In Re Welfare & Guardianship Of: A.n.b.a.j.b.a.c.b.a.j.b.: Carlos Benitez, App. v. Dshs, Resp.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Welfare and Guardianship of: No. 71230-6-1
(Consolidated with Nos.
A.N.B.; A.C.B.; A.J.B.; and A.J.B., 71231-4-1, 71232-2-1, 71233-1-1,
71234-9-1, 71236-5-1, 71237-3-1)
Minor Children,
DIVISION ONE
CARLOS BENITEZ,
Appellant,
WASHINGTON STATE DEPARTMENT UNPUBLISHED
OF SOCIAL AND HEALTH SERVICES,
FILED: February 23. 2015
Respondent.
Cox, J. — In this consolidated appeal, Carlos Benitez contests termination
of his parental rights and dismissal of his petition for guardianship. He argues
that collateral estoppel does not bar the petition for guardianship. He further
claims that the Department of Social and Health Services failed to prove all
statutory elements for termination. Finally, he claims the trial court abused its
discretion by not fully granting his motion to appear unshackled in court.
We hold that the doctrine of collateral estoppel bars relitigation of the
question whether the paternal grandmother of these children is a suitable
guardian. DSHS proved and the trial court properly found that one of the
challenged statutory elements for termination was established. But the trial court
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did not make a required finding for the other challenged element. Finally, any
error in not fully granting his motion to appear unshackled in court was harmless.
We affirm in part, reverse in part, and remand for further proceedings.
Benitez is the biological father of 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. (D.O.B. 9/15/06).
In December 2011, the Department of Social and Health Services (DSHS)
petitioned for dependency of the children for the second time. At the time,
Benitez was incarcerated. The trial court ordered the children placed in foster
care, and it directed DSHS to investigate whether the children's relatives could
offer appropriate placement.
On March 20, 2012, the court heard oral argument on Benitez's motion to
place A.J.B. 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. At the hearing, the children provided the
court with specifics regarding her alleged conduct. Their biological mother also
opposed this placement. The court denied Benitez's motion.
On April 18, 2012, the court held the dependency disposition hearing.
Benitez acknowledged that he would be incarcerated until 2031. Nonetheless,
he contested dependency on the basis that the children had a "guardian" or
"custodian" to care for them—their paternal grandmother. But, as this court later
stated in the appeal of the dependency disposition order entered on that date,
Benitez "failed to refute the concerns that were raised about the paternal
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grandmother at the March 20 hearing."1 The April 18, 2012 disposition order of
dependency for all the children was based on RCW 13.34.030(6)(c).2 Under that
statute, the children were dependent because they had "no parent, guardian, or
custodian capable of adequately caring for [them]. .. ."3 They remained placed
in foster care.
Benitez appealed the April 18, 2012 dependency disposition order to this
court, challenging the trial court's determination that his four children were
dependent and challenging the trial court's placement decision.4 This court
rejected his arguments and affirmed. Thereafter, the supreme court denied
Benitez's petition for discretionary review.
In March 2013, DSHS petitioned to terminate Benitez's parental rights.
Benitez petitioned for guardianship, naming the children's paternal grandmother
as the proposed guardian. He also moved to continue the termination hearing
and requested that DSHS conduct a home study to consider placement of the
children with the paternal grandmother. In response, DSHS moved to dismiss
the guardianship petition. The trial court dismissed the guardianship petition on
the basis of collateral estoppel and entered an order terminating Benitez's
parental rights.
1 In re Welfare of A.N.B., noted at 174 Wash. App. 1047, 2013 WL 1739120,
at*3.
2 Clerk's Papers at 25.
3 (Emphasis added.)
4 Welfare of A.N.B.. noted at 174 Wash. App. 1047.
No. 71230-6-1/4
Benitez appeals.
TERMINATION OF PARENT CHILD RELATIONSHIP
Benitez makes two arguments that the trial court erred in finding that
DSHS met its burden under RCW 13.34.180(1). The first is without merit. But
we agree with the second.
