In re the Welfare of: A. A. ( 2014 )

FILED
December 9, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Dependency of: ) No. 32161-4-111
) Consolidated with No. 32162-2-111;
AA, ) No. 32163-1-111; and No. 32164-9-111
L.A )
J.A Jr. )
AA )
)
) UNPUBLISHED OPINION
)
BROWN, J. - A.T. appeals the Columbia County juvenile court rulings granting the
Department of Social and Health Services' (DSHS) request to dismiss the State's four
dependency petitions concerning AI.A, a seven-year-old girl; J.A, a six-year-old boy;
L.A.• a four-year-old girl; and Ad.A, a three-year-old boy. AT. (mom) and J.A. Sr.
(dad) are the married but informally separated parents of the four children. Mom
contends the juvenile court erred in not finding the children dependent as to dad.
Alternatively. mom contends the court lacked authority to place the children with dad
with discretion to decide appropriate contacts with mom. Because the juvenile court
acted within its fact-finding discretion when deciding dad was, under RCW
13.34.030(6)(c), capable of adequately caring for the four children, we affirm.
No. 32161-4-111; consol. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In re the Dependency of AA
FACTS
In August 2013, the children and mom were living in a Walla Walla shelter
separated from dad. Ad.A. suffered from severe eczema, and, as a result of non-
treatment by mom, the condition was inflamed. Shelter staff, who observed the children
loudly crying with soap in their eyes, were concerned with the aggressive manner in
which mom bathed the children. The shelter's case manager heard strikes or slaps to
the children while mom bathed them and saw bruising on the children. The staff
reported concerns to DSHS about mom's verbal abuse and neglectful treatment of the
children. Mom relocated to a new shelter when she learned of the report. DSHS found
the family at a park, and local police assisted DSHS in securing protective custody. The
children were extremely hungry and thirsty, inadequately clothed, and several presented
with a staph infection and sores on their bodies. Ad.A. was subsequently treated for
scabies and eczema. DSHS filed four dependency petitions for the four children,
alleging negligent or maltreatment of the children by mom. At the initial shelter care
hearing, dad requested custody of his children. The children were placed in out-of­
home care while DSHS investigated dad.
DSHS learned the children had been found dependent in California in August
2010, after authorities there received various domestic violence reports. California
placed the children in foster care as mom was not able to protect the children from
further domestic violence. Apparently the parents separated. Dad was convicted of I
r
t
misdemeanor domestic violence against mom. The children remained in California
2
I
t
f
1f
No. 32161-4-111; conso\. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In fe the Dependency of AA
foster care for over a year while mom and dad received services to facilitate the
children's return. Eventually, the children were returned to dad's care. Both parents
were allowed contact with the children. In 2012, mom and dad reconciled and moved to
Washington. California dismissed its dependency case. From November 2012 to May
2013, in order to prevent the need for out-of-home placement, DSHS provided services.
In February 2013, dad moved to Nevada for school, leaving his children in Washington
with mom, and intending to return to provide a better life for his family. He graduated in
July 2013 with a degree in phlebotomy and laboratory technology. While in Nevada, a
phone argument between mom and dad resulted in mom serving dad with a restraining
order. The order was later modified to grant dad visitation.
On January 2,2014, the juvenile court held a fact-finding hearing. DSHS
recommended the children be placed with dad and asked the court to dismiss the
dependency petitions based on reports provided by DSHS caseworker Loni Conklin.
Mom alone objected to placing the children in dad's care and testified in opposition,
pointing out her view of dad's parental deficiencies.
Ms. Conklin testified dad was a capable parent, having successfully completed
domestic violence classes, a mental health evaluation and counseling, parenting
classes, all requested urine analyses, and drug and alcohol counseling; he signed up
for additional parenting classes. Dad's visits were exceptional: the children were
extremely happy to see him, hugged him, and demonstrated no fear. Dad provided
meals .. planned activities, capably handled all four children at once, and appropriately I.
3
I
r
No. 32161-4-111; consol. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In re the Dependency of A.A.
responded to the children's severe behavioral problems. Ms. Conklin found dad had a
realistic idea of what he needed to do to raise the children. Additionally, dad had a
helpful support system in place. In responding to concerns about dad's history of
domestic violence, Ms. Conklin explained DSHS's policy is to consider whether a parent
corrected his deficits and whether those deficits affected the children's safety. Dad
demonstrated no history of domestic violence other than when he was with mom, and
he had no intention of reuniting with mom. Furthermore, dad was forthcoming with his
history and promptly provided all requested information.
