author: AOYAGI, J.

text:
    Sandra MOREAU, Plaintiff-Appellant, v. Dana SAMALIN, Defendant-Respondent.
    A163289
    Court of Appeals of Oregon.
    Argued and submitted March 13, 2018. January 3, 2019
    Nathan J. Ratliff, Klamath Falls, argued the cause for appellant. Also on the brief was Parks & Ratliff, P. C.
    No appearance for respondent.
    Before Hadlock, Presiding Judge, and Aoyagi, Judge, and Linder, Senior Judge.
   AOYAGI, J.

This is an appeal from a supplemental judgment in a landlord-tenant action, awarding $2,000 in attorney fees to plaintiff as the prevailing party. In her sole assignment of error, plaintiff, who requested just over $7,000 in attorney fees, contends that the trial court abused its discretion when it awarded her only $2,000 in attorney fees. Defendant has not appeared on appeal. Because we do not have sufficient information about the trial court's reasons for awarding the amount that it did to conduct meaningful appellate review, we vacate the supplemental judgment and remand to the trial court. In doing so, we conclude that plaintiff adequately preserved the alleged substantive error and was not required to request special findings under ORCP 68 C to do so.

The relevant facts are minimal and undisputed for purposes of appeal. Plaintiff agreed to rent a residence from defendant but, upon moving in, discovered that the residence was uninhabitable and moved out. Plaintiff later filed this action, alleging that defendant had breached her statutory obligations as a landlord and had failed to return or account for plaintiff's security deposit. The trial court entered a default order against defendant. It then entered a general judgment in plaintiff's favor for $3,600, plus attorney fees and costs to be determined by supplemental judgment. At that time, plaintiff filed a statement in which she requested $3,054 in attorney fees. Plaintiff also requested costs, but the cost award is not at issue so we do not discuss it.

Soon thereafter, defendant appeared in the action for the first time and filed a series of motions, including two motions for relief from judgment and a motion to dismiss. The trial court denied all of defendant's motions. Thereafter, plaintiff filed an amended attorney fee statement. She requested $7,018.75 in incurred fees, which included both her previously requested fees and her fees to oppose defendant's motions.

Defendant filed written "objections" to the trial court's rulings on her post-judgment motions. Defendant, who had not objected to plaintiff's original fee statement, concluded that filing with a one-sentence objection to plaintiff's amended fee request: "In addition, Defendant strenuously objects to Plaintiff's attorney fees as excessive and being taken without authority or authorization."

In response to defendant's objection, plaintiff argued that her requested fees were reasonable given the factors applicable to discretionary fee awards under ORS 20.075. Plaintiff also submitted a declaration from an experienced local attorney regarding the reasonableness of the fees. In reply, defendant argued that the amount requested was excessive, this time providing some explanation for that position. Plaintiff filed a surreply, reiterating the legal and factual bases for her fee request.

Neither party requested a hearing on the attorney fee matter, and none was held. The trial court issued a letter opinion that stated in its entirety: "The Court hereby awards attorney fees in the amount of $2,000.00. [Plaintiff's attorney] shall include the amount in the Judgment or shall otherwise prepare the appropriate documents."

On September 13, 2016, the trial court entered a supplemental judgment consistent with its letter opinion. Plaintiff appeals that judgment. She contends that the court abused its discretion by awarding her only $2,000 in fees. See ORS 20.075(3) (review of a discretionary fee award subject to ORS 20.075, including its amount, is for abuse of discretion); McCarthy v. Oregon Freeze Dry, Inc. , 327 Or. 84, 95, 957 P.2d 1200, on recons. , 327 Or. 185, 190, 957 P.2d 1200 (1998) (same).

We turn to our legal analysis. In any action on a rental agreement or arising under ORS chapter 90 (Residential Landlord and Tenant), "reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary." ORS 90.255. Defendant has never disputed that this action is subject to ORS 90.255 and that plaintiff was the prevailing party at trial in this case.

Because ORS 90.255 provides for a discretionary fee award, a trial court must consider all of the factors in ORS 20.075(1) and (2) in determining the amount of an award under that statute. ORS 20.075(2) ; see Barbara Parmenter Living Trust v. Lemon , 345 Or. 334, 348, 194 P.3d 796 (2008). Summarily stated, those factors are:

• the parties' conduct giving rise to the litigation
• the objective reasonableness of the parties' claims and defenses
• the extent to which an award would deter good faith claims and defenses in similar cases
• the extent to which an award would deter meritless claims and defenses
• the parties' objective reasonableness and diligence during the proceedings
• the parties' objective reasonableness and diligence in pursuing settlement
• the amount awarded as a prevailing party fee under ORS 20.190
• the time and labor required
• the novelty and difficulty of the questions involved
• the skill needed to perform the legal services
• the likelihood that this representation would preclude the attorney from taking other cases (if apparent to the client)
• the fee customarily charged in the locality for similar legal services
• the amount involved in the controversy and results obtained
• the time limitations imposed by the client or circumstances of the case
• the nature and length of the attorney-client relationship
• the attorney's experience and reputation and ability
• the fixed or contingent nature of the fee.

ORS 20.075(1) - (2). Additionally, the court must consider "[s]uch other factors as the court may consider appropriate under the circumstances of the case." ORS 20.075(1)(h).

The question before us, then, is whether, on this record and given those factors, the trial court abused its discretion by awarding plaintiff only $2,000 in attorney fees. Our ability to conduct such an analysis, however, faces an immediate obstacle: the lack of any explanation from the trial court as to the basis for its decision.

In some cases, even when a trial court provides little or no explanation for the amount of a discretionary fee award, we are able to glean enough from the record to review the award. The way that the issues were framed by the parties in the trial court, the nature and breadth of objections raised, insights from a fee hearing transcript, or obvious relationships between particular objections and the amount awarded all aid in that regard. At the same time, the nature of discretionary fee awards is such that, sometimes, the absence of an explanation makes it impossible in practice to determine whether the court acted within its discretion. First, there are a vast number of potential combinations of factors that could lead to any given award, especially because the trial court has discretion how much weight to give each of the many factors that it must consider. Second, the universe of potential rationales has no clear edges because, in addition to the specific factors listed in ORS 20.075(1) and (2), the trial court must consider any "other factors" that it deems appropriate, ORS 20.075(1)(h). As a result, we may not know what factors a court has considered unless it tells us. Third, and especially problematic, attorney fee awards do not appear to be strictly limited to "the record" in the way that most substantive rulings are. Even when a fee petition is unopposed, the trial court may make its own assessment of the reasonableness of the fees. See ORCP 68 C(4)(f); Council on Court Procedures, Staff Comment to ORCP 68, 32 (Dec. 15, 1990) (the trial court has "discretion to pass on the reasonableness of the amounts claimed," even when there is no objection). This is a case in which we cannot determine whether the trial court acted within its discretion without knowing why it awarded the amount that it did. Defendant did not object to plaintiff's original fee request of $3,600. Her objections to plaintiff's amended fee request of $7,018.75 were relatively summary. No hearing was held. The amount of the award does not obviously tie to defendant's objections in a specific way. As a result, the $2,000 award to plaintiff might or might not have been within the court's discretion. Without any insight as to why the court awarded the amount that it did-which was less than a third of what plaintiff requested-we cannot say.

Plaintiff argues that, on this record, the amount of attorney fees that she requested was reasonable ($7,018.75) and the amount of fees that the court awarded was unreasonable ($2,000), and she therefore urges us to reverse and remand with instructions to award the full amount requested. We disagree that that is the correct disposition. Even when an attorney fee request is unopposed, the trial court has discretion in setting the amount of the award and is not required to award the full amount requested. See ORCP 68 C(4)(f). We cannot say that the trial court's only permissible choice in this case was to award the full amount that plaintiff requested, which is what would be necessary to remand with that instruction. To the contrary, it is likely that a range of awards would fall within the court's discretion.

That brings us back to our inability to meaningfully review this fee award and what we should do about it. The leading case on the issue is McCarthy , 327 Or. 84, 327 Or. 185, 957 P.2d 1200. There, a party who had successfully defended a favorable judgment on appeal requested $18,268 in attorney fees. We awarded $12,000 without any explanation. Id. at 87, 957 P.2d 1200. The Supreme Court vacated the award and remanded to us for further proceedings, stating that an explanation of the award was necessary for it to conduct its review:

"As a practical matter, this court cannot analyze the record to determine whether a court's decision to award or deny an attorney fee pursuant to statute was an abuse of discretion unless the court, in its findings, identifies the relevant facts and legal criteria on which the court relies in awarding attorney fees."

Id. at 96, 957 P.2d 1200. The Supreme Court further explained that requiring a lower court to provide sufficient information for appellate review was not a matter of statute or rule but, rather, arose from the "prudential and practical considerations that undergird the interests of the parties and the court in meaningful appellate review of an award or denial of attorney fees." Id. at 185, 957 P.2d 1200.

