In Re The Dep Of IRM. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of: ) No. 80886-9-I
) (Consolidated with No.
I.R.M. and D.K.H., ) 80887-7-I; 80888-5-I)
)
Minor Children. ) DIVISION ONE
)
) ORDER WITHDRAWING
) OPINION, CHANGING
) CASE TITLE, AND
) SUBSTITUTING OPINION
)
The Supreme Court of Washington granted discretionary review of the
opinion filed on February 1, 2021, and on October 6, 2021 remanded the case with
instructions to change the case title consistent with In re the Welfare of K.D., 198
Wn.2d 67, 491 P.3d 154 (2021). This court has considered the order and on its
own motion a majority of the panel has determined that the mandate should be
recalled, the names of the parents should be removed from the opinion, the opinion
should be withdrawn, and a substitute opinion filed; now, therefore, it is hereby
ORDERED that the opinion filed on February 1, 2021 is withdrawn; and it is
further
ORDERED that the case title shall be changed consistent with K.D.; and it is
further
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of: ) No. 80886-9-I (Consolidated with
) No. 80887-7-I; 80888-5-I)
I.R.M., and D.K.H., )
) DIVISION ONE
Minor Children. )
) UNPUBLISHED OPINION
)
)
)
HAZELRIGG, J. — Parents appeal the trial court’s orders finding their children,
I.R.M. and D.K.H., dependent pursuant to RCW 13.34.030(6)(c). They also argue
that the court lacked authority to order services that were unrelated to the identified
parenting deficiencies. We hold that there was insufficient evidence for the court
to find I.R.M. and D.K.H. dependent under RCW 13.34.030(6)(c). We therefore
reverse the dependency determination.
FACTS
C.N.M. and D.A.H.1 reside together in Bellingham with their daughters
I.R.M. and D.K.H.2 C.N.M. is the biological mother of both girls. D.A.H. is the
1 During the pendency of this appeal, the mother filed a motion to correct the case title so
that the parents would be identified by their initials. On September 1, 2020, the Court Clerk denied
that motion. On October 29, 2020, a panel of judges denied the mother’s motion to modify the Court
Clerk’s September 1, 2020 ruling. The Supreme Court granted discretionary review of the opinion
filed on February 1, 2021 and on October 6, 2021 remanded the case with instructions to change
the case title consistent with In re the Welfare of K.D., 198 Wn.2d 67, 491 P.3d 154 (2021).
2 I.R.M.’s biological father entered into an order of dependency prior to trial, and is not a
party to this appeal.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80886-9-I/2
biological father of D.K.H., but parents both children as his own.3 At the time of
trial, I.R.M. was below the age of 10 and D.K.H. was below the age of six.
On or around April 5, 2019, Bellingham police visited the family’s apartment
to investigate a bicycle theft. The father was not there, but the mother let them in.
Both children were present. Officer Joel Douglas observed clothing and other
items “piled high” on the beds and standing water in a bathtub. The couch and
chair appeared to be the only places available to sleep.
On April 25, 2019, Department of Children, Youth, and Families
(Department) social worker Jessica Maden visited the family in response to a
referral by the apartment complex’s assistant manager that alleged inadequate
supervision of I.R.M. and D.K.H. and unsanitary home conditions. The father
brought the girls to the door but he would not allow Maden to enter the apartment
or look inside. I.R.M. was smiling and appeared to be in good health. When
Maden visited the residence again with her supervisor on May 9, 2019, both girls
appeared clean and healthy, and the residence appeared sanitary from what could
be seen in the living room.
During her investigation, staff members at the apartment complex told
Maden that the girls were sleeping on the floor with bike parts everywhere and that
they were frequently seen running around unsupervised. Maden also learned that
the children were not enrolled in school and that they were not receiving regular
medical or dental checkups.
3 On this basis, and because I.R.M.’s biological father is not a party to this appeal, any
further references to the “father” in this opinion are to D.A.H. Similarly, any use of “parents” refers
to C.N.M. and D.A.H.
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No. 80886-9-I/3
Maden repeatedly attempted to offer voluntary services to the parents, but
they refused to engage with the Department. Maden then scheduled a family team
decision meeting for June 11, 2019, but the parents did not attend. In June 2019,
the Department received two additional referrals regarding the family, including an
allegation that I.R.M. and D.K.H. had been left in the care of a nine-year old
neighbor for an extended period of time.
