Dependency Of: K.l.c., 05/26/03, Dshs, Resp v. Nicole Cadiente, App ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ~£
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In the Matter of the Dependency of
K.C. (d/o/b 05/26/03), No. 70865-1-1
J.C. (d/o/b 01/20/06), (consolidated w/70866-0-1 & 70867-8-1)
J.S. (d/o/b 12/23/08),
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
UNPUBLISHED OPINION
NICOLE CADIENTE, FILED: July 21, 2014
Appellant.
Becker, J. — This is an appeal from orders finding Nicole Cadiente's three
children dependent and removing them from her care. We affirm. Despite
receiving numerous services and attending classes designed to help her learn
how to protect her children from abusers, Cadiente began and maintained a
relationship with a convicted sex offender. The orders are supported by
substantial evidence that she did not recognize the danger and was not capable
of protecting the children.
Nicole Cadiente, an enrolled member of the Lummi Nation, is the mother
of the three children involved in this dependency action: K.C. (born 5/26/03), J.C.
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(born 1/20/06), and J.S. (born 12/23/08). All three children are Indian children as
defined by the Indian Child Welfare Act of 1978.
Cadiente's children were the subject of a previous dependency action that
was filed by the State Department of Social and Health Services in Whatcom
County Superior Court in 2010. The Department alleged that Cadiente was not
protecting her children from her abusive then-husband. As part of that
dependency action, Cadiente received a number of services from the
Department to help her protect her children. She attended parenting classes.
One class called "Darkness to Light" was specifically targeted at helping
Cadiente learn how to protect her children from sex offenders.
In November 2012, the dependency action was dismissed as to the oldest
child. On January 14, 2013, the dependency action was dismissed as to the two
younger children. At the time that action was dismissed, the Department and the
court were unaware that in October 2012, Cadiente had begun a relationship with
convicted child molester Lee "Fiji" Solomon, a registered sex offender.
In March 2013, the Department received two referrals regarding the
Cadiente children. On March 20, 2013, the Department received notice that the
oldest child had been left unsupervised in the parking lot of Cadiente's apartment
complex and had rubbed his penis against the back of a girl's neck. On March
23, 2013, the Department received notice that Cadiente had allowed the children
to have unsupervised contact with Solomon.
Department social workers Ryan Douglas and Joe Jacob investigated.
J.C. told Douglas that her mother was engaged to "Fiji" and referred to him as
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"daddy." Douglas testified that J.C. appeared to "have a connection" with
Solomon. K.C. likewise referred to Solomon as "daddy." Douglas and Jacob
spoke to a neighbor who reported that Solomon occasionally spent the night at
Cadiente's residence. A bus driver told them that Solomon sometimes appeared
to be the only adult home when the children were dropped off and picked up. A
Lummi Nation police officer told Douglas he saw Cadiente, her children, and
Solomon together at the Ferndale Cost Cutter on March 12, 2013.
On March 28, 2013, the Department filed the present dependency petition.
Cadiente contested it.
On June 10, 2013, Solomon's parole officer, Tyler Muise, made an
unannounced visit to Solomon's residence. He testified that when Solomon
opened the door to his one-room trailer, he saw Cadiente lying under the covers
in the trailer's only bed. The covers next to her were pulled back. Officer Muise
stated that it was apparent to him that Solomon had been in the bed prior to
getting up to open the door for him.
In July and August 2013, the court held a fact-finding hearing. The trial
court made the following findings of fact and conclusions of law:
• Cadiente allowed a relationship to form between her children
and Lee Fiji Solomon. This relationship was so significant that
some, if not all, of her children referred to him as "daddy."
• Cadiente continued in her relationship with Solomon until at
least July. It is unclear ifthe relationship has ever ended.
Cadiente lied to the court when she testified that she ended her
relationship with Solomon in April.
• Cadiente's relationship with Solomon is particularly troubling in
light of her previous long-term dependency. Pursuant to that
dependency, Cadiente received a significant amount of training
and education in how to protect her children. This included a
class on how to protect her children from sex offenders. Before
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that dependency concluded, she began a relationship with a
man who had been convicted of molesting a child.
• Cadiente does not comprehend the risk Solomon poses to her
children. This clearly demonstrates that she is not capable of
adequately caring for her children.
The court found that all three children were dependent.
On September 3, 2013, the disposition hearing was held. The court
ordered the children removed from Cadiente's care. This appeal followed.
FINDING OF DEPENDENCY
Cadiente assigns error to the finding of dependency.
To declare a child dependent, a court must find by a preponderance of the
evidence that the child meets one of the statutory definitions of dependency.
RCW 13.34.110; In re Welfare of Key. 119 Wn.2d 600, 612, 836 P.2d 200(1992), cert, denied, 507 U.S. 927 (1993). In this case, the children were found
dependent as that term is defined in RCW 13.34.030(6)(c): a child is dependent
where the child "has no parent, guardian, or custodian 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."
We will affirm an order of dependency so long as substantial evidence
supports the court's findings of fact and the findings support the conclusions of
law. In re Dependencv of M.S.D., 144 Wn. App. 468, 478, 182 P.3d 978 (2008).