We regularly follow McCarthy when we are unable to conduct meaningful appellate review of a fee award. For example, in Lewis v. Beyer , 235 Or. App. 367, 370, 232 P.3d 980 (2010), the trial court awarded "attorney fees of $21,070 representing 60.2 hours at $350.00 per hour," and the defendant challenged that award on appeal. Given the mix of arguments that the parties had made in the trial court, we were unable to meaningfully review the fee award. We therefore remanded to the trial court to "make the findings necessary for meaningful appellate review." Id. at 371, 232 P.3d 980. Similarly, in Palen v. Olsen , 261 Or. App. 108, 109, 323 P.3d 334 (2014), the plaintiff requested $306,969 in fees, and the court awarded $6,500. Although the court had provided some explanation of its decision, it was inadequate under the circumstances to meaningfully review the award, so we remanded "for the trial court to provide more detailed findings and conclusions." Id. at 110, 323 P.3d 334. Thus, vacating and remanding to the trial court is generally the appropriate disposition when a discretionary attorney fee award is not susceptible to meaningful appellate review due to a lack of explanation or findings.

That said, there is one wrinkle to that general rule that has arisen since McCarthy and which we address because it pertains to plaintiff's preservation of the alleged error. See Harrison v. Hall , 211 Or. App. 697, 701, 156 P.3d 141, rev. den. , 343 Or. 159, 164 P.3d 1160 (2007) (appellate court has an independent obligation to assess preservation). ORCP 68 C used to provide that no findings of fact or conclusions of law were necessary for an attorney fee award. See ORCP 68 C(4)(c)(ii) (1997). That rule was amended after McCarthy . See Council on Court Procedures, Staff Comment to ORCP 68, 11 - 12 (Dec. 12, 1998). The amended rule, which has been in effect since 2000, provides that, upon the request of a party in the caption of an attorney fee request or response, the trial court "shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees." ORCP 68 C(4)(g). Absent such a request, "the court may make either general or special findings of fact and may state its conclusions of law regarding attorney fees."Id. Plaintiff did not request special findings in this case.

Because ORCP 68 C(4)(g) provides an express mechanism to request special findings on attorney fees, a party who wishes to assign error to a trial court's failure to make special findings, as a procedural error, will not have preserved the error unless special findings were requested in the trial court. See Peeples v. Lampert , 345 Or. 209, 222 n. 11, 191 P.3d 637 (2008) (stating same in context of a discretionary sanction ruling); Hostetler and Hostetler , 269 Or. App. 312, 313, 344 P.3d 126 (2015) (rejecting, as unpreserved, husband's challenge to the trial court's failure to explain its attorney fee award to wife, where husband had not requested special findings under ORCP 68 C(4)(g) and was making a purely procedural challenge on appeal).

At the same time, a party's choice not to request special findings does not waive the party's right to meaningful appellate review of the substance of a fee award. In Peeples , the Supreme Court addressed the appellate consequences of failing to object to a trial court's lack of special findings in support of a discretionary ruling. Applying the "usual rules of preservation," the court concluded that a party's failure to object to a lack of special findings in the trial court rendered that alleged procedural error unpreserved for appeal. 345 Or. at 218, 191 P.3d 637. However, it did not affect the party's ability to pursue a substantive challenge to the court's ruling. The Supreme Court emphasized that a party's failure to preserve an alleged procedural error "precludes only a procedural challenge to the failure to make one or more special findings; it does not preclude review of a substantive challenge to the merits of the [ruling], if that challenge is preserved, as it was in this case." Id. at 224-25, 191 P.3d 637 (emphases in original). The court explained that it was therefore appropriate that we had addressed the substantive assignment of error on the merits, "while properly declining to consider, as an independent claim of error ," petitioner's challenge to the lack of findings. Id. at 225, 191 P.3d 637 (emphasis added).

Thus, even if a party had an opportunity to request special findings and did not do so, the party may still challenge the substance of the award on appeal, as long as the party's substantive arguments are preserved. At that point, if the trial court's explanation and findings "are sufficient for efficient and meaningful appellate review," we proceed to the merits. Quick Collect, Inc. v. Higgins , 258 Or. App. 234, 245, 308 P.3d 1089 (2013). If they are not, we remand to the trial court to provide an adequate explanation, which may include making findings, as discussed earlier. 295 Or. App. at 540 n. 2, 541, 435 P.3d at 798 n. 2, 798 (citing cases).

In this case, plaintiff has assigned error to the substance of the trial court's attorney fee award. Although she mentions the lack of findings, she does not independently assign error to the lack of findings, see Peeples , 345 Or. at 224-25, 191 P.3d 637, or claim that the court erred in not making findings. Because plaintiff challenges the substance of the fee award on appeal, and because she made the same arguments in the trial court, the alleged error is preserved. And, as previously discussed, we cannot meaningfully review the substance of the court's award on this record. Accordingly, remand is the appropriate disposition.

Vacated and remanded.

      With many rulings, even a general finding with no explanation-a mere finding in favor of one party or the other-is enough in conjunction with the evidentiary record and the record of the parties' arguments to identify the court's possible decision paths and determine whether one of those paths lawfully permitted the result. By contrast, numerous courts, including the Oregon Supreme Court, have recognized that attorney fee awards can be impossible to review without an explanation of the court's reasoning. E.g. , McCarthy , 327 Or. at 96, 957 P.2d 1200 (recognizing "practical" need to know the factual and legal bases for a discretionary fee award to review it); Padgett v. Loventhal , 706 F.3d 1205, 1208 (9th Cir. 2013) (urging district courts to "show their work" on attorney fee awards because it is "simply not possible" to review them otherwise).

      See also Frakes v. Nay , 254 Or. App. 236, 256, 295 P.3d 94 (2012) (vacating and remanding attorney fee award because, "[u]nder the circumstances of this case, the trial court's findings are not sufficient for us to meaningfully review" the award); Hale v. Klemp , 220 Or. App. 27, 36, 184 P.3d 1185 (2008) (remanding attorney fee judgment due to trial court's failure to adequately explain the award); Nieth and Nieth , 199 Or. App. 330, 340, 111 P.3d 746, adh'd to on recons. , 200 Or. App. 582, 116 P.3d 234 (2005) (remanding "for a more explicit explanation of the attorney fee award so that we may review the award for abuse of discretion without speculating as to its justification").

      To the extent that Peeples leaves any room for debate about the relevance of ORCP 68 C(4)(g) to preservation of attorney fee challenges, that gap is filled by an earlier case, Mattiza v. Foster , 311 Or. 1, 803 P.2d 723 (1990). In Mattiza , the trial court had awarded attorney fees to the defendant on the ground that the plaintiff had acted in bad faith in bringing the action, which, at that time, was a basis for a fee award. The Supreme Court reversed the award due to the trial court's incorrect interpretation of the statutory test. In the process, the court discussed ORCP 62 A, which provides that a trial court "may make either general or special findings" in a civil action tried to the court, unless a party "demands" special findings prior to the commencement of trial. ORCP 62 A; see Mattiza , 311 Or. at 10, 803 P.2d 723. The Supreme Court warned that special findings could be necessary for meaningful appellate review, even if ORCP 62 A purported to allow the court not to make them in the absence of a request. See Mattiza , 311 Or. at 10, 803 P.2d 723. ORCP 68 C(4)(g) is nearly identical to ORCP 62 A in its substance. If a court must provide a sufficient explanation of its ruling for meaningful appellate review regardless of ORCP 62 A, then it also must do so regardless of ORCP 68 C.

      We note that, on remand, the trial court is not required to make "special findings" within the meaning of ORCP 68 C(4)(g)-because plaintiff did not request them-although the rule certainly permits it to do so. It is for the trial court to decide how to provide the necessary information for meaningful appellate review.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Danny R. GILROY, aka Daniel Robert Gilroy, aka Danny Robert Gilroy, Defendant-Appellant.
    A160833
    Court of Appeals of Oregon.
    Submitted April 30, 2018. January 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   PER CURIAM

Defendant appeals a supplemental judgment imposing $16,502.36 in restitution. The trial court imposed the award after defendant pleaded no contest to attempting to elude a police officer, ORS 811.540, driving under the influence of intoxicants, ORS 813.010, and reckless driving, ORS 811.140, following an incident in which defendant crashed his motorcycle into the victim's minivan while she was working as a delivery driver. The restitution award reimbursed SAIF, the insurer of the victim's employer, which accepted the victim's workers' compensation claim and paid her medical expenses resulting from the collision.

Defendant argues on appeal (as he did below) that the trial court violated his right to due process under the Fourteenth Amendment to the United States Constitution when the court, at the restitution hearing, allowed testimony of a SAIF employee that was based on hearsay statements by the victim, who was not present for cross examination. Defendant relies on State v. Johnson , 221 Or. App. 394, 401-04, 190 P.3d 455, rev. den. , 345 Or. 418, 198 P.3d 942 (2008), in which we held that, under some circumstances, a defendant may be entitled to due process confrontation rights in probation revocation proceedings. Defendant has conceded that no case has extended Johnson 's holding to restitution proceedings, and he does not advance an argument as to why Johnson 's holding should apply here, other than noting that a "criminal defendant's due process rights continue during sentencing" and that the amount of restitution in question here is "a significant amount of money."

The state urges us not to extend Johnson to restitution proceedings. The state asserts that, in Williams v. New York , 337 U.S. 241, 250-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court held that convicted defendants have no Fourteenth Amendment due process confrontation rights at sentencing. See also Buchea v. Sullivan , 262 Or. 222, 235, 497 P.2d 1169 (1972) (hearsay evidence is allowed in sentencing proceedings, and rights of confrontation and cross-examination are "not vital" at sentencing). The state thus argues that, because restitution is a part of sentencing, defendant has no due process right to confront witnesses in restitution hearings. See also, e.g. , State v. Dillon , 292 Or. 172, 180-81, 637 P.2d 602 (1981) (restitution is part of sentencing).