The court may enter an order terminating all parental rights to a child only
if the court finds all of the following elements are established by clear, cogent,
and convincing evidence:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
(c) That the child has been removed or will, at the time of the
hearing, have been removed from the custody of the parent for a
period of at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all
necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future. .. . ;
and
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable
and permanent home. If the parent is incarcerated, the court shall
consider whether a parent maintains a meaningful role in his or her
child's life based on factors identified in RCW 13.34.145(5)(b);
whether the department or supervising agency made reasonable
efforts as defined in this chapter; and whether particular barriers
existed as described in RCW 13.34.145(5)(b) including, but not
limited to, delays or barriers experienced in keeping the agency
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apprised of his or her location and in accessing visitation or other
meaningful contact with the child.[5l
"Clear, cogent, and convincing evidence exists when the ultimate fact in
issue is shown by the evidence to be 'highly probable.'"6 If this first step is met,
the trial court must also find that termination of the parent-child relationship is in
the best interests of the child.7 "The dominant consideration ... is the moral,
intellectual, and material welfare of the child."8
"'Where the trial court has weighed the evidence, review is limited to
ascertaining whether the findings of fact are supported by substantial evidence,
and if so, whether the findings support the conclusions of law and the
judgment.'"9 "'Substantial evidence is evidence in sufficient quantity to persuade
a fair-minded, rational person of the truth of the declared premise.'"10
Here, Benitez does not challenge four of the six termination elements.
Rather, he contends that DSHS failed to prove that two of the elements had been
established—specifically RCW 13.34.180(1 )(d) and (f).
5 RCW 13.34.180(1); RCW 13.34.190(1)(a)(i).
6 In re Dependency of K.R., 128Wn.2d 129, 141,904P.2d 1132(1995)
(internal quotation marks omitted) (quoting In re Seqo. 82 Wash. 2d 736, 739, 513
P.2d831 (1973)).
7 RCW 13.34.190(1 )(b).
8 In re Dependency of J.W., 90 Wash. App. 417, 427, 953 P.2d 104 (1998).
9 In re Dependency of A.M.M., 182 Wash. App. 776, 785, 332 P.3d 500
(2014) (quoting In re Dependency of P.P.. 58 Wash. App. 18, 25, 792 P.2d 159
(1990)).
10 Id (internal quotation marks omitted) (quoting In re Welfare of T.B., 150
Wash. App. 599, 607, 209 P.3d 497 (2009)).
No. 71230-6-1/6
RCW 13.34.180(1)(d)
First, Benitez asserts that the State "did not expressly and
understandably provide all reasonably available services capable of correcting
Mr. Benitez's parental deficiencies."11 We disagree.
DSHS must prove that it has offered or provided "all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future."12 "The services offered must be tailored to each individual's
needs."13 "[T]he court may consider any service received, from whatever source,
bearing on the potential correction of parental deficiencies."14
"Even where the State inexcusably fails to offer a service to a willing
parent, termination is nonetheless appropriate ifthe service would not have
remedied the parent's deficiencies in the foreseeable future."15
Here, the trial court found that all necessary services reasonably available
have been offered and that there is no hope that the child will be returned to
Benitez regardless of services provided:
2.10 Since dependency was established, services ordered
under RCW 13.34.130 have been offered or provided and all
necessary services reasonably available, capable of correcting the
parental deficiencies within the foreseeable future have been
11 Motion for Accelerated Review Opening Brief of Appellant at 29.
12RCW13.34.180(1)(d).
13 In re Dependency of T.R., 108 Wash. App. 149, 161.29P.3d 1275(2001).
14 In re Dependency of DA, 124 Wash. App. 644, 651-52, 102 P.3d 847
(2004).
15 Id. at 655.
No. 71230-6-1/7
offered or provided. In this case, Mr. Benitez is in Department of
Corrections (DOC) custody until the year 2031. The only services
available to Mr. Benitez there, other than AA or NA, will be provided
two years prior to his release. Nothing in the law requires [DSHS]
to send outside professionals to an inmate who will be in custody
for another twenty years.
