In re the Dependency of: A.A.L. ( 2017 )

FILED
DECEMBER 19, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN THE MATTER OF THE )
DEPENDENCY OF ) No. 35009-6-111 (Consolidated
) with No. 35010-0-111)
A.A.L. )
)
)
)
IN THE MATTER OF THE ) UNPUBLISHED OPINION
DEPENDENCY OF )
)
A.E.L., JR. )
)
FEARING, C.J. -A father of two young children challenges the trial court's order
declaring his children dependents of the State of Washington. The father also challenges
the order placing his children in the care and custody of the State. Because substantial
evidence supports both orders, we affirm the trial court.
FACTS
This appeal concerns the welfare of a young boy and girl, Amy Lidner and Aaron
Lidner, Jr. Lucia Thomas and Aaron Lidner, Sr., an unwed couple, begat the two
children respectively on Christmas Eve 2012 and March 30, 2014. All names are
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fictitious, although the son bears the same name as his father. We will refer to the son as
Aaron and the father as Lidner.
The State of Washington's Department of Social and Health Services (DSHS) first
observed the living conditions of Amy and Aaron, in their residence with their parents, in
2014. Department staffers found Amy and Aaron in a filthy home with unsafe living
conditions.
In 2014, DSHS assigned Bonnie Gaines as the social worker for Lucia Thomas
and Aaron Lidner, Sr. Gaines taught the parents about home organization, child
discipline, cleanliness, and child medical care. In 2014, the parents reluctantly engaged
in parental education since the duo believed DSHS wrongfully accused them of
neglecting their children. The two took only those minimal steps needed to ensure the
cessation of government services. When Gaines ended her assistance in 2014, she
concluded that Thomas and Lidner had progressed little in parenting skills.
On September 29, 2016, Adams County Sheriff Sergeant Tomas Solano visited, as
part of an investigation, an area on West Rainier Road, in Othello, that housed three
trailers at the end of a long, dirt road. Lucia Thomas and Aaron Lidner, Sr. resided in
Trailer C. Sergeant Solano's investigation involved residents other than_Lidner and
Thomas, but Solano noticed both parents in the yard in front of their trailer. Solano knew
both from earlier conduct. Solano's sighting of both parents on September 29 relates to
Lidner's notice of the conditions, in which his children lived.
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On November 3, 2016, Sergeant Tomas Solano also visited the trio of trailers to
investigate people other than Lucia Thomas and Aaron Lidner, Sr. Solano then noticed
the presence of Thomas, but not Lidner.
On November 14, 2016, Sheriff Sergeant Tomas Solano visited the trailer of Lucia
Thomas and Aaron Lidner, Sr. to execute a warrant for Thomas' arrest. When Thomas
answered Solano's knock on the trailer door, barefoot children and five or six stray dogs
ran through the open door into the yard. Sergeant Solano smelled a disorienting,
horrendous aroma emanating from the trailer. He decided not to arrest Thomas because
of the presence of the children, but instead determined to return later with DSHS
employees.
Later that same day, Sergeant Tomas Solano filed a report, with DSHS employee
Shelby Jorgenson, that alleged the neglect of Amy and Aaron by Lucia Thomas and
Aaron Lidner, Sr. The report mentioned that Thomas and Lidner held a history of
methamphetamine use, Thomas actively abused drugs, an outstanding warrant directed
the arrest of Thomas, and the two children resided in "horrible living conditions."
Clerk's Papers (CP) at 2.
On November 15, 2016, at 11 a.m., Shelby Jorgensen and Adams County Sheriff
Deputies Juan Garcia and Joe Phillips visited Lucia Thomas' trailer. Jorgensen noticed
garbage, tools, children's toys, and other miscellaneous belongings littering the trailer's
front yard. Jorgensen smelled a foul odor as she climbed the few steps leading to the
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door. After Thomas answered a knock, the sheriff deputies arrested her. Thomas
declared that the children's father had not visited for weeks.
Shelby Jorgensen entered the trailer and found seven dogs inside. The fusion of
many foul odors thwarted Jorgensen from isolating any source of an odor. Dirty clothes,
towels, diapers, pillows and dogs lay on a bed to the left of the front door. A space heater
in reach of the children sat on the trailer floor. Feces mingled with silverware, toys,
children's clothing, and shoes also rested on the floor. Dirty dishes, garbage, aging food,
old food containers, household products, and knives packed the sink and coated the stove.
A light plugged into an extension cord hung above the sink. Amy sat on a couch. Three-
year-old Amy wore only a diaper, soaked with urine and feces, which drooped toward her
knees. Deputy Sheriff Juan Garcia characterized the conditions inside the Thomas and
Lidner home as the filthiest environment he had ever seen. Shelby Jorgenson gagged and
encountered breathing difficulties inside the home.
