In Re The Dependency Of V.w. ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of:
No. 84395-8-I
V.W.,
DIVISION ONE
Minor Child.
UNPUBLISHED OPINION
CHUNG, J. — Infant V.W. struggled to gain weight in the care of his
mother, M.W., who has cognitive disabilities. After several hospital stays, V.W.
had a nasogastric (NG) tube inserted to ensure adequate nutrition. M.W. was
unable to learn how to properly use the NG tube. Based on concerns about
V.W.’s failure to thrive in M.W.’s care, the Department of Children, Youth, and
Families (the Department) petitioned for dependency for V.W., resulting in an
order of dependency and out-of-home placement.
M.W. appeals the finding of dependency based on abuse or neglect and
the trial court’s determination that the Department made reasonable efforts to
prevent the need for V.W.’s removal from the home. M.W. also challenges the
court’s disposition ordering her to refrain from cannabis use. We affirm.
FACTS
M.W. first became involved with the Department in 2012, when B.W., her
10-month-old child, struggled to gain weight. The Department filed a petition for
No. 84395-8-I/2
dependency, to which both parents agreed. Social workers observed that M.W.
and the father were not feeding B.W. adequately, did not appear to understand
his development needs, and did not follow directions for feeding. A psychological
assessment focused on parenting capacity or fitness to parent diagnosed M.W.
with cognitive difficulties, including borderline intelligence and Cognitive Disorder
NOS. 1 Psychological testing showed that M.W.’s ability to recall verbal and visual
information after a 20- to 30-minute delay was in the “Extremely Low” range. Her
delayed memory performance was consistent with Cognitive Disorder. The report
identified weaknesses such as “limited intelligence, poor memory functioning,
and extremely poor academic skills. She lacks basic skills to structure, organize
or plan.” Additionally, M.W. “does not appear to understand what led to her child
being placed in foster care, and does not consider what she provided to be
abusive or neglectful.” The assessment noted that “[t]o be helpful for her services
need to accommodate her learning disabilities, limited intelligence, and memory
problems. She should not be expected to read and comprehend what she reads.”
M.W. subsequently relinquished her rights to B.W.
The child who is the subject of this dependency action, V.W., was born in
February 2021 to M.W. and an unknown father. 2 The Department received a
“risk-only intake” shortly after M.W. gave birth to V.W. due to its previous
1 “NOS” means not otherwise specified.
2 While V.W.’s birth certificate names M.W.’s husband as the father, M.W. acknowledges
that her husband is not the biological father, and a paternity test confirms this. M.W. does not
know the name or whereabouts of her husband or V.W.’s biological father. At the time of the trial,
M.W.’s husband was seeking to disestablish paternity and dissolve the marriage.
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involvement with B.W., as well as possible instability in M.W.’s housing situation
in a “tiny house village.” 3
In May 2021, the Department received an intake reporting that 3-month-
old V.W. was admitted to Swedish Hospital for inadequate weight gain and failure
to thrive, with concerns that he was not being fed enough. Dr. Mark Johnson,
primary care physician for M.W. and V.W., made the referral because V.W. was
not gaining weight as needed for proper development. Dr. Johnson testified that
“despite all the medical interventions I recommended and knew of [V.W.] was still
not gaining weight appropriately. When [V.W.] was in the hospital with all the
support and all the nursing care, [V.W.] was able to gain weight. But when [V.W]
wasn’t in the hospital, he wasn’t gaining weight.”
During V.W.’s stay at Swedish Hospital, social worker Alizia Shook
worked with M.W. She testified that M.W. was frustrated and did not have a lot of
patience with V.W. during feeding. Shook explained that M.W. was required to be
present in the room for 24 hours while V.W. was gaining weight before discharge.
However, V.W. lost weight during the time he was in M.W.’s care at the hospital.
In order to discharge successfully, Shook and the Department worked to create a
plan for additional community health supports and resources to assist M.W.
3 A tiny house village is comprised of small units, each with power and a shared kitchen
and bathroom. The record is unclear as to whether each unit has running water. M.W. testified
that she had running water. However, social workers testified the units did not have running
water.
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Shook believed the Department needed to stay involved due to concerns V.W.
would lose weight upon returning home to fulltime care by M.W.4
Swedish Hospital discharged V.W. to his mother’s care. Eight days after
V.W. left the hospital, Dr. Johnson, noted that his weight had decreased, he had
an elevated pulse, and he showed evidence of dehydration. M.W. took V.W. to
Seattle Children’s Hospital (SCH). After several days in the hospital, medical
testing revealed no medical diagnosis to explain V.W.’s weight loss. SCH
physician Dr. Jessica Meikle believed his faltering growth was due to inadequate
formula intake because of feeding difficulty. V.W. was a “tricky feeder” and was
not meeting feeding goals, even when fed by experienced staff. Additionally, Dr.
