Dept. of Human Services v. E. J.

537

Argued and submitted October 28, reversed and remanded December 22, 2021,

petition for review allowed April 7, 2022 (369 Or 507)

See later issue Oregon Reports

In the Matter of S. J.,

aka B. G. J., a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

E. J.,

aka E. L. J.,

Appellant.

Multnomah County Circuit Court

19JU08234;

Petition Number 113871;

A176088

504 P3d 1262

Mother appeals from a juvenile court order denying her motion in limine

to prohibit the Department of Human Services (DHS) from using a psycholog-

ical evaluation that was created when she was a ward of the court as evidence

against her in a dependency matter involving her child. Invoking ORS 419A.255

and Kahn v. Pony Express Courier Corp., 173 Or App 127, 20 P3d 837, rev den,

332 Or 518 (2001), mother argues that material is privileged. The state concedes

that the juvenile court erred by authorizing disclosure under ORS 419A.255, but

argues that the “right for the wrong reason” doctrine allows affirmance because

the information from when mother was a ward of the court can be used under the

authority of ORS 409.225. Held: ORS 419A.255 creates a privilege that applies to

“history and prognosis” information found in either the supplemental confiden-

tial file or the record of the case. That privilege cannot be defeated by disclosing

duplicate materials in the possession of DHS. As the proponent of the records,

DHS had the burden to show that the records were not privileged. Because DHS

failed to show that the information at issue was not privileged, the Court of

Appeals reversed the juvenile court’s order.

Reversed and remanded.

Beth A. Allen, Judge.

Christa Obold Eshelman argued the cause and filed the

brief for appellant.

Inge D. Wells, Assistant Attorney General, argued

the cause for respondent. Also on the brief was Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

538 Dept. of Human Services v. E. J.

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

Kamins, Judge.

JAMES, J.

Reversed and remanded.

Cite as 316 Or App 537 (2021) 539

JAMES, J.

In this juvenile dependency case, mother was for-

merly a ward of the court when she was a juvenile. Now,

years after mother’s wardship ended, Department of Human

Services (DHS) asserted dependency jurisdiction over moth-

er’s child, S. DHS sought to compel mother to submit to a

psychological evaluation, and as a component of that antic-

ipated evaluation, DHS sought to disclose, to the psychol-

ogist, a report from mother’s juvenile file. Mother moved,

in limine, to prohibit DHS’s use of the report “as evidence”

against her. The trial court denied mother’s motion, ruling

that disclosure of the report was permissible under ORS

419A.255(3)(b).

On appeal, DHS argues that because the report

would only be provided to a psychologist, it is premature to

conclude that it would be used as “evidence” against mother,

and therefore, mother’s challenge to the juvenile court rul-

ing is not ripe for review. Alternatively, on the merits, DHS

concedes that the juvenile court erred when it authorized

the disclosure under ORS 419A.255(3)(b) but asks us to

affirm the court’s order under the “right for the wrong rea-

son” doctrine by finding that the disclosure is permitted by

ORS 409.225. For the reasons that follow, we reverse and

remand.

We review the juvenile court’s construction and

application of a statute as a question of law. State v. Gaines,

346 Or 160, 171-72, 206 P3d 1042 (2009). Furthermore, we

review the juvenile court’s legal conclusions for errors of

law, but we are bound by the court’s findings of historical

fact so long as there is evidence to support them. Where

findings are not made on disputed issues of fact and there

is evidence from which those facts could be decided more

than one way, we will presume that they were decided in a

manner consistent with the juvenile court’s ultimate conclu-

sion. State v. S. T. S., 236 Or App 646, 654-55, 238 P3d 53

(2010).