Evidence is substantial if, when viewed in the light most favorable to the party
prevailing below, a rational trier of fact could find the fact more likely than not to
be true. In re Dependencv of M.S.D., 144 Wn. App. at 478.
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The trial court found Cadiente was not capable of adequately caring for
the children. In the trial court's view, Cadiente's actions did not reflect an
understanding that it was dangerous to have Solomon around them. Cadiente
argues that the testimony did not establish that her relationship with Solomon
endangered the children. She contends that at most, it supported only a finding
that the romantic partner she selected was not ideal.
A parent's choice to partner with an individual who has a criminal history
is, in itself, insufficient to support a finding of dependency. M.S.D., 144 Wn. App.
at 482. In M.S.D., the Department filed a dependency petition when it discovered
that the mother's boyfriend had a 10-year-old conviction for assault and criminal
mistreatment of his 2-month-old baby. The Department argued that the
conviction was, by itself, sufficient to establish that he posed a danger to M.S.D.
This court reversed, finding that substantial evidence did not support the finding
of dependency:
Ifthe dependency trial had taken place in 1999 or 2000, when
M.S.D. was an infant, the significance of Poirier's criminal
conviction of assault of a child and the scope of the danger to
M.S.D. would weigh heavily in favor of finding a clear and present
danger to M.S.D. But at the time of the dependency trial in 2006,
Poirier had lived with M.S.D. for several years and there was no
evidence that he ever physically abused her or any other child
during that period. DSHS also presented no evidence showing that
someone who has assaulted an infant approximately 10 years
earlier was likely to assault a 7-year-old child. Nor was there any
evidence that the risk posed by the prior conviction does not
diminish with age and maturity or that Poirier was unable to
change.
M.S.D., 144 Wn. App. at 481-82.
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This case is not like M.S.D. The evidence established that Solomon was
convicted of molesting a 13-year-old female child in 2008 or 2009. Cadiente's
children were 10, 7, and 4 in 2013 at the time of the fact-finding hearing. An
expert testified that Solomon was at high risk of reoffending, especially in light of
his willingness to have contact with minor children in violation of the conditions of
his parole.
Unlike the boyfriend's conviction in M.S.D., Solomon's relatively recent
conviction for molesting a child just a few years older than Cadiente's children
weighs heavily in support of the trial court's determination that Cadiente's
relationship with Solomon endangered her children. And the dependency is
further supported by the evidence that Cadiente was untruthful about her
relationship with Solomon and was disregarding the information she had been
provided in the previous dependency. The Department's brief accurately
summarizes the case:
Ms. Cadiente entered into a relationship with an admitted,
convicted sex offender who had offended against young girls,
minimized the offense, and untruthfully testified she terminated their
relationship in April 2013, two months before Mr. Solomon's
probation officer discovered them sleeping together. Ms.
Cadiente's inability to comprehend the risk to her children, despite
receiving services directly addressing this issue, provides
substantial evidence supporting the trial court's findings of
dependency.
We too conclude that substantial evidence supports the findings of
dependency.
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REMOVAL OF CHILDREN FROM THE HOME
Cadiente also assigns error to the order removing her children from her
care.
We review dispositional decisions for abuse of discretion. In re
Dependencv of A.C., 74 Wn. App. 271, 873 P.2d 535 (1994). A trial court
abuses its discretion if its ruling is manifestly unreasonable, or is exercised on
untenable grounds, or for untenable reasons. State v. Rohrich, 149 Wn.2d 647,
654, 71 P.3d 638 (2003). A court's decision is manifestly unreasonable if it is
outside the range of acceptable choices. In re Marriage of Littlefield, 133 Wn.2d
39, 47, 940 P.2d 1362 (1997).
To remove a dependent child, the court must find (a) there is no parent or
guardian available to care for the child; (b) the parent, guardian, or legal
custodian is not willing to take custody of the child; or (c) that, by clear, cogent,
and convincing evidence, a manifest danger exists that the child will suffer
serious abuse or neglect ifthe child is not removed from the home. RCW
13.34.130(5). Here, the trial court found out-of-home placement was appropriate
both because Cadiente was not available to care for the children and because
there was a manifest danger of serious abuse or neglect. Cadiente argues that
substantial evidence supported neither basis.
First, she contends there was no reason to conclude she was not
available to care for her children. Cadiente believes being unavailable requires a
showing that she abandoned her children, was incarcerated, or was otherwise
physically absent. We disagree. A mother who fails to perceive that she is
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putting her children at risk by giving a sex offender access to the home is not
"available" to be the protector and guardian children are entitled to have. The
trial court appropriately concluded Cadiente was not available in the statutory
sense of that term.
Again citing M.S.D., Cadiente also argues that her relationship with
Solomon was insufficient to constitute manifest danger of abuse or neglect.
Again, we disagree. Cadiente's argument depends on having this court accept
as true her own testimony that she ended her relationship with Solomon as soon
as she found out that staying away from children was a condition of his parole.
The trial court was entitled to, and did, believe contrary testimony indicating that
she maintained the relationship, allowed Solomon to stay in her home, and
refused to accept that his conviction as a sex offender was anything more than a
technicality.