Meikle was “concerned that perhaps he wasn’t offered enough opportunities to
feed based on his mother’s recall of the feeding regimen and what the nurses
observed in the hospital of her ability to stick to a feeding schedule.” A nurse
observed M.W.’s frustration and overheard her tell a fussing V.W., “Why don’t
you just shut up already. You have kept me up since two a.m.”
As a result of V.W.’s inadequate formula intake by mouth, SCH placed an
NG tube and established a strict schedule of seven feeds a day with formula
4 The Department’s petition alleged additional facts relating to V.W.’s earlier hospital
stays. For example, it alleges that when M.W. provided care, the time between feeds was too
long and the feeds themselves were too short. It also alleged that despite the nursing team
providing M.W. with extensive education, reminders, and prompts for feedings, M.W. was
“inconsistent” in her ability to provide care including properly mixing formula and adding extra
formula “for the calories” and that the incorrect formula to water ratio can lead to dehydration. But
at trial, the evidence relating to feeding deficiencies focused primarily on the later hospital stay at
Seattle Children’s, through testimony from Dr. Meikle, nurses, and social workers from Seattle
Children’s. We do not consider the unsupported allegations from the petition.
4
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offered by mouth and the residual fed through the NG tube. An NG tube goes
into the nostril and down to sit in the stomach. Caring for an NG tube requires
training in feeding and basic maintenance, as well as additional training in how to
place the tube in the nose and stomach. The first step for an NG tube feed
involves mixing the formula to the dietician’s recommendation. For pump-fed NG
tubes, the caregiver must insert a cartridge into the pump and press a button in
order to prime the tubing to get the air out of the line. Then, the caregiver
programs the pump with the rate and dose of the feed. 5 Prior to attaching the
pump to the NG tube, the caregiver must verify the placement of the NG tube in
the stomach by injecting a small amount of air with a syringe and listening to the
stomach with a stethoscope. Once placement is confirmed, the caregiver
connects the tube from the pump to the NG tube and starts the pump. If
programmed correctly, the pump will provide the feed and stop automatically.
When the feeding is completed, the NG tube must be flushed with water. NG
tube care also requires changing the tape that secures the tube to the face.
The hospital provided M.W. with training on how to use the NG tube, but
she had significant difficulty determining the amount of formula to feed and
programming the pump. M.W. was never able to master the process of tube
feeding. She also refused to document V.W.’s intake on a feeding chart. A
pediatric nurse with SCH testified that M.W. “seemed to be under a lot of stress
and frustrat[ed] with being in the hospital and with needing to learn how to use
5 Rate is how fast the feed will go, while dose is the volume the patient will receive.
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No. 84395-8-I/6
the NG and how to use the pump.” Jennifer Hoerner, a SCH social worker,
similarly testified that M.W. “was often frustrated and often overwhelmed,”
particularly with recording feeds and learning the NG tube and pump. M.W.
expressed to Hoerner that she would not follow the feeding plan or record the
feeds. At one point, Hoerner ended the requirement of filling out the feeding chart
because “it seemed counterproductive at the time because she wasn’t doing it
anyway, and it was creating extra stress for her to be asked about that.” Hoerner
was concerned that V.W. would not be safe if discharged to his mother because
“[M.W.] was very clear that she would not be following the recommended feeding
plan . . . and she struggled with learning the—the care through the NG . . . .”
When V.W. was nearing discharge, M.W. was required to complete a 24-
hour room-in where she would provide 100 percent of his care, but she was
unable to successfully do so. The Department filed for dependency in June 2021.
The court held an uncontested shelter care hearing, and V.W. was placed in the
care of Felicia Parker and Christina Stevens, M.W.’s aunt and her wife. Parker
and Stevens live in Tacoma. The court specified a minimum of six hours of
monitored family time for M.W., but feeding could be provided only by those who
had completed NG tube training.
V.W. has lived with Parker and Stevens since the shelter care hearing.
While with Parker and Stevens, the Department has facilitated visits for M.W. and
additional NG tube training sessions.