The facts in the case are largely procedural and

not in dispute. The following facts are taken from the juve-

nile referee and the juvenile court’s findings. The referee

540 Dept. of Human Services v. E. J.

found that on November 6, 2019, DHS filed a petition alleg-

ing that mother’s children were endangered. This informa-

tion was based on a report that listed “Prior Involvement”

incidents that included events occurring between 2006 and

2013 listed under the maternal grandfather’s case name

while mother was a ward of the court. Specifically, mother’s

wardship was between 2009 and 2016. She gave birth to S

in 2014, and mother was a ward of the court for the first

16 months of S’s life. Mother has another daughter who is

not the subject of this matter. In February 2020, mother

admitted that her children were endangered and subject to

the court’s jurisdiction. In November 2020, mother admitted

that the children were endangered because of “an ongoing

pattern [of] traumatic events she has suffered throughout her

life * * * lead[ing] to an inability to recognize unsafe indi-

viduals and chaos, which interfere with her ability to safely

parent the children.” On November 25, 2020, the referee

ordered mother to participate in a psychological evaluation

and begin any treatment recommended by that evaluation.

DHS had records in its possession about mother from when

she was a ward of the court that it wanted to provide to

the examining psychologist for consideration during that

evaluation.

On January 8, 2021, mother filed a motion in limine

with the juvenile referee to deny disclosure of “all records

and information that relate[d] to [her] history and progno-

sis appearing in the supplemental confidential file (SCF) or

record of her own case (ROC) as a ward of court based on

the limits in ORS 419A.255, ORS 419B.035, ORS 409.225,

and DHS regulations.” Mother moved the court to order that

the privileged and confidential information not be disclosed,

including the psychological evaluation conducted when she

was a ward of the court. The juvenile referee ordered that

DHS records compiled during mother’s wardship that were

relevant for understanding her past trauma were to be sub-

mitted for an in camera inspection. The court further deter-

mined that it would release those records to the psychologist

if they were necessary for the psychologist to view and rely

upon in forming a diagnosis and recommendation for ser-

vices. The referee also set other criteria for the custody of

the records if they were to be released.

Cite as 316 Or App 537 (2021) 541

Mother appealed the referee’s order to the juve-

nile court. That court denied the motion and held that “the

report at issue” could be “ ‘used as evidence’ against Mother

in the juvenile court proceeding concerning her.” The court

construed ORS 419A.255(3)(b) to provide authority for using

the report because “it is in connection with a proceeding in

a juvenile court concerning her.” Thus, the court reasoned

that the privilege did not apply. Notably, the juvenile court

did not make a finding about whether or not the “report at

issue” was “history and prognosis” information contained in

the record of the case or the supplemental confidential file.

However, the court’s construction suggested that the report

was privileged under the statute but qualified for the excep-

tion that it identified in ORS 419A.255(3)(b). In the juvenile

court, mother moved for a stay pending appeal. In response,

DHS specified the records at issue, including “summa-

ries created by the ODHS permanency worker regarding

Mother’s time as a ward of the Court, and a prior psycho-

logical evaluation of the Mother from 2015.” The juvenile

court denied mother’s motion for a stay pending appeal and

ordered the preparation of a protective order to ensure that

“the previous evaluation is for the current evaluator’s eyes

only until further order of the court, and any addendum that

results from the review by the evaluator may not be released

until further order of the court.” This appeal followed.

We begin with DHS’s argument that the issue in this

case is not ripe for review. Ripeness “depends on ‘whether

the controversy involves present facts as opposed to hypo-

thetical future events.’ ” Rowden v. Hogan Woods, LLC, 306

Or App 658, 679, 476 P3d 485 (2020) (quoting Menasha

Forest Products Corp. v. Curry County Title, 234 Or App 115,

120, 227 P3d 770 (2010), rev’d in part on other grounds, 350

Or 81, 249 P3d 1265 (2011)). Here, the trial court’s order per-

mitted production of the records to a psychologist. The pro-

duction was not benign—it was a tool to be used in litigation

and cannot be said to involve a “hypothetical future event.”

Further, mother is asserting a privilege against disclosure.

If mother is correct, and the material is privileged, such pro-

tections would be meaningless if they cannot be enforced

until the improper disclosure is turned into “evidence.” In

short, we conclude the issue is ripe.