On June 18, 2019, police returned to the apartment to arrest the father and
serve a search warrant for stolen property. The children were not present at that
time because they were staying with their grandmother. Police took the father into
custody and searched the residence. Douglas testified that it appeared to be in
worse condition than it was in April, with more bicycle parts and frames, wet and
dirty clothes piled in various areas, and rotting food. Detective Daniel Kelsh
testified that there were cigarette butts floating in the bathtub, a large fixed blade
knife on the windowsill, a pellet gun propped up by the front door, and a stolen
bicycle. Kelsh testified that had the girls been present, he would have taken them
into protective custody due to the unsanitary conditions in the home. However, the
officers observed no sign of alcohol, illegal drugs, or drug paraphernalia.
On June 24, 2019, the Department developed a protective action plan that
allowed the girls’ grandmother to care for them on a temporary basis so the mother
could focus on getting the father out of jail. However, when the father was released
from jail about a week later, the grandmother would not tell either parent where the
girls were. On July 1, 2019, the grandmother dropped off the girls at the police
station and the family was reunited. Kelsh testified that the girls looked happy to
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see their parents. Although the Department asked police to take the children into
protective custody, they declined to do so at that time.
On July 5, 2019, the Department filed dependency petitions alleging that
I.R.M. and D.K.H. were abused or neglected pursuant to RCW 13.34.030(6)(b) or
had no parent, guardian, or custodian capable of adequately caring for then such
the circumstances constituted a danger of substantial damage to the their
psychological or physical development pursuant to RCW 13.34.030(6)(c). The
petitions alleged that the parents allowed unsanitary and unsafe conditions in the
home, failed to meet the children’s educational and medical needs, failed to
adequately supervise them, and were possibly abusing substances. The court
issued an order removing the children to shelter care and appointing Megan
Eggers as guardian ad litem (GAL).
On September 16, Eggers visited the parents’ apartment while the children
were in foster care. She testified that the apartment was “reasonably clean,” with
no dangerous or unsanitary conditions. It was much cleaner and neater than it
had been in June. The children’s beds were made with clean sheets and blankets,
and the clothes were hung up in the closets.
An eight-day dependency trial commenced on October 29, 2019. The court
considered 35 exhibits and heard the testimony of 12 witnesses, including both
parents. The GAL and Department social workers testified regarding their
concerns about living conditions in the residence and the importance of school
attendance and regular doctor and dental appointments. I.R.M.’s school principal
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No. 80886-9-I/5
testified regarding the importance of school for I.R.M., stating that she had fallen
behind academically since being pulled from school.
At the conclusion of the trial, the court rejected the allegation that I.R.M. and
D.K.H. were abused or neglected under RCW 13.34.060(6)(b) but found that they
had no parent capable of meeting their needs under RCW 13.34.060(c). In its
written findings of fact, the court specified that it based this finding on both parents’
“failure to provide safe and sanitary housing” and “failure to provide for the medical
and scholastic needs of the child[ren],” as well as the father’s “ongoing criminality.”
In its oral ruling, the court stated that it had “struggled with this decision, because
[they] [did] not believe that any one factor supports such a finding.” The court
nevertheless concluded that dependency was appropriate when various factors
were viewed as a whole, including criminal activity in the home, the father’s
frequent incarceration and its impact on the mother’s ability to parent, the children’s
sporadic school attendance, unsanitary conditions in the home, lack of medical
and dental care, and the parents’ unwillingness to accept professional advice. The
court specified that the Department did not prove any parental deficiencies related
to substance abuse or lack of supervision.
A disposition hearing immediately followed. Because it found no manifest
danger of serious abuse or neglect, the court ordered in-home placement over the
Department’s objection. The court ordered both parents to undergo random
urinalysis testing, substance abuse evaluations, and parenting instruction. The
court also ordered the mother to undergo a mental health assessment. The court
also ordered the parents to allow announced and unannounced visits to the home
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No. 80886-9-I/6
by the Department social worker and the GAL to demonstrate that their home was
safe. The written order stated that “In the dispositional phase, facts are sufficient”
to support these services.
Both parents appealed the dependency and disposition orders. On July 6,
2020, after more than six months of in-home dependency and the parents’
successful completion of services, the court granted the Department’s motion to
dismiss the dependency matters as to both children.
ANALYSIS
I. Standard of Review
Parents have a fundamental liberty interest in the care and welfare of their
minor children. In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d
452 (2007). The State has a corresponding interest to intervene to protect children
from serious parental deficiencies. Lee v. State of Wash., Dept. of Soc. and Health
Servs., 189 Wn. App. 381, 396, 357 P.3d 68 (2015). Unless a child’s right to
conditions of basic nurture, physical and mental health, or safety is jeopardized,
“the family unit should remain intact.” RCW 13.34.020. In balancing the legal
rights of parents against the rights of the child, the legislature has determined that
“the child’s health and safety shall be the paramount concern.” Id.; Schermer, 161
Wn.2d at 942.