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The court held a dependency hearing in June 2022. After several days of
testimony by doctors, nurses, social workers, and M.W., the trial court found
V.W. to be dependent. The court also ordered continued placement out-of-home
with Parker and Stevens. And the court ordered services including a
psychological evaluation, parenting instruction, NG tube feeding training, random
urinalyses (UAs) for 90 days, and engaging with Dr. Johnson and a trained
addiction physician or pain management consultant for drug assessment and use
of a supplement called Kratom. 6
M.W. appeals the order of dependency, out-of-home placement, and
disposition.
DISCUSSION
“Dependency proceedings are designed to protect children from harm,
reunite families, and help parents alleviate the problems that led to intervention.”
Dep’t of Soc. & Health Servs. v. Fox, 192 Wn. App. 512, 523, 371 P.3d 537(2016). A dependency proceeding allows courts to order remedial measures to
preserve and repair family ties. Id. To declare a child dependent, the court must
hold a hearing on the dependency petition. RCW 13.34.110(1). “A dependency
hearing is a fact-finding inquiry, the purpose of which is to determine whether the
State can meet its burden of showing the child is dependent as defined by
statute.” In re Dependency of K.N.J., 171 Wn.2d 568, 579, 257 P.3d 522 (2011).
6 At the time of the trial, M.W. reported daily use of Kratom, a legal supplement with
opioid-like properties.
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The Department has the burden of establishing by a preponderance of the
evidence that a child is dependent under RCW 13.34.030. RCW 13.34.110(1);
K.N.J., 171 Wn.2d at 580.
Under RCW 13.34.030(6), a dependent child is any child who
(a) Has been abandoned;
(b) Is abused or neglected as defined in chapter 26.44 RCW by a
person legally responsible for the care of the child;
(c) 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.
If the court finds the State has proven the child is dependent under RCW
13.34.030(6), the court must then determine placement of the child and the
services to be provided. In re Dependency of Schermer, 161 Wn.2d 927, 942,
169 P.3d 452 (2007).
An appellate court reviews an order of dependency to determine whether
substantial evidence supports the court’s findings of fact and whether those
findings support the conclusions of law. In re Welfare of X.T., 174 Wn. App. 733,
737, 300 P.3d 824 (2013). The reviewing court does not reweigh evidence or
determine credibility. Id.M.W. challenges the court’s finding of dependency under RCW
13.34.030(6)(b), V.W.’s out-of-home placement, and the cannabis prohibition in
her disposition.
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I. Challenged Findings of Fact
M.W. challenges several of the trial court’s findings of fact. 7 We review
findings of fact for substantial evidence, which exists 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 Dependency of A.C., 1 Wn.3d 186,
193, 525 P.3d 177 (2023). Unchallenged findings of fact are verities on appeal. In
re Est. of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004).
A. M.W.’s Role in Causing V.W.’s Weight Loss 8
In finding of fact 2.2.13, the trial court states, “it is more probable than not
that [V.W.’s] weight losses while in [M.W.’s] care were substantially or wholly due
to [M.W.’s] failing to provide [V.W.] sufficient opportunities to feed and then
prematurely ending feedings out of frustration and impatience.” In finding of fact
2.2.14, the court discusses Dr. Johnson’s concern that M.W. was not feeding
V.W. sufficient calories or liquids and notes that Dr. Johnson was concerned the
deficient feedings “could cause a progressive positive feedback loop, meaning
her deficient feedings could lead to [V.W] refusing food and fluids,” which could
possibly result in death. Finding of fact 2.2.15 states “the progressive positive
feedback loop concern appears to have been realized,” noting that V.W. required
7 M.W. cites the court’s findings that she was not following written instructions or
completing the feeding charts (finding of fact 2.2.8), claiming the court faulted her for these issues
despite evidence that she could not comprehend and had limited ability to write. She argues, “[t]o
the extent the court relied on these findings to support its ultimate findings that the Department
made reasonable efforts or that [she] neglected V.W., they lack substantial evidence.” Based on
this argument, rather than challenging the finding of fact, M.W. challenges whether the finding of
fact supports the court’s conclusions of law on neglect and reasonable efforts.
8 Findings of fact 2.2.13, .14, .15, .16.
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No. 84395-8-I/10
an NG tube to ensure adequate nutrition and did not develop an oral aversion.
Finding of fact 2.2.16 relies on the previous findings to find it probable that M.W.
“induced a progressive positive feedback loop, i.e., that her deficient feeding
exacerbated his feeding issues,” leading to the need for the NG tube, and that
her deficient care “placed his health in clear and present danger.” M.W. argues
these findings of fact misconstrue the medical evidence.