542 Dept. of Human Services v. E. J.

Turning to the statutes at issue, mother argues that

ORS 419A.255 grants a privilege that should apply to the

records at issue from her wardship thereby making them

inaccessible to DHS for use in the dependency matter involv-

ing her child. ORS 419A.255 is found in the juvenile code

and pertains to the juvenile court’s records. Mother claims

that ORS 419A.255(2) and (3) provide authority for the

privilege she asks this court to recognize. Subsection (2)(a)

codifies the kinds of materials that are subject to that

privilege:

“Reports and other material relating to the child, ward,

youth or youth offender’s history and prognosis in the record

of the case or the supplemental confidential file are privi-

leged and, except at the request of the child, ward, youth

or youth offender, shall be withheld from public inspection

except that inspection is permitted as set forth in subsec-

tion (1)(b) of this section and paragraph (b) of this subsec-

tion. The offer or admission of reports and other material in

the record of the case or the supplemental confidential file

as exhibits in a hearing or trial does not waive or otherwise

change the privileged status of the reports and other mate-

rial, except for purposes of the hearing or trial in which the

reports and other material are offered or admitted. Once

offered as an exhibit, reports and other material relating

to the child, ward, youth or youth offender’s history and

prognosis that were maintained in the supplemental con-

fidential file become part of the record of the case but are

subject to paragraph (e) of this subsection.”

ORS 419A.255(2)(a) (2019).1

Subsection (3) sets forth the circumstances in which

this privilege applies and the exceptions to it:

“Except as otherwise provided in subsection (5) of this

section, no information appearing in the record of the case

or in the supplemental confidential file may be disclosed to

any person not described in subsections (1)(b) and (2)(b) of

this section, respectively, without the consent of the court,

except for purposes of evaluating the child, ward, youth

or youth offender’s eligibility for special education as pro-

vided in ORS chapter 343, and no such information may

1

ORS 419A.255 was recently amended by Or Laws 2021, ch 489, § 52, but

those changes do not alter the analysis here.

Cite as 316 Or App 537 (2021) 543

be used in evidence in any proceeding to establish crimi-

nal or civil liability against the child, ward, youth or youth

offender, whether such proceeding occurs after the child,

ward, youth or youth offender has reached 18 years of age

or otherwise, except for the following purposes:

“(a) In connection with a presentence investigation

after guilt has been admitted or established in a criminal

court.

“(b) In connection with a proceeding in another juve-

nile court concerning the child, ward, youth or youth

offender or an appeal from the juvenile court.”

ORS 419A.255(3) (2019).

Both parties agree that the juvenile court erred by

interpreting ORS 419A.255(3)(b) as authority for granting

DHS access to mother’s records. We agree. The juvenile

court reasoned that

“the statute makes clear that regardless whether ‘the child’

has reached the age of majority, the ROC [(record of the

case)] and SCF [(supplemental confidential file)] may be

used in a proceeding in another juvenile court (not the same

juvenile court that had jurisdiction over ‘the child’) if it con-

cerns ‘the child.’ In other words, a person who was once a

‘child’ as designated by the court for juvenile proceedings,

continues to be denominated as ‘child’ regardless of attain-

ing the age of majority. As it pertains to this case, Mother,

now an adult, is ‘the child’ and evidence concerning her may

be used in this juvenile hearing because it is in connection

with a proceeding in a juvenile court concerning her.”

This interpretation is troubled by the plain lan-

guage of the statute because mother is not “the child” that

concerns the juvenile court in this statute. Paragraph (3)(b)

reads plainly that it applies “[i]n connection with a proceed-

ing in another juvenile court concerning the child, ward,

youth or youth offender or an appeal from the juvenile

court.” This case does not concern mother in these terms:

it concerns her daughter. Similarly, ORS 419A.255(1)(b)

and (2)(b) provides a list of parties for which the record of

the case and the supplemental confidential file are “open to

inspection.” This includes “[t]he judge of the juvenile court

and those acting under the judge’s direction” in addition to

“[a]ny other person or entity allowed by the court pursuant

544 Dept. of Human Services v. E. J.

to ORS 419A.258.” Again, these provisions regard the juve-

nile court and parties acting in connection with the juvenile

matter related to the ward, and mother is not the ward in

this action.