Shelby Jorgenson transported Amy and Aaron to a foster home. At the home,
Jorgenson ran and drained water from a tub multiple times to clean the children.
Excrement and wounds covered their young bodies. Jorgensen counted twenty-three
injuries on Aaron's body and twenty-three wounds on Amy's body.
On November 15, Shelby Jorgenson engaged in a telephone conversation with
Aaron Lidner, Sr. Jorgensen told Lidner of Lucia Thomas' arrest and the placement of
his two children in foster care. Jorgensen informed Lidner of the deplorable conditions,
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in which his children lived. Lidner replied, contrary to Lucia Thomas' statement to law
enforcement officers, that he had seen the children the previous weekend at a Moses Lake
Park. Lidner denied the possibility that Jorgenson found the children in any deplorable
condition. Lidner added that he worked at a dairy in Sunnyside and the family resided at
Othello's Cimaron 5 hotel, not in a trailer.
As the telephone conversation between Aaron Lidner, Sr. and Shelby Jorgenson
progressed, Lidner claimed that Amy and Aaron had recently underwent medical
examinations at a local hospital. Lidner stated that he lacked any relatives who could
care for the children, and he requested that Jorgensen place the children under his care.
Jorgensen declined the request. Jorgenson considered Lucia Thomas and Lidner a
cohesive couple, with each member knowing the conduct of the other. Jorgensen
believed Lidner knew or should have known about the risks posed to his children by the
care provided by Thomas. Jorgensen later contacted nearby clinics that provided well
child exams and learned that Aaron's latest examination occurred eighteen months earlier
and Amy underwent no examinations.
On November 21, 2016, DSHS again assigned Bonnie Gaines as Lucia Thomas'
and Aaron Lidner, Sr.'s social worker. On November 28, Gaines discussed, with Lidner,
living conditions at the trailer. At first, Lidner conceded he knew of the conditions of his
children in the trailer, but later corrected himself and remarked that he knew not of the
environment in which his children lived. Lidner claimed that he stayed, from late
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October 2016 to early December 2016, in hotels while working on a dairy farm in
Sunnyside.
In November and December 2016, Aaron Lidner, Sr. refused to participate in
DSHS services unless his attorney approved of the services. Lidner agreed to submit to
urinalyses to remove any suspicion of methamphetamine use, but he never provided a
urine sample.
On December 8, 2016, Bonnie Gaines visited an Othello apartment where Aaron
Lidner, Sr. and Lucia Thomas resided. The apartment housed only a television, mattress,
and dresser, and no children's items. Gaines later sought additional visits to the
apartment. Twice Gaines unsuccessfully attempted to view the apartment without
advance notice, and twice she attempted to coordinate a visit with Aaron Lidner, Sr. and
Lucia Thomas. Lidner answered that no one would be home.
Lucia Thomas and Aaron Lidner, Sr. received supervised visits with their children
at the apartment once authorities released Thomas from ·prison. Lidner has visited the
children only in the company of Thomas. No one has reported an unstable or unsafe
environment at the apartment unit. We do not know the charges, under which law
enforcement arrested Thomas on November 14, but authorities have since charged her
with criminal mistreatment of her children.
PROCEDURE
On November 17, 2016, the State filed a dependency action for Amy and Aaron.
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The trial court conducted a dependency hearing on January 17, 2017.
During the dependency hearing, Aaron Lidner, Sr. testified that he did not know
where his children lived in October and November of 2016. Contrary to Deputy Thomas
Solano's testimony, Lidner denied ever being at or near the Othello trailer. Lidner
remarked that he smokes marijuana recreationally and does not deem cannabis to be a
drug. Lidner denied ever being inebriated since he was a minor.
During the dependency trial, Aaron Lidner, Sr. acknowledged the unacceptable
conditions, in which officials found his children on November 15, 2016. Lidner
confessed his love and support for Lucia Thomas. He lamented Thomas' lack of
resources to help herself and the children. He conceded that Thomas and he still resided
together in an Othello apartment. He boasted that, during the last eighteen months, he
had tried to become a better father and person.
Based on testimony at the dependency hearing, the trial court ruled that Lucia
Thomas abused or neglected the children pursuant to RCW 13.34.030(6)(b) and that the
children were dependent, under RCW 13.34.030(6)(c), as to Aaron Lidner, Sr., because
of an inability to care for the children. At the close of the hearing, the trial court
commented:
With [Aaron Lidner, Sr.] I do not find that he abused or neglected
[Amy and Aaron]. I do find that he is not capable of taking care of those
children ... He lied constantly in his testimony. I believe Dep. Solano that
he was there on September 29th. And he must have seen those children,
must have seen their living circumstances.