At trial, a pediatric nurse from SCH testified that V.W. was a “tricky feeder”
even for an experienced feeder, noting, “I don’t think even myself could get him
to take an entire bottle just on his own by mouth.” Dr. Johnson stated that V.W.
was more difficult to feed than most babies and had “a difficult time ingesting
sufficient calories to maintain his growth curve.”
Dr. Johnson’s testimony about the “progressive positive feedback loop”
pertained to his concerns about possible repercussions from dehydration. He
stated that “[d]ehydration can be a progressive feedback loop where dehydrated
children will refuse additional food, additional fluid, and eventually get to the point
where it can cause complications that could be severe.” 9 However, Dr. Johnson
did not testify that V.W. was experiencing this feedback loop, but rather that his
signs of dehydration were concerning because the problem could arise as a
result. Thus, to the extent that the court found a “progressive positive feedback
loop” had been realized (finding of fact 2.2.15) and that M.W. induced this loop
9 (emphasis added).
10
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(finding of fact 2.2.16), these findings are unsupported by substantial evidence in
the record.
Nevertheless, in addition to evidence that V.W. was difficult to feed, the
testimony and unchallenged finding of fact 2.2.12 also establish that M.W. was
often frustrated and impatient during the feeds and would end them too early.
Also unchallenged was the court’s finding that it “credits [SCH pediatrician] Dr.
Meikle’s conclusion that M.W. did not offer V.W. enough opportunities to feed.” 10
Therefore, substantial evidence supports the court’s alternative phrasing in
finding of fact 2.2.16 that M.W.’s “deficient feeding exacerbated his feeding
issues such that [V.W.] needed an NG tube.”
Thus, while V.W.’s weight loss may not have been “wholly” due to M.W.’s
failure to provide adequate opportunities to feed, the evidence shows that V.W.
could take in sufficient calories by mouth during his hospitalization at Swedish
when cared for by the nurses, but lost weight when M.W. was responsible for
care and after discharge. 11 In the hospital, M.W. demonstrated frustration and
impatience and missed nighttime feedings. 12 These problems compounded an
10 Dr. Meikle did not testify directly to this conclusion but said she was “concerned that
perhaps he wasn’t offered enough opportunities to feed based on his mother’s recall of the
feeding regimen and what the nurses observed in the hospital . . . .”. The unchallenged finding of
fact 2.2.11 did also note that Dr. Meikle “found no medical condition that was responsible for
[V.W.’s] failure to thrive / faltering growth,” which is supported by the testimony. When asked for
her opinion about the reason for the feeding aversion, Dr. Meikle noted that V.W.’s mechanics of
feeding appeared fine, so she did not fully understand why V.W. was so difficult to feed. She cited
multiple possibilities, including that V.W. was born a few weeks premature, had intrauterine
exposure to Kratom, and could just have an idiopathic reason for difficulty feeding. Dr. Meikle
testified that ultimately, even if the cause for V.W.’s faltering growth was “multi-factorial,” it “all
related to inadequate calories given or taken in.”
11 Finding of fact 2.2.10.
12 Finding of fact 2.2.12.
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No. 84395-8-I/12
already difficult feeding situation. Thus, substantial evidence supports that M.W.
“substantially” contributed to V.W.’s weight loss.
B. Refusal to Follow the Feeding Schedule 13
The trial court found that M.W. told Hoerner, the SCH social worker, that
“she would not follow the hospital’s feeding plan upon discharge, responding that
she need not because she ‘had been caring for him.’ ” The trial testimony
supports this finding of fact. Hoerner testified, “[M.W.] said that she would not
follow a feeding plan or record feeds when she [break in audio], felt that she had
been caring for him and that was fine.” In response to further questioning,
Hoerner confirmed, “she was very clear that she would not be following the
recommended feeding plan which was medically recommended to—to
sufficiently give [V.W.] the nutrition that he needed.” If M.W. did not understand
the schedule, she did not express this to care providers. Instead, she refused to
follow the medically necessary feeding plan. Substantial evidence supports the
trial court’s finding of fact.
II. Negligent Treatment or Maltreatment
The trial court found V.W. dependent under both RCW 13.34.030(6)(b)
(child is abused or neglected) and (c) (no parent, guardian, or custodian capable
of adequately caring for the child). M.W. appeals only the court’s determination
13 Finding of fact 2.2.17.
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No. 84395-8-I/13
as to RCW 13.34.030(6)(b). 14
M.W. argues that the Department failed to prove that she acted with the
requisite disregard for V.W.’s safety as required for a finding of abuse or neglect.