However, DHS argues that ORS 409.225—not ORS

419A.255—should control the disclosure of the records

because DHS possesses the records, not the court. DHS

advances a “right for the wrong reason” argument that ORS

409.225 makes the records confidential unless an exception

is met.2 That statute provides:

“In the interest of family privacy and for the protection

of children, families and other recipients of services, the

Department of Human Services shall not disclose or use

the contents of any child welfare records, files, papers or

communications that contain any information about an

individual child, family or other recipient of services for

purposes other than those directly connected with the

administration of child welfare laws or unless required

or authorized by ORS 419A.255 or 419B.035. The records,

files, papers and communications are confidential and are

not available for public inspection. General information,

policy statements, statistical reports or similar compila-

tions of data are not confidential unless such information

is identified with an individual child, family or other recip-

ient of services or protected by other provision of law.”

ORS 409.225(1) (2019). Specifically, DHS claims that it can

use mother’s juvenile records in the dependency matter

involving her child because it is “directly connected with the

administration of child welfare laws.” Id.

That argument requires us to read ORS 419A.255

in concert with ORS 409.225(1) to identify the nature of the

privilege at issue and whether or not it applies to the adult

mother’s juvenile records in a separate juvenile court pro-

ceeding involving her daughter. This task extends our work

in Kahn v. Pony Express Courier Corp., 173 Or App 127, 20

P3d 837, rev den, 332 Or 518 (2001), where we determined

2

We can affirm a “ruling on appeal, even if the trial court’s legal reasoning

for the ruling was erroneous, if another legally correct reason and, to the extent

necessary, the record developed in the trial court support the ruling.” Outdoor

Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659, 20 P3d 180 (2001)

(quoting State v. Rogers, 330 Or 282, 295, 4 P3d 1261 (2000)).

Cite as 316 Or App 537 (2021) 545

that ORS 409.225(1) must be read along with ORS 419A.255

because the latter statute is cited in the former. Kahn

understood ORS 409.225 as applying to DHS records in

the possession of DHS; under that statute, such records are

confidential but not privileged. However, Kahn found that

a certain type of juvenile record—so-called “history and

prognosis” records—were privileged generally under ORS

419A.255 regardless of their location. Kahn, 173 Or App at

141-42. Thus, even “history and prognosis” records solely in

the possession of DHS would be privileged.

Under Kahn, both parties agree that mother’s juve-

nile records are privileged and could not be used. However,

the language of ORS 419A.255 has changed since our deci-

sion in Kahn. Mother has staked the claim that Kahn con-

tinues to control the interpretation of these statutes by priv-

ileging all “history and prognosis” information contained in

DHS records; DHS responds that Kahn no longer grants a

broad privilege for history and prognosis records generally

because of the 2013 amendments to the relevant statutory

sections.

The defendants in Kahn, which was a wrongful

death action, sought the production of SCF (now DHS)

records that were in the possession of the plaintiff’s legal

counsel. Kahn, 173 Or App at 130. They argued that they

were entitled to discovery of those records under ORCP 36

B(1) and that ORS 409.225 did not prohibit their disclosure.

Id. at 131. Defendants understood ORS 409.225 to prohibit

SCF from disclosing its own records and not other parties

who were in possession of such records.

In Kahn, we considered the threshold question of

whether, as a matter of law, there was a privilege against the

discovery of SCF records under ORS 409.225 or any other

statute. We determined the legislature’s intended meaning

of the statute by first looking at its text and context by fol-

lowing the analysis set out in PGE v. Bureau of Labor and

Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). ORS

409.225 provides for DHS’s use of records:

“In the interest of family privacy and for the protection

of children, families and other recipients of services, the

Department of Human Services shall not disclose or use

546 Dept. of Human Services v. E. J.

the contents of any child welfare records, files, papers or

communications that contain any information about an

individual child, family or other recipient of services for

purposes other than those directly connected with the

administration of child welfare laws or unless required

or authorized by ORS 419A.255 or 419B.035. The records,

files, papers and communications are confidential and are

not available for public inspection. General information,

policy statements, statistical reports or similar compila-

tions of data are not confidential unless such information

is identified with an individual child, family or other recip-

ient of services or protected by other provision of law.”