Unlike a parental termination proceeding, a dependency hearing is “‘a
preliminary, remedial, nonadversary proceeding’ that does not permanently
deprive a parent of any rights.” In re Welfare of Key, 119 Wn.2d 600, 609, 836
P.2d 200 (1992) (quoting In re Dependency of A.W., 53 Wn. App. 22, 30, 765 P.2d
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No. 80886-9-I/7
307 (1988)). The primary purpose of a dependency hearing “is to allow courts to
order remedial measures to preserve and mend family ties.” In re Dependency of
T.L.G., 126 Wn. App. 181, 203, 108 P.3d 156 (2005)). To declare a child
dependent, the State must prove by a preponderance of the evidence that the child
meets one of the statutory definitions of dependency under RCW 13.34.030(6).
RCW 13.34.110(1); Key, 119 Wn.2d at 612.
We will affirm a dependency determination if substantial evidence supports
the trial court’s findings of fact and the findings, in turn, support the conclusions of
law. In re Dependency of M.S.D., 144 Wn. App. 468, 478, 182 P.3d 978 (2008).
“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 Wn. App. 733, 737, 300 P.3d 824(2013). In making this determination, this court does not weigh the evidence or
the credibility of witnesses. In re Dependency of M.P., 76 Wn. App. 87, 91, 882
P.2d 1180 (1994).
We review the juvenile court’s decision to order a particular service for
abuse of discretion. In re Dependency of D.C.-M., 162 Wn. App. 149, 158, 253
P.3d 112 (2011). A court abuses its discretion if the decision is manifestly
unreasonable or based on untenable grounds or untenable reasons. In re
Dependency of T.L.G., 139 Wn. App. 1, 15, 156 P.3d 222 (2007).
II. Mootness
As an initial matter, the Department asks this court to dismiss the appeal as
moot because the trial court dismissed the dependency at the end of the six-month
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No. 80886-9-I/8
dependency period. A case is moot and should be dismissed if the court can no
longer provide effective relief. State v. T.S.J.-M., 193 Wn.2d 450, 454, 441 P.3d
1181 (2019). We agree with the parents’ assertion that their appeal is not moot
because the court’s finding that the children were dependent under RCW
13.34.030(6)(c) could influence any future dependency case the Department may
initiate. See In re Welfare of Angelo H., 124 Wn. App. 578, 587, 102 P.3d 822(2004) (stating that services offered in prior dependencies are properly considered
as factual evidence in a current dependency).
In addition, we may review an otherwise moot case that presents an issue
of continuing and substantial public importance. In re Dependency of T.P., 12 Wn.
App. 2d 538, 545, 458 P.3d 825 (2020). To make this determination, we consider
whether “‘(1) the issue is of a public or private nature; (2) whether an authoritative
determination is desirable to provide future guidance to public officers; and (3)
whether the issue is likely to recur.’” Id., (quoting In re Marriage of Horner, 151
Wn.2d 884, 892, 93 P.3d 124 (2004)). The Department argues that the public
interest exception does not apply because the appeal presents a highly fact-
specific issue that is unlikely to recur. But there is a strong public interest in
ensuring that courts properly apply the law and act within their authority in making
dependency determinations. There is also a strong public interest in offering
guidance to the Department as to what sort of facts may or may not be deemed
sufficient as it weighs the critical decision of whether to proceed with dependency
proceedings in each case. We will therefore consider the parents’ appeal.
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No. 80886-9-I/9
III. Dependency Finding
Both parents challenge the dependency court’s finding that the Department
proved by a preponderance of the evidence that the children were dependent
under RCW 13.34.030(6)(c), which provides that a child is dependent when the
child “[h]as 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.” The trial court’s finding was based
on three categories of parental deficiencies: (1) failure to provide clean and
sanitary housing, (2) failure to meet the children’s medical, dental, and scholastic
needs, and (3) chaos in the children’s lives caused by the father’s ongoing criminal
activity in the home. We agree that insufficient evidence supported the bases for
the court’s dependency finding.
A. Conditions of the Home
The parents do not dispute that substantial evidence demonstrates that the
residence was unsafe and unsanitary for children when police searched it on June
18, 2019. Police testimony and photographic evidence showed that on that date,
the apartment was strewn with piles of clothes, bicycle parts, rotting food, and
hazards such as knives, a pellet gun, and cigarette butts floating in the bathtub.
