Dept. of Human Services v. F. T. R.

697

Submitted July 8, affirmed September 30, 2020

In the Matter of O. L. R.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

F. T. R.,

Appellant.

Jackson County Circuit Court

19JU01944; A173022 (Control)

In the Matter of O. C. D. R.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

F. T. R.,

Appellant.

Jackson County Circuit Court

19JU01946; A173023

475 P3d 931

In this juvenile dependency case, mother challenges the juvenile court’s

order requiring her to submit to a psychological examination. Relying on Dept. of

Human Services v. K. L. R., 235 Or App 1, 230 P3d 49 (2010), she argues that sub-

mitting to that exam may require her to incriminate herself in a related criminal

case in violation of the Fifth Amendment to the United States Constitution. She

contends that that right prevents a court from ordering her to participate in a

psychological evaluation, under these circumstances, in the absence of a grant of

“use immunity.” Held: The trial court did not violate mother’s Fifth Amendment

right when it ordered mother to submit to a psychological evaluation in further-

ance of treatment. Specifically, on this record, there was no violation because the

order did not require a predicate grant of use immunity.

Affirmed.

Laura A. Cromwell, Judge.

Shannon Storey, Chief Defender, Juvenile Appellate

Section, and Elena Stross, Deputy Public Defender, Office of

Public Defense Services, filed the brief for appellant.

698 Dept. of Human Services v. F. T. R.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Inge D. Wells, Assistant Attorney

General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

JAMES, J.

Affirmed.

Cite as 306 Or App 697 (2020) 699

JAMES, J.

In this juvenile dependency case, mother appeals

from the juvenile court’s order requiring her to submit to

a psychological examination despite her concerns that the

examination may require her to incriminate herself in a

related criminal case, in which she faces charges for fel-

ony neglect of her children. Mother relies on our decision

in Dept. of Human Services v. K. L. R., 235 Or App 1, 230

P3d 49 (2010), to argue that the court could not order her to

participate in a psychological evaluation in the absence of a

grant of “use immunity.” In K. L. R. we held that,

“(1) requiring an admission of abuse as a condition of

family reunification violates a parent’s Fifth Amendment

rights; (2) on the other hand, terminating or limiting

parental rights based on a parent’s failure to comply with

an order to obtain meaningful therapy or rehabilitation,

perhaps in part because a parent’s failure to acknowledge

past wrongdoing inhibits meaningful therapy, may not vio-

late the Fifth Amendment; and (3) providing use immunity

from criminal prosecution is a necessary condition to com-

pelling potentially incriminating statements as an induce-

ment for full cooperation and disclosure during dependency

proceedings.”

235 Or App at 10. Applying K. L. R. here, we conclude that,

on this record, the order for mother to submit to a psycholog-

ical evaluation in furtherance of treatment did not require

a predicate grant of use immunity. Accordingly, we affirm.

Although we have discretion to exercise de novo

review in this case, neither party requests that we exercise

that discretion, and we decline to do so. ORAP 5.40(8)(c)

(stating that we exercise de novo review only in “exceptional”

cases). Accordingly, “we view the evidence, as supplemented

and buttressed by permissible derivative inferences, in the

light most favorable to the trial court’s disposition.” Dept.

of Human Services v. N. P., 257 Or App 633, 639, 307 P3d

444 (2013). Whether a court order violates a parent’s rights

against self-incrimination under the Oregon and United

States Constitutions is a question that we review for “errors

of law.” Redwine v. Starboard, LLC, 240 Or App 673, 681,

251 P3d 192 (2011). Stated in accordance with that stan-

dard, the relevant facts are as follows.

700 Dept. of Human Services v. F. T. R.

This case concerns mother’s two children who were

12 and 7 years old at the time of the dependency jurisdiction

review hearing that is the subject of this case. Approximately

eight months prior to the review hearing, the children were

removed from mother’s care and custody. The children were

placed in the care of their great-aunt and great-uncle. DHS

petitioned the court for jurisdiction, in part, because moth-

er’s “substance abuse interferes with her ability to parent

the child[ren]” and because “the [older] child has develop-

mental disabilities that require structure/supervision that

the mother failed to, is unable to, is unwilling to, and/or

cannot provide.” Mother did not contest the jurisdiction of

the court for those reasons.

The court held a review hearing regarding those

jurisdictional bases on November 20, 2019, at which time

DHS, the children’s attorney, and the Court Appointed

Special Advocate requested that the permanency plan

hearing be moved to an earlier date, citing mother’s lack of

progress toward ameliorating the jurisdictional bases and

that mother’s visits create “behavioral issues with the kids.”

They also requested that the court order a psychological

evaluation, in an effort to determine whether there was a

psychological reason mother was not making progress and

to facilitate services to assist mother with parenting.

Mother’s counsel objected to changing the perma-

nency hearing date and explained why she had not partici-

pated in services, stating:

“So the main reason why [mother] hasn’t made the kind

of progress we had hoped is that there is a criminal case

going on relating to one of the kids. She advises, her crim-

inal attorney has said to not participate in services, as it

might result in some self-incrimination issues.”

