# Dept. of Human Services v. F. J. M.

> Oregon Supreme Court · November 10, 2022 · 370 Or. 434

URL: https://www.frixlaw.com/law-library/cases/10627514

## Case

- **Court:** Oregon Supreme Court
- **Decided:** November 10, 2022
- **Citations:** 370 Or. 434
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Garrett
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10627514

## How later opinions describe it (automated extraction)

- noting that some factors that a juvenile court may consider include “the circumstances that resulted in wardship,” “the effectiveness of a parent’s prior attempts * * * to ameliorate those circum- stances,” and “the length of time over which those prior attempts were made”
- affirming psychological evaluation order where challenges persisted and “[O]DHS had been involved with the family for many years”

## Opinion text

434

Argued and submitted January 20, decision of Court of Appeals and judgments
of circuit court affirmed November 10, 2022

In the Matter of A. B. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
F. J. M.,
Petitioner on Review.
(CC 20JU00943, CA A174486 (Control))
In the Matter of Z. K. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
F. J. M.,
Petitioner on Review.
(CC 20JU00944, CA A174487)
In the Matter of O. R. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
F. J. M.,
Petitioner on Review.
(CC 20JU00945, CA A174488)
In the Matter of K. J. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
F. J. M.,
Petitioner on Review.
(CC 20JU00946, CA A174489)
Cite as 370 Or 434 (2022) 435

In the Matter of F. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
F. J. M.,
Petitioner on Review.
(CC 20JU00947, CA A174490)
(SC S068704)
520 P3d 854

The juvenile court took jurisdiction of mother and father’s five children on
the ground that their welfare was endangered and ordered father to complete
a psychological evaluation and to follow its recommendations. Father appealed,
contending that the juvenile court had erred in ordering that he participate in a
psychological evaluation. The Court of Appeals affirmed. Held: (1) Even though
the plain meaning of the term “treatment” in ORS 419B.387 is broad enough to
encompass evaluation and testing components and the statute’s legislative his-
tory is consistent with construing the term “treatment” broadly, a juvenile court’s
authority to order “treatment” is circumscribed by the statutory requirement
that treatment be “needed” by the parent for the purpose of ameliorating the
circumstances that resulted in the wardship or preparing the parent to resume
care of the ward; (2) in determining whether treatment is “needed” by the par-
ent, a juvenile court must engage in a fact-specific inquiry that depends on the
circumstances of each individual case, and its finding of need must be grounded
in the evidence presented at the evidentiary hearing and connected more than
tenuously to the jurisdictional bases that the treatment is being ordered to cor-
rect; (3) the juvenile court found, based on the record, that father’s behavior—
in particular, his pattern of leaving the children in mother’s care despite his
awareness that she is an unsafe parent—is a reflection of a problem for which
treatment is “needed,” and that a psychological evaluation is necessary to correct
that problem, which had resulted in the wardship of father’s children, and to
prepare him to resume the children’s care; and (4) even though father had volun-
tarily participated in a psychological evaluation that had been recommended by
his counselor, the juvenile court was not precluded from independently finding,
consistently with ORS 419B.387, that father needed to participate in a psycholog-
ical evaluation and follow its recommendations to correct the circumstances that
resulted in wardship or to prepare father to resume the care of his children given
that the record did not reflect any findings from father’s voluntary evaluation or,
more importantly, what recommendations were made to father or his actions in
response to those recommendations.
The decision of the Court of Appeals and the judgments of the circuit court
are affirmed.

On review from the Court of Appeals.*
______________
* On appeal from Malheur County Circuit Court, Lung S. Hung, Judge. 312
Or App 301, 493 P3d 59 (2021).
436 Dept. of Human Services v. F. J. M.

Sarah Peterson, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Shannon Storey, Chief Defender.
Jon Zunkel-deCoursey, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, and Garrett, Justices, and Kistler, Senior Judge,
Justice pro tempore.**
GARRETT, J.
The decision of the Court of Appeals and the judgments
of the circuit court are affirmed.

______________
** DeHoog, J., did not participate in the consideration or decision of this case.
Cite as 370 Or 434 (2022) 437