But both parents testified that the children were staying with their grandmother at
that time. Although one of the officers noted some untidiness during the April 2019
visit, he testified that it was much worse in June when the children were not there.4
4 Although the court recalled that Douglas observed rotting food, bad odors, and fruit flies
during the April 2019 visit, he testified that he made those observations during the June 2019 visit.
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No. 80886-9-I/10
In contrast, the most recent evidence showed that the parents had remedied those
conditions prior to the dependency trial. The GAL testified that when she visited
the home in September 2019, it was reasonably clean, with no dangerous or
unsanitary conditions. And Jennifer Maza, case manager for the Opportunity
Council, also testified that she had no cleanliness concerns when she visited in
September 2019.
The Department argues that there was no evidence the September 2019
improvement was a lasting change or that the parents understood the safety
concerns of the condition of the home on June 18. But when read in context, the
parents’ testimony indicates that their perception of safety concerns appropriately
differed when the children were not at home. The Department bears the burden
of proving that a child is presently dependent at the time of the dependency trial.
RCW 13.34.110(1). The evidence showed that the conditions in June 2019 no
longer existed in September 2019. And there is no evidence that the parents had
previously allowed the home to deteriorate to that extent when the children were
present. Thus, the court erred in relying on the condition of the home in June 2019
as a basis for dependency.
B. Medical and Dental Checkups
The parents acknowledge that the evidence showed they did not take the
children for regular medical or dental checkups. They argue, however, that the
court erred in finding the children dependent on this basis because there was no
admissible evidence that this placed them at a genuine risk of specific harm. A
dependency determination under RCW 13.34.030(6)(c) does not require proof of
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No. 80886-9-I/11
actual harm, only a danger of harm. Schermer, 161 Wn.2d at 951. The court has
broad discretion in determining whether there is a risk of harm. Id. Here, the only
nonspeculative risk of harm regarding the children’s health was testimony that they
had dental cavities. However, the court ruled this hearsay testimony inadmissible
to show that the children had cavities, and the Department does not argue that it
did so in error. Although Department social worker Michelle Vandenhaak testified
that she was concerned about “critical dental care,” there was no expert testimony
or other evidence supporting the basis of her concern. Further, there was no other
evidence that the children appeared ill or otherwise in need of medical care.
Substantial evidence did not support this finding.
C. Scholastic Needs
Both parents argue that the court erred in finding them to be inadequate
parents for failing to compel D.K.H. to go to school. They contend that this finding
runs contrary to Washington’s compulsory education statute.
The trial court faulted the parents for choosing to remove D.K.H. from school
after she was assessed and recommended to be on an Individualized Education
Plan (IEP), despite the fact that she was younger than six years old at the time.
The court stated that this decision “demonstrates an ignorance about child
development and an inability to provide adequately for the children.” But only
children eight years and above must attend school in Washington. RCW
28A.225.010(1). If a six or seven-year old child is enrolled in public school, the
child must attend “for the full time that school is in session.” RCW 28A.225.015(1).
A child younger than six years of age is not subject to that requirement. This
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No. 80886-9-I/12
represents the Legislature’s determination that education is not so vital to the
development of a child younger than six years of age as to be compulsory. Thus,
we agree that the court erred in relying on D.K.H.’s removal from school as a basis
for dependency.
Based on her age when her parents enrolled her in school, I.R.M. was
required by statute to continue attending throughout the school year. RCW
28A.225.015(1). Chapter 28A.225 RCW empowers schools to enforce attendance
via truancy proceedings. On this basis, the mother asserts that granting the
Department’s dependency petition based on I.R.M.’s school attendance usurped
the school district’s role in truancy proceedings. We disagree. Finding the children
dependent on this basis does not compel them to attend school. Rather, such a
finding authorizes the Department to provide services to remedy the parental
deficiency. The court did not err on this basis. However, the mother testified at
trial that both girls were enrolled in school and that they would remain in school.
Thus, the court erred in finding I.R.M. dependent on this basis at the time of trial.
RCW 13.34.110(1).
D. Father’s Criminal Justice System Involvement
The only remaining parenting deficiency expressed by the court was father’s
ongoing involvement in the criminal justice system. The court may consider a
parent’s criminal behavior and history in evaluating parental fitness, as it may
negatively impact the welfare of the child. In re Dependency of J.B.S., 123 Wn.2d
1, 11-12, 863 P.2d 1344 (1993). The father acknowledges that he had several
pending criminal charges at the time of the dependency trial. He does not dispute
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No. 80886-9-I/13
that the criminal activity in the home may impact the girls or that his absences
negatively impact his ability to parent. Rather, he contends that the court erred in
relying on his criminal history as a basis for finding the girls dependent because
the mother could adequately care for them during his absence.