Mother’s counsel also noted that mother was will-

ing to participate in the alcohol and drug assessment and

the one-on-one parenting class, specifying that those ser-

vices would not present any self-incrimination issues:

“And we kind of know the reason why she hasn’t made

the progress in services is because she’s afraid it might

have effect on her criminal case. I think we’ve settled that

Cite as 306 Or App 697 (2020) 701

issue outside of court this morning and she can—she can

proceed with a couple services.”

DHS responded that its “goal is reunification. It’s

not to sabotage Mom or put Mom in jail.” Mother’s counsel

suggested that, rather than participate in the intrusive psy-

chological evaluation that could present self-incrimination

issues, mother would agree to participate in a less intru-

sive mental health evaluation. DHS rejected the efficacy

of a mental health evaluation in this case, noting that it is

“100 percent self-reported,” and if no issues are reported by

mother, no services will be recommended or offered.

At the end of the hearing, mother directly addressed

the court about her lack of progress, focusing her argument

on her perceived lack of support from DHS, rather than self-

incrimination concerns. She stated that although she was

willing to participate in services, she had not received refer-

rals from DHS and cannot pay for the services without DHS

referrals.

DHS responded that the caseworker told mother

that once she completes initial assessments with her chosen

treatment provider, DHS will coordinate funding for services

on her behalf. DHS specified that, as in most of their conver-

sations, mother replied that she would complete the assess-

ments after she established her new residence in a different

city. Although mother established the new residence, she

apparently moved back to the old residence shortly there-

after and, several months later, had yet to choose a provider

to complete the assessments.

The court interjected, noting that moving resi-

dences did not provide a reason why she had not engaged in

services. Mother then repeated her argument that she had

not received referrals for the services, and added that her

“criminal lawyer says [she] cannot go through with any kind

of treatments,” but she can do the alcohol and drug assess-

ment and parenting course if she receives referrals.

Ultimately, the court set an early hearing for con-

tested permanency, ordered that the children remain in

their current placement as wards of the court, and ordered

mother to complete assessments to receive her referrals, to

702 Dept. of Human Services v. F. T. R.

include the psychological evaluation. The court made no

express findings regarding mother’s assertion of the priv-

ilege against self-incrimination, nor did the court’s order

depend on the grant of any form of immunity in connection

with the psychological evaluation.

On appeal, mother argues that the juvenile court

erred in requiring her to participate in the psychological

evaluation without use immunity, despite not directly ask-

ing the court to condition her participation on a grant of

use immunity. Mother asserts that in K. L. R., we held that

the Fifth Amendment to the United States Constitution

required the grant of use immunity to the parent in con-

nection with an order that she participate in a polygraph

examination, and that the Fifth Amendment offers similar

protections here.

DHS responds that mother’s argument is unpre-

served because she argued only that her criminal defense

attorney had advised her against participating in any ser-

vices in the dependency cases, indicating that it “might

result in some self-incrimination issues.” Mother did not

argue that the court could not order her to participate in an

evaluation without a grant of use immunity.1 On the mer-

its, DHS argues that the psychological evaluation ordered

in this case materially differs from the polygraph involved

in K. L. R.

The Fifth Amendment provides that “[n]o person

* * * shall be compelled in any criminal case to be a wit-

ness against himself[.]” The Fifth Amendment’s protections

against self-incrimination can be asserted in any proceed-

ing, be it civil, criminal, administrative, judicial, investiga-

tive, or adjudicatory. See Kastigar v. United States, 406 US

441, 444, 92 S Ct 1653, 32 L Ed 2d 212, reh’g den, 408 US

931 (1972). However, “the privilege is not a right to refuse

to honor a subpoena or take the witness stand. Rather, bar-

ring exceptional circumstances, the only way a person can

assert the privilege is on a question-by-question basis.” State

1

We need not resolve the preservation dispute here because, as we explain,

even assuming mother properly preserved the issue, we conclude that, on this

record, the trial court was not required to condition the psychological evaluation

on a grant of use immunity.

Cite as 306 Or App 697 (2020) 703

v. Rodriguez, 301 Or App 404, 412, 456 P3d 312 (2019). As

to each question asked, the party has to decide whether or

not to raise his or her Fifth Amendment right. Mitchell v.

United States, 526 US 314, 321-22, 119 S Ct 1307, 143 L Ed

2d 424 (1999) (“The privilege is waived for the matters to

which the witness testifies, and the scope of the waiver is

determined by the scope of relevant cross-examination[.]

The witness himself * * * determines the area of disclosure

and therefore of inquiry.” (Internal citations and quotation

marks omitted.)).