Where the Department seeks removal of an Indian child, the court must
also find that "active efforts" were made to prevent the breakup of an Indian
family. RCW 13.38.130(1). At a minimum, "active efforts" shall include:
a showing to the court that the department or supervising agency
social workers actively worked with the parent, parents, or Indian
custodian to engage them in remedial services and rehabilitation
programs to prevent the breakup of the family beyond simply
providing referrals to such services.
RCW 13.38.040(1 )(a)(i).
Cadiente alleges the Department did nothing to engage her in remedial
services and rehabilitation programs beyond merely referring her to such
services. She does not count the numerous services the Department involved
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her in during the course of the first dependency proceeding to help her identify
and protect against individuals who would pose a risk to her children. Several
witnesses, including a Lummi Nation social worker, testified that there were no
other services likely to correct Cadiente's parenting deficiencies. The services
the Department made available and Cadiente accepted included mental health
counseling for herself, therapy for her and her children, assorted parenting
classes, and the class where she specifically learned about sex offenders.
Notwithstanding these active efforts to prevent the breakup of the family,
Cadiente began and has maintained a relationship with a sex offender.
The trial court did not abuse its discretion when it found that the
Department made active efforts to prevent the breakup of an Indian family and its
efforts were unsuccessful.
To order an Indian child's removal, the court must also find that continued
custody of the child by the parent is likely to result in serious emotional or
physical damage to the child:
No involuntary foster care placement may be ordered in a child
custody proceeding in the absence of a determination, supported
by clear and convincing evidence, including testimony of qualified
expert witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or
physical damage to the child. For purposes of this subsection, any
harm that may result from interfering with the bond or attachment
between the foster parent and the child shall not be the sole basis
or primary reason for continuing the child in foster care.
RCW 13.38.130(2) (emphasis added). For the reasons discussed above with
respect to Cadiente's relationship with Solomon, we conclude the decision to
remove the children complied with this section.
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VISITATION
In the shelter care orders entered on March 28, 2013, at the beginning of
the dependency proceeding, the children were taken into Department custody.
The court ordered at that time that Cadiente would be allowed a total of four
hours supervised visitation with the children per week. Supervision for one two-
hour visit per week was provided by the Department. Supervision for the other
two-hour visit per week was supervised by Cadiente's mother, Barbara Cadiente.
In disposition orders entered on September 3, 2013, the two younger
children were placed with Barbara Cadiente. The parties agreed that it would be
inappropriate to have her continue as a visitation supervisor at the same time she
was the caregiver. The court ordered that the two-hour weekly visit supervised
by the Department would continue. The court stated that the second two-hour
weekly visit could continue ifthe parties found an acceptable supervisor.
Cadiente contends the disposition order imposed an inappropriate
limitation on her visitation. "Visitation may be limited or denied only ifthe court
determines that such limitation or denial is necessary to protect the child's health,
safety, or welfare." RCW 13.34.136(2)(b)(ii)(C). Cadiente has failed to show that
her visitation was limited. All parties agreed that four hours of visitation would be
good for the children. The amount of visitation permitted by the court remained
unchanged from the time of the shelter care order.
Cadiente appears to be arguing that the Department has a mandatory
duty to provide and pay for a supervisor for the second two-hour visit. She does
not identify the source of such a duty. The statute she cites, RCW
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13.34.136(2)(b)(ii)(D), merely states that the court and the Department "should
rely upon community resources, relatives, foster parents, and other appropriate
persons to provide transportation and supervision to the extent that such
resources are available, and appropriate, and the child's safety would not be
compromised." The order complied with this statute. We find no abuse of
discretion.
URINALYSIS
The dispositional order included a requirement, requested by the
Department, that Cadiente complete urinalysis testing if requested by the social
worker "with reasonable suspicion of use. Any missed or diluted UAs [urinalyses]
shall be considered dirty by the Department." Cadiente objected to this
requirement at the hearing and renews her objection on appeal. She contends a
urinalysis requirement is inappropriate given the absence of evidence that she
used intoxicating substances.
In supervising a dependency, the court may order services to correct
parental deficiencies and restore the family, keeping in mind that the number of
contacts the client is required to make should be minimized to the extent
possible:
The department and supervising agencies shall develop methods
for coordination of services to parents and children in child
dependency cases. To the maximum extent possible under current
funding levels, the department and supervising agencies must:
(b) Develop treatment plans for the individual needs of the
client in a manner that minimizes the number of contacts the client
is required to make.
RCW13.34.025(1)(b).
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No. 70865-1-1/12
Defending the urinalysis requirement, the Department characterizes it as
"a focused, specific, and understandable court-ordered service" that would not be
burdensome since it would only be requested if the social worker had a
reasonable suspicion that Cadiente was using drugs or alcohol.
At no point during the proceedings did the Department present evidence
that Cadiente had a history of using drugs or alcohol. Under these
circumstances, there is no basis at this time for putting Cadiente under this
additional restriction. The dispositional orders are remanded to have the
urinalysis provision stricken.
With the exception of the requirement for urinalysis testing, the orders of
dependency and disposition are affirmed.
WE CONCUR:
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