No. 232 April 17, 2024 25

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of C. H., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

M. A. H.,

Appellant.

Clackamas County Circuit Court

22JU02272; A181606

Cody M. Weston, Judge.

Submitted January 9, 2024.

Shannon Storey, Chief Defender, Juvenile Appellate 

Section, and Holly Telerant, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Stacy M. Chaffin, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Affirmed.
26 Dept. of Human Services v. M. A. H.

ORTEGA, P. J.

Father appeals from a juvenile court order directing 

the Oregon Department of Corrections (DOC) to disclose his 

mental health records to the Department of Human Services 

(DHS) for use in dependency proceedings involving father’s 

child, C.1 In a single assignment of error, father argues that 

the court erred in issuing that order because DHS failed to 

establish that his mental health records, which were generally protected under federal and state law,2

 were necessary or relevant to the purpose for which DHS sought their 

disclosure. We conclude that, under the circumstances of 

this case, father has not provided a basis on which we could 

reverse the juvenile court’s order based on a lack of statutory authority to issue the order. Further, DHS complied 

with its own rule to “limit requests to those that are reasonably necessary to accomplish the purposes for which the 

request is made.” OAR 407-014-0040(5). Thus, we affirm.

The juvenile court asserted jurisdiction over C, who 

was then about seven years old, pursuant to ORS 419B.100, 

on two admitted bases: that father was convicted of secondand third-degree sex abuse of a minor child and that father 

was incarcerated (with an anticipated release from DOC 

custody in 2026) and unavailable as a custodial resource.3

The case plan at jurisdiction was reunification of C with 

mother and father. About seven months later, the court 

issued a review judgment indicating that father “ha[d] not 

made sufficient progress,” that C “c[ould] not be * ** safely 

returned to father’s care,” and that there was a concurrent 

1 “A final order adversely affecting the rights or duties of a party and made 

in a proceeding after judgment” is a judgment and is appealable. ORS 419A.205

(1)(d); see also ORS 419A.200(1) (appellate review of such orders is mandatory).

2 The Health Insurance Portability and Accountability Act of 1996 (HIPAA) 

and its implementing regulations, including 45 CFR Parts 160 and 164, protect 

the privacy and confidentiality of health information. See 42 USC §§ 1320d-2, 

1320d-4 (establishing that protection); see also 45 CFR § 164.512 (providing standards of use and exceptions to the disclosure prohibition); ORS 179.505(2) (protecting “written accounts of the individuals served by any health care services 

provider,” “unless otherwise permitted or required by state or federal law or by 

order of the court”); ORS 192.558(2)(b) (same); ORS 179.495(1) (same).

3 The jurisdictional bases also included that mother was “the subject of a 

criminal investigation for alleged sexual abuse of [C] and alleged sexual exploitation of children” and was “unable to be a custodial resource.” Mother is not a 

party to this appeal.
Cite as 332 Or App 25 (2024) 27

plan for C’s adoption. DHS was unable to obtain information 

concerning father’s participation in services at DOC, though 

it had learned that he had been housed in what DOC staff 

referred to as a “specialized behavioral unit.”

DHS then moved for the order at issue, requiring 

DOC and associated institutions to disclose father’s records, 

including protected health information, for use at the pending permanency hearing. The motion specifically sought disclosure of any and all diagnoses, treatment, and assessment 

records concerning father. In the motion and its accompanying memorandum, DHS asserted, among other things, that 

father’s mental health records were “the minimum necessary 

to enable the court to plan for [C]” and to make the findings 

required under ORS 419B.476 at the permanency hearing.4

DHS argued that, despite HIPAA’s general protection of such 

records, it authorizes such disclosures, which are also authorized under Oregon law. DHS relied on, among other legal 

provisions, 45 CFR section 164.512(e)(1)(i), ORS 179.505, and 

ORS 192.558, all of which indicate that otherwise protected 

information is disclosable pursuant to a court order.5

During a hearing on DHS’s motion, father argued 

that DHS had “set forth [no] basis upon which to disclose 

these specifically protected records” and suggested that “the 

standard for disclosure of [such] information should be particularly high,” though he did not identify a particular standard to be applied. DHS argued that it “need[ed] the records 

4 ORS 419B.476(2)(a) requires that, if the case plan at the time of a permanency hearing is to “reunify the family,” the court “shall,” “at the hearing,” 

determine whether DHS has made “reasonable efforts *** to make it possible 

for the ward to safely return home and whether the parent has made sufficient 

progress to make it possible for the ward to safely return home.” Even when the 

case plan “is something other than” reunification, the court still must determine 

whether DHS “has made reasonable efforts to place the ward in a timely manner 

in accordance with the plan.” ORS 419B.476(2)(b).