Article I, section 12, of the Oregon Constitution pro-

vides a similar—yet analytically distinct—right that “[n]o

person shall be put in jeopardy twice for the same offence

[sic], nor be compelled in any criminal prosecution to testify

against himself.” The right against self-incrimination is “a

personal privilege that may be waived, and, if not claimed,

is deemed waived.” State of Oregon v. Hennessey, 195 Or 355,

366, 245 P2d 875 (1952). Like the Fifth Amendment, one’s

right under Article I, section 12, is not a “right against tak-

ing the witness stand. Rather, it is invoked on a question-

by-question basis.” Rodriguez, 301 Or App at 414-15. A per-

son who wishes to avoid self-incrimination “ordinarily must

invoke the protection of the privilege instead of answering

the posed questions.” State v. Tenbusch, 131 Or App 634,

641, 886 P2d 1077 (1994), rev den, 320 Or 587, cert den, 516

US 991 (1995). Further, answering a question does not fore-

close one’s right to assert the privilege as to other questions.

State v. Kell, 303 Or 89, 99, 734 P2d 334 (1987) (In the con-

text of custodial interrogation, “[d]efendant was entitled to

pick and choose what he wished to talk about.”).

At the outset, although mother nominally cites both

the Fifth Amendment and Article I, section 12 as author-

ity in her briefing, we do not understand her to actually be

advancing a separate state constitutional argument. First,

mother relies on our decision in K. L. R., in which we noted

that the parent had “not developed a separate analysis under

the Oregon Constitution.” 235 Or App at 5. Accordingly, we

confined ourselves to the Fifth Amendment analysis—an

analysis which ultimately turned on “use immunity,” a fed-

eral concept. For purposes of Oregon’s Article I, section 12,

right, we have held that use immunity is not the touchstone.

704 Dept. of Human Services v. F. T. R.

In State v. Soriano, 68 Or App 642, 662, 684 P2d 1220, aff’d,

298 Or 392, 693 P2d 26 (1984), we held—and the Supreme

Court agreed—that, distinct from the Fifth Amendment,

the state can only extinguish an Oregonian’s right against

self-incrimination under Article I, section 12, if it provides

a full and adequate substitute—i.e., transactional immu-

nity. Because mother here does not argue for transactional

immunity, but solely use immunity, we do not understand

mother to be raising an argument under Article I, section

12, and, like in K. L. R., we confine ourselves to the Fifth

Amendment argument raised.

K. L. R. concerned a court ordered polygraph exam-

ination. As we summarized, that polygraph examination

had a specific purpose—“to ask mother whether she had

injured the child or knew who did.” 235 Or App at 5. There

was nothing theoretical about the inquiry in K. L. R., the

nature of the questioning was known, and it would clearly

elicit a potentially incriminating response.

In contrast, the precise nature of the psycholog-

ical evaluation ordered here is less clear. Mother herself

acknowledged that she needed substance abuse treatment

and was willing to engage in that service. The psychological

evaluation in this case was part of that treatment. There

is nothing in this record indicating the types of questions

that would be presented to mother in the psychological

evaluation, nor is there evidence in this record that mother

would necessarily be required to incriminate herself as

part of that evaluation. In K. L. R., we noted the persua-

sive authority of several other jurisdictions facing the issue,

quoting with approval the Vermont Supreme Court when it

stated:

“We have held that ‘[t]he trial court cannot specifically

require the parents to admit criminal misconduct in order

to reunite the family.’ * * * We have also recognized, however,

the importance of preventing a child from being subjected

to an abusive environment and thus have held that reunifi-

cation plans may require extensive therapy and counseling

for sexually abusive parents. Furthermore, if the parents’

denial of abuse interferes with effective therapy, then the

court ‘may act on that finding to the parents’ detriment

without offending the Fifth Amendment privilege.”

Cite as 306 Or App 697 (2020) 705

235 Or App at 7 (quoting In re J. A., Juvenile, 166 Vt

625, 626, 699 A2d 30, 31 (1997) (brackets and ellipsis in

K. L. R.; some internal quotation marks omitted)); see also

In re Interest of Clifford M., 6 Neb Ct App 754, 765, 577

NW 2d 547, 554 (1998) (“[T]here is a very fine, although

very important, distinction between terminating parental

rights based specifically upon a refusal to waive protec-

tions against self-incrimination and terminating parental

rights based upon a parent’s failure to comply with an order

to obtain meaningful therapy or rehabilitation, perhaps in

part because a parent’s failure to acknowledge past wrong-

doing inhibits meaningful therapy. The latter is constitu-

tionally permissible; the former is not.”).

K. L. R. is not limited to polygraphs, certainly. And

we do not foreclose the possibility that a record could be

developed in a particular case that an ordered psychological

evaluation could violate the right against self-incrimination

in the absence of use immunity. But discerning the fine line

between adjudicating parental rights based upon a refusal

to waive rights against self-incrimination and adjudicating

parental rights based upon a parent’s failure to comply with

therapy, treatment, or rehabilitation, requires a case-by-case

assessment of the record. On this record, mother has not

established that the ordered psychological evaluation was so

clearly incriminating in violation of her Fifth Amendment

rights that it was impermissible in the absence of a blanket

grant of use immunity.2 Accordingly, the juvenile court did

not err.

Affirmed.

2

Nothing in our conclusion on that point, however, forecloses mother from

invoking her rights against self-incrimination on a question-by-question basis in

that psychological evaluation.