Defendant addresses neither the state's argument nor an earlier discussion by the trial court about the differences between restitution and probation revocation proceedings, which, in the court's view, supported its decision not to extend Johnson to restitution proceedings. In light of defendant's failure to develop an argument as to why Johnson applies, we reject defendant's arguments without further discussion and conclude that he has failed to establish that his due process rights were violated.

Affirmed.


author: ORTEGA, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Krisstopher James LYNESS, aka Krisstopher Lyness, Defendant-Appellant.
    A163232
    Court of Appeals of Oregon.
    Submitted April 30, 2018. January 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   ORTEGA, P. J.

Defendant appeals a judgment of conviction for second-degree robbery, for which he was sentenced to 70 months' imprisonment.

He assigns error to the trial court's imposition of $1,737 in court-appointed attorney fees and, acknowledging that he did not object when the court announced it would impose the fees, asks that we review for plain error. See ORS 151.505(3) ; ORS 161.665(4) ; ORAP 5.45(1). Although the trial court made a determination on the record that defendant "is or may be able to pay" the fees, defendant asserts that the record lacked evidence sufficient to support that determination. We agree with defendant and therefore reverse the portion of the judgment imposing attorney fees and otherwise affirm.

"In the absence of legally sufficient evidence that the defendant has the ability to pay the amount imposed, it is plain error for a trial court to require a defendant to pay court-appointed attorney fees." State v. Mendoza , 286 Or. App. 548, 549, 401 P.3d 288 (2017) (citing State v. Coverstone , 260 Or. App. 714, 716, 320 P.3d 670 (2014) ). "A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future." State v. Pendergrapht , 251 Or. App. 630, 634, 284 P.3d 573 (2012). The burden to prove that a defendant "is or may be able to pay" attorney fees belongs to the state. State v. Kanuch , 231 Or. App. 20, 24, 217 P.3d 1082 (2009).

At sentencing, the court said the following:

"$1,737 in attorney fees. The statements came out that you had been working previously. I do find you have any ability to work. It's certainly something that will be difficult to be doing in the institution. They are required, frankly, to pay you, so I find that you'd have the ability to do that. And once you're out, it doesn't seem that you have any disabilities that would prevent you from working. So I would imagine you would be able to get a job again and pay at least the minimum amounts on your-minimum payments on your attorney fees. So I do find you have an ability to pay. We'll order the $1,737 in attorney fees."

The only evidence in the record about defendant's work history was testimony from defendant's probation officer that, two months before defendant robbed the victim in this case, defendant "had a job * * * at Ferris in Lyons." After neither party voiced an objection to the trial court's assessment, the trial court's clerk interjected that there was an existing limited judgment providing for the imposition of $2,353 in court-appointed attorney fees. The trial court responded that

"[w]hen [defendant] originally applied for court-appointed counsel, they say how much you are able to pay, and so they already gave a judgment of $2,000 something, so we'll make a correction. And it will actually be a reduction of what your current accounting is here."

On appeal, defendant argues it is speculative to determine that he has an ability to pay the amount imposed based merely on an ability to work or that he lacks disabilities preventing him from working. Defendant points out that the only evidence in the record concerning his work history is his probation officer's scant testimony about the job in Lyons and argues that, "even if [he] had an unspecified job in the past, there was no evidence of what kind of work it was, what he earned, or whether he still had any money." The state responds that the probation officer's testimony about defendant's work history and the court's finding that defendant would be able to work in prison, coupled with the fact that defendant's maximum contribution amount had been previously set at a higher amount based on defendant's application for court-appointed counsel and then set at a lesser amount by the court at sentencing were enough to support a finding of defendant's ability to pay.

We are not persuaded by the state's argument. As to the testimony about defendant's job in Lyons, we have consistently concluded that that kind of evidence is not sufficient to support a determination of an ability to pay. We have stated that for

"us to sustain an order to pay the costs of court-appointed counsel in a criminal case on plain error review, the record must contain evidence that permits an objective, nonspeculative assessment of the defendant's present or future capacity to pay court-appointed attorney fees. Such evidence may consist of information about the defendant's financial resources, educational background, work history, and anticipated future employment or educational status, to the extent there is a nonspeculative basis for assessing that future status."

Mendoza , 286 Or. App. at 550-51, 401 P.3d 288. Thus, in Mendoza , we concluded that the trial court's determination of an ability to pay based on defendant's statements that he intended to seek work and did not have a disability that would prevent him from working after he served a six-year imprisonment sentence was "guesswork." Id. at 552, 401 P.3d 288. Likewise, in State v. Moreno-Hernandez , 290 Or. App. 468, 476, 415 P.3d 1088 (2018), we concluded that the trial court's findings that the defendant looked healthy and had been able "to maintain some type of employment" were insufficient to support the court's determination that the defendant "is or may be able to pay" court-appointed fees. See also State v. Mejia-Espinoza , 267 Or. App. 682, 683-84, 341 P.3d 180 (2014), rev. den. , 357 Or. 164, 351 P.3d 52 (2015) (observing that, although "the record contains some evidence that defendant worked in the past, as a field worker and as a firefighter, there is no evidence as to (1) defendant's historic earnings from such work and (2) whether, given the nature of defendant's criminal convictions and the length of his incarceration, such employment (including especially, as a firefighter) will be plausibly available to defendant following his release").

We also conclude that the trial court's determination that defendant has an ability to pay based on an ability to work while in prison is speculative. The record is silent as to whether such employment will be available to defendant, when it will be available, and whether the pay for such a job would be enough to satisfy the attorney fee obligation that the court imposed on defendant.

As for the trial court's consideration of the contribution amount ordered in the limited judgment that also appointed counsel to defendant, that too is insufficient to support the trial court's determination. The pretrial limited judgment approving defendant's request for appointed counsel and setting the maximum contribution amount at $2,353 lacks any information, including the application for court-appointed counsel, required to support an ability-to-pay determination. See State v. Noyce , 285 Or. App. 741, 742, 399 P.3d 484 (2017) (noting that the record did not contain the defendant's application for court-appointed counsel). Nor is there any indication that the trial court relied on any information provided by defendant in the application for court-appointed counsel to support its determination at sentencing.

Accordingly, the trial court's assessment of defendant's ability to pay the court-appointed attorney fees was not based on sufficient facts to support a reasonable inference that defendant had the ability to pay $1,737 in court-appointed attorney fees or might acquire that ability in the future, and, thus, the imposition of the fees was plain error. We also conclude, for similar reasons we gave in Mendoza , that it is appropriate to exercise our discretion to correct the error. 286 Or. App. at 553, 401 P.3d 288 ("In light of the fee amount of $1,858, the six-year prison term, defendant's felony convictions, and the lack of any evidence regarding defendant's financial status or prospects of future employment, the error's gravity weighs in favor of us correcting it.").

Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Christopher Robert MANOFF, Defendant-Appellant.
    A163165
    Court of Appeals of Oregon.
    Submitted April 30, 2018. January 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   PER CURIAM

Defendant challenges the imposition of three $200 felony fines imposed as part of his sentence for his property crime convictions. Defendant points to ORS 161.645, which requires a court to consider, when imposing such fines, the financial resources of the defendant and the burden the payment of the fine will impose on the defendant. According to defendant, the trial court did not take into account those considerations when it announced at sentencing that it would impose the three $200 fines. Defendant acknowledges that he did not object to the imposition of the fines when the court announced them but argues that the record lacks any evidence that he has the ability to pay the fines and that we should reverse the fines on a plain-error basis. We reject his argument.

The trial court's imposition of a fine subject to ORS 161.645"is not susceptible to plain-error review." State v. Smith , 274 Or. App. 562, 568, 363 P.3d 514 (2015), rev. den. , 358 Or. 551, 368 P.3d 26 (2016) (citing State v. Wheeler , 268 Or. App. 729, 732, 344 P.3d 57 (2015) ). That is because, unlike ORS 151.505(3) and ORS 161.665(4), which govern the recoupment of attorney fees and defense costs, ORS 161.645"does not condition the court's authority to impose a fine as part of a defendant's sentence on whether the defendant 'is or may be able to pay' it." Wheeler , 268 Or. App. at 732, 344 P.3d 57. "Rather, the statute requires only that the court consider the defendant's financial resources in deciding whether to include a fine (and its amount) in the defendant's sentence." Id . (emphasis in original). Here, like in Smith and Wheeler , the record does not establish that the court failed to do that, and, therefore, the legal error, if any, is not apparent on the record. Id . (citing State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990) ) (describing requirements for plain-error review under ORAP 5.45(1) ). The court did not plainly err when it imposed the fines.

Affirmed.

      ORS 137.286(2) provides that, unless otherwise specified by law, the minimum fine for a felony is $200 (which can be waived if "inconsistent with justice," ORS 137.286(3) ). However, ORS 161.645(1), provides that, "[i]n determining whether to impose a fine and its amount, the court shall consider *** [t]he financial resources of the defendant and the burden that payment of a fine will impose, with due regard to the other obligations of the defendant[.]"


author: GARRETT, J. pro tempore.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Brian Keith NYE, Defendant-Appellant.
    A162779
    Court of Appeals of Oregon.
    Argued and submitted July 31, 2018. January 3, 2019
    John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   GARRETT, J. pro tempore.

Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894. In a single assignment of error, defendant challenges the trial court's denial of his motion to suppress evidence discovered during a traffic stop, arguing, among other things, that the officer's patdown of defendant that led to the discovery of the evidence was unlawful. For the reasons explained below, we agree with defendant and reverse.

We review a trial court's denial of a motion to suppress for legal error and are bound by the trial court's findings if they are supported by evidence in the record. State v. Parnell , 278 Or. App. 260, 261, 373 P.3d 1252 (2016) (citing State v. Regnier , 229 Or. App. 525, 527, 212 P.3d 1269 (2009) ). If the trial court did not make express findings of fact, we "presume that the facts were decided in a manner consistent with the trial court's ultimate findings." Id. We state the facts in accordance with that standard.

The relevant facts are undisputed and based on testimony presented at the hearing on defendant's motion to suppress and a recording of the traffic stop entered into the record. State Trooper Hargis initiated a traffic stop after witnessing a car cross the yellow center line of the road, a traffic violation. Hargis approached the car and immediately smelled alcohol and marijuana. He asked both the driver, Ramirez, and the passenger, defendant, "who has [an] open container?" Defendant admitted to drinking beer earlier and having a cup of beer in the center console, another traffic violation. Hargis asked for identification, registration, and proof of insurance from both individuals. Defendant provided a valid ID card; Ramirez did not provide any identification. Neither Ramirez nor defendant provided proof of vehicle insurance.

Hargis contacted dispatch to determine whether Ramirez had a valid driver's license and whether the car was insured. Hargis learned that Ramirez did have a driver's license but that it was suspended. Hargis continued making efforts to identify Ramirez and defendant; in the course of doing so, Hargis asked Ramirez to step out of the car and stand behind it, and Ramirez complied.

Hargis then walked to the front passenger-side window of the car to talk to defendant. Hargis observed that defendant was "restless" and "fidgety." Hargis, who had training as a Drug Recognition Expert, believed from his training that defendant's demeanor indicated that he was under the influence of amphetamine. Defendant also appeared to be "guarding" something on his left side. Hargis asked if defendant had any weapons. In response, defendant shook out his sweatshirt pocket and allowed Hargis to open the car door and search the area immediately around him. Hargis found no weapons or contraband. Hargis then asked defendant for permission to search the rest of the car and in response, defendant exited the car.

As defendant got out of the car, Hargis noticed bulges in defendant's pants and sweatshirt and believed that defendant might be carrying a weapon. Concerned for his safety, Hargis conducted a nonconsensual patdown search of defendant. In the course of the patdown, a methamphetamine pipe fell out of defendant's clothes and onto the ground. Defendant was arrested and charged with unlawful possession of methamphetamine.

Before trial, defendant moved to suppress the evidence discovered during the stop, arguing that neither the request to search the entire car nor the patdown of defendant were "reasonably related" to the traffic violation underlying the traffic stop, and that all evidence discovered after Hargis requested consent to search the entire car was required to be suppressed. See ORS 810.410(3)(b) (police officers may detain person for traffic violation for purposes of investigation reasonably related to the traffic violation, identification, and issuance of citation). The state argued, among other things, that Hargis's request to search the car and his patdown of defendant were justified by reasonable safety concerns. In support of those arguments, the state elicited testimony from Hargis about what Hargis observed and believed during the stop.

The trial court denied the motion to suppress, explaining in a letter opinion that Hargis's request to search the car was lawful and that Hargis's patdown search was justified by objectively reasonable officer-safety concerns.

Defendant entered a conditional guilty plea and was convicted of unlawful possession of methamphetamine.

On appeal, defendant challenges the trial court's denial of his motion to suppress on various grounds, including that Hargis's nonconsensual patdown search of defendant was unlawful because it was not justified by objectively reasonable officer-safety concerns. The state responds that that argument is unpreserved and incorrect on the merits. As explained below, we conclude that defendant's argument was preserved and that, on this record, the state failed to carry its burden to show that the officer-safety exception to the warrant requirement applies.

Regarding preservation, although it is true that defendant did not make an officer-safety-related argument below, the state raised that issue to the trial court and elicited testimony from Hargis specifically to support the state's theory. The trial court also expressly ruled on the issue. The state does not contend that it had an inadequate opportunity to argue the officer-safety issue or that the record would have developed differently if defendant had disagreed with the state's officer-safety theory. Accordingly, we consider the purposes of the preservation requirement to have been served, notwithstanding defendant's silence on the issue below. See Peeples v. Lampert , 345 Or. 209, 219-20, 191 P.3d 637 (2008) (purposes of preservation requirement are to (1) apprise the trial court of a party's position such that it can consider and rule on it, (2) ensure fairness to the opposing party by avoiding surprise and allowing that party to address all issues raised, and (3) foster full development of the record); see also , e.g. , State v. Roberts , 291 Or. App. 124, 131, 418 P.3d 41 (2018) (issue preserved where it was clearly raised and ruled upon, the opposing party had an opportunity to be heard, and there is no reason to believe that the record would have developed materially differently).

We proceed to the merits. The "officer-safety" doctrine is a recognized exception to the general rule that warrantless searches are per se unreasonable in violation of Article I, section 9, of the Oregon Constitution. State v. Rudder , 347 Or. 14, 21, 217 P.3d 1064 (2009). The officer-safety exception permits an officer to

"take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987). For the exception to apply, the officer must have (1) acted during a lawful encounter, (2) had an objectively reasonable suspicion that the individual posed an immediate threat of serious physical injury, and (3) taken protective steps that were reasonable. State v. Rodriguez-Perez , 262 Or. App. 206, 212, 325 P.3d 39 (2014). Whether an officer's safety concerns were objectively reasonable is determined in light of the totality of the circumstances as they appeared to the officer at the time of the search, based on "facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer's safety." State v. Jackson , 190 Or. App. 194, 198-99, 78 P.3d 584 (2003), rev. den. , 337 Or. 182, 94 P.3d 877 (2004).

The parties do not dispute that Hargis was subjectively concerned for his safety. They dispute whether that belief was objectively reasonable. According to the state, Hargis's safety concerns were objectively reasonable based on the following facts: (1) defendant was agitated, restless, fidgeting, and made furtive movements; (2) defendant appeared to be under the influence of a stimulant or amphetamine; (3) Hargis had been trained as a Drug Recognition Expert for four years, and knew that people who use controlled substances often carry weapons and may be more likely to fight; (4) defendant was guarding his left side as if to hide something; and (5) defendant had bulges in his pockets, including his pants pocket, which Hargis noticed for the first time when defendant stepped out of the vehicle.

The evidence cited by the state is legally insufficient to support an objectively reasonable fear that defendant posed an immediate threat of serious physical injury. The facts of this case closely resemble those in State v. Davis , 282 Or. App. 660, 385 P.3d 1253 (2016), in which we concluded that the officer's patdown search of the defendant was unlawful. In Davis , the defendant made furtive movements inside his vehicle as the officer approached; the defendant was extremely fidgety and had bloodshot eyes, which the officer believed were signs of recent drug use; the defendant was extremely nervous and the officer believed that the defendant was preparing to run or fight; and the defendant had bulges in his pockets and denied knowing what was in them. Id. at 665, 385 P.3d 1253. We concluded that those factors failed to establish objectively reasonable concern for officer safety. Id. at 668-74, 385 P.3d 1253 (observing that furtive movements and nervousness alone do not "suggest aggressiveness or hostility toward an officer" and that the officer articulated no specific reason to believe that the bulges in the defendant's pockets contained a weapon).

Similarly, here, Hargis's concern was essentially based on defendant's furtive movements and demeanor, and the bulges in his pockets. As we have frequently explained, a suspect's furtive movements and nervousness, without more, do not support an inference of likely violence. See, e.g. , State v. Lee , 264 Or. App. 350, 355-57, 332 P.3d 894 (2014) ("[M]ovements by occupants in a stopped car will not always give rise to a reasonable officer-safety concern sufficient to justify a search or seizure."); State v. Peterson , 143 Or. App. 505, 510-11, 923 P.2d 1340 (1996), rev. den. , 327 Or. 521, 971 P.2d 408 (1998) (the defendant's nervousness and furtive movements did not justify reasonable officer-safety concerns). This record does not contain the additional evidence that would be required. Rather, defendant's compliance with Hargis's requests demonstrates just the opposite. See , e.g. , State v. Smith , 277 Or. App. 298, 305, 373 P.3d 1089, rev. den. , 360 Or. 401, 381 P.3d 844 (2016) ("[W]here a defendant cooperates with police, in the absence of any threatening behavior by the defendant, generalized safety concerns * * * are insufficient to justify an officer-safety search."); State v. Senn , 145 Or. App. 538, 545, 930 P.2d 874 (1996) (no objective officer-safety concerns where defendant's demeanor throughout the encounter was "entirely cooperative, nonhostile, and nonthreatening"). Hargis did not testify to the shape or size of the bulges to suggest why defendant's pockets were more likely to contain weapons than other common objects such as a wallet or keys. See Davis , 282 Or. App. at 672, 385 P.3d 1253 (bulges in defendant's pocket not sufficient for objective officer-safety concerns where officer did not "describe the size or shape of the bulges" or "testify that there was a reason to believe that the bulges were caused by a weapon"); State v. Musalf , 280 Or. App. 142, 158, 380 P.3d 1087 (2016) (officer-safety concerns did not justify reaching into defendant's pocket when the officer did not describe the "object's dimensions or shape, nor did he explain what other particular circumstances supported a suspicion that the object was a weapon"). In short, as in Davis , we conclude that the state failed to carry its burden to show that the officer-safety exception applied. Because we conclude that the patdown was unlawful for that reason, it is unnecessary to address defendant's other arguments on appeal.