2.11 Even if [DSHS] did send outside professionals to Mr.
Benitez in prison to provide services, there is little likelihood that the
conditions will be remedied so that the child could be returned to
[Benitez] in the near future. There is no hope this child will be
returned, regardless of services to [Benitez]. [Benitez] is
unavailable due to his own making and the numerous felonies he
committed.[16]
These findings are supported by substantial evidence, and they support
the conclusion that this termination factor was satisfied. At trial, a counselor at
the correctional center testified that DSHS recommended services for Benitez,
but because of his incarceration until 2031, Benitez is not eligible to participate in
those services until 2029.17 Benitez does not dispute that he is incarcerated until
2031.
Benitez argues that "if [he] is not offered services due to his incarceration,
and his parental rights are terminated because he has not completed services
which he was never offered, then incarceration is effectively the basis for
terminating his parental rights."18 But, while imprisonment alone does not justify
termination, "[T]he parent's resulting inability to perform his or her parental
16 Clerk's Papers at 309.
17 Report of Proceedings (Nov. 7, 2013) at 43-44.
18 Motion for Accelerated Review Opening Brief of Appellant at 30.
No. 71230-6-1/8
obligations is certainly relevant to the child's welfare."19 Further, termination is
appropriate if the service would not have remedied the parent's deficiencies in
the foreseeable future. Benitez is incarcerated until 2031, and his deficiencies
cannot be remedied in the foreseeable future.
Benitez also argues that DSHS "did not request or provide for outside
professionals to come to the facility."20 But, as the trial court stated, "Nothing in
the law requires [DSHS] to send outside professionals to an inmate who will be in
custody for another twenty years."21 Benitez fails to point to any authority to the
contrary. Thus, this argument is not persuasive.
The trial court properly determined by clear, cogent, and convincing
evidence that this element was satisfied.
RCW 13.34.180(1)(f)
Second, Benitez asserts that DSHS failed to prove all of the necessary
elements to show that continuation of his relationship with his children clearly
diminished their prospects for early integration into a stable and permanent
home. Specifically, he argues that the trial court failed to consider recent
amendments to this statute regarding incarcerated parents.22 Because this
record fails to show such consideration by the court, we agree.
19 Dependency of J.W.. 90 Wash. App. at 426.
20 Motion for Accelerated Review Opening Brief of Appellant at 31.
21 Clerk's Papers at 309.
22 Supplemental Brief of Appellant at 1-4.
8
No. 71230-6-1/9
The below emphasized portions of this statute show the amendments that
are at issue:
That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable
and permanent home. If the parent is incarcerated, the court
shall consider whether a parent maintains a meaningful role in
his or her child's life based on factors identified in RCW
13.34.145(5)(b); whether the department or supervising agency
made reasonable efforts as defined in this chapter; and
whether particular barriers existed as described in RCW
13.34.145(5)(b) including, but not limited to, delays or barriers
experienced in keeping the agency apprised of his or her
location and in accessing visitation or other meaningful
contact with the child,[23]
For example, as one of several requirements, "[T]he court shall consider
whether [the] parent maintains a meaningful role in [the] child's life based on
factors identified in RCW 13.34.145(5)(b)."24 That statute sets forth the following
six factors the court may consider in making this assessment:
(i) The parent's expressions or acts of manifesting concern for the
child, such as letters, telephone calls, visits, and other forms of
communication with the child;
(ii) The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the
purpose of complying with the service plan and repairing,
maintaining, or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable efforts of
the department or the supervising agency;
(iv) Information provided by individuals or agencies in a reasonable
position to assist the court in making this assessment, including but
not limited to the parent's attorney, correctional and mental health
personnel, or other individuals providing services to the parent;