5 Under 45 CFR section 164.512(e)(1)(i) “[a] covered entity may disclose protected health information in the course of any judicial *** proceeding *** [i]n 

response to an order of a court.” Likewise, ORS 179.505(2) provides that an individual’s otherwise protected health information, including medical, dental, or 

psychiatric treatment written accounts maintained in or by facilities of DOC, can 

be disclosed when “required by state or federal law or by order of the court.” ORS 

192.558(2)(a) and (b), similarly, provide that DOC “[m]ay *** disclose protected 

health information of an individual without obtaining an authorization from the 

individual * ** [a]s otherwise permitted or required by state or federal law or by 

order of the court.”
28 Dept. of Human Services v. M. A. H.

to do case planning” and explained that, because the current plan was reunification, DHS was required to “make 

reasonable efforts toward[] reunification.” It maintained 

that it needed the records to determine what services had 

already been offered to father or what services were needed 

to continue a plan of reunification. The court inquired if 

“relevance” was the proper legal standard for deciding the 

motion, and DHS responded that neither federal nor Oregon 

law specifies a standard for such disclosures and suggested 

that the court apply the relevance standard. Father did not 

offer an alternative.

DHS permanency case worker Arlen Craig testified to the following: (a) that father first agreed to a release 

of information but later rescinded it; (b) that in addition to 

learning that father was placed in a “specialized behavioral 

unit,” Craig heard other concerning things from DOC staff, 

including that father was “not allowed to be around other 

people,” which raised concerns for Craig; (c) that DHS had 

“refused to allow” father to have visitation with C because 

C was listed as either a victim or a witness to a prior crime 

committed by father; (d) that DHS sought but was unable to 

obtain any information about father’s participation in services while at DOC beyond the fact that he had a counselor; 

(e) that DHS needed the information to understand father’s 

circumstances, decide what services could be offered to “help 

mitigate” safety concerns and coordinate services, as part of 

assessing what plans could be made for reunification; and 

(f) that obtaining father’s mental health information would 

also help DHS decide whether to work to facilitate in-person 

visits with C.

Father stated that he was “more than willing” to 

let DHS know about his participation in classes “and everything like that” but was not willing to release the mental 

health records because, according to him, “there [wa]s no 

reason” for DHS to have “any” of those records.

The juvenile court granted DHS’s motion, issuing a 

qualified protective order which concluded that the requested 

disclosure was proper and that the records requested were 

“the minimum necessary to assist the court in planning for 

[C] and making the necessary findings at the permanency 
Cite as 332 Or App 25 (2024) 29

hearing(s).” The order required, among other things, that 

DOC and the other institutions identified in DHS’s motion 

disclose to DHS all records regarding father’s mental health 

diagnoses, treatment, and assessment.6

On appeal, father renews his challenge to DHS’s 

claimed need for his mental health records. He argues that 

DHS failed to establish that his records, protected under 

HIPAA and Oregon law, were “necessary or relevant” to the 

purpose identified in its motion. DHS acknowledges that 

father preserved his HIPAA argument but contends that he 

failed to preserve his argument that Oregon law prevented 

disclosure of the records. DHS argues that, in any event, 

on the merits, both HIPAA and Oregon law authorized the 

disclosure, that Oregon law did not prohibit it, and that the 

juvenile court did not abuse its discretion in ordering the 

disclosure.

We begin with preservation and conclude that father 

preserved his argument regarding Oregon law. Appellate 

courts generally will not review a claim of error that was not 

preserved in the lower court. ORAP 5.45(1). Nevertheless, “a 

short-hand reference, such as a single word or phrase, * ** 

used in a way and context in which the other parties and 

the court would understand that the word or phrase refers 

to a particular legal or factual argument, and also would 

understand from that single reference the essential contours of the full argument” is sufficient to preserve a claim 

for appeal. See State v. Haynes, 352 Or 321, 335, 284 P3d 473 

(2012).

Here, as DHS pointed out, father did not expressly 

mention the Oregon statutes during his arguments below. 

