In the Matter of the Dependency of B.F. ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
January 18, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Matter of the Dependency of: No. 47829-3-II
BF,
PUBLISHED OPINION
a minor.
BJORGEN, C.J. — MF1 appeals the juvenile court’s dispositional order for a dependency
regarding her child, BF. She argues that the juvenile court erred in its disposition by declining to
order PA, BF’s father, to undergo a psychosexual evaluation. The Department of Social and
Health Services (Department) contends that MF lacks standing to appeal this ruling. We hold
that in these circumstances MF qualifies as an aggrieved party with standing to appeal and that
the juvenile court did not abuse its discretion by declining to order a psychosexual evaluation for
PA. Accordingly, we affirm.
1
It is appropriate to provide some confidentiality in this case. Accordingly, pursuant to RAP
3.4, it is hereby ordered that initials will be used in the case caption and in the body of the
opinion to identify parties involved.
No. 47829-3-II
FACTS
BF is the child of MF and PA. A juvenile court found BF dependent. At the disposition
hearing2 for the dependency, the Department and MF moved the juvenile court to require PA to
undergo a psychosexual evaluation before allowing him to have contact with BF. The basis for
this request was MF's belief that PA had raped her, causing her to become pregnant with BF. To
factually support that claim, the Department submitted a sexual assault protection order
forbidding PA from coming into contact with MF. The Department submitted the protection
order to “simply establish that the mother sought one out, not that . . . there was any type of
contested hearing” between MF and PA. Report of Proceedings (RP) at 29.
In addition to the protection order, the Department submitted police reports detailing
interviews with MF and PA in which they described the nature of their sexual encounter. In her
interview, MF recounted that PA invited her into his home and that they slept together in the
same bed. When she woke up in the morning, she discovered PA penetrating her with his fingers
and penis. MF stated that “she was so stunned that she was afraid if she said no or moved away
he would just force himself on her.” Exh. 2 at 3. PA recounted in his interview that MF
instigated the sexual encounter by putting PA’s hand on her bottom and repeating that she
wanted his “cock.” Exh. 2 at 7. He stated that he only agreed to have sex after her insistence. A
final police report indicates that the prosecutor declined to charge PA with any crime because
there was not “sufficient evidence to pursue criminal prosecution.” Exh. 2 at 11.
2
The disposition hearing allowed the juvenile court to outline services for the parents and child
to serve the goals of the dependency. See In re Interest of Mahaney, 146 Wash. 2d 878, 891, 51
P.3d 776 (2002).
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No. 47829-3-II
Based on this evidence, the Department contended that the psychosexual evaluation was
appropriate despite its intrusiveness because it could potentially protect BF and help PA reunify
with BF. The Department’s counsel stated that
[w]e understand that this evaluation is intrusive, but when balancing the
intrusiveness to the father with the safety of [BF], that [BF] has to win out in this,
and that these concerns have to be dispelled before the department would be willing
to advocate or ask this Court to place [BF] with his father.
RP at 25.
After hearing arguments from both sides, the juvenile court denied the request for
a psychosexual evaluation, stating:
I’m going to deny the request for the psychosexual. I’m not persuaded
there’s sufficient evidence of sexual deviancy here to warrant it. I recognize that
there is a reaction from the mother as to the events that took place on the night in
question. But we have two adults, and one interpretation of the investigating
officer’s report is that it was consensual sex, and another interpretation could be
that it was not. And just because there is that uncertainty, I don’t believe requires
the full exploration of the father’s sexuality.
....
Certainly, if other incidents of inappropriate sexual conduct came forward,
the Court could review the issue, but, based on this record, I'm not going to order
it today.
RP at 30.
MF appealed and moved this court to accelerate review of her case under RAP 18.13A.
RAP 2.2(a)(5). Pending the outcome of the motion, the Department reversed its position at trial
and argued that the juvenile court did not err by declining to order the psychosexual evaluation
and, further, that MF lacked standing to appeal that determination. Our court commissioner
denied MF’s motion to accelerate review and dismissed her appeal, agreeing with the
Department that she had no standing.
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No. 47829-3-II
MF moved to modify the commissioner’s ruling, which we granted. We now address
whether MF had standing to appeal the dispositional order and whether the juvenile court abused
its discretion by not ordering a psychosexual evaluation.
ANALYSIS
I. STANDING
The Department argues that MF lacks standing to appeal because she is not an aggrieved
party. We disagree.