Ms. Conklin addressed mom's psychological evaluation and visits with the
children. Mom was diagnosed with a personality disorder that manifested in her having
difficulty recognizing her parenting deficits, placing blame on others, and not taking
responsibility for the children's behavioral, emotional, educational, and psychological
difficulties. During mom's visits, she spent time on the phone and became belligerent
when asked to put it away. She had unrealistic expectations for the children. She
purposely excluded one child when she brought gifts. She used demeaning words
when talking to the children. While the children were placed in different homes, all
caregivers said the children had night terrors, acted out, were scared, and searched for
food after a visit with mom. In contrast, after dad's visits, the children were calm and
behavioral issues decreased.
Dad related he planned to move to California and set up services and counseling
with the same providers his children had used before, as well as school and activities.
4
No. 32161-4-111; consol. w/ No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In re the Dependency of A. A.
He had a job in California and had submitted a rental application for an apartment. He
said he was no longer on parole and only had to pay fines.
In closing, the children's guardian ad litem and attorney concurred with DSHS's
recommendations. Mom argued her concerns that giving dad the children meant he
could leave the state with the children and effectively cut off her contact with them, as
there was no parenting plan in place and she could not afford to get one in a different
state.
The juvenile court granted DSHS's motion to dismiss the dependencies,
reasoning dad had done nothing to cause the children to be removed from mom's care.
The court agreed with DSHS's position and found dad was able and capable of taking
care of all the children. The court ordered the children be returned to dad, gave him
discretion on whether mom could contact the children, and dismissed the dependency
petition. Mom appealed.
ANALYSIS
A. Dependency Dismissals
The issue is whether the juvenile court erred by abusing its fact-finding discretion
when finding the children were not dependent and dismissing the dependency petitions.
Parents' "fundamental liberty interest in the care and welfare of their minor
children" must be balanced with the State's "interest in protecting the physical, mental,
and emotional health of children." In re Dependency of Schermer, 161 Wash. 2d 927, 941,
169 P.3d 452 (2007). Unless a child's right to nurture, physical and/or mental health, or
5
No. 32161-4-111; consol. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In re the Dependency of AA
safety is endangered, "the family unit should remain intact." RCW 13.34.020. But when
the rights of the child and the legal rights of the parents conflict, the child's rights prevail,
as "the child's health and safety [are] the paramount concern." Id.
Declaring a child "dependent" transfers legal custody to the State. Schermer,
161 Wash. 2d at 942. After filing a dependency petition, a fact-finding hearing is held to
decide if the allegations are true. Id. The petitioner must show "by a preponderance of
the evidence that the child meets one of the statutory definitions of dependency." Id.
Washington partly defines a "dependent child" as a child who "has no parent ...
capable of adequately caring for the child, such that the child is in circumstances which
constitute a danger of substantial damage to the child's psychological or physical
development." RCW 13.34.030(6)(c). Dependencies based on RCW 13.34.030(6)(c)
do not require a finding of parental unfitness; instead, they "allow[] consideration of both
a child's special needs and any limitations or other circumstances which affect a
parent's ability to respond to those needs." Schermer, 161 Wash. 2d at 944. A child is not
dependent if a capable parent exists. In re Walker, 43 Wash. 2d 710, 715, 263 P.2d 956
(1953).
When evaluating evidence to determine whether a child is dependent, trial courts
have broad discretion and considerable flexibility to reach "'a decision that recognizes
both the welfare of the child and parental rights. '" Schermer, 161 Wash. 2d at 952 (quoting
In re the Welfare of Becker, 87 Wash. 2d 470, 478, 553 P.2d 1339 (1976». A court has no
required factors to consider. Becker, 87 Wash. 2d at 477 (interpreting predecessor
6
No. 32161-4-111; consol. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-11'
In re the Dependency of A.A.
statute). Decisions to dismiss a dependency cannot "be based upon hunches or snap
judgments": all parties have a right to be heard, and children need a well-considered
decision. In re Dependency of R.H., 129 Wash. App. 83, 88, 117 P.3d 1179 (2005).
Where a trial court acts as a fact-finder, "appellate review is limited to whether
substantial evidence supports the trial court's findings and whether the findings support
its conclusions of law." Schermer, 161 Wash. 2d at 940. "Substantial evidence exists if,
when viewing the evidence in the light most favorable to the prevailing party, a rational
trier of fact could find the fact more likely than not to be true." In re Welfare of X. T., 174
Wash. App. 733, 737, 300 P.3d 824 (2013). Furthermore, appellate courts do not weigh
evidence or credibility of witnesses. Id.