The Department claims that M.W. knew the hospital determined she had to follow
a certain feeding schedule and she refused, which amounted to neglect. We
agree with the Department.
The trial court found V.W. dependent because he “is abused or neglected,
as defined in chapter 26.44 RCW, by a person legally responsible for the care of
the child.” The definition of “abuse or neglect” in ch. 26.44 RCW includes
“negligent treatment or maltreatment of a child by a person responsible for or
providing care to the child.” RCW 26.44.020(1). “Negligent treatment or
maltreatment” is further defined as “an act or a failure to act, or the cumulative
effects of a pattern of conduct, behavior, or inaction, that evidences a serious
disregard of consequences of such magnitude as to constitute a clear and
present danger to a child’s health, welfare, or safety.” RCW 26.44.020(19).
The court interpreted this definition of “negligent treatment or
maltreatment” in Brown v. Dep’t of Soc. & Health Servs. when considering a
Department finding of neglect separate from a dependency action. 190 Wn. App.
14 Because the court also found V.W. dependent under RCW 26.44.030(6)(c) and M.W.
does not challenge this statutory basis, V.W. will remain in dependency no matter the outcome of
this appeal. Nevertheless, M.W. seeks reversal of the neglect finding under RCW 26.44.030(6)(b)
because it “has serious consequences,” including permanent inability to apply for certain licenses
and “the stigma of a neglectful parent, which will follow her into any future dependency
proceedings and interactions with the Department.” For its part, the Department defends pursuing
this additional basis for the dependency based on its obligation to protect children from abuse
and neglect.
13
No. 84395-8-I/14
572, 586-87, 360 P.3d 875 (2015). Both M.W. and the Department argue that
Brown supports their positions.
In Brown, the Department issued a finding of neglect because Brown
failed to seek immediate medical treatment for a burn her young son received
from scalding hot bath water while he was under the care of Brown’s boyfriend.
Id. at 575-76. The appellate court engaged in statutory interpretation of the
definition of “negligent treatment and maltreatment,” which RCW 26.44.020(19)
defines as “an act or a failure to act, or the cumulative effects of a pattern of
conduct, behavior, or inaction, that evidences a serious disregard of
consequences of such magnitude as to constitute a clear and present danger to
a child’s health, welfare, or safety . . . .”
The court concluded that the term “serious disregard” is synonymous with
“reckless disregard” and implies a higher degree of culpability than want of
reasonable care. Brown, 190 Wn. App. at 590. A person is in “reckless disregard”
of another’s safety by acting or failing to act on a duty, “knowing or having reason
to know of facts that would lead a reasonable person to realize that the . . .
conduct not only creates an unreasonable risk of bodily harm to the other but
also involves a high degree of probability that substantial harm will result.” Id.
Thus, for the purposes of RCW 26.44.020(19), “negligent treatment” requires
more than simple negligence. Id. at 588-91.
The court then considered Brown’s behavior in light of this elevated
standard, noting that she immediately returned home when her boyfriend called
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her about the burn, researched burn care, and sought advice from
knowledgeable sources. Id. at 594. She followed that advice by purchasing and
applying burn cream, continuing to observe the burn and her son’s behavior, and
taking him to the hospital when she became concerned. Id. at 594-95. Based on
these facts, plus the Department’s failure to demonstrate that a health care
provider would have prescribed different treatment had the child been seen
earlier, the court concluded that none of the evidence showed a serious
disregard of a magnitude constituting a clear and present danger and reversed
the finding of neglect. Id. at 595.
M.W. claims that the Department had to prove that V.W.’s difficulty gaining
weight resulted from her recklessness, that she “acted or failed to act while
knowing of and disregarding a ‘clear and present danger to [V.W.’s] health,
welfare, or safety’ that her act or omission posed.” According to M.W., the record
does not support such a conclusion because she brought V.W. to all of his
appointments and obtained help when he failed to gain weight. M.W. claims that
like the mother in Brown, because she recognized her son needed medical care
and sought it out, her actions were not reckless and in disregard of the danger to
her son’s health. But unlike the mother in Brown, M.W. failed to follow the
treatment plan recommended for her child.
The trial court’s findings—which, as discussed above, were supported by
substantial evidence—were that V.W.’s concerning weight loss was at least
substantially due to M.W.’s failure to offer adequate opportunities to feed and
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prematurely ending feedings. Additional unchallenged findings include Dr.