Under RAP 3.1, “[o]nly an aggrieved party may seek review by the appellate court.” The
Basic Juvenile Court Act similarly provides that any person “aggrieved” may appeal a court’s
final order. RCW 13.04.033. Generally, “[a]n aggrieved party is one who was a party to the trial
court proceedings, and one whose property, pecuniary and personal rights were directly and
substantially affected by the lower court's judgment.” In re Welfare of Hansen, 24 Wash. App. 27,
35, 599 P.2d 1304 (1979).3
In support of its position that MF lacks standing, the Department compares her situation
to the appellants in In re Guardianship of Lasky, 54 Wash. App. 841, 776 P.2d 695 (1989) and
Breda v. B.P.O. Elks Lake City 1800 So-620, 120 Wash. App. 351, 90 P.3d 1079 (2004). In Lasky,
54 Wash. App. at 843-44, an attorney was appointed by the court to be the guardian for a
beneficiary of a trust. The attorney sued the trustee on the beneficiary’s behalf, but did not
prevail. Id. at 845, 847. In the same proceeding, the trial court removed the attorney as guardian
and appointed a new guardian for the beneficiary. Id. at 847, 850. The attorney appealed the
ruling removing him as guardian, but the Lasky court held that he lacked standing and that only
3
“In rare cases,” a person who is not formally a party to a case may have standing to appeal a
trial court’s order because the order directly affects that person’s legally protected interests.
Polygon Nw. Co. v. Am. Nat. Fire Ins. Co., 143 Wash. App. 753, 768, 189 P.3d 777 (2008).
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No. 47829-3-II
the replacement guardian, who now represented the beneficiary’s interest, could appeal that
determination. Id. at 850.
A similar outcome occurred in Breda, 120 Wash. App. at 352, where the trial court
imposed sanctions on the Bredas’ counsel. The attorney did not appeal the judgment, but the
Bredas did. Id. The court held that while the attorney had standing to appeal the sanctions, the
Bredas did not, since they were not damaged by the sanctions against their counsel. Id. at 353.
Because the attorney did not appeal the sanctions, the court dismissed the appeal brought by the
Bredas. Id.
Lasky and Breda illustrate situations when one’s perceived injury falls below the
threshold to qualify as an aggrieved party permitted to appeal a judgment. The interest of a
former guardian in appealing his removal and the interest of a client in appealing a sanction
against an attorney, though, are of much less moment than the interest of a parent in preventing
sexual harm to her child and in preserving and mending family ties with that child.
This principle is supported by Hansen, 24 Wash. App. at 29, where the Corderos became
the guardians of a child and raised the child for eight years. The child’s mother moved a
California court to terminate their guardianship rights, which the California court granted. Id. at
30. The Corderos then petitioned a Washington court to declare the child dependent, which it
did. Id. The Washington court also expressed its intention to effect an eventual reunification of
the natural mother with the child. Id. On appeal, the mother argued the Corderos had no
standing to appeal, but the Hansen court disagreed:
As Tammy’s guardians for a period in excess of 8 years, the Corderos’ personal
rights are directly affected by the juvenile court’s order and judgment, especially in
light of the judge’s expressed intent to effect an eventual reunification between
Tammy and her natural mother. Faced with the possibility of forfeiture of a
valuable human relationship, we find the Corderos have standing to appeal.
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No. 47829-3-II
Id. at 35; see also State v. Casey, 7 Wash. App. 923, 926-27, 503 P.2d 1123 (1972) (mother
deemed an aggrieved party in a filiation proceeding).
The statute governing dependencies and terminations begins with the legislative
declaration that “the family unit should remain intact unless a child’s right to conditions of basic
nurture, health, or safety is jeopardized.” RCW 13.34.020. Our case law reflects this principle
through holdings that the purpose of a dependency is “to ensure the safety of the child and
reunification with the parent,” In re Interest of Mahaney, 146 Wash. 2d 878, 891, 51 P.3d 776
(2002), and that the “primary purpose of a dependency is to allow courts to order remedial
measures to preserve and mend family ties, and to alleviate the problems that prompted the
State's initial intervention.” In re Dep. of T.L.G., 126 Wash. App. 181, 203, 108 P.3d 156 (2005).
MF challenges the failure of the juvenile court to order a psychosexual evaluation of PA,
arguing that this places her child at unreasonable risk of harm. The threat of sexual harm to a
child from a family member directly implicates the child’s right to health and safety and the
purpose of preserving and mending family ties. The threat to these interests in these
circumstances directly affects the personal right of MF, as a parent, to the safety of her child and
the mending of family ties under RCW 13.34.020, Mahaney, and T.L.G., discussed above.
Therefore, we hold that under these circumstances MF is aggrieved by this aspect of the
dispositional order and has standing to appeal it.
II. PSYCHOSEXUAL EVALUATION
MF argues that the juvenile court abused its discretion either (1) by failing to order the
psychosexual evaluation based on the evidence before it or (2) by failing to conduct a further
inquiry to determine whether a psychosexual evaluation may have helped protect BF or
improved the chances for reunification. For the reasons discussed below, both arguments fail.
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No. 47829-3-II
The juvenile court has broad discretion in dealing with matters of child welfare, and we
review orders issued in dependency cases for an abuse of discretion. In re Dep. of R.W., 143
Wash. App. 219, 223, 177 P.3d 186 (2008). The juvenile court abuses its discretion when its
decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of
Muhammad, 153 Wash. 2d 795, 803, 108 P.3d 779 (2005).