Reversed and remanded.


text:
    In the MATTER OF D. A. G., aka P. F., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. D. A. G., aka P. F., Appellant.
    A167065
    Court of Appeals of Oregon.
    Submitted August 3, 2018. February 27, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Appellant seeks reversal of an order committing him to the Mental Health Division for a period not to exceed 180 days. ORS 426.130. In an unpreserved assignment of error, appellant contends that the order should be reversed because the trial court plainly erred when it failed to inform him of his rights listed in ORS 426.100(1). Specifically, the trial court failed to inform appellant that he had the right to call and subpoena witnesses to testify on his behalf. The state concedes the error, and we accept the state's concession. The court's failure to advise appellant of his rights under ORS 426.100(1) constitutes plain error. See State v. M. L. R. , 256 Or App 566, 570-71, 303 P.3d 954 (2013) ("[The] failure to provide a person with all of the information required by ORS 426.100(1) constitutes an egregious error that justifies plain error review."). Further, for the reasons stated in M. L. R. -viz. , the nature of civil commitment proceedings, the gravity of the violation, the ends of justice, and the lack of harmless error-we conclude that it is appropriate to exercise our discretion to correct the error in this case.

Reversed.


text:
    In the MATTER OF K. B., a Person Alleged to Have Intellectual Disabilities.
    State of Oregon, Respondent, v. K. B., Appellant.
    A167254
    Court of Appeals of Oregon.
    Submitted August 3, 2018. February 27, 2019
    Alexander C. Cambier filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Matthew Maile, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Appellant, who is alleged to be a person with an intellectual disability, seeks reversal of a judgment committing her to the custody of the Community Mental Health Development Disabilities Program for a period not to exceed one year. ORS 427.290. Appellant contends that the trial court plainly erred by failing to advise her of all the possible results of the proceedings as required by ORS 427.265(1), including the possibility of conditional release or voluntary treatment. The state concedes that the trial court committed plain error by failing to fully advise appellant under ORS 427.265(1), and that the error in this case warrants reversal. See State v. M. L. L. , 290 Or. App. 456, 457, 414 P.3d 923 (2018) (holding that trial court committed plain error when it failed to advise appellant of all of possible results of civil commitment proceeding, as required by ORS 427.265(1) ).

We agree with and accept the state's concession. Additionally, for the reasons stated in M. L. L. , 290 Or. App. at 457-58, 414 P.3d 923 -"the nature of the proceeding, the relative interests of the parties in the proceeding, the gravity of the violation, and the ends of justice"-we conclude that it is appropriate to exercise our discretion to correct the error in this case.

Reversed.


author: ARMSTRONG, P. J.

text:
    In the MATTER OF the COMPENSATION OF Darrell ALCORN, Claimant.
    Liberty Metal Fabricators, Inc. and SAIF Corporation, Petitioners, v. The Lynch Company, Inc.; SAIF Corporation; and Darrell Alcorn, Respondents.
    A165388
    Court of Appeals of Oregon.
    Argued and submitted September 10, 2018. January 30, 2019
    Rebecca A. Watkins argued the cause for petitioners. Also on the briefs was Sather, Byerly & Holloway, LLP.
    Julie Masters argued the cause and filed the brief for respondents The Lynch Company, Inc., and SAIF Corporation.
    Alana C. DiCicco waived appearance for respondent Darrell Alcorn.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

Employer Liberty Metal Fabricators, Inc., (Liberty) seeks review of an order of the Workers' Compensation Board holding it responsible for claimant's hearing loss under the last injurious exposure rule. We conclude that the board did not err and therefore affirm.

We summarize the largely undisputed pertinent facts from the board's order. Claimant, a sheet metal fabricator, worked for The Lynch Company (Lynch) from 1996 to 2006, for Liberty from 2006 to June 2014, and again for Lynch from June 2014 until his retirement in November 2014. In February 2016, claimant sought treatment for hearing loss and filed an occupational disease claim with Lynch and then with Liberty.

At Lynch's request, claimant was evaluated by Dr. Lipman, an otolaryngologist. Lipman opined that claimant's life-long occupational exposure to noise in the metal-fabrication industry was the major contributing cause of his hearing loss. Claimant had had an audiogram in June 2014, before beginning his second period of employment with Lynch, and a second audiogram in April 2016, when he first saw Lipman. Lipman opined that there had been no appreciable change in claimant's hearing loss during the second period of employment with Lynch and that it was impossible for claimant's second period of employment with Lynch to have caused or contributed to his hearing loss. Lipman subsequently opined on cross-examination in deposition that it was possible that claimant had sustained a one decibel change in his hearing during his second period of employment with Lynch but that such a loss is not measurable. Additionally, he testified that a change of less than five decibels is disregarded as falling within "test-retest variability."

Both Liberty and Lynch conceded the compensability of claimant's hearing loss but denied responsibility for the claim, and claimant requested a hearing on both denials. In determining that Liberty is responsible for claimant's hearing loss, the board cited the last injurious exposure rule, under which "presumptive responsibility" for an occupational disease claim is assigned to the most recent potentially causal employer for whom the claimant worked or was working at the time that the claimant first sought or received treatment. Waste Management v. Pruitt , 224 Or. App. 280, 286, 198 P.3d 429 (2008), rev. den. , 346 Or. 66, 204 P.3d 96 (2009). A presumptively responsible employer may shift responsibility to a prior employer by establishing that (1) it was impossible for conditions at its workplace to have caused or worsened the disease, or (2) the disease was caused or worsened by conditions at one or more previous employments. Beneficiaries of Strametz v. Spectrum Motorwerks , 325 Or. 439, 444-45, 939 P.2d 617 (1997) ; Roseburg Forest Products v. Long , 325 Or. 305, 308, 937 P.2d 517 (1997). The last injurious exposure rule "cannot impose responsibility on an employer who has proved that it could not have been the cause of a claimant's occupational disease." Beneficiaries of Strametz , 325 Or. at 444, 939 P.2d 617.

The board reasoned that Lynch, as the presumptively responsible employer, had established, through Lipman's opinion, that responsibility should shift to Liberty because, "to a reasonable degree of medical probability, it was impossible for claimant's latter period of employment with Lynch to have contributed to his hearing loss disability." The board acknowledged that employment conditions at the second Lynch employment were similar to claimant's previous workplace exposures but found, based on the medical evidence, "that it was not possible that claimant's last period of employment with Lynch caused or contributed to the hearing loss."

On judicial review, Liberty first asserts that the board misapplied the test set out in Roseburg Forest Products for shifting responsibility to a prior employment. The error, Liberty asserts, is apparent in the board's phrasing of its conclusion that, to a reasonable degree of medical probability , it was impossible for claimant's latter period of employment with Lynch to have contributed to his hearing loss. Liberty asserts that "impossibility" cannot be established by medical evidence stated in terms of "probability." We disagree. The standard of proof in this case is a preponderance of the evidence. See Blank v. US Bank of Oregon , 252 Or. App. 553, 557, 287 P.3d 1272 (2012) (injury claim must be established by a preponderance of evidence);

SAIF v. Alton , 171 Or. App. 491, 497, 16 P.3d 525 (2000) (preponderance of evidence standard of proof applies to establishing compensability of an injury or occupational disease claim). "Reasonable medical probability" describes the level of proof required to establish medical causation by a preponderance of the evidence. Robinson v. SAIF , 147 Or. App. 157, 160, 935 P.2d 454 (1996) ; McIntyre v. Standard Utility Contractors, Inc. , 135 Or. App. 298, 301, 897 P.2d 1202 (1995) ; Mandell v. SAIF , 41 Or. App. 253, 256, 597 P.2d 1281 (1979). The standard of reasonable medical probability applies in determining medical causation in the responsibility context. See Port of Portland OCIP v. Cierniak , 207 Or. App. 571, 576, 142 P.3d 542 (2006) (citing Mandell , 41 Or. App. at 256, 597 P.2d 1281 (causality should be expressed in terms of reasonable medical probability) ); City of Albany v. Cary , 201 Or. App. 147, 117 P.3d 1062 (2005) (medical evidence of contribution of subsequent employment was not sufficient where it was not stated in terms of reasonable medical probability). Just as evidence, offered in terms of reasonable medical probability, would suffice to establish that claimant's hearing loss was caused by his employment, evidence offered in terms of reasonable medical probability would suffice to establish that it was not possible for the second period of employment at Lynch to have caused claimant's hearing loss. The board did not err in describing the medical evidence in terms of reasonable medical probability.