GARRETT, J.
In this dependency case, father challenges the juve-
nile court’s order that he undergo a psychological evaluation
and follow its recommendations. ORS 419B.387 authorizes
a juvenile court, following an evidentiary hearing, to “order
[a] parent to participate in the treatment or training” that
“is needed by [the] parent to correct the circumstances that
resulted in wardship or to prepare the parent to resume the
care of the ward” and that “is in the ward’s best interests.”
Father contends that the psychological evaluation that the
juvenile court ordered does not qualify as “treatment” and
that, even if it does, it was not “needed” by father. Thus, we
must determine the meaning of those terms in ORS 419B.387
and whether that statute authorized the juvenile court to
order the psychological evaluation at issue here. For the rea-
sons explained below, we conclude that the juvenile court’s
order was authorized under ORS 419B.387. Accordingly, we
affirm the decision of the Court of Appeals and the juvenile
court’s judgments.
We briefly set out the pertinent background facts,
which are uncontested, and provide additional details later
as necessary to address the parties’ arguments on review.
Father and mother have five children together who,
at the time of the hearings in this case in the summer of
2020, ranged in age from approximately 13 years to six
months. DHS had been involved with the family for many
years. The four older children were made wards of the court
in 2017 because of mother’s mental health issues and her
violent behavior toward father, and because of father’s fail-
ure to protect the children from exposure to domestic vio-
lence. Although the court granted legal custody to DHS,
father retained physical custody of the children through an
in-home placement. Court orders had prohibited mother and
father from having contact, but they continued to engage
with one another. During that time, father filed for dissolu-
tion, alleging that mother should not be granted parenting
time because mother’s mental health prevented her from
safely parenting the children. Eventually, the state moved
to dismiss the dependency proceedings because “DHS [could
not] safely work [an] in home plan,” and the court granted
438 Dept. of Human Services v. F. J. M.

the motion. Mother and father then voluntarily stipulated to
the dismissal of the dissolution proceeding. DHS continued
to have contacts with the family.
In mid-2019, the oldest child reported allegations
of neglect. DHS initiated another assessment based on con-
cerns that mother’s mental health was affecting her ability
to safely parent and that father was not taking appropri-
ate measures to mitigate that threat of harm. Father was
unwilling to work with DHS on an in-home safety plan.
DHS closed its assessment after the juvenile court declined
to issue an order permitting the removal of the children.
In January 2020, the events that gave rise to this
case took place. While mother was caring for all five chil-
dren, she threatened herself with a knife. Father, who was
at work at the time, immediately returned to the family’s
home, after the oldest child explained to him what was hap-
pening. The police removed mother from the house. DHS
again initiated an assessment and sought to work with
father on an in-home safety plan.
About a month later, father, who was on probation
for misdemeanor telephonic harassment of mother, failed to
report to his probation officer. Father eventually submitted
to a urine test, which revealed that he had used metham-
phetamine in violation of his probation. Father served a
sanction of six days in jail. At that point, DHS took cus-
tody of the children and filed the dependency petitions
that are at issue here. The children were placed in foster
care.
The jurisdictional and dispositional hearings took
place over a period of several weeks in June and July 2020.
The juvenile court took jurisdiction of the children on the
ground that their welfare was endangered. Specifically, the
court found that DHS had proved jurisdictional allegations
pertaining to father that concerned his substance abuse and
a pattern of behavior that had existed for several years in
which he left the children in mother’s care even though he
knew that she could not safely parent them.1

1
Mother admitted to a jurisdictional allegation and stipulated to the pro-
posed disposition. She is not a party on review.
Cite as 370 Or 434 (2022) 439

After taking jurisdiction, the court held a disposi-
tional hearing, incorporating the evidence from the jurisdic-
tional hearing. The juvenile court continued the children’s
placement in substitute care and established a case plan of
reunification with a concurrent plan of adoption. The court
declined to require father to complete a mental health eval-
uation because it had not found that father “had any diag-
nosed mental health issues that a mental health evaluation
and treatment would benefit.” Instead, among other things,
the court ordered father to complete drug and alcohol and
psychological evaluations and to follow their “recommenda-
tions.” Father did not object to the drug and alcohol evalua-
tion, but he did object to the order concerning the psycholog-
ical evaluation.

Father appealed the resulting judgments, contend-
ing that the juvenile court had erred in ordering that he
participate in a psychological evaluation. Dept. of Human
Services v. F. J. M., 312 Or App 301, 493 P3d 59 (2021).2
The Court of Appeals noted that, under its own case law,
it had identified two potentially applicable statutes under
which a juvenile court could order a psychological examina-
tion. See Dept. of Human Services v. L. J. W., 302 Or App
126, 132, 460 P3d 540, rev den, 367 Or 75 (2020) (“Both ORS
419B.337(2) and ORS 419B.387 provide authority for a psy-
chological examination. [ORS 419B.337(2)] requires that a
psychological examination rationally relate to a jurisdic-
tional basis, while [ORS 419B.387] requires a showing of a
need for the examination for treatment or training directed
toward reunification.” (Emphasis in original.)). Noting that
the juvenile court’s statements referenced both standards,
the Court of Appeals concluded that, viewing the juvenile
court’s findings and the record as a whole, the juvenile court
had authorized father’s psychological evaluation with a
rationale that satisfied ORS 419B.387; as a result, the court

2
In addition, father raised numerous assignments of error challenging the
juvenile court’s exercise of its dependency jurisdiction. The Court of Appeals
“affirm[ed] the jurisdictional and dispositional determinations without discus-
sion and [wrote] only to address father’s challenge to the court’s requirement
that he submit to a psychological evaluation.” F. J. M., 312 Or App at 304. The
only issue before us on review concerns the court’s order that father submit to a
psychological evaluation.
440 Dept. of Human Services v. F. J. M.