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He testified that in October the children looked fine. There is no
way those children could have looked fine in October. They were
scratched, they were bruised, they were filthy. He told the caseworker that
he had seen the children the previous weekend, and I believe he was telling
the truth at that time, and again, he could not have seen those children
without knowing that they were in grave danger.
He may have a different place now, but it's very apparent to the
court that he continues to-attempt to rekindle his relationship with [Lucia
Thomas]. He wants to do it as we speak. And she's abusive. She hurts
those children .
. . . [H]e still has no firm day care plan for those children while he's
working. I would not trust him to take care of these poor little children .
. . . [T]here's no testimony that he says, "Are my children okay,"
"Are they sick," "Are they going to be okay." He doesn't do that. He
moves into getting the children back.
I don't believe that he has shown a sufficient level of involvement
with these children.
So as to [Aaron Lidner, Sr.], I make a finding ... that he is not
capable of adequately caring for the two biological children which are his.
Report of Proceedings (RP) at 121-22. The trial court entered the following written
findings:
Testimony of witnesses and photographs introduced as exhibits by
the Department establish that these children were living under dangerous
and repulsive conditions. They were living with their mother in a small
trailer with five dogs, in an environment contaminated by garbage and feces
that was completely unsafe for children. The children were filthy,
neglected, and forced to live without adequate caregiving in unhygienic and
inadequate circumstances that amount to almost unbelievable abuse and
neglect. For his part, even though Mr. [Lidner] may not have been living in
the trailer at the time the children were removed by CPS and law
enforcement, he was certainly aware of the abuse and neglect to which they
were being subjected. At a minimum, he was at the trailer in September
and again on November 11. Even though he claimed that the children
"looked fine" the last time he saw them, the court finds that he had to have
known about the conditions in the home and did nothing about it. It is
· apparent to the court that it is important to him to maintain his relationship
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with the children's mother, who the court finds has abused these children.
He does not have a sufficient level of involvement and empathy for these
two children; based on this, the court finds that Mr. [Lidner] is not capable
of adequately caring for these children.
CP at 59 (emphasis added). The trial court ordered continued out-of-home placement for
the children.
LAW AND ANALYSIS
Only Aaron Lidner, Sr. appeals the trial court's order of dependency. He argues
that insufficient evidence supports a finding as to the dependency with regard to him. He
further argues that, even with a dependency, insufficient evidence supports placement of
the children outside his care. We disagree.
Declaring a child "dependent" transfers legal custody to the State. In re
Dependency ofSchermer, 161 Wn.2d 927, 942, 169 P.3d 452 (2007). After the State
files a dependency petition, the superior court conducts a fact-finding hearingto decide
the truthfulness of the allegations. In re Dependency ofSchermer, 161 Wn.2d at 942.
The State must prove by a preponderance of the evidence that the child meets one of the
statutory definitions of dependency under RCW 13 .34.130. In re Welfare ofKey, 119
Wn.2d 600, 612, 836 P.2d 200 (1992). In this case, the trial court found Amy and Aaron
dependent, as to their father, under RCW 13.34.030(6)(c).
RCW 13.34.030(6)(c) declares a child "dependent" ifhe or she:
Has no parent, guardian, or custodian capable of adequately caring
for the child, such that the child is in circumstances which constitute a
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danger of substantial damage to the child's psychological or physical
development.
The trial court need not consider any specific factors when determining whether a parent
is capable of parenting under RCW 13.34.030(6)(c). Instead, the inquiry is highly fact-
specific. In re Dependency of Schermer, 161 Wn.2d at 951-52.
The State need not prove that a parent is unfit to prove a dependency.
A dependency based on RCW 13.34.030[(6)](c) does not tum on
parental "unfitness" in the usual sense. Rather, it allows 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. Under RCW
13.34.030[(6)](c), it is unnecessary to find parental misconduct in order to
find a child dependent.
In re Dependency of Schermer, 161 Wn.2d at 944. 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. In re Dependency ofSchermer, 161 Wn.2d at 952.
Aaron Lidner, Sr. objects to the trial court's finding that he was present at the
trailer on November 11. We agree that the testimony does not support this finding.
Nevertheless, Lidner should have been present to protect his children from their mother,
to scour the trailer of its filth, and bathe his children.
Regardless, of whether he visited the trailer in November, Aaron Lidner, Sr.
claimed he saw the children the weekend before their removal. The sordid circumstances
in which officials found the children and the extensive cleaning required to remove dried
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filth from their little bodies undermines Lidner's claim that the children were fine just
days prior. The deplorable condition of the children would have been noticeable if
Lidner saw the children the prior weekend.