23 RCW 13.34.180(1 )(f) (emphasis added).
24 Id.
No. 71230-6-1/10
(v) Limitations in the parent's access to family support programs,
therapeutic services, and visiting opportunities, restrictions to
telephone and mail services, inability to participate in foster care
planning meetings, and difficulty accessing lawyers and
participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the child's
life is in the child's best interest.1251
In In re Dependency of A.M.M., this court reversed a termination order
because there was no evidence in the record that the trial court considered the
2013 amendments to RCW 13.34.180(1)(f).26 It stated, "This omission indicates
both that the Department failed to satisfy its burden of proof as to the termination
factor contained within RCW 13.34.180(1 )(f) and that the trial court failed to apply
the law in effect at the time of its ruling."27
Here, there are some differences between this case and A.M.M. For
example, here, DSHS made the trial court aware of these 2013 amendments to
the statute when it referenced the amended language in its memorandum of
authorities submitted prior to trial.28 Additionally, DSHS presented evidence at
trial that is relevant to Benitez's relationship with his children. For example,
DSHS presented testimony that letters Benitez wrote to his children were
inappropriate and not shared, that the children did not request phone contact with
25RCW13.34.145(5)(b).
26 182 Wash. App. 776, 778-89, 332 P.3d 500 (2014).
27 Id, at 787.
28 Clerk's Papers at 271-72.
10
No. 71230-6-1/11
Benitez, and that Benitez had not visited with his children.29 Further, in closing
argument, DSHS argued, "Clearly the parent-child relationship diminishes these
children's prospects for integration into a safe and stable home. The
relationship is not good between [Benitez] and his children."30
Nevertheless, this record fails to show that the trial court considered all
factors that the amended language of the statute requires. Specifically, there is
nothing to indicate that the trial court considered each of the three requirements
under the amended statute—whether Benitez maintained a meaningful role in his
children's life, whether DSHS made "reasonable efforts," and whether particular
barriers existed.
Further, despite the argument of DSHS to the contrary, we do not infer
from the findings that the trial court entered that it clearly considered the factors
required by the amended language. An appellate court may infer omitted
findings "'if—but only if—all the facts and circumstances in the record . . . clearly
demonstrate that the omitted finding was actually intended, and thus made, by
the trial court.'"31
Here, the record does not clearly demonstrate that the omitted findings
were actually intended and made by the trial court. Like in A.M.M.. the trial court
applied the language contained within former subsection (1)(f), and made no
29 See, e.g., Report of Proceedings (Nov. 7, 2013) at 59-60, 67-71, 78-80.
30 Id. at 110 (emphasis added).
31 Dependency of A.M.M., 182 Wash. App. at 788 (quoting In re Welfare of
A.B., 168Wn.2d908, 921,232P.3d 1104(2010)).
11
No. 71230-6-1/12
mention of the amended language or to the factors in RCW 13.34.145(5)(b)
either in its written findings or its oral ruling. In A.M.M.. this court stated, "Given
this, we cannot conclude that all of the facts and circumstances in the record
clearly demonstrate that the omitted findings were actually intended."32 The
same is true here.
DSHS argues that the trial court considered all the evidence and "then
made clear findings that [Benitez] did not maintain a meaningful relationship with
the children . . . ,"33 In support of this, it cites the trial court's oral remarks that
Benitez is not a fit parent and had not provided food, clothing, or medical care
since 2007.34 But this is not a "clear finding" that Benitez did not maintain a
meaningful relationship with the children. Rather, it is a clear finding that Benitez
is not a fit parent. And DSHS expressly asked the court to make a finding that
Benitez is not a fit parent based on that evidence.35 DSHS fails to explain how a
finding of parental unfitness is sufficient to show that the trial court considered
each of the amended statutory requirements. Moreover, the court appears to
have made this oral remark when considering whether termination was in the
best interests of the children, not when it was considering the six termination
factors. For these reasons, this argument is not persuasive.
32 id, at 789.
33 Respondent's Supplemental Brief at 5.
34 ]d, at 5-6 (citing Report of Proceedings (Nov. 7, 2013) at 116).