did not address whether the order would have been lawful
under ORS 419B.337.3 F. J. M., 312 Or App at 311, 312 n 3.
In determining that the juvenile court’s order was
authorized under ORS 419B.387, the Court of Appeals relied
on its prior decision in Dept. of Human Services v. D. R. D.,
298 Or App 788, 450 P3d 1022 (2019). That court explained
that it had “concluded in D. R. D. that a psychological eval-
uation is authorized under ORS 419B.387 if needed ‘as a
component of treatment or training[,]’ ” but that the statute
“ ‘does not imbue the juvenile court with authority to order a
parent to comply with a discovery mechanism to determine
if there is a need for treatment or training.’ ” F. J. M., 312 Or
App at 310 (quoting D. R. D., 298 Or App at 799-800 (empha-
sis in D. R. D.)). Applying that standard in this case, the
Court of Appeals concluded that the juvenile court had not
authorized “a psychological evaluation as a tool to discover
what types of training or treatment were appropriate, which
would not be allowed under D. R. D.,” but, instead, had con-
cluded that “a psychological evaluation would be helpful to
father’s success in the training and treatment that had been
ordered to allow father to resume caring for the children.”
F. J. M., 312 Or App at 311. Specifically, the Court of Appeals
explained:
“[G]iven the family’s long history of involvement with DHS
and father’s long-term failure to address the need to pro-
tect the children from mother, the court determined that
it would be important to know whether psychological fac-
tors were in play, so that the ordered training could better
address father’s deficits and help him to function as a par-
ent and resume care of the children.”

Id. at 311-12.
Judge Aoyagi concurred in part and dissented in
part. She noted that, in recent years, the Court of Appeals
had “seen more and more challenges to juvenile court orders
3
After issuing its decision in F. J. M., the Court of Appeals issued a decision in
Dept. of Human Services v. W. C. T., 314 Or App 743, 501 P3d 44 (2021). In W. C. T.,
that court harmonized various lines of its own case law and several statutory
standards, including those in ORS 419B.337(2) and ORS 419B.387, to recognize a
four-part standard under which a juvenile court may order a psychological evalu-
ation. This case does not concern that newly recognized standard.
Cite as 370 Or 434 (2022) 441

requiring parents to submit to psychological evaluations,
often with confusing records as to whether the court was
relying on ORS 419B.337(2), ORS 419B.387, or both.” F. J. M.,
312 Or App at 314 (Aoyagi, J., concurring in part and dis-
senting in part). In Judge Aoyagi’s view, the juvenile court
had not relied on ORS 419B.387, but instead had errone-
ously ordered the psychological evaluation under ORS
419B.337(2). Id. at 312-13. Father filed a petition for review
in this court, which we allowed.
Before turning to the parties’ arguments on review,
we begin with a general overview of the statutory frame-
work of which ORS 419B.387 is a part. ORS chapter 419B
provides the juvenile court with “unique authority over the
life of a child who comes before it, beginning with the author-
ity to determine that a particular child falls within one of
the categories specified in ORS 419B.100(1)—a determina-
tion that requires the court to make the child a ward of the
court.” Dept. of Human Services v. C. M. H., 368 Or 96, 104,
486 P3d 772 (2021) (internal quotation marks omitted); see
also ORS 419B.100(1)(c) (providing, in part, that “the juve-
nile court has exclusive original jurisdiction” in any case
involving a child “[w]hose condition or circumstances are
such as to endanger the welfare of the [child]”). Once a child
has become a ward of the court, “a series of complex statutes
and proceedings come into play” that “seek to protect the
safety and well-being of children” and “the rights of both
children and parents.” Dept. of Human Services v. S. J. M.,
364 Or 37, 50, 430 P3d 1021 (2018); see ORS 419B.090(2) - (4)
(describing the statutory and constitutional rights of par-
ents and children).
Except in cases of extreme conduct under ORS
419B.502, it is the policy of the state “to offer appropriate
reunification services to parents and guardians to allow
them the opportunity to adjust their circumstances, conduct
or conditions to make it possible for the child to safely return
home within a reasonable time.” ORS 419B.090(5). When
the juvenile court places a ward in the legal custody of DHS,
the juvenile court has authority to “specify the particular
type of care, supervision or services to be provided by [DHS]
to wards placed in [DHS’s] custody and to the parents or
guardians of the wards”; however, “the actual planning and
442 Dept. of Human Services v. F. J. M.