ORS 409.225(1) (2019).3

We interpreted the foregoing language to establish

the requirements relating to the disclosure of DHS records

by DHS. Kahn, 173 Or App at 138-39. The second sentence

of subsection (1) makes such records generally confiden-

tial. However, as we said in Kahn, this directive is supple-

mented by, and an exception is provided in, the first sen-

tence of subsection (1), which expressly prohibits DHS from

disclosing or using such records except “for purposes * * *

directly connected with the administration of child welfare

laws or unless required or authorized by ORS 419A.255 or

ORS 419B.035.” Kahn, 173 Or App at 137-38. We found no

authority under the statute for the disclosure of the records

by plaintiff’s counsel to defendants, although we did deter-

mine that they were not invulnerable to discovery under

ORCP 36 B(1) because we did not read ORS 409.225 as

privileging DHS records. Therefore, the confidential records

could be subject to discovery. However, we concluded that

the related statutes cited in ORS 409.225(1) regard the dis-

closure of juvenile records generally under ORS 419A.255,

and the requirements for the confidentiality of child abuse

reporting records under ORS 419B.035. Kahn, 173 Or App

at 137-40. We interpreted ORS 419A.255(2) to mean “that

records—including [DHS] records—containing information

about a child’s medical, psychological, and personal and

family background and predicted future condition or status

were privileged[.]” Id. at 141-42. Therefore, we concluded

3

ORS 409.225 has been amended since Kahn, but those changes do not alter

the analysis here.

Cite as 316 Or App 537 (2021) 547

that given the omission of the term “privileged” from ORS

409.225, DHS records are not privileged unless they are

also records relating to a child’s history and prognosis as

defined under ORS 419A.255. Id. at 142.

The statutory language we relied on in Kahn was

found in the former version of ORS 419A.255 (1997):

“(2) Reports and other material relating to the child’s

or youth’s history and prognosis are privileged and, except

at the request of the child or youth, shall not be disclosed

directly or indirectly to anyone other than the judge of the

juvenile court * * *.

“(3) Except as otherwise provided in subsection (7) of

this section, no information appearing in the record of the

case or in reports or other material relating to the child’s

or youth’s history or prognosis may be disclosed to any per-

son not described in subsection (2) of this section without

the consent of the court, except for purposes of evaluating

the child’s or youth’s eligibility for special education as pro-

vided in ORS chapter 343, and no such information may

be used in evidence in any proceeding to establish crim-

inal or civil liability against the child or youth, whether

such proceeding occurs after the child or youth has reached

18 years of age or otherwise, except for the following

purposes:

“(a) In connection with a presentence investigation

after the guilt of the youth has been admitted or estab-

lished in a criminal court.

“(b) In connection with a proceeding in another juve-

nile court concerning the child or youth or an appeal from

the juvenile court.”

ORS 419A.255(2), (3) (1997) (emphasis added). In 2013, the

legislature changed the phrasing to enumerate the locations

of these records in the “supplemental confidential file” or the

“record of the case”:

“Reports and other material relating to the child, ward,

youth or youth offender’s history and prognosis in the sup-

plemental confidential file or record of the case are privi-

leged and, except at the request of the child, ward, youth or

youth offender, shall be withheld from public inspection.”

ORS 419A.255(2)(a) (2013) (emphasis added).

548 Dept. of Human Services v. E. J.

In contrast to the former version, the amendments

to the statute specify that the privilege extends to material

about the youth’s “history and prognosis in the supplemental

confidential file or record of the case.” ORS 419A.255(2)(a)

(2013). We must now address the consequence of these statu-

tory changes on Kahn’s holding to determine if DHS records

related to history and prognosis information generally con-

tinue to be privileged.

Our interpretation of a statute is governed by

Gaines, 346 Or at 171-72. The first and most important step

is an examination of the text and context. This is followed

by a consideration of the legislative history if it is useful

for the court’s analysis, and we must determine its “evalu-

ative weight.” Id. If the legislature’s intent remains unclear

after examining text, context, and legislative history, the

court may resort to general maxims of statutory construc-

tion to aid in resolving the remaining uncertainty. Id. at

172.