However, during the motion hearing, father’s argument 

that DHS had “set forth [no] basis upon which to disclose 

these specifically protected records” was made in response 

6 The court’s order prohibited the use of the disclosed information “for any

purpose other than [the respective] juvenile dependency proceeding.” Furthermore, the order required that “[c]opies of any of the records furnished to another 

person for purposes of representation of a party must be returned to the party 

that provided the record at the conclusion of the matter,” except for disclosures 

required by law to satisfy legal disclosures under the Rules of Professional 

Conduct and to satisfy the Professional Liability Fund and DHS’s right under 

the public record retention requirement.
30 Dept. of Human Services v. M. A. H.

to DHS’s claim of court authority in its motion and accompanying memorandum, which included ORS 179.505 and 

ORS 192.558. Within that context, father’s reference to the 

“basis” of DHS’s argument was sufficient to give DHS and 

the juvenile court notice that father was challenging the 

legal bases of DHS’s full argument. That reference was sufficient to preserve father’s challenge on appeal.

We turn to the merits of father’s argument, which 

includes three main points. He first contends that DHS did 

not demonstrate why the information whose disclosure he 

offered to authorize, regarding only the fact of his participation in and completion of services, would not be sufficient to allow DHS to make decisions regarding visitation 

and case planning, particularly given that he would not be 

imminently functioning as C’s caregiver due to his longterm incarceration. Second, father argues that DHS did not 

demonstrate how his mental health records would impact 

visitation, given that those visits would be “supervised by 

necessity” due to his incarceration status. Third, father disputes that providers would need his mental health information in order to work with him. We are not persuaded.

As father concedes, both federal and Oregon law 

allow for disclosure of protected records in response to a 

court order. See 45 CFR § 164.512(e)(1)(i) (“A covered entity 

may disclose protected health information in the course of 

any judicial or administrative proceeding * ** [i]n response 

to an order of a court[.]”); see also ORS 192.558(2)(b) (providing the same exception); ORS 179.505(2) (same). We recognize that none of those laws provide an evidentiary standard 

for the court to use in making such an order.7 And, although 

7 Under 45 CFR section 164.502(b), a “minimum necessary” standard applies 

to covered entities, such as DOC, for the use or disclosure of protected health 

information. That standard, however, does not apply to covered entities making 

a disclosure pursuant to court orders, such as the order at issue. See 45 CFR 

§ 164.502(b)(2)(v) (providing that the “minimum necessary” standard does not 

apply to “disclosures that are required by law, as described by § 164.512(a)”); 

see also 45 CFR § 164.512(a) (covering disclosures “required by law”); 45 CFR 

§ 164.103 (the term “[r]equired by law includes, but is not limited to, court orders”). 

The absence of a standard that applies to court orders makes sense because the 

federal and Oregon laws are directed at the entities holding the protected information and inform those entities when they may make a disclosure, such as in 

response to a court order. Those laws do not directly apply to the authority of a 

court to make an order.
Cite as 332 Or App 25 (2024) 31

those laws simply do not prohibit such orders rather than 

affording authority to order disclosure, we nevertheless conclude that court authority is not at issue here. To the contrary, we agree with the court’s apparent assumption that it 

could order DOC to disclose father’s protected health information as part of the juvenile proceeding in the absence of 

a source of law limiting or prohibiting it from doing so. See

ORS 419B.893 - 419B.902 (allowing subpoena for documents 

to nonparties).8 Father does not present us with an argument on which we could reverse the court’s order based on 

the court lacking statutory authority to issue the order.

Despite the apparent absence of statutory authority 

that directly limits a juvenile court order to disclose protected information or that sets the standard to which the 

court is bound, there is an administrative rule that appears 

to place limits on DHS in seeking such protected information. DHS concedes in its brief that it is bound by OAR 407-

014-0040(5), which provides:

“When requesting protected information about an individual from another entity, [DHS] shall limit requests to 

those that are reasonably necessary to accomplish the 

purposes for which the request is made. [DHS] shall not 

request a person’s entire medical record unless [DHS] can 

specifically justify the need for the entire medical record.”

To resolve whether DHS complied with that apparent limitation here, we need to first resolve the standard of 

review we must apply to the court’s decision to order DOC 

to disclose father’s protected health information, given our 

conclusion that father has not identified a basis for us to conclude that it lacked statutory authority to issue the order. 