provision of such care, supervision or services is the respon-
sibility of [DHS].” ORS 419B.337(2).
Further, parents and guardians owe duties to their
children. For example, parents or guardians have a duty
“to afford their children” the legal rights to “[p]ermanency
with a safe family,” “[f]reedom from physical, sexual or emo-
tional abuse or exploitation,” and “[f]reedom from substan-
tial neglect of basic needs.” ORS 419B.090(2)(a), (b). Parents
also have a duty “to remove any impediment to their ability
to perform parental duties that afford these rights to their
children.” ORS 419B.090(2)(b).
In particular circumstances, the juvenile court has
authority to order parents and guardians to take certain
actions. See, e.g., ORS 419B.845(1)(a) (move from household
in which the child resides if alleged to have physically or
sexually abused the child); ORS 419B.112(6) (pay the rea-
sonable costs of court appointed special advocate services,
including reasonable attorney fees); ORS 419B.198(1) (pay
the administrative costs of determining ability to pay for
legal services and the costs of legal and other services
related to the provision of appointed counsel to represent the
child or ward); ORS 419B.400(1) (pay costs of support); ORS
419B.385 (assist in providing counseling and education for
the ward). The court also has authority to enforce its orders
by force of contempt. See ORS 419A.180 (providing that, “[i]n
case of failure to comply with any order of the juvenile court,
the court may proceed for contempt of court against the per-
son failing to comply”); ORS 419B.929 (providing that “[a]
court may enforce an order or judgment directing a party
to perform a specific act by punishing the party refusing
or neglecting to comply with the order or judgment, as for a
contempt as provided in ORS 33.015 to 33.155”).
As pertinent here, ORS 419B.387 authorizes the
court to order a parent to participate in “treatment or train-
ing” that is “needed by [the] parent to correct the circum-
stances that resulted in wardship or to prepare the parent
to resume care of the ward[.]” Although father contends
that ORS 419B.387 is “the sole source of the juvenile court’s
authority to order a parent to participate in corrective ser-
vices” and that “[t]he legislature did not intend, as the Court
Cite as 370 Or 434 (2022) 443

of Appeals repeatedly has held, for both ORS 419B.337(2)
and ORS 419B.387 to authorize the court” to issue orders
directed at a parent, we need not resolve that issue in this
case. (Emphases in original.) That is so because DHS has
disclaimed any reliance on ORS 419B.337(2) “as an alterna-
tive source of authority for the juvenile court’s order.” Thus,
as presented by the parties’ arguments here, the sole issue is
what ORS 419B.387 requires and whether the court’s order
in this case complied with those requirements. Specifically,
the parties raise competing contentions concerning the
meaning of the term “treatment” and the phrase “needed by
the parent.”
Father contends that the term “treatment” in ORS
419B.387 refers to “activities designed to cure deficits * * *
and do[es] not mean completion of other tasks or submis-
sion to free-standing investigatory procedures or forensic
examinations” like “submit[ting] to a polygraph,” “a foren-
sic psychological evaluation,” “drug testing,” or “any other
free-standing task or investigatory procedure.” Based on
that understanding, father argues that the juvenile court
erred in ordering him to participate in a psychological eval-
uation for two reasons. First, father argues that the com-
pelled psychological evaluation does not qualify as “treat-
ment” under ORS 419B.387 because “it is not a curative
intervention designed to remedy a malady of the mind or
body or any other deficit.” 4 Second, father argues that he
“had already participated in a psychological evaluation at
the recommendation of his treating mental health therapist
to guide and enhance his ongoing course of mental health
treatment”; thus, he “had already secured the psychological
evaluation that he needed” and the court’s order “requiring
father to submit to an additional, court-ordered evaluation
for [DHS’s] benefit was improper” under ORS 419B.387.
(Emphases in original.)

4
Father also contends that a psychological evaluation is not a form of “train-
ing.” See Webster’s Third New Int’l Dictionary 2424 (unabridged ed 2002) (defining
the term “training” to mean, among other things, “the teaching, drill, or disci-
pline by which powers of mind or body are developed : education ” and “develop-
ment of a particular skill or group of skills”). However, because the gravamen
of DHS’s argument in this case is that the term “treatment” can encompass a
psychological evaluation, and because we conclude that DHS is correct, we need
not address whether such an evaluation is a form of “training.”
444 Dept. of Human Services v. F. J. M.

In response, DHS contends that needed treatment
covers more than direct, curative treatment and that “ORS
419B.387 authorizes the court to order a psychological eval-
uation if it finds that the evaluation would help it determine
what treatment or training is needed to correct the circum-
stances that resulted in wardship or to enable the parent
to resume care of the ward.” DHS reasons that “treatment”
often encompasses “diagnostic steps to determine the most
effective course of action.” DHS further explains that, when
“a court is determining the ‘treatment’ for circumstances
such as substance abuse or domestic violence,” a psycho-
logical evaluation may be a necessary diagnostic tool that
assists in tailoring treatment and services, or in “deter-
min[ing] what other treatments [are] needed,” to “correct
the circumstances that resulted in wardship or to prepare
the parent to resume care of the ward,” as required by ORS
419B.387.5
To resolve the parties’ contentions, we must inter-
pret ORS 419B.387. When interpreting a statute, our goal is
to determine the legislature’s intent by examining the stat-
utory text in context along with any legislative history that
appears useful to our analysis. State v. Gaines, 346 Or 160,
206 P3d 1042 (2009).
We begin with the text of ORS 419B.387, which
provides:
“If the court finds in an evidentiary hearing that treat-
ment or training is needed by a parent to correct the cir-
cumstances that resulted in wardship or to prepare the
parent to resume the care of the ward, the court may order
the parent to participate in the treatment or training if the
participation is in the ward’s best interests.”