The legislature changed the language of the stat-

ute to identify the location of “history and prognosis” infor-

mation in either “the supplemental confidential file or the

record of the case.” ORS 419A.255(2)(a) (2013). This is a

significant narrowing of the language that we relied on in

Kahn. Mother argues that the legislative history demon-

strates that the intent was to leave the privilege intact to

cover all “history and prognosis” DHS records. Indeed, tes-

timony before the Judiciary Committee by a representative

of the Oregon Law Commission (OLC) demonstrated an

intent to clear up the confusing language used to describe

the so-called “social file,” which would be termed the “sup-

plemental confidential file” in the amended statute. That

same testimony mentioned a desire by the commission to

continue the “history and prognosis phrasing that case-

law has so developed.” Audio Recording, Senate Committee

on Judiciary, SB 622, Apr 10, 2013, at 16:20 (comments by

Wendy Johnson) https://olis.oregonlegislature.gov (accessed

Nov 24, 2021). Furthermore, the OLC report submitted to

the committee makes its objective explicit for the new provi-

sions to maintain the strength of the privilege. For example,

the proposed amendment to subsection (2)(a)

Cite as 316 Or App 537 (2021) 549

“provides that ‘history and prognosis’ reports and material

will continue to be privileged—whether maintained in the

supplemental confidential file or whether they ultimately

become part of the record of the case. Attaching ‘history

and prognosis’ material to a motion will not make the

material lose its privileged status. The work group found it

very important to keep this material privileged to preclude

public access to these sensitive records.”

Oregon Law Commission, Juvenile Records Work Group

Report 14 (2013). The testimony and report make clear the

legislative intent to demarcate both the legal file and the

supplemental confidential file as the juvenile court records.

Indeed, the very language of the statute demonstrates this

intention.

Because the legislative history offered here neither

reveals a latent ambiguity in the words nor contradicts our

understanding of the import of the words themselves, the

text conveys its plain meaning, which is that “history and

prognosis” information found in the supplemental confiden-

tial file or the record of the case is privileged—not all “his-

tory and prognosis” information contained in DHS’s files.

Our interpretive task, however, does not end there. We must

consider the “history and prognosis” information that is

located in the juvenile court files in addition to other places

such as DHS’s files.

ORS 419A.252(5) defines the materials in the sup-

plemental confidential file that “includes reports and other

material relating to the child, ward, youth or youth offender’s

history and prognosis, including but not limited to reports

filed under ORS 419B.440.” Furthermore, the “record of the

case” includes such items as the summons, petitions, and

“affidavits and other papers that are filed with the court,

including supporting documentation.” ORS 419A.252(4).

Other statutes require that DHS provide its records for

inclusion in the supplemental confidential file and court file.

See ORS 419B.440.

ORS 419A.255(2)(a) references a broad range of

materials that can qualify for the privilege. It would con-

tradict the plain meaning of that language if the privilege

could be defeated by finding the same materials in duplicate

550 Dept. of Human Services v. E. J.

from the originating source such as DHS’s files. Therefore,

we interpret the statute to mean that if any “history and

prognosis” material is located in either the supplemen-

tal confidential file or the record of the case, the privilege

attaches to this material, and it applies regardless if these

same materials exist in duplicate elsewhere. The narrow

issue in this case does not call upon us to delineate the full

range of instances when the privilege would apply, or how

it might be waived. Here, DHS sought to disclose the mate-

rial; regardless of what other situations and actors may or

may not fall under the statute’s ambit, DHS clearly does.

And DHS cannot defeat the privilege because the particu-

lar report or other material relating to the ward originated

from its own files that it still possesses. By the same token,

if the material that DHS seeks to disclose is not “history

and prognosis” information found in the supplemental con-

fidential file or the record of the case, it is not privileged for

the purposes of ORS 419A.255, although it might still be

confidential under ORS 409.225(1).

Here, DHS, as the proponent of the records, has not

demonstrated that the records at issue overcome the privi-

lege codified in ORS 419A.255. DHS had the burden to show

that the records were not (1) history and prognosis informa-

tion and (2) that they were not located in the supplemental

confidential file or record of the case. The record here fails to

establish either. Accordingly, the trial court erred in order-

ing disclosure.

Reversed and remanded.