Meikle’s conclusion that M.W. failed to offer enough opportunities to feed, and
care provider statements that she became easily frustrated and ended feeds
prematurely. Dr. Meikle also found no medical conditions responsible for V.W.’s
failure to thrive. Without the presence of an underlying medical condition, a
child’s failure to thrive can constitute circumstantial evidence of neglect “of a
magnitude that constituted a clear and present danger to the child’s health,
welfare, and safety.” In re Dependency of E.L.F., 117 Wn. App. 241, 247, 70
P.3d 163 (2003); In re Dependency of Lee, 200 Wn. App. 414, 436-37, 404 P.3d
575 (2017).
Moreover, M.W. knew that V.W. had a difficult time feeding and gaining
weight, but she would not feed according to the medically determined plan. The
testimony unequivocally demonstrated that V.W. gained weight when tended by
hospital staff, but lost weight when M.W. assumed his care. Yet M.W. told SCH’s
social worker that “she would not follow the hospital’s feeding plan upon
discharge, responding that she need not because she ‘had been caring for him.’ ”
As the court noted, “[t]he implication of her statement was that she—not the
hospital—knew best what [V.W.] needed.”
While M.W. may have made these assertions to mask her confusion or
her difficulty in understanding and implementing the feeding plan, she never
expressed a lack of understanding to her providers. Rather, she stated that she
would not follow the medical advice for how to address V.W.’s feeding issues—
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not because she could not, but because she was choosing not to follow it. Even if
M.W. had cognitive impairments, we cannot usurp her agency by ignoring her
unequivocal statements expressing her choices.
M.W.’s failure to follow the hospital’s feeding plan was more than mere
negligence; she acted in “reckless disregard” of V.W.’s safety, while “knowing or
having reason to know of facts that would lead a reasonable person to realize
that the . . . conduct not only creates an unreasonable risk of bodily harm to the
other but also involves a high degree of probability that substantial harm will
result.” Brown, 190 Wn. App. at 590. Given that V.W. lost weight when in M.W.’s
care, yet she continued to assert that she would not follow the intensive feeding
schedule under which V.W. gained weight, a preponderance of the evidence
shows reckless disregard for V.W.’s health. The court did not err by determining
that V.W. is a dependent child due to neglect under RCW 13.34.030(6)(b).
III. Out-of-Home Placement
The trial court determined that it was contrary to V.W.’s welfare to return
home and he should remain with M.W.’s aunts. M.W. argues the court erred by
finding that the Department made reasonable efforts to eliminate V.W.’s removal
because it did not tailor its services for her special needs. The Department
contends the placement in relative care was a proper exercise of the court’s
discretion. We agree with the Department.
After a child is found dependent, the court must enter an order indicating
whether the child will remain in or be removed from the home. In re Dependency
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of K.W., 199 Wn.2d 131, 147, 504 P.3d 207 (2022). Out-of-home placement is
appropriate
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 prevention 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;
(b) The parent, guardian, or legal custodian is not willing to take
custody of the child; or
(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(6). To satisfy the reasonable efforts requirement, the
Department must make an individualized plan tailored to the family’s needs,
which should include services that are geographically accessible and tailored for
any parent with developmental disabilities. In re the Dependency of L.C.S., 200
Wn.2d 91, 107-08, 514 P.3d 644 (2022). Such services might include individual
and family counseling, substance abuse treatment services, mental health
services, assistance to address domestic violence, therapeutic services, and
transportation. RCW 13.34.025(2)(a). The court must make findings on the
record to support a conclusion that the Department made reasonable efforts.
L.C.S., 200 Wn.2d at 105. “In determining whether reasonable efforts have been
made, the court should consider the facts and circumstances of each parent.” Id.
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We review the court’s decision on placement for abuse of discretion. Id. at
100. A court abuses its discretion if the decision is manifestly unreasonable or
based on untenable grounds or reasons. K.W., 199 Wn.2d at 151. “A
dependency court abuses its discretion when it makes a placement decision
without considering all the factors.” Id.
M.W. argues the court did not make reasonable efforts to prevent the
need to remove V.W. from her home because the Department failed to confirm
her disabilities and provide services tailored to them. In support, M.W. cites In re
M.A.S.C., 197 Wn.2d 685, 689, 486 P.3d 886 (2021), for the proposition that “the
Department had to make certain that services were offered according to ‘current
professional guidelines’ for communicating with parents with similar limitations.”