(Emphases added.) As noted, the parties’ contentions raise
two issues: (1) whether a psychological evaluation can be
“treatment”; and (2) what it means for “treatment” to be
“needed.”

5
Alternatively, DHS contends that, even if ORS 419B.387 did not authorize
the juvenile court’s order, it was nevertheless lawful as an exercise of the court’s
inherent authority. Because we conclude that the court’s order in this case was
authorized by ORS 419B.387, we need not address that issue.
Cite as 370 Or 434 (2022) 445

Where, as here, the terms “treatment” and “needed”
are not defined by statute, we assume that the legislature
intended to give words of common usage their plain, natu-
ral, and ordinary meanings. See Kinzua Resources v. DEQ,
366 Or 674, 681, 468 P3d 410 (2020) (“When the legislature
has not specially defined a term of common usage, we gen-
erally assume that the legislature intended to use the term
in a manner consistent with its plain, natural, and ordinary
meaning, and we often consult dictionaries for guidance in
determining what the legislature would have understood a
term to mean.” (Internal quotation marks omitted.)). The
term “treatment” has a variety of meanings, including “the
action or manner of treating a patient medically or surgi-
cally,” “the action or manner of dealing with something often
in a specified way,” or “preventive guidance and corrective
training esp. of juvenile delinquents and youthful crimi-
nal offenders.” Webster’s Third New Int’l Dictionary 2435
(unabridged ed 2002); see also id. (defining the verb “treat,”
among other things, to mean “to care for (as a patient or
part of the body) medically or surgically : deal with by med-
ical or surgical means : give a medical treatment to” or “to
seek cure or relief of (as a disease)”).
Based on those definitions, father’s primary argu-
ment is that a “psychological evaluation” is a “free-standing
task or investigatory procedure” that is not “curative of a
mental or physical condition.” Although father is correct that
one plain meaning of the term “treatment” narrowly refers
to direct, curative interventions, the term can also refer to
“the action or manner of dealing with something often in
a specified way” or to “preventive guidance and corrective
training.” Id. As DHS contends, those plain meanings are
broad enough to encompass evaluation and testing com-
ponents. Among other things, such components can assist
(1) in determining the cause or nature of the circumstances
resulting in wardship, (2) in managing those circumstances,
(3) in tailoring how a treatment can be effectively delivered,
(4) in gauging a treatment’s effectiveness, and (5) in identi-
fying other treatment components.
The statute’s legislative history supports that under-
standing. ORS 419B.387 was enacted in 1993. Or Laws
1993, ch 546, § 55. ORS 419B.387 replaced two other
446 Dept. of Human Services v. F. J. M.

provisions that had authorized the juvenile court to order
a parent to participate in “educational or counseling pro-
grams” and “alcohol or drug treatment programs.” Former
ORS 419.507(8)(b), (c) (1991).6 According to Judge Stephen
Herrell, the law at the time restricted courts to ordering
“parent training and alcohol and drug treatment,” and the
purpose of ORS 419B.387 was to “broaden[ ] the authority of
the court to require parents to obtain treatment and train-
ing to prepare them to resume their child’s care.” Testimony,
Senate Committee on Judiciary, SB 1051, Apr 21, 1993,
Ex C (statement of Judge Stephen B. Herrell, Chair of the
Juvenile and Family Justice Project). Thus, although the
legislative history of ORS 419B.387 sheds little light on the
precise meaning of the term “treatment,” the stated purpose
to “broaden[ ] the authority” of the juvenile court is consis-
tent with construing the term “treatment” broadly to include
evaluation and testing components. See ORS 174.020(3) (“A
court shall give the weight to the legislative history that the
court considers to be appropriate.”).
However, it is evident from the plain text of ORS
419B.387 that a juvenile court’s authority to order “treat-
ment” is not unlimited. Several requirements must be sat-
isfied before the juvenile court can order a parent to par-
ticipate in treatment. As pertinent here—and contrary to
father’s assertion that “free-standing testing and evalua-
tion[s]” are ordered “for purposes of the litigation itself” and
for the use and benefit of the “government”—the juvenile
court must find that the ordered treatment or training is
“needed by [the] parent to correct the circumstances that
resulted in wardship or to prepare the parent to resume
the care of the ward.” ORS 419B.387 (emphasis added).7 As
used in the statute, treatment is “needed” if it is necessary
6
In 1993, the legislature repealed former ORS 419.507(8)(b) and (c) (1991)
but then re-enacted the text of those provisions. Or Laws 1993, ch 33, § 373
(repealing former ORS 419.507), § 119 (re-enacting former ORS 419.507(8)(b)),
§ 120 (re-enacting former ORS 419.507(8)(c)). That same year, the legislature
passed another bill that repealed the re-enacted provisions and replaced them
with ORS 419B.387. Or Laws 1993, ch 546, §§ 54, 55. Further, ORS 419B.387 was
later amended in 2003 in ways that are not material to our review. Or Laws 2003,
ch 396, § 69.
7
ORS 419B.387 also requires that the court hold an evidentiary hearing
and that the parent’s participation in treatment or training be in the ward’s best
interests. Those requirements are not at issue in this case.
Cite as 370 Or 434 (2022) 447

