In Re The Dependency Of: A.n.b. Carlos Benitez, Jr., App. v. State Of Wa., Dshs, Res. ( 2013 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Welfare of
A.N.B. (D.O.B. 2/8/99), A.C.B. No. 68713-1-1 Consolid.w/ era
(D.O.B. 12/15/99), A.J.B. (D.O.B. No. 68714-0-1,68715-8-1
5/16/02), and A.J.B. (D.O.B. 68716-6-1
9/15/06),
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DIVISION ONE
Minor Children. 3S.
O 3<^
CARLOS BENITEZ, JR., XT
XT
Appellant,
v.
UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent.
FILED: April 22, 2013
Spearman, A.C.J. — Carlos Benitez, Jr. appeals from the superior court's
finding that his four children are dependent and from its denial of his request to
place the children with their paternal grandmother. Because the court's finding of
STOrATLCOOFURT
dependency is supported by substantial evidence and the court did not abuse its
discretion in denying Benitez's placement request, we affirm.
FACTS
Carlos Benitez and Evangelina Ruiz are parents to four children, A.N.B.
(D.O.B. 2/8/99), A.C.B. (D.O.B. 12/15/99), A.J.B. (D.O.B. 5/16/02), and A.J.B.
No. 68713-1-1/2
(D.O.B. 9/15/06). The Department of Social and Health Services (DSHS)
removed all four children from their parents in 2008 and initiated a dependency
action because of domestic violence between the parents. By June 2010, the
court had returned all four children to the mother and dismissed the dependency.
On December 19, 2011, at which time Benitez was incarcerated, DSHS
removed all four children from their mother's care due to allegations that she was
unable to protect the children from criminal activity and possible sexual and
physical abuse. DSHS filed a dependency petition the same day. The trial court
entered default shelter care orders against Benitez and ordered the children
placed in foster care. The court directed DSHS to investigate whether the
children's relatives could offer appropriate placement.
On March 20, 2012, Benitez brought a motion to place A.J.B. (D.O.B.
5/16/02) with her paternal grandmother. DSHS opposed this proposed placement
due to allegations of physical and sexual abuse in the grandmother's home when
the children were younger. The mother also opposed the placement. A.J.B.
submitted a note to the court asking not to be placed with her paternal
grandmother. A.C.B. informed the court that the paternal grandmother had hit the
children in the past and requested that none of the children be placed with her.
A.N.B. told the court that her paternal grandmother was "not a safe person"
because she was abusive to the children and had inappropriately touched them.
The court denied Benitez's motion to place A.J.B. with her paternal grandmother.
No. 68713-1-1/3
At the dependency fact-finding hearing on April 18, the children's mother
stipulated they were dependent as to her and agreed to continue their placement
in foster care. Benitez acknowledged that he would be incarcerated until 2031
and was unavailable to parent his children, but contested dependency on the
basis that, under RCW 13.34.030(6)(c), they had a "guardian" or "custodian"
available to care for them. He specifically mentioned their paternal grandmother.
Benitez expressed his wish to have all four children placed with their paternal
grandmother.
The trial court found that Benitez was "unavailable to parent potentially for
the entire minority of these children" and found each child dependent under RCW
13.34.030(6)(c) in that he or she "[h]as 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, . . ." Verbatim Report of Proceedings (VRP) (4/18/12 RP) at 13;
Clerk's Papers (CP) at 106. The court entered an order of dependency and
disposition, ordering among other things that the children remain in foster care or
suitable other placement.1.
Benitez filed another motion to change the placement of all four children to
the paternal grandmother on May 29, 2012. On June 26, the court considered the
1The court conducted a first review hearing on July 3, 2012 and a permanency planning
hearing on November 27, 2012. The court reviewed placement and maintained all of the children
in foster care, where they currently remain. Issues of placement continue to be subject to regular
review and modification at dependency review hearings. RCW 13.34.138.
No. 68713-1-1/4
motion and the mother's opposition. The court denied the motion, finding that
placement with the paternal grandmother "would hinder reunification with the
mother and could potentially traumatize the children." CP at 189.
Benitez appeals the dependency and disposition order.
DISCUSSION
Finding of Dependency
Benitez first challenges the court's determination that all four children were
dependent. A trial court's findings of fact entered following a dependency hearing
must be supported by substantial evidence in the record and must, in turn,
support the trial court's conclusions. In re Dependency of C.B., A.B.. and B.B., 79
Wn. App. 686, 692, 904 P.2d 1171 (1995).
To find a child dependent, the court must find by a preponderance of the
evidence that the child meets one of the statutory definitions under RCW
13.34.030(6). In re Key, 119 Wn.2d 600, 612, 836 P.2d 200 (1992). Here, the
State alleged and the courtfound that each child was dependent under RCW
13.34.030(6)(c) in that he or she "[h]as no parent, guardian, or custodian capable
of adequately caring for the child, such that the child is in circumstances which
constitute a danger ofsubstantial damage to the child's psychological or physical
development, . .."
