. (In re R. M. T.), A174195

314 Or.App. 743

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

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. W. C. T. and L. M., aka L. K. M., Appellants.

A174195, A174197

Court of Appeals of Oregon

September 29, 2021

Argued and Submitted December 31, 2020

Resubmitted en banc June 09, 2021

Grant County Circuit Court 20JU02201; (Control) W. D. Cramer, Jr. Judge.

Sarah Peterson, Deputy Public Defender, argued the cause for appellant L. M. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

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., 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.

EN BANC

DeVORE, J.

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. K, 295 Or.App. 69, 71, 433 P.3d 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 behind." A learning disability necessitated an individualized education plan (IEP). She has an IQ of 69 and is classified as intellectually disabled. At the time of trial in late May and early June 2020, R was 10 years old and in the fourth grade, but her writing and math skills were around a first-grade level. In January 2020, the school had updated R's IEP, but neither mother nor father participated. Mother did not respond to the school's invitation, and the school did not know father was in R's life. Her special education teacher testified that R was often tired and had difficulty focusing or engaging. Mother believed that R suffered from sleep apnea. The teacher, who had never met mother, testified that, when a parent is not engaged, the children struggle with academic, social, emotional, and insecurity issues.

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 said it was an arrangement that was "not a place for [R]" and that he could not provide care for her.

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 considered all the evidence presented at the jurisdictional trial for purposes of the dispositional hearing. DHS provided additional testimony and exhibits. DHS recommended that the court's dispositional judgment contain a number of features.

In support of a request for psychological evaluation of the parents, DHS permanency worker, Hire, testified. Sh...