We recognize that we have stated that we review for legal 

error whether a juvenile court “ha[d] authority to make a 

particular order” and, where the court has such authority, 

8 We note that, in the ordinary course, a party seeking documents from a 

third party would issue a subpoena to the third party to disclose those documents. See ORS 419B.896; ORS 419B.899; ORS 419B.902. The third party then 

would have the opportunity to object to the disclosure, which could include an 

argument that federal or state law prohibit the disclosure. At that point, the 

parties may seek juvenile court resolution of the dispute by court order. However, 

no one has raised a challenge to the procedure used here in which DHS moved 

directly for a court order without first issuing a subpoena for the records and 

receiving an objection. As a result, we express no opinion on that procedure.
32 Dept. of Human Services v. M. A. H.

“we review the juvenile court’s dispositional order for an 

abuse of discretion.” Dept. of Human Services v. T. B., 326 

Or App 192, 194, 531 P3d 718, rev den, 371 Or 476 (2023). 

However, in T. B., we cited Dept. of Human Services v. T. C. A.,

251 Or App 407, 414-15, 283 P3d 956, rev den, 352 Or 665 

(2012), for the abuse of discretion standard. In turn, T. C. A.

stated only that an abuse of discretion standard applies to a 

juvenile court’s best interest of the child finding under ORS 

419B.476(5)(f). The order at issue in T. B. also included a 

juvenile court’s best interest finding in a different context. 

T. B., 326 Or App at 198. Thus, we do not read either T. C. A.

or T. B. to stand for a general proposition that we will review 

any order for an abuse of discretion as long as the juvenile 

court had statutory authority to issue the order.

Here, although we do not understand statutory 

authority to be at issue, whether DHS complied with the 

standard in OAR 407-014-0040(5), and thus was entitled to 

an order requiring DOC to disclose father’s records, involves 

a question of law because it states a legal standard that binds 

DHS, but it is a question that arises in highly fact-specific 

circumstances. As a result, we apply our usual standard of 

review for dependency proceedings. Because father has not 

requested de novo review, and we conclude that this is not an 

exceptional case warranting such review, ORS 19.415(3)(b);

ORAP 5.40(8)(c), we view “the evidence, as supplemented and 

buttressed by permissible derivative inferences, in the light 

most favorable to the [juvenile] court’s disposition and assess 

whether, when so viewed, the record was legally sufficient 

to permit that outcome.” Dept. of Human Services v. N. P.,

257 Or App 633, 639, 307 P3d 444 (2013).

Based on those standards, we turn to father’s substantive arguments, which raise issues about whether DHS 

was entitled to his records under the factual circumstances 

of this case, and we conclude that, on this record, DHS’s 

request complied with OAR 407-014-0040(5), which binds 

DHS to limiting its requests “to those that are reasonably 

necessary to accomplish the purposes for which the request 

is made.” More specifically, we agree that father’s mental 

health records were “reasonably necessary” for the purposes 

identified by DHS in its motion—“for use in the permanency 
Cite as 332 Or App 25 (2024) 33

hearing[],” to allow DHS to meet its burden to show that it 

complied with the requirements of ORS 419B.476 and the 

court to make the necessary determinations under that same 

statute. Under ORS 419B.476, at each permanency hearing, 

where the case plan is reunification with the ward’s family, 

DHS must demonstrate that it had made reasonable efforts 

“to make it possible for the ward to safely return home.” ORS 

419B.476(2)(a). That statute further requires that in assessing DHS’s burden, the court “shall” make the respective “reasonable efforts” determination and “shall” also determine 

“whether the parent has made sufficient progress to make 

it possible for the ward to safely return home.” Id. Moreover, 

“[i]n making its determination, the court shall consider the 

ward’s health and safety the paramount concerns.” Id.; see 

also Dept. of Human Services v. S. W., 267 Or App 277, 286, 

340 P3d 675 (2014) (“the mere fact of a parent’s incarceration 

does not excuse DHS from making the reasonable efforts 

required by [ORS 419B.476(2)(a)]”).