The sole basis for Benitez's challenge to the trial court's finding of
dependency as to all four children is his contention that there was a "guardian" or
"custodian" capable of caring for the children-specifically, their paternal
No. 68713-1-1/5
grandmother. He does not challenge the court's finding that he and the mother
were not capable of caring for the children.
Benitez's contention is not well taken. The dependency statute defines
"guardian" as a person who "(a) [h]as been appointed as the guardian of a child
in a legal proceeding, including a guardian appointed pursuant to chapter 13.36
RCW; and (b) has the legal right to custody of the child pursuant to such
appointment." RCW 13.34.030(9). The Basic Juvenile Court Act defines
"custodian" as "that person who has the legal right to custody of the child."2 RCW
13.04.011 (6). Benitez did not produce any evidence before the trial court to show
that the paternal grandmother had been appointed as the guardian of the
children in a legal proceeding or that she had the legal right to custody of the
children.
The mother stipulated to a finding of dependency, and Benitez admitted
that due to his incarceration until 2031 he is unavailable to care for his children.
4/18/12 RP 7. On appeal, Benitez points to no authority or evidence in the record
to show that the paternal grandmother or any other family members met the
definition of "guardian" or "custodian." Substantial evidence supports the finding
that all four children were dependent under RCW 13.34.030(6)(c).
Placement Decision
Benitez also challenges the trial court's placement decision made as part
of its disposition order, contending its decision was based on evidence shown to
!The dependency statute does not define "custodian."
No. 68713-1-1/6
be false. We review placement decisions in a dependency proceeding for abuse
of discretion. In re Dependency of A.C., 74 Wn. App. 271, 275, 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).
When determining placement, the court's paramount concern is the best
interests of the child. In re Dependency of A.N., 92 Wn. App. 249, 252, 973 P.2d
1 (1998). Absent good cause, DSHS "shall follow the wishes of the natural parent
regarding the placement of the child in accordance with RCW 13.34.260." RCW
13.34.130(2). DSHS may only place a child with a non-relative when such
placement is in the child's best interests. RCW 13.34.130(3). Furthermore,
[u]nless there is reasonable cause to believe that the health, safety,
or welfare of the child would be jeopardized or that efforts to reunite
the parent and child will be hindered, the child shall be placed with
a person who is willing, appropriate, and available to care for the
child, and who is: (I) Related to the child as defined in RCW
74.15.020(2)(a) with whom the child has a relationship and is
comfortable; or (II) a suitable person as described in subsection
(1)(b) of this section.
Id Subsection (1)(b) provides that DSHS has the authority to place the child in,
among other placements, "a foster family home or group care facility licensed
pursuant to chapter 74.15 RCW." RCW 13.34.130(1)(b)(ii).
We conclude the trial court did not abuse its discretion in denying
Benitez's request to place the children with their paternal grandmother and
determining that continued placement in foster care was in their best interests.
No. 68713-1-1/7
On March 20, 2012, several weeks before the dependency and disposition
hearing, the court heard argument about moving A.J.B. to the paternal
grandmother's home. At that hearing, three children provided statements to the
court indicating that they wished not to be placed with the paternal grandmother
and that she had physically or sexually abused the children in the past. DSHS
and the children's mother also opposed placement with her. At the dependency
and disposition hearing, Benitez failed to refute the concerns that were raised
about the paternal grandmother at the March 20 hearing. The evidence provided
good cause not to follow Benitez's wishes regarding placement, particularly
where the other natural parent opposed such placement.
Benitez contends on appeal that the accusations against the paternal
grandmother were shown to be false or were withdrawn when one of the
children, A.N.B., admitted her falsehoods to the court at the dependency and
disposition hearing. The record does not support this claim. Benitez relies on the
following statements made by A.N.B. after the court found dependency and then
spoke with the children. A.N.B. stated that she was not ready to return to her
mother but that she had identified a family member with whom she might be
placed. She then had the following dialogue with the court:
A.N.B.: And the stuff I said before was just all a lie.
THE COURT: Which stuff was that?
A.N.B.: About my dad and stuff.
THE COURT: Okay, and why did that happen?
A.N.B.: Because I wasn't thinking straight and when I said that I just
wanted to go back home but I realized that itwas all wrong.
No. 68713-1-1/8
THE COURT: Okay. All right, well, thank you for straightening that
out for me.
VRP (4/18/12) at 18-19. While A.N.B. admitted to previously lying, she clarified
that she lied about what she said "about my dad and stuff." A.N.B. did not
withdraw her claim that her paternal grandmother hit and inappropriately touched
the children, nor did A.C.B. or A.J.B. withdraw their previous statements.
Affirmed.
WE CONCUR:
O^-te/wa-, r).Co.
feate, I