or required. See Webster’s at 1512 (defining the verb “need,”
among other things, to mean “to be needful : be necessary”
and “ to be in need of : have cause or occasion for : require”);
id. (defining the noun “need,” among other things, to mean
“a want of something requisite, desirable, or useful”); id. at
1510 (defining the adjective “necessary” to include “that is
or exists or comes to be by reason of the nature of being and
that cannot be or exist or come to be in any other way” and
“of, relating to, or having the character of something that is
logically required or logically inevitable”).
The legislature’s use of the term “needed” demon-
strates an intent to circumscribe the juvenile court’s author-
ity and prevent a court from ordering evaluations and test-
ing in every case to determine if a parent has a need for
treatment. See D. R. D., 298 Or App at 799 (“ORS 419B.387
does not imbue the juvenile court with authority to order a
parent to comply with a discovery mechanism to determine
if there is a need for treatment or training.” (Emphasis in
original.)). The legislature further circumscribed the juve-
nile court’s authority by requiring that the ordered treat-
ment be needed by the parent for a particular purpose—
that is, the purpose of ameliorating the circumstances that
resulted in the wardship or preparing the parent to resume
care of the ward. However, even though what is “needed” is
often a matter of degree, the legislature did not impose a
requirement of absolute need in the sense that the juvenile
court must find that it would be impossible for the parent
to correct the circumstances resulting in wardship without
engaging in the ordered treatment.
Thus, as with many other questions, in determin-
ing whether treatment is needed by the parent, a juvenile
court must engage in a fact-specific inquiry that depends
on the circumstances of each individual case, and its find-
ing of need must be grounded in the evidence presented at
the evidentiary hearing. In making that finding, a juvenile
court may typically consider a variety of factors, such as
(1) the circumstances that resulted in wardship (e.g., sub-
stance abuse, mental health issues, other circumstances);
(2) the extent to which the treatment that the court is consid-
ering will correct those circumstances or otherwise prepare
the parent to resume the ward’s care; (3) the availability of
448 Dept. of Human Services v. F. J. M.

alternatives to the treatment that the court is considering
that will correct the circumstances that resulted in ward-
ship or otherwise prepare the parent to resume the ward’s
care; (4) the effectiveness of a parent’s prior attempts, if any,
to ameliorate those circumstances; and (5) the length of time
over which those prior attempts were made. We construe the
statute to require that a juvenile court’s finding that par-
ticular treatment (e.g., a psychological evaluation) is needed
by the parent must be connected more than tenuously to
the jurisdictional bases that the treatment is being ordered
to correct, and that it must be based in and supported by
the evidentiary record. As we have explained, the circum-
stances of each case must be evaluated independently.
With that understanding of the statute, we return
to the circumstances of this case to determine whether the
juvenile court’s order was authorized by ORS 419B.387. As
noted above, the court held jurisdictional and dispositional
hearings. At those hearings, the juvenile court took evidence
concerning (1) the family’s history with DHS, as previously
described, 370 Or at 437-38; (2) father’s voluntary mental
health counseling; (3) father’s drug use; and (4) father’s fail-
ure to cooperate with the in-home safety plans designed to
protect the children from mother.
At the time of the hearings, father had been volun-
tarily engaged in mental health counseling. Father testified
that his counselor had suggested that he complete a psycho-
logical evaluation as a treatment recommendation. When
the attorney for DHS asked father why he wanted a psycho-
logical evaluation, father explained, “[B]etween [my coun-
selor] and I it was suggested that maybe it would be some-
thing good for myself to kind of find out why * * * I am the
way I am[.]” Father later testified that he had completed the
psychological evaluation, but that his attorney had advised
him not to share the results with DHS.
Father also had been receiving outpatient substance
abuse treatment since his release from jail in February
2020. However, father had continued to associate with
known drug users and to use methamphetamine up to the
time of the hearings. Father would leave the children in a
babysitter’s or mother’s care and was “usually not at home”
Cite as 370 Or 434 (2022) 449