Here, as the court concluded, father’s mental health 

records were “important information for DHS to have” and 

“the minimum necessary” under ORS 419B.476(2)(a) to 

assist the court in planning for C’s safe return to father’s 

care after father’s release from incarceration. First, DHS 

showed that such information was “important” for DHS to 

have. DHS provided evidence that to meet its reasonableefforts burden, DHS would need father’s mental health 

records to assess what services could help father to ameliorate the bases of jurisdiction, which was incarceration for 

child sex abuse. See Dept. of Human Services v. D. M. R., 

301 Or App 436, 444, 455 P3d 599 (2019) (to meet its 

reasonable-efforts burden, DHS shall “focus on ameliorating the adjudicated bases for jurisdiction”). DHS’s evidence 

showed that C may have been a witness to father’s crimes 

and that DOC had placed father in a “behavioral unit” 

and did not allow father “to be around other people,” and 

that DHS was unaware of the underlying reasons for DOC 

doing so. Under those circumstances, it was reasonably necessary for DHS to seek more detailed information about 

father’s mental health beyond information about what services DOC provided to him. That information would allow 

DHS to assess which services DHS could offer to best help 
34 Dept. of Human Services v. M. A. H.

father with mitigating the consequences of his convictions 

and incarceration and to ensure that it was safe for C to 

be around father. See Dept. of Human Services v. K. G. T., 

306 Or App 368, 375, 473 P3d 131 (2020) (DHS’s “reasonable 

efforts [burden] should be evaluated in view of the nature 

of the parent’s problems”); see also ORS 419B.476(2)(a) (“the 

ward’s health and safety [is] the paramount concerns” of the 

reasonable-effort’s determination).

Contrary to father’s arguments that his mental 

health information was not necessary to meet DHS’s burden given his incarceration status, DHS’s reasonable-efforts 

burden is not diminished based on father’s incarceration 

and DHS would still need the disputed information to meet 

its reasonable-efforts burden. See K. G. T., 306 Or App at 

375-76 (DHS’s reasonable-efforts burden applies “over the 

life of the case,” regardless of a parent’s incarceration).

Second, father’s mental health records were likewise reasonably necessary to assist the court in making the 

ORS 419B.476(2)(a) reasonable-efforts and sufficient-progress

findings for the permanency hearing. In making that 

assessment, the court would need to determine whether 

DHS was able to help father “ameliorat[e] [the] adjudicated 

bases for jurisdiction.” See Dept. of Human Services v. H. K., 

321 Or App 733, 746, 517 P3d 1044 (2022). That assessment 

would further require the court to determine whether DHS 

gave father a “reasonable opportunity to demonstrate [his] 

ability to adjust [his] conduct and become [a] minimally 

adequate parent[],” including helping father to mitigate any 

issues related to his conviction that could impact the safety 

of C, who was a witness to father’s underlying crimes. Id.

Consequently, the court would need to know what problems 

father was going through to assess whether DHS addressed 

any concerns that would affect the jurisdictional bases, thus 

justifying its order.

Moreover, because father’s mental health could possibly affect whether C could be safe around him, his mental health information was reasonably necessary to allow 

the court to prioritize C’s “health and welfare” in assessing 

DHS’s reasonable efforts. Dept. of Human Services v. M. G. J., 

326 Or App 426, 434, 532 P3d 905, rev den, 371 Or 476 
Cite as 332 Or App 25 (2024) 35

(2023) (at a permanency hearing in a juvenile dependency 

proceeding, the juvenile court “gives the highest priority to 

[C]’s health and welfare”). In the context of father’s circumstances, the court would need father’s information to make 

C’s welfare assessment. In doing that, the court would need 

to assess not only whether DHS provided adequate services 

but also the extent to which father benefited from any services. See K. G. T., 306 Or App at 381 (requiring the court to 

“engage in a cost-benefit-like analysis ** * tied to the goal of 

providing the parent, over the life of the case, with a reasonable opportunity to demonstrate improvement, if not ameliorate the jurisdictional bases”). Accordingly, the court would 

need the disputed information to assess whether father had 

problems that required intervention for the court to assess 

whether DHS provided or failed to provide adequate services to father and to assess benefits of any services.

In sum, father has not presented us with an argument on which we can conclude that the juvenile court erred 

in ordering DOC to disclose father’s mental health records 

for the limited purpose of using those records to satisfy ORS 

419B.476 requirements at the permanency hearing.9

Affirmed.

9 Our decision in the present case should not be understood to indicate that 

protections to an individual’s mental health records do not apply to DHS. We 

emphasize that a court and DHS must not ignore the procedural steps provided 

by federal and state law for DOC’s and other entities’ disclosure of protected information regarding an adult in custody, including but not limited to, any applicable 

provisions under 45 CFR section 164.512 and ORS 419B.893 to 419B.902.