However, M.A.S.C. discusses the Department’s obligations in the context of
termination of parental rights rather than dependency. Id. at 688-89. For
terminations, the Department must prove that all necessary services were
“expressly and understandably offered or provided” to the parent. Id. at 688. In
cases where the Department has reason to believe a parent may have an
intellectual disability, it must make reasonable efforts to determine whether the
parent has a disability, how the disability could interfere with the parent’s capacity
to understand the services, and tailor services “in accordance with current
professional guidelines to ensure the offer is reasonably understandable to the
parent.” Id. at 689.
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This standard from the termination context—ensuring that all services are
“expressly and understandably offered or provided” in accordance with current
professional guidelines—is a higher standard than the standard of “reasonable
efforts” tailored to the needs of the family in the dependency context. These
rigorous requirements for termination are necessary in the context of the
permanent deprivation of parental rights. In re Welfare of Key, 119 Wn.2d 600,
609, 836 P.2d 200 (1992). In contrast, a dependency is “ ‘a preliminary, remedial,
nonadversary proceeding’ that does not permanently deprive a parent of any
rights.” Id. (quoting In re A.W., 53 Wn. App. 22, 30, 765 P.2d 307 (1988)). As a
result, “a dependency proceeding and a termination proceeding have different
objectives, statutory requirements, and safeguards.” Key, 119 Wn.2d at 609. The
requirement for “expressly and understandably offered services” in keeping with
current professional guidelines does not apply in the dependency context.
In addition to arguing for a higher standard for reasonable efforts based on
her limitations, M.W. claims the Department failed to make reasonable efforts
because (1) it did not confirm whether M.W. had a developmental disability that
would entitle her to services and, (2) even if she did not meet the definition of
disability, the Department did not try to accommodate her severe cognitive
limitations.
The Department was aware that M.W. had cognitive disabilities, but also
knew that she had not qualified for services. The 2013 assessment revealed
M.W. had cognitive difficulties and reported a full-scale IQ of 75. The Washington
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Developmental Disabilities Administration requires a full-scale IQ of 69 or below
for services; therefore, M.W. would not be eligible. M.W. cites to several other
types of disabilities 15 for which she could have been assessed and possibly
received services. But Department social worker Jameela Muhammad testified
that M.W. refused a psychological and neuropsychological evaluation when
Muhammad raised the possibility. 16 Prior to a finding of dependency, the court
cannot order examinations or evaluations without parent agreement. RCW
13.34.065(4)(j).
Although the Department was not able to order a cognitive or
neuropsychological evaluation, 17 the record shows that various care providers,
even if not informed of M.W.’s disabilities, observed her difficulties in adhering to
the feeding regimen and attempted to find ways to teach her when she struggled.
Dr. Johnson’s office provided “exact measurement devices” for preparing
formula, including a line on the bottle indicating the amount of water needed. His
nurse also practiced making formula with M.W. In the hospital, nurses drew a line
on a bottle to mark the amount of formula V.W. needed to consume. When
training on the NG tube in the hospital the nurse explained the steps,
15 See WAC 388-823-0015(1); RCW 71A.10.020(6).
16 The psychological and neuropsychological testing services were offered in written
service letters sent to M.W. Muhammad also testified that she “had talked to [M.W.] about a
psychological and neuropsychological evaluation, which I explained to her was not court-ordered
because . . . we don’t have a dependency; we were just in shelter care. And she refused that
service.”
17 Social workers did have access to the assessment of M.W. completed during the prior
action involving B.W. Based on the prior evaluation from 2013 and interactions with M.W. related
to V.W.’s care, social worker Muhammad submitted a declaration in support of a guardian ad
litem (GAL) for M.W. However, after the court conducted a competency colloquy, the court
determined M.W. was competent to proceed without a GAL.
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demonstrated the steps, and had M.W. perform the steps with the nurse
coaching. Because M.W. said she was a visual learner, the nurse provided
handouts—a printout of a bottle with a line drawn at the milk line at the beginning
of the feeding and a second bottle as an example with a line where the milk
should be after the feeding. She included “a couple different scenarios” of the
visual bottle. The nurse also provided a picture of the pump and wrote the rate
M.W. would need to program in each different scenario.