Liberty asserts that if, as Lipman acknowledged, there was a possibility of a contribution (although non-measurable or insignificant) to claimant's hearing loss by claimant's second period of employment with Lynch, then the evidence cannot support the conclusion that causation by claimant's second period of employment with Lynch was impossible . Once again, we reject the contention. Proof of literal impossibility is not what the case law requires. Although literal impossibility would certainly suffice to shift responsibility to a previous employer, a presumptively responsible employer may also shift responsibility for an occupational disease to a prior employer by showing that the disease was caused or worsened by conditions solely at one or more previous employments. Roseburg Forest Products , 325 Or. at 308, 937 P.2d 517. Lipman provided the only medical opinion on the cause of claimant's hearing loss. It is true that, on questioning by Liberty's counsel during a deposition, Lipman acknowledged that it was possible for a hearing loss of one decibel to have occurred at the second Lynch employment. But he also explained that a change of one decibel in hearing is not measurable and would not be significant. He further explained that any difference in test results less than five decibels is disregarded, because it falls within the range of "test-retest variability." Lipman said that he had calculated claimant's overall, cumulative hearing loss over six frequencies, and that those numbers were identical in each of the two hearing tests. He opined that the two hearing tests showed that there had been no change in claimant's hearing loss and that the second period of employment with Lynch did not contribute to his hearing loss. The board could reasonably interpret Lipman's opinion, read as a whole, to support the finding that, to a reasonable medical probability, claimant's hearing loss was caused solely by employment conditions other than the second period of employment with Lynch. Hicks v. SAIF , 196 Or. App. 146, 151, 100 P.3d 1129 (2004) (court will affirm the board's reasonable interpretation of the medical evidence supported by substantial evidence). The board did not err in assigning responsibility for claimant's claim to Liberty.

Affirmed.

      There are statutory exceptions to the preponderance standard. See, e.g. , ORS 656.802(3)(d) (describing "clear and convincing" standard of proof for mental disorder claims); ORS 656.802(4) (describing "clear and convincing" standard for denial of firefighter claim).


text:
    J. K., Petitioner-Respondent, v. David KARGOL, Respondent-Appellant.
    A166252
    Court of Appeals of Oregon.
    Argued and submitted September 27, 2018. January 3, 2019
    George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
    No appearance for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   ORTEGA, P. J.

Petitioner sought a restraining order against respondent, her husband, under the Family Abuse Prevention Act (FAPA). ORS 107.700 - 107.735. The court issued an ex parte FAPA order, and respondent requested a hearing, at which the court continued the restraining order. On appeal, respondent seeks reversal of the FAPA order, arguing that the trial court erred in its decision because petitioner failed to prove that she was in "imminent danger of further abuse" or that he presented a "credible threat to [her] physical safety," ORS 107.718(1). We agree and, therefore, reverse.

We are bound by the trial court's factual findings if they are supported by any evidence in the record and, in the absence of explicit findings on disputed issues, we presume that the court found facts consistent with its judgment in petitioner's favor. J. V.-B. v. Burns , 284 Or. App. 366, 367, 392 P.3d 386 (2017). We review the trial court's legal conclusions for errors of law. Id.

Before the incident that led to the FAPA order, petitioner and respondent were married and living together with their two-year-old daughter. On May 4, 2017, an argument between petitioner and respondent escalated. Respondent began swearing and screaming at petitioner, approached her with a raised fist, but did not strike her. Instead, he grabbed a pillow from their sofa and pushed her with it.

At some point, petitioner left the house with her daughter to get away from respondent. She got into her car and tried to drive away, but respondent prevented her from leaving by getting into her car and taking her cell phone. He eventually got out of petitioner's car but, once she started driving away, he got into his car and followed her down a two-way dirt road. He drove around petitioner so that they were driving side-by-side, at which point petitioner believed that he was attempting to "run [her] off the road," risking her life. He eventually turned around while petitioner drove to her friend's house and called the police. Criminal charges were filed against respondent.

After the May 2017 incident, petitioner and respondent continued to live together without further violent altercations. However, the couple separated at the beginning of August 2017, and petitioner and their daughter moved out of the family home. On August 31, petitioner sought an ex parte FAPA restraining order out of fear of respondent's tendency to escalate arguments to "frightening and unsafe levels." The court granted the order, and respondent requested a hearing.

At the contested hearing, petitioner testified about the May 2017 incident, but also described a physical altercation that occurred in 2015-significantly more than 180 days before filing of the petition-which started out as a verbal argument but resulted in respondent grabbing her aggressively. Petitioner stated that when she finally moved out of the couple's home, she agreed to a 50/50 parenting plan. However, out of concern for her own and her daughter's safety, she believed that the parenting plan had to be modified. As evidence supporting her concern, petitioner introduced an email exchange, text messages, and a recorded phone call, all of which occurred after they separated. In the email, respondent admitted his fault during the May 2017 incident. Nevertheless, petitioner still felt unsafe because respondent would not respect her boundaries when they talked. Petitioner also pointed to some text messages which showed that respondent would repeatedly ignore her requests that he stop contacting her until she was ready to talk about the new parenting plan. A day later, petitioner and respondent had a phone conversation where respondent stated that he "did not try to kill her" in May 2017 and that he "could have because [he] was out of control" but had no intent to kill her on that day. Although petitioner admitted that there had been no "other violent physical incidents" since May 2017, she stated that the "combination of that phone call and those text messages terrified her" and that she was worried that another fight would occur if she did not obtain a restraining order. Respondent testified that he was wrong in May 2017 and did not dispute that his actions then were dangerous and unsafe. However, he maintained that, since the separation, he had not been a threat to petitioner. He testified that most of the evidence presented by petitioner also showed that he did not interact with her other than through email or by phone-that is, he never went to her home or work. He explained that all he wanted to do was maintain the 50/50 parenting plan.

The court continued the restraining order after finding that there was

"more than sufficient evidence by a preponderance to establish the abuse as *** outlined, *** [and] that given the history of the parties, *** petitioner believed that respondent was a credible threat to her physical safety and well-being, *** and that she was in danger of further abuse if the order had not been granted."

Under ORS 107.718(1), a trial court may issue a FAPA restraining order if a petitioner proves by a preponderance of the evidence that the respondent (1) "abused" petitioner in the 180 days preceding the filing of the petition, (2) presents an "imminent danger of further abuse" to petitioner, and (3) "represents a credible threat to the physical safety of the petitioner." See T. K. v. Stutzman , 281 Or. App. 388, 391, 383 P.3d 287 (2016) ("A petitioner must meet each of those requirements to obtain a FAPA restraining order." (Internal quotation marks omitted.) ).

On appeal, respondent concedes that the May 2017 incident constituted abuse as defined by ORS 107.705(1), and we therefore address only his challenge to the sufficiency of the evidence as to the other two requirements. Here, we agree with respondent that the record lacked evidence to support the conclusion that petitioner was in "imminent danger of further abuse" or that respondent presented a "credible threat" to petitioner's physical safety.

The court appeared to conclude that, given the parties' volatile history, respondent presented a credible threat. However, the nature of the parties' relationship changed once they no longer lived together, which we have treated as significant. See C. M. V. v. Ackley , 261 Or. App. 491, 495, 326 P.3d 604 (2014) (once the parties stopped cohabitating, their volatile, sometimes violent history was not sufficient to demonstrate that the respondent posed a credible threat and that the petitioner was in imminent danger of further abuse). Since the May 2017 incident, there have been no physical or volatile interactions between the parties; they have had very limited contact, mainly to discuss the parenting plan. We acknowledge that "[a]n overt threat of physical violence is not required" to prove that respondent posed a credible threat, and that a trial court "may consider testimony regarding events outside the 180-day window." Hubbell v. Sanders , 245 Or. App. 321, 327, 263 P.3d 1096 (2011). However, given that the parties were living apart without further incident and had very little contact, and given the evidence of prior incidents of violence in this particular case, the record here does not establish an imminent danger of further abuse or that respondent represents a credible threat to petitioner's physical safety. See Burns , 284 Or. App. at 372, 392 P.3d 386 (because the parties ceased cohabitating, the "limited contact between [the] respondent and [the] petitioner since the *** incident [fell] short of what would be required to prove that [the] respondent posed an imminent threat to [the] petitioner's safety").

Furthermore, although the court acknowledged petitioner's fear of respondent, that subjective belief, however genuine, is insufficient to sustain a FAPA order. See Stutzman , 281 Or. App. at 391, 383 P.3d 287 ("A petitioner's subjective fear is insufficient to support a FAPA restraining order."). The evidence here falls short of what would be required to prove an imminent danger of further abuse and a credible threat to petitioner's physical safety. Accordingly, we reverse.

Reversed.

      Petitioner waived appearance, and respondent does not request de novo review. Although we have the discretion to review the trial court's grant of a FAPA order based on that standard, because this is not an exceptional case, we decline to do so. See ORAP 5.40(8)(c) (providing that the court will exercise its discretion to review de novo "only in exceptional cases"); see also Burns , 284 Or. App. at 367, 392 P.3d 386.

      ORS 107.705(1) states that:
      " 'Abuse' means the occurrence of one or more of the following acts between family or household members:
      "(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.
      "(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.
      "(c) Causing another to engage in involuntary sexual relations by force or threat of force."


text:
    STATE of Oregon, Plaintiff-Respondent, v. Thaddeus Lee KILGORE, Defendant-Appellant.
    A165317 A165316 (Control)
    Court of Appeals of Oregon.
    Submitted September 28, 2018. January 9, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Shorr, Judge, and Landau, Senior Judge.
   ARMSTRONG, P. J.