35 Report of Proceedings (Nov. 7, 2013) at 110-11.
12
No. 71230-6-1/13
DSHS also argues that the trial court found DSHS offered all necessary
services that were reasonably available.36 This is true, as the trial court made
this finding to show that another termination factor—(1)(d)—was met. But DSHS
fails to explain how this finding shows that the court considered whether DSHS
made "reasonable efforts" as that term is contemplated within the amended
language of (1 )(f). Further, even if this finding is sufficient to show "reasonable
efforts" under (1)(f), there is still no showing that the trial court considered the
other two requirements of the amended language—whether Benitez had a
meaningful relationship with his children and whether particular barriers existed.
DSHS next points to the following language from A.M.M.: "[T]here is no
evidence in the record suggesting that [DSHS] presented evidence in an effort to
satisfy its burden or that the trial court did, in fact, make the findings referenced
in the amended subsection . . . ,"37 DSHS emphasizes the "or" from that quote
and argues that, in this case, "the record is replete with evidence that [DSHS]
met its burden."38 With this, DSHS appears to argue that either it is not
necessary for the trial court to make the findings if DSHS met its burden, or that
this court may make the required finding. But a proper reading of A.M.M. does
36 Respondent's Supplemental Brief at 8.
37 Dependency of A.M.M. 182 Wash. App. 787 (emphasis added).
38 Respondent's Supplemental Brief at 9.
13
No. 71230-6-1/14
not support this view. More importantly, an appellate court does not make
findings of fact.39
Finally, DSHS argues that "[a]ny objective reading of the findings can only
support the conclusion that the court determined Mr. Benitez had no relationship
with his children and had no hope of establishing one for the next 18 years."40
But an objective reading of the findings does not support the conclusion that the
trial court determined that Benitez had "no relationship" with his children. And
regardless, the findings still do not address the other two requirements of the
amended language. DSHS asks this court to infer too much.
We express no opinion whether DSHS proved the required factors on the
record that is now before us. That is for the trial court to decide, in the first
instance. But we cannot conclude that the trial court considered whether the
amended language had been satisfied by clear, cogent, and convincing
evidence. Accordingly, we must reverse this ruling and remand for further
proceedings to address this element.
COLLATERAL ESTOPPEL
Benitez next argues that the trial court erred in dismissing his
guardianship petition based on the doctrine of collateral estoppel.41 We hold that
the trial court properly applied the doctrine to this case.
39 Marcum v. Dep't of Soc. & Health Servs.. 172 Wash. App. 546, 560, 290
P.3d 1045(2012).
40 Respondent's Supplemental Brief at 10.
41 Motion for Accelerated Review Opening Brief of Appellant at 16-24.
14
No. 71230-6-1/15
In order for collateral estoppel to apply, the party asserting the doctrine
must prove the following: "'(1) the issue decided in the prior adjudication is
identical with the one presented in the second action; (2) the prior adjudication
must have ended in a final judgment on the merits; (3) the party against whom
the plea is asserted was a party or in privity with the party to the prior
adjudication; and (4) application of the doctrine does not work an injustice.'"42
"Collateral estoppel requires a prior determination of an issue on its
merits."43 Thus, "[t]he doctrine will preclude relitigating only those issues which
have actually been tried and determined. If there is ambiguity or indefiniteness in
a verdict or judgment, collateral estoppel will not be applied as to that issue."44
Here, Benitez only disputes the first two elements of collateral estoppel—
whether the issue decided in the prior adjudication is identical, and whether the
prior adjudication ended in a final judgment on the merits.
First, the court properly determined that the issue presented in the current
guardianship petition—the suitability of the paternal grandmother for placement
of the children—is the same issue that was previously before the trial court in the
dependency proceeding.
42 Thompson v. Dep't of Licensing, 138 Wash. 2d 783, 790, 982 P.2d 601
(1999) (quoting Nielson v. Spanawav Gen. Med. Clinic, Inc., 135 