After V.W.’s discharge from the hospital, the Department secured several
extra individualized training sessions for the NG tube in which the nurse
attempted to provide accessible education to M.W. The nurse tried many
different methods—written materials and handouts, verbal explanations, hands-
on, letting M.W. learn through doing and then trouble shooting. When M.W. had
difficulty programming the pump, the nurse wrote out the dose and rate for
reference. Additionally, the dietician altered the feeding amounts so that M.W.
would not need to calculate the volume of the NG feed after bottle feeding. The
nurses testified that this was significantly more training than they had ever
provided a family. Thus, even without knowledge of a specific diagnosis or
disability, the care providers tried various approaches and adapted their teaching
methods in order to tailor their assistance to M.W.’s observed needs. The
evidence of the providers’ targeted efforts to communicate with M.W. so that she
could understand and implement their training provides substantial evidence that
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reasonable efforts were made to teach M.W. the skills she needed in order to
prevent V.W.’s removal from the home. 18
The court made specific findings in support of V.W.’s placement in relative
care. The court found that the Department referred M.W. to the parenting
education program Promoting First Relationships in May 2021, September 2021,
and February 2022, but M.W. failed to respond until March 2022. The court
further noted that M.W. participated in only one session out of what was
supposed to be a series of 10, and no further sessions were held because she
did not confirm visit times with the provider. The court’s findings also state that
M.W. refused the Department’s offer of assistance in finding an apartment that
could accommodate V.W.’s special needs and would not consider housing
outside of the Capitol Hill area in Seattle. The court cited the Department’s
repeated efforts to schedule visitation and NG tube training, but M.W. often failed
to respond to outreach and would not provide her schedule of appointments for
the Department to work around to coordinate times. And when the Department
was able to schedule visitation and/or training, M.W. “with some frequency”
cancelled or missed the appointments.
18 At oral argument, M.W. identified several examples of ways the Department failed to
provide services in a manner accessible to her, including sending written services letters and
expecting her to record feeding intake and perform calculations to program the feeding pump.
However, she could not articulate what any affirmative additional reasonable efforts “would look
like” that would have assisted her in the essential tasks of calculating formula intake and
recording feedings. Wash. Court of Appeals oral argument, In the Matter of the Dependency of
V.W., No. 84395-8-I (Nov. 2, 2023), at 3 min, 02 sec. to 5 min 57 sec., video recorded by TVW,
Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-
2023111111/?eventID=2023111111.
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No. 84395-8-I/24
The Department facilitated additional trainings on the NG tube. Even
without knowledge of the details of M.W.’s cognitive impairment, the care
providers used various methods to teach M.W. how to feed V.W. While ultimately
unsuccessful, the Department made reasonable efforts to provide services to
prevent V.W.’s removal from his home.
IV. Requirement to Refrain from Cannabis
After finding a child dependent, the court can require parents to participate
in services when the record supports the particular service. In re Dependency of
W.W.S., 14 Wn. App. 2d 342, 363, 469 P.3d 1190 (2020). RCW 13.34.025
governs coordination of services in dependency cases and explicitly notes that
the statute “does not create judicial authority to order the provision of services
except for the specific purpose of making reasonable efforts to remedy parental
deficiencies identified in a dependency proceeding.” RCW 13.34.025(2)(d). For
example, a court cannot impose a urinalysis requirement where the record does
not contain evidence of a substance abuse issue requiring remedying as a
parental defect. W.W.S. 14 Wn. App. 2d at 365. We review the juvenile court’s
decision to order a particular service for abuse of discretion. Id. at 364.
While the record contains no evidence of cannabis use specifically, M.W.
has a history of opioid use and drug-seeking behavior. Dr. Johnson testified that
he treated M.W. for chronic pain and a stable opiate use disorder. He expressed
concern that M.W. had a pattern of requesting opioids for pain conditions that
would not normally be treated with opioids. At the time of the trial, M.W. reported
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No. 84395-8-I/25
daily use of Kratom. Dr. Johnson did not believe M.W. should use Kratom
because of opioid-type side effects, including decreased focus and attention, and
he had recommended she discontinue its use. Based on this testimony, the
Department had concerns about M.W.’s use of both legal and illegal drugs. With
this history, and her chronic pain and drug-seeking behavior, the trial court did
not abuse its discretion by requiring M.W. to refrain from cannabis use, along
with other lawful and unlawful substances.
CONCLUSION
The trial court’s findings of fact support the conclusion that V.W. was a
dependent child under RCW 13.34.030(6)(b) due to abuse and neglect because
M.W. demonstrated reckless disregard for his health. As required for out-of-home
placement, the Department made reasonable efforts to prevent V.W.’s removal
from his home which included several training sessions, employing different
methods, to teach M.W. to use the NG tube. Finally, the court’s requirement that
M.W. refrain from cannabis is appropriate in light of her history of substance
abuse and drug-seeking behavior.
Affirmed.
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WE CONCUR:
26