Here, the juvenile court weighed the evidence and decided witness credibility. It
found dad to be a parent capable of adequately caring for the children within the
meaning of RCW 13.34.030(6)(c). The court found dad went above and beyond when
responding to every request from DSHS. Dad provided certificates of completion for
requested services including domestic violence classes, drug and alcohol counseling,
mental health evaluations and counseling, and parenting classes. The court stated dad
was successfully putting into practice the skills he learned in the parenting classes,
which led to him appropriately handling stressful situations. Dad showed his willingness
to work on his parenting deficiencies and provided evidence of the steps he took to
remedy his problems. He had a job waiting for him and had a plan for the children's
7
No. 32161-4-111; conso!. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In re the Dependency of A.A.
care. On the other hand, DSHS's evidence concerning mom's parental deficiencies
was essentially unrebutted.
While the juvenile court gave mom an opportunity to be heard, it ultimately gave
more weight to Ms. Conklin's and dad's testimony. Both indicated dad's visitations were
great: the children were happy to see him and immediately reestablished a rapport with
him. This was buttressed by reports from the individual caregivers concerning the
children's behavior after visits with dad. When mom expressed concern about the nine
month separation between dad and the children because of the restraining order, dad
testified he remained in contact with Child Protective Services to stay up-to-date in his
children's lives. He related the allegations in the Washington restraining order were a
rehash of the California incidents already addressed by the California courts. Contrary
to mom's assertions, dad showed he was adept at handling the children and
demonstrated awareness of the children's special needs.
Considering all, we conclude substantial evidence supports the court's findings.
B. Placement
The issue is whether the juvenile court had authority to issue its placement order
returning the four children to dad upon dismissing the dependencies. Mom contends
the court lacked jurisdiction to enter the placement order.
Washington juvenile courts have exclusive original jurisdiction over proceedings
"[r]elating to children alleged or found to be dependent." RCW 13.04.030(1 )(b). Once a
8
No. 32161-4-111; consol. wI No. 32162-1-111
No. 32163-1-111; No. 32164-9-111
In re the Dependency of AA
dependency petition is filed, juvenile courts have jurisdiction, and a fact-finding hearing
is needed. R.H., 129 Wash. App. at 88.
The central aim of a dependency hearing is to determine what course of action
serves the child's best interests. Schermer, 161 Wash. 2d at 942. To that end, liberal
construction of juvenile court statutes is needed to ensure a child's welfare is the main
consideration. McDaniel v. McDaniel, 64 Wash. 2d 273, 276,391 P.2d 191 (1964).
However, a "juvenile court has no jurisdiction over a minor unless it is proved that the
minor is ... a dependent child." In re Crozier, 44 Wn.2d 901,904,272 P.2d 136 (1954).
In dependency proceedings, discretionary placement decisions are reviewed for
an abuse of discretion. In re Dependency of AG., 74 Wn. App. 271,276,873 P.2d 535
(1994). "A trial court abuses its discretion when its decision is manifestly unreasonable
or based on untenable grounds." In re Marriage of Kovacs, 121 Wash. 2d 795, 801,854
P.2d 629 (1993).
When placing a child, "the best interests of the child are the court's paramount
concern." In re Dependency of R.w., 143 Wash. App. 219, 223, 177 P.3d 186 (2008).
Because each case is fact specific, no exact criteria exist for determining what the
child's best interests are. Id. Even though a child's interests are the paramount
concern, the parents' interests still have weight: courts are directed "to adopt a program
which will 'least interfere with family autonomy, provided that the services are adequate
to protect the child. '" In re Dependency of J. B. S., 123 Wn .2d 1, 12, 863 P .2d 1344
(1993) (quoting RCW 13.34.130(1)(a». However, if it is not in the child's best interests,
9
1
!
I
4 No. 32161-4-111; consol. wI No. 32162-1-111
I No. 32163-1-111; No. 32164-9-111
In re the Dependency of A.A.
t
j
I
a court is not required to reunite children with the parent who had custody at the time of
% the dependency action. R.w., 143 Wash. App. at 223 (applying this proposition to a child
adjudicated as dependent).
In sum, the juvenile court had unquestioned statutory authority to hold a fact-
finding hearing and to enter an order on the dependency petition. Because the court
found dad to be a capable parent, it could not find the children dependent. Even so, the
court still had to ensure the course of action taken after the fact-finding hearing was in
the children's best interests. As such, the court had authority to determine that living
with dad and granting him discretion as to mom's visitation with the children was in the
children's best interests. The court properly recognized it was not acting as a domestic
relations court, leaving it to the father and mother to apply to an appropriate forum to
resolve the status of their marriage and concurrently, the formal residential placement of
their children. In so deciding, the court did not abuse its discretion in choosing to place
the children with the sole parent found presently capable of adequately caring for the
children in their best interests.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
10
No. 321614-11'; consol. wI No. 32162-1-11'
No. 32163-1-111; No. 32164-9-11'
In re the Dependency of A. A.
2.06.040.
Brown, J.
WE CONCUR:
Fearing, J. )
11