Dependency proceedings are designed to protect children from harm, help parents
alleviate the problems that led to intervention, and reunite families. In re Dep. of P.H.V.S., 186
Wash. App. 167, 181, 339 P.3d 225 (2015), review denied (Aug. 17, 2015). A juvenile court is
thus statutorily authorized to order a wide array of services for the parents and child that may
effectuate those goals. See generally In re Dep. of D.C-M., 162 Wash. App. 149, 158-60, 253 P.3d
112 (2011) (citing chapter 13.34 RCW); see also Mahaney, 146 Wash. 2d at 891. Within the scope
of its authority, a juvenile court can order a psychosexual evaluation if “attuned to the needs of
an individual case.” D.C-M., 162 Wash. App. at 160.
The parties rely on D.C-M for their respective positions. In D.C-M, KM was the mother
of several children found to be dependent. Id. at 152-53. During the dependency proceedings,
the children had disclosed acts of sexual abuse by KM. Id. at 153-55. However, after reviewing
the evidence, the prosecutor declined to charge KM. Id. Similarly, the Department found the
children’s allegations inconclusive. Id. The juvenile court nonetheless ordered a psychosexual
evaluation based on the children’s repeated disclosures that KM abused them. Id. at 156-57.
The D.C-M court reversed in part because the children’s unfounded disclosures did not support
the juvenile court’s determination that the proposed psychosexual evaluation would be helpful
for reunification of the family. Id. at 162. It remanded the case for the juvenile court to
determine, inter alia, what underlying sexual abuse allegations served as a basis for the
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No. 47829-3-II
psychosexual evaluation, whether such an evaluation was necessary, and whether it would
further the goal of reunification. Id. at 162-63.
Here, unlike D.C-M, the juvenile court declined to order a psychosexual evaluation for
PA based on the evidence before it. The police reports and sexual assault protection order were
submitted to the juvenile court, and the attorneys for each side were permitted to make
arguments regarding the appropriateness of the psychosexual evaluation. Based on that, the
juvenile court found insufficient evidence of sexual deviancy to require a psychosexual
evaluation of PA. The juvenile court noted that if other evidence emerged later indicating other
inappropriate sexual misconduct, it may reevaluate the need for a psychosexual evaluation.
On this record and viewed in light of D.C-M, the juvenile court did not abuse its
discretion. The juvenile court weighed both the parties’ arguments and evidence and reasonably
decided that a psychosexual evaluation was not appropriate at the time to carry out the goals of
the dependency. Contrary to MF’s position, the police reports and sexual assault protection
order do not per se demonstrate that the juvenile court abused its discretion in declining to order
the psychosexual evaluation. The protection order was only offered to establish that MF sought
one and not that any contested hearing took place between her and PA. Further, the police
reports do not conclusively establish that PA raped MF; rather, the reports only provide
conflicting perspectives about the night BF was conceived. Deference to the juvenile court is
required in deciding which services best carry out the goals of a dependency. See D.C-M., 162
Wash. App. at 158-60; see In re Welfare of A.B., 181 Wash. App. 45, 60, 323 P.3d 1062 (2014). On
this evidence, we cannot say the juvenile court’s ruling was manifestly unreasonable or based on
untenable grounds or reasons. The juvenile court did not abuse its discretion.
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No. 47829-3-II
MF further contends that the evidence before the juvenile court required it to at least
conduct a further inquiry to determine whether a psychosexual evaluation would protect BF and
promote reunification. At the juvenile court proceeding, the Department argued that BF’s safety
outweighed the intrusive impact of a psychosexual evaluation on PA and that it could not
advocate for BF to be placed with PA without the psychosexual evaluation. Thus, although the
juvenile court did not explicitly state it considered BF’s safety or the impact on reunification
when it made its ruling, those interests were argued to the juvenile court and were among the
interests the court was required to consider. See Mahaney, 146 Wash. 2d at 891. No legal authority
required the juvenile court to articulate which specific goals of the dependency would or would
not be served when declining to order a psychosexual evaluation. For these reasons, we presume
the court fully considered the evidence before it.
As held above, declining to order the psychosexual evaluation on the basis of evidence
before the juvenile court was neither unreasonable nor based on untenable grounds or reasons.
Under the abuse of discretion standard, the mere presence of evidence on either side of the issue,
without more, does not mandate further investigation by the juvenile court. Therefore, the
juvenile court considered the evidence and arguments before it and did not abuse its discretion
by declining to conduct a “further inquiry” to determine whether a psychosexual evaluation was
warranted to protect BF and promote reunification.
Accordingly, MF’s claims fail.
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No. 47829-3-II
CONCLUSION
MF had standing to appeal the juvenile court’s dispositional order, and the juvenile court
did not abuse its discretion by declining to order a psychosexual evaluation for PA. Therefore,
we affirm.
BJORGEN, C.J.
We concur:
WORSWICK, J.
LEE, J.
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