“A child is not dependent if a capable parent exists.” In re Welfare of Ca.R.,
191 Wn. App. 601, 608, 365 P.3d 186 (2015). In its oral ruling, the court stated
that the mother’s ability to care for the children appears to be limited when the
father is incarcerated. However, the court also specified that lack of supervision
was not a concern. And the mother testified that she seeks help from relatives
during the father’s frequent, yet typically brief, periods of incarceration. Although
there is substantial evidence that the father’s arrests and incarceration negatively
impact the children, the evidence is insufficient to establish that there is “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).
IV. Services
Both parents argue that the court lacked authority to order them to undergo
random urinalysis and substance abuse evaluations because the court found no
parental deficiencies related to drug use and there was no credible evidence to
support the need for those services as part of the disposition. The mother similarly
argues that the court lacked authority to order her to undergo a mental health
assessment. The Department properly concedes that the trial court erred in
ordering these services.
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“The dependency statutes provide a broad framework from which the
juvenile court may order services to facilitate parent-child reunification.” D.C.-M.,
162 Wn. App. at 158. The court is authorized to order the provision of services
only “for the specific purpose of making reasonable efforts to remedy parental
deficiencies identified in a dependency proceeding under this chapter.” RCW
13.34.025(2)(d). Where the evidence is insufficient to show that a parent has an
issue that requires remedying as a parental deficiency, a juvenile court abuses its
discretion by ordering services related to that issue. In re Dependency of W.W.S.,
14 Wn. App. 2d 342, 364-65, 469 P.3d 1190 (2020).
Here, the only identified parenting deficiencies for both parents were “failure
to provide safe and sanitary housing” and “failure to provide for [I.R.M. and
D.K.H.’s] medical and scholastic needs,” plus “ongoing criminality” with respect to
the father. Random urinalysis, substance abuse evaluation, and mental health
evaluation are entirely unrelated to those identified parenting deficiencies.
Moreover, even if the court had found parenting deficiencies based on drug
use or mental health, the Department did not present sufficient evidence to support
them. Although the rules of evidence do not apply at a dispositional hearing in
juvenile court, due process requires that the disposition be based on reliable
evidence. W.W.S., 14 Wn. App. 2d at 366.
The only non hearsay evidence regarding possible drug use came from the
apartment manager, who testified that the parents’ behavior sometimes seemed
“off” to her, although she could not say whether drug use was the reason.
Department social worker Vandenhaak offered hearsay testimony that unnamed
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friends and family members told her the parents had substance abuse problems.
Although police officers testified that they observed no evidence of substance use
in the apartment, Vandenhaak requested urinalysis “just to rule out any allegations
of drug use.” The court agreed, and ordered the parents to undergo urinalysis to
“demonstrate sobriety.” Such reasoning “would justify subjecting any parent to
urinalysis regardless of whether there was evidence of drug use.” Id. at 365
(emphasis omitted). This was an abuse of discretion.
Similarly, the only evidence the Department presented regarding the
mother’s mental health was Vandenhaak’s testimony that the mother seemed
depressed and had missed two visits with the children. The court ordered a mental
health evaluation to “help her [ ] be a better parent to her children.” But there was
no evidence or testimony that the mother’s mental health affected her ability to
parent, neither had the Department alleged any underlying mental health issues
as to the mother. This too was an abuse of discretion.
The mother additionally asserts that the random urinalysis requirement and
the requirement to “[a]llow announced and unannounced visits to the home” violate
her privacy rights without authority of law under Article I, section 7 of the
Washington State Constitution. “If it is not necessary to reach a constitutional
question, it is well established policy that we should decline to do so.” State v.
Speaks, 119 Wn.2d 204, 207, 829 P.2d 1096 (1992); W.W.S., 14 Wn. App. 2d at
366, n. 10. Because we accept the Department’s concession that the court abused
its discretion by ordering the parents to submit to random urinalysis, we need not
address the mother’s constitutional challenge to that requirement.
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We also decline to address her constitutional challenge to the home visit
requirement, which was raised for the first time on appeal. The general rule is that
a party’s failure to raise an issue below waives the issue on appeal unless the party
can show the presence of a manifest error affecting a constitutional right. RAP
2.5(a)(3). Unlike the dependency finding, the imposition of this requirement carries
no collateral consequences. Because the issue is technically moot and was raised
for the first time on appeal, we decline to reach it, regardless of whether the error
was manifest.
Reversed.
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ORDERED that the names of the parents be removed from the opinion; and
it is further
ORDERED that a substitute unpublished opinion shall be filed.
2