In this consolidated appeal, defendant appeals judgments convicting him of two counts of fourth-degree assault and one count of strangulation (Case No. 17CR22754) and two counts of menacing (Case No. 17CR04970). In each case, defendant was sentenced to probation. Defendant's sole assignment of error relates to the trial court's imposition of a special probation condition on his counts of conviction in Case No. 17CR22754 that defendant "not consume or possess * * * marijuana." Defendant contends that such a complete ban on the consumption and possession of marijuana is prohibited under ORS 137.542(2) and requests that we strike the challenged probation conditions from the judgment, or, alternatively, modify the erroneous conditions to allow the use of medical marijuana. The state concedes that the trial court erred in imposing the conditions as it did, but points out that ORS 137.542(2) does not apply in all circumstances-that is, it does not apply where the defendant is not a medical marijuana cardholder-and, therefore, that we should remand for resentencing for the trial court to make that factual determination. We agree with the state.

As the parties recognize, and as we have recently held, the effect of ORS 137.542(2) is that a special probation condition regarding marijuana use must contain an exception for marijuana use that complies with Oregon's medical marijuana laws, if the probationer holds a medical marijuana registry identification card. State v. Jerscheid , 294 Or. App. 564, 566, --- P.3d ---- (2018) ; see also State v. Rhamy , 294 Or. App. 784, 431 P.3d 103 (2018) (accepting state's concession that trial court erred in imposing unqualified prohibition on defendant's ability to participate in Oregon's medical marijuana program in the absence of necessary determination). Because the special probation conditions at issue here appeared for the first time in the judgment, defendant did not have an opportunity to address that issue. Accordingly, we remand for resentencing for the court to determine whether defendant holds a medical marijuana registry identification card, thus triggering the statute. If so, the court shall modify the special conditions to comply with the statute. See Rhamy , 294 Or. App. at 785, 431 P.3d 103 (remanding for resentencing where court failed to make determination necessary under ORS 137.542(2) to impose unqualified prohibition on defendant's participation in Oregon's medical marijuana program); cf. State v. Mack , 156 Or. App. 423, 429, 967 P.2d 516 (1998) (remanding for resentencing for court to determine whether conditions supporting imposition of sex-offender package under ORS 137.540(2) were established). In Case No. 17CR22754, remanded for resentencing; otherwise affirmed. In Case No. 17CR04970, appeal dismissed as moot.

      In both cases, the convictions were based on defendant's guilty pleas, and other charges were dismissed.

      The court imposed the same condition on defendant's convictions in Case No. 17CR04970; however, because defendant's probation in that case has since been terminated, defendant concedes that the issue is moot. He raises no other assignments of error with regard to that case.

      ORS 137.542(2) provides:
      "Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs."

      The state also argues that, even if defendant holds a medical marijuana card, the trial court nonetheless has the discretion under ORS 137.540(2) to prohibit medical marijuana use if the prohibition is "reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both," and that we should remand for the court to make that determination. We have previously rejected that argument. State v. Bowden , 292 Or. App. 815, 425 P.3d 475 (2018).

      For that reason, defendant also was not required to preserve his claim of error. See, e.g. , State v. Lewis , 236 Or. App. 49, 52, 234 P.3d 152, rev. den. , 349 Or. 172, 243 P.3d 70 (2010) (preservation not required where aspects of sentence assigned as error on appeal were not announced in open court but simply appeared in the judgment).

      Defendant relies on State v. Donovan , 307 Or. 461, 770 P.2d 581 (1989), for the proposition that, because the record in this case does not demonstrate that he lacks a medical marijuana registry identification card, we should simply strike the offending conditions. However, in Donovan , unlike in this case, the condition-which denied the defendant access to the California courts in civil litigation concerning custody of his children-was invalid under all circumstances. Id. at 466-67, 770 P.2d 581. Also, although, in Bowden , we remanded for resentencing "with instructions to conform defendant's conditions of probation with ORS 137.540(1)(b) and ORS 137.542," 292 Or. App. at 819, 425 P.3d 475, there, the record apparently established that the defendant held a medical marijuana registry identification card, id . at 816, 425 P.3d 475.


text:
    In the MATTER OF K. L. J., Jr., a Child.
    Department of Human Services, Petitioner-Respondent, v. K. J., Appellant.
    A167859
    Court of Appeals of Oregon.
    Argued and submitted October 5, 2018. January 3, 2019
    Valerie Colas, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Colm Moore, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

This is a dependency case involving a young boy, K. The juvenile court originally asserted jurisdiction over K based on several admissions by mother (including drug use) and an admission by father that father has significant medical issues that interfere with his ability to parent. The court later added as an additional jurisdictional basis that father lacks sufficient and stable housing for the child. In a permanency judgment, the court ordered father to undergo a psychological evaluation. Father appeals that judgment, arguing that the evaluation bears no rational relationship to the jurisdictional bases. For the reasons that follow, we reverse and remand.

We review the juvenile court's legal conclusions for errors of law and its findings for any evidence. Dept. of Human Services v. B. W. , 249 Or. App. 123, 125, 275 P.3d 989 (2012).

K was born in 2015. In March 2017, the juvenile court asserted jurisdiction over K based on admissions by mother and father. Because mother is not a party to this appeal, we limit our discussion to the jurisdictional bases pertaining to father. The original basis for jurisdiction was that father has "significant medical issues that interfere with his ability to parent and needs assistance from the court and state to ensure the welfare of the child." In March 2018, the court added as an additional basis for jurisdiction that "father currently lacks sufficient and stable housing for the child."

On April 24, 2018-more than a year after it first asserted jurisdiction over K-the juvenile court held a permanency hearing at which Stan, a DHS caseworker, testified about the "barriers" to K returning home to father at that point. Stan's written report also was admitted into evidence.

Stan began her testimony about father by saying that there had been "some concerns about [father's] medical needs in the beginning" but that DHS had "kind of got past that when his doctor signed a release stating that he's only being seen for diabetes, hypertension , and chronic back pain." Father had recently provided the release letter at DHS's request. Still, Stan testified, there were "some concerns back to the medical stuff" because, "at least six months" before the hearing, father had told Stan that he needed a double hip replacement and a kidney transplant, which did not appear to be true. Father also had posted on Facebook that he had renal cancer, which did not appear to be true. When Stan spoke with father about the Facebook post, father told her that "he can post what he wants and he doesn't care" and that "he's going to continue to post what he wants; it's freedom of speech." Asked whether father mispresenting the need for a hip replacement was a barrier to reunification, Stan answered that it was "not a barrier" to reunification but was "about truth in his medical since we have that allegation." It was an issue of having "accurate information about [father's] medical condition."

Stan next addressed father's housing, which she identified as the main barrier to reunification: "But it's mainly housing, and we've dealt with the housing now for probably six to eight months." At the time of the hearing, father was living with his mother in a senior living community that does not allow children. Father, who lacks financial resources, was waiting for a decision on his social security application. In the weeks before the hearing, father had followed through on most or all of DHS's housing recommendations, including getting on "the housing list" (which had a four-year wait) and interviewing for Oxford House housing. Stan did not dispute that father had done so but indicated a belief that father should have acted sooner on DHS's recommendations. Father needed "to obtain safe appropriate housing for himself and his child" before DHS would return K to father's care. In response to questioning by DHS's attorney, Stan agreed that a psychological evaluation of father "might be helpful to identifying what the barrier is with relation to housing" because "there could be some unidentified barrier that a psychological evaluation might reveal about how best to approach this with Father in such a way that he can fully engage with pursuing housing."

At the end of the permanency hearing, the juvenile court ruled that it was going to continue jurisdiction over K. It then asked whether DHS was requesting a psychological evaluation, and DHS answered affirmatively. Father objected that "there's nothing even close to a rational relationship between [the jurisdictional bases] and a psychological evaluation." Father argued that he had been trying to get housing, had a plan to get housing, and was not at fault for not yet having housing. The court asked K's attorney for K's position. K's attorney conceded that a psychological evaluation was not rationally related to the jurisdictional basis regarding housing but suggested that father's "psychological and emotional wellbeing" could be viewed as a "medical" issue.

The juvenile court ordered father to undergo a psychological evaluation, stating:

"In my reviewing of the case law regarding psychological evaluations, * * * it doesn't require a kind of a specific mental health allegation. It simply needs to have some rational relationship. And frankly, you know, Father does have a right to say whatever he wants to about his medical condition, but if he's talking about medical conditions that would affect his ability to care for a child, then he shouldn't be upset when other people make decisions based on what he's saying.
"And so, it also causes me * * * some concern about what's going on. What * * * is that a reflection of? And as far as his functioning, if he feels like he needs to tell people that he has these medical conditions if he does not have them.
"And so, I am going to * * * order a psychological evaluation for Dad."

On appeal from the permanency judgment, which incorporates that order, father contends that there is no rational relationship between a psychological evaluation and the jurisdictional bases. The state disagrees and argues that there is a rational relationship to both jurisdictional bases.