when he took the drug. As a result of father’s continued
drug use, his substance abuse counselor had recommended
that he obtain inpatient treatment. An inpatient treatment
program had been identified for father; however, he had not
participated in the program at the time of the hearings.
Casad, a DHS child protective services worker, testified
that, in her discussions with father, he initially downplayed
his drug use. Because father was “contradicting himself,”
Casad could tell that he “was not being honest with [her].”
According to Casad, when she confronted father about his
honesty, he said, “ ‘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.’ ” Casad told father that, although father and his
family had “had a lot of different resources and services,” he
“push[es] that help away” because “[he’s] not honest.” Father
responded that Casad was “ ‘right’ ” and again explained
“ ‘[t]hat’s how I grew up’ ” and “ ‘I don’t know how to fix it.’ ”
According to father, if the children were returned to
his care, he would not let mother “come around.” However,
he also believed that there are times that mother could
safely parent the children on her own. He further testified
that he is able to recognize when mother is capable of par-
enting the children safely and when she is not. However,
Casad testified that father has a pattern of leaving “his kids
home with [mother] and she is an unsafe care provider” with
“unmanaged mental health issues that have * * * made a
major negative impact on his children.” DHS presented evi-
dence that, as a result, four of the children have severe emo-
tional issues. Further, there was evidence that parents had
an ongoing relationship in which they remained involved
with one another. Specifically, Russell, a DHS permanency
worker, recounted a phone call that had occurred during the
course of the hearings in which she overheard father speak-
ing angrily to mother.
The juvenile court found that DHS had proved
the following jurisdictional allegations: (1) “father’s sub-
stance abuse interferes with his ability to safely par-
ent the child[ren]”; (2) “father knew that mother’s mental
health prevented her from safely parenting the child[ren]
and he continued to leave the child[ren] in [her] care”; and
(3) “[f]ather has displayed a pattern of behavior over several
450 Dept. of Human Services v. F. J. M.

years where he leaves the child[ren] in the care of * * * mother
knowing that she cannot safely parent [them].” Specifically,
the court found that “[f]ather[’s] drug abuse continues to be
a condition that harms the children” and that “his addiction
has hurt his family financially and also caused him to check
out from being able to raise the children for periods of time.”
As the court noted, “father has continued to use and con-
tinues to associate with known drug users.” The court also
found that “mother’s presence ha[d] had a substantial neg-
ative affect on [the] children” and that the evidence demon-
strated “a repeating cycle where father continues to sepa-
rate 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.” The court acknowledged
that father had stated that “he does not want mother around
the children and wants to raise them on his own.” However,
“[g]iven the historical repeating cycle and there being rea-
son to question * * * father’s credibility,” the juvenile court
expressly did “not find [that] father will protect his children
from mother.” The court explained that “[t]he overheard
conversation between mother and father by a DHS worker
demonstrates [that] father is still very much intertwined
with mother and will continue to be so.”

At the dispositional hearing, DHS requested, among
other things, that the court order father to submit to sub-
stance abuse, mental health, and psychological evaluations
and to follow the resulting recommendations. DHS took
the position that, in the six months since the children had
entered foster care, father had struggled to engage in and
complete “alcohol and drug treatment” and that DHS was
requesting the psychological evaluation because of his “lack
of progress” despite the services that had been offered. DHS
further argued that the evidence at the jurisdictional hear-
ing demonstrated that father has “mental health issues”
and a “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.”

Father objected to the mental health and psycholog-
ical evaluations, arguing that there was no “relevant basis”
for such evaluations “under the allegations and the evidence
Cite as 370 Or 434 (2022) 451

put before the [c]ourt.” Father also contended that the court
could not order the psychological evaluation because it was
not “treatment or training needed by [father] to correct the
circumstances” that had resulted in wardship.
In support of the requested psychological evalu-
ation, Combs, a DHS supervisor, testified that the agency
had received numerous reports “regarding this family since
2014” and that “a pattern of behavior” had emerged “that
ha[d] played out over years of violence in the home, drug use,
and instability.” Combs also testified that father had previ-
ously “agreed to work with [DHS] in a prior case” but that
“he struggled to maintain implementing the safety plan
that he had agreed upon in the home.” Combs explained
that, based on the pattern of father’s behavior and her own
experience, father’s “substance use has affected his mental
health,” but that DHS was “unsure about what his under-
lying mental health concerns may be and a psychological
evaluation would help us guide case planning, reunification,
and fully understand what his needs are.”
The juvenile court ordered father to submit to a psy-
chological evaluation and to follow the resulting recommen-
dations. In doing so, the court explained:
“There was ample testimony regarding * * * father’s repeated
attempts to separate himself or keep the children safe
from * * * mother and repeated failures to do so, both by
prior DHS cases, prior divorce filings, prior other things
that were done either by [f]ather on his own or * * * with
the assistance or urging of DHS that (indiscernible) simply
failed to bring that forward at least until now.
“And I think a psychological evaluation would be helpful
in determining the rationally related (indiscernible) deter-
mine * * * what else needs to be done, what can be done to
assure that [f]ather can keep the children safe and away
from their mother. So I do find that [a] psychological eval-
uation is rationally related and based on both the evidence
presented at adjudication and disposition.”
Viewed in the context of the record and the juvenile
court’s other findings, we conclude that the juvenile court’s
order that father participate in a psychological evaluation
and follow its recommendations was authorized under ORS
452 Dept. of Human Services v. F. J. M.

419B.387.8 The court explained that, based on the evidence,
father’s substance abuse issues continue to harm the chil-
dren, as does his longstanding inability to separate him-
self and keep the children safe from mother despite his own
efforts and the “assistance or urging of DHS.” That recogni-
tion is supported by record evidence that father, when con-
fronted with his dishonesty during discussions with Casad
about his drug use and his prior rejection of resources and
services, acknowledged to her that he did not “ ‘know how to
fix it,’ ” and that father has been repeatedly unable to sepa-
rate himself and keep the children safe from mother.
In other words, contrary to father’s characteriza-
tion, we do not view the juvenile court as having ordered
a psychological evaluation as a discovery tool to determine
if father had a need for treatment or training. Given the
family’s long history with DHS over the period of many
years and father’s inability to correct the circumstances
that ultimately had resulted in the children’s wardship, we
understand the juvenile court to have found that father’s
behavior—in particular, his pattern of leaving the children
in mother’s care despite his awareness that she is an unsafe
parent—is a reflection of a problem for which treatment is
“needed,” and that a psychological evaluation is necessary
to correct that problem, which had resulted in the wardship
of father’s children, and to prepare him to resume the chil-
dren’s care. The record supports that finding.
That brings us to father’s final argument. As previ-
ously noted, father had been voluntarily engaged in mental
health counseling and, during the course of the juvenile court
hearings, had participated in a psychological evaluation that
had been recommended by his counselor. Thus, according to
father, he did not need a psychological evaluation and the

8
We note that, in ordering the psychological evaluation, the court referenced
the need for a “rational basis” between the court’s orders and the allegations
that DHS had proved. As a general matter, we do not disagree with the juvenile
court’s statement that its orders must bear a rational relationship to the juris-
dictional bases in the case before it; however, ORS 419B.387 requires a finding
that the ordered treatment is needed by the parent. Although we are mindful of
the press of court business, we encourage courts, when issuing orders under ORS
419B.387, to clearly explain why, based on the evidence, the ordered treatment
is needed by a parent to correct the circumstances that resulted in wardship or to
prepare the parent to resume care of the ward.
Cite as 370 Or 434 (2022) 453

court’s order that he participate in another one was based
on DHS’s need, not his.
Father testified that he began mental health coun-
seling after he “reached out to [his] doctors to get back on
[his] medication” for “[d]epression and anxiety” and his phy-
sician had “asked [him] if [he] wanted to do the counseling.”
When the children’s attorney asked father what assurances
he could give that “things would be different” if the children
were returned to his care, father responded that he believed
that he was no longer making “impulsive decisions” and
that he now had a “support system” of professionals to assist
him, which included his mental health counselor. Further,
as noted, father’s mental health counselor had suggested
that he complete a psychological evaluation as a treatment
recommendation, but we know little about the psychologi-
cal evaluation that father voluntarily decided to complete.
Father testified that the “trial” in this case “probably played
a part” in his decision, and, at the hearing, his attorney
explained that father sought the evaluation “for his own
benefit and for his own purposes.”
There may well be circumstances in which evidence
that a parent has voluntarily undertaken a course of action
would preclude a juvenile court from ordering that a partic-
ular form of treatment or training is “needed” by the parent.
However, a parent’s previous participation in an evaluation
does not necessarily demonstrate that the parent no longer
needs the evaluation as a component of treatment to correct
the circumstances resulting in wardship. The record here
reflects only that father underwent an evaluation; it does
not reflect any findings from that evaluation or, more impor-
tantly, what recommendations were made to father or his
actions in response to those recommendations. Thus, under
the circumstances of this case, father’s previous participa-
tion in a psychological evaluation for his own purpose—
whatever that may have been—did not preclude the juvenile
court from independently finding, consistently with ORS
419B.387, that father needed to participate in a psycholog-
ical evaluation and follow its recommendations to correct
the circumstances that resulted in wardship or to prepare
father to resume the care of his children. Accordingly, for
the reasons described, we conclude that the juvenile court’s
454 Dept. of Human Services v. F. J. M.

order that father participate in a psychological evaluation
and follow its recommendations was authorized by ORS
419B.387.
The decision of the Court of Appeals and the judg-
ments of the circuit court are affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10627514. Public record. Not legal advice.