Even setting aside Aaron Lidner, Sr.'s claimed visit with the children in early
November at a park, Sergeant Tomas Solano saw Lidner at the trailer on September 29.
Although the State provided no evidence of the conditions inside the trailer in September,
reasonable inferences establish that the children lived in similar deplorable circumstances
in September.
Aaron Lidner, Sr. contends that all evidence substantiated his fathering skills as
positive. The record, however, other than Lidner's vague claims, hints of no positive
skills. Testimony illustrated that Lidner lacked interest in parenting his children. He
refused services and refused to undergo urinalyses despite a history of drug abuse.
Lidner had little, if any, contact with Lucia Thomas and his children for a year and half,
which neglect led to Thomas caring alone for the children. He abandoned his two young
children to an abusive and neglectful mother.
Aaron Lidner, Sr. maintains that, in the last eighteen months, he focused on
reuniting the family and improving his parenting skills. Nevertheless, his actions do not
comport with his claim. The evidence shows he spent little time with the family in the
months preceding the dependency filing. Lucia Thomas again now lives with Lidner in
his apartment, despite her two charges for the criminal mistreatment of Amy and Aaron.
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Thomas and Lidner have a history of drug use, and their children were found by DSHS in
2016 living in a putrid trailer. IfLidner cared about the welfare of his children, he would
have focused on them to the exclusion of Thomas.
Appellate review is limited to whether substantial evidence supports the trial
court's findings and whether the findings support its conclusions oflaw. In re
Dependency of Schermer, 161 Wn.2d at 940 (2007). 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 ofX T., 17 4 Wn.
App. 733, 737, 300 P.3d 824 (2013). Appellate courts do not reweigh evidence or
reassess witness credibility. In re Welfare ofXT., 174 Wn. App. at 737. Appellate
courts pay deference to the trial court's advantage in directly observing witness testimony
first hand. In re Welfare ofAschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
We hold that substantial evidence supports the findings of fact and the findings
support the dependency as to Aaron Lidner, Sr. At most, there exists conflicting accounts
from Lidner and the witnesses who testified against him. Nonetheless, substantial
evidence is not made any less substantial by the presence of contradictory testimony,
which the trial court may have disregarded as not being credible. Vermette v. Andersen,
16 Wn. App. 466, 470, 558 P.2d 258 (1976). In fact, the trial court found Lidner to
prevaricate.
Aaron Lidner, Sr. correctly notes that the trial court entered no express finding that
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the children lived in danger of substantial damage to their psychological or physical
II
development. The finding that Aaron Lidner, Sr. did not adequately care for the children,
however, implied this additional finding. The evidence overwhelmingly showed a danger
to the development of the children.
Aaron Lidner, Sr. next complains of the trial court's order placing custody of Amy
and Aaron with DSHS. He asks that the children be returned to his care.
RCW 13.34.130(5) allows the trial court to order placement of the dependent child
outside the home. The statute declares, in relevant part:
... An order for out-of-home placement may be made only if the
court finds that reasonable efforts have been made to prevent or eliminate
the need for removal of the child from the child's home and to make it
possible for the child to return home, specifying the services, including
housing assistance, that have been provided to the child and the child's
parent, guardian, or legal custodian, and that preventive services have been
offered or provided and have failed to prevent the need for out-of-home
placement, unless the health, safety, and welfare of the child cannot be
protected adequately in the home, and that:
(a) There is no parent or guardian available to care for such child;
(c) The court finds, by clear, cogent, and convincing evidence, a
manifest danger exists that the child will suffer serious abuse or neglect if
the child is not removed from the home and an order under RCW 26.44.063
would not protect the child from danger.
RCW 13.34.130(5). In dependency proceedings, discretionary placements are reviewed
for abuse of discretion. In re Dependency ofCa.R., 191 Wn. App. 601,610,365 P.3d
186 (2015). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. In re Marriage of Kovacs, 121 Wn.2d 795,
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801,854 P.2d 629 (1993); In re Dependency ofCa.R., 191 Wn. App. at 610. In any
placement decision, the child's best interest should be paramount. In re Dependency of
J.B.S., 123 Wn.2d 1, 10,863 P.2d 1344 (1993).
We conclude that the trial court did not abuse its discretion when it found that
Amy and Aaron should be placed or remain in the custody, control, and care ofDSHS
and foster parents. Testimony explained that Aaron Lidner, Sr. rejected parental
education and other services from DSHS. He continued to live with a mother, of the
children, accused of criminal mistreatment of the children. He previously abandoned the
children to the care of the mother.
CONCLUSION
We affirm the superior court's order of dependency over Amy Lidner and Aaron
Lidner, Jr. and the placement of the children in the care of DSHS.
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
2.06.040.
WE CONCUR:
Lawrence-Berrey, J.
j
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