We recently discussed the origin of the "rational relationship" requirement and our existing case law applying that requirement to orders of psychological evaluations of parents in dependency cases in Dept. of Human Services v. A. F. , 295 Or. App. 69, 78-79, 433 P.3d 459 (2018). In short, when the juvenile court asserts jurisdiction over a child and places the child in the legal custody of DHS-as occurred here-the court may "specify the particular type of care, supervision or services" that DHS is to provide both to the child and to the child's parents or guardians. ORS 419B.337(2). Because ORS 419B.343(1)(a) requires DHS to ensure that its case planning for family reunification "bears a rational relationship" to the findings that brought the child within the court's jurisdiction, we have interpreted ORS 419B.337(2) as granting the juvenile court authority to order DHS to provide a service only if the service bears a "rational relationship to the jurisdictional findings." State ex rel Juv. Dept. v. G. L. , 220 Or. App. 216, 222, 185 P.3d 483, rev. den. , 345 Or. 158, 190 P.3d 379 (2008).

We have applied the rational-relationship standard in several published opinions over the past decade, including, most notably, G. L. , 220 Or. App. 216, 185 P.3d 483 ; B. W. , 249 Or. App. 123, 275 P.3d 989 ; and State v. R. H. , 237 Or. App. 245, 239 P.3d 505, rev. den. , 349 Or. 480, 246 P.3d 745 (2010). Those decisions "illustrate the 'minimal threshold of justification,' B.W. , 249 Or. App. at 128, 275 P.3d 989, necessary to order a psychological evaluation of a parent under the 'rational relationship' standard applicable to ORS 419B.337(2)." A. F. , 295 Or. App. at 77, 433 P.3d 459. "If evidence in the record rationally leads the juvenile court to believe that a parent's mental health might be contributing to an established jurisdictional basis, it is permissible for the court to order an evaluation of the parent to determine whether a mental health issue in fact exists." Id.

Thus, the bar is low to establish a rational relationship between a psychological evaluation of a parent and a jurisdictional basis. Also, certainty about the existence of a mental health issue is unnecessary; indeed, an evaluation is typically desired precisely because DHS is uncertain whether a parent has a mental health issue that is contributing to one of the jurisdictional bases. At the same time, the rational-relationship standard does have substance. For example, in Dept. of Human Services v. L. G. , 250 Or. App. 290, 291, 280 P.3d 396 (2012), we reversed an order that the father submit to random drug testing because there was no rational relationship to the factual basis on which jurisdiction was found.

In this case, we conclude that the juvenile court's order of a psychological evaluation of father does not rationally relate to the jurisdictional bases. DHS requested an evaluation-and offered evidence about the relevance of an evaluation-only in connection with the second jurisdictional basis, which related to father's housing situation. However, given the court's ruling and the parties' arguments on appeal, we will first address the original jurisdictional basis, i.e. , that father had "significant medical issues that interfere with his ability to parent and needs assistance from the court and state to ensure the welfare of the child."

With respect to the original jurisdictional basis, we begin with an observation about its scope. The parties have not identified what father's "significant medical issues" were when the juvenile court took jurisdiction in March 2017, but we understand the jurisdictional basis to refer to physical health issues, and DHS does not argue otherwise on appeal. It is apparent from Stan's testimony that DHS (which filed the jurisdictional petition) understood "medical issues" to mean physical health issues and that the recent letter from father's doctor, regarding father's current physical health, effectively resolved the original jurisdictional basis from DHS's perspective. DHS does not appear to have provided father with any mental health services between March 2017 and April 2018, as it presumably would have if mental health issues were part of the jurisdictional basis. Most importantly, the juvenile court's ruling indicates that the court itself did not view father's mental health as part of the established original jurisdictional basis. Rather, the court understood the issue to be whether a psychological evaluation nonetheless had "some rational relationship" to the jurisdictional basis. We therefore understand the original jurisdictional basis to refer only to physical health conditions.

With that in mind, we turn to the merits. As described in its ruling, the juvenile court ordered a psychological evaluation of father because father was "talking about medical conditions that would affect his ability to care for a child" and because it had "some concern" as to why father would feel a need "to tell people that he has these medical conditions if he does not have them." However, the only relevant evidence at the hearing was that father did not currently have any medical conditions that would interfere with his ability to care for K, that DHS did not view the misrepresentation of a medical condition itself as a barrier to reunification, and that any misrepresentations were relevant only insofar as they highlighted the need for "accurate information about [father's] medical condition." Accurate information about father's physical health is not something that a psychological evaluation would provide. Rather, it is the subject of evidence such as the letter from father's doctor. In other words, the court was correct that it is relevant whether father has renal cancer , because that is a significant medical issue that might affect his ability to care for K. If father does not have renal cancer, however, then knowing why father said at one point that he did might provide some insight into father's psyche but would not help DHS formulate services to resolve the actual jurisdictional basis.

In the course of a dependency proceeding, it might come to the court's attention that a parent has engaged in puzzling or questionable behavior-such as feigning medical conditions-but not every aspect of a parent's behavior needs explanation. Whether a mental health issue is contributing to particular conduct by a parent is relevant only if the conduct itself pertains to a jurisdictional basis. For example, in G. L. , 220 Or. App. at 223, 185 P.3d 483, the mother's repeated reunification with the father, despite his history of domestic violence and her vows to end the relationship, went directly to the jurisdictional bases, which included the mother's failure to protect the children, and was preventing reunification. In A. F. , 295 Or. App. at 78, 433 P.3d 459, the mother's substantial neglect of the child was the source of two jurisdictional bases and, coupled with her lack of engagement in services, was preventing reunification. By contrast, there is no evidence here that father's misrepresentation of medical conditions to Stan or on Facebook is contributing to the jurisdictional basis or is a barrier to reunification. A psychological evaluation therefore is not rationally related to the original jurisdictional basis.

That brings us to the second jurisdictional basis, which is that "father currently lacks sufficient and stable housing for the child." Although the juvenile court does not appear to have relied on that jurisdictional basis in ordering the psychological evaluation, both parties treat it as a possible basis for the court's ruling, so we address it.

The court did not identify a rational relationship between a psychological evaluation of father and father's lack of suitable housing for K, and we are unpersuaded by DHS's attempts to do so. DHS has not identified any evidence that reasonably suggests that a mental health issue might be contributing to father's housing situation. Stan's conclusory testimony agreeing that a psychological evaluation "might be helpful" in identifying some "unidentified barrier" that was keeping father from "fully engag[ing] with pursuing housing" is insufficient, at least absent some other evidence. Moreover, the juvenile court added father's housing situation as a jurisdictional basis less than eight weeks prior to the hearing, and DHS did not dispute that father was actively pursuing suitable housing for K by the time of the hearing, including following DHS's recommendations. Even if a psychological evaluation were to reveal a mental health issue that might have contributed to father's slow start on that process, it is undisputed that father is now engaged in finding housing, and there is no evidence from which it is possible to infer that treatment of a mental health issue could enable father to find suitable housing any faster at this point. Ordering a psychological evaluation therefore is not rationally related to the second jurisdictional basis.

Accordingly, we conclude that the juvenile court erred in ordering a psychological evaluation of father. The evaluation is not rationally related, for purposes of ORS 419B.337(2), to either of the bases on which the court took jurisdiction of K.

Reversed and remanded.

      The jurisdictional basis regarding father's housing is reflected in a judgment in a related case, Marion County Circuit Court Case No. 18JU01138. Father has provided copies of court documents from that case in an appendix to his opening brief. The parties and the juvenile court treated the two jurisdictional bases as equally at issue for purposes of deciding whether to order a psychological evaluation of father, so we do the same and take judicial notice of the court documents provided by father. See Dept. of Human Services v. S. A. B. O. , 291 Or. App. 88, 91, 417 P.3d 555 (2018) (taking judicial notice of petitions and judgments in related dependency case); OEC 201(f) ("Judicial notice may be taken at any stage of the proceeding.").

      In his reply brief, father argues for the first time that the juvenile court failed to consider ORS 419B.387 in ordering the psychological evaluation. See ORS 419B.387 (requiring a finding that "treatment or training" is "needed" by a parent for specific purposes before the court "may order the parent to participate in the treatment or training"). That issue was not preserved in the juvenile court or raised in the opening brief, so we do not address it. See ORAP 5.45(1).

      We note that father's apparent misrepresentations about medical conditions occurred long after jurisdiction was taken. There is no evidence, and DHS does not argue, that father did not have significant physical health issues in March 2017, when jurisdiction was taken. The only evidence related to misrepresentations about medical conditions for which a time frame was provided was dated to about six months before the permanency hearing, which would have been about seven months after the court took jurisdiction. Despite Stan's testimony that the letter from father's doctor had largely resolved the original jurisdictional basis from DHS's perspective, neither father nor DHS moved to dismiss that jurisdictional basis at the April 2018 permanency hearing, and its ongoing propriety is not before us in this appeal.

      We express no opinion on whether "medical issues" could be construed to include mental health conditions in other circumstances. See Dept. of Human Services v. D. D. , 238 Or. App. 134, 139, 141, 241 P.3d 1177 (2010), rev. den. , 349 Or. 602, 249 P.3d 123 (2011) (when a parent makes factual admissions in support of jurisdiction, waives DHS proving the jurisdictional allegations, and then seeks to challenge the taking of jurisdiction, "we consider only whether, pursuant to the allegations, DHS would have been allowed to offer evidence that would establish juvenile court jurisdiction," and we liberally construe the parent's admission with a view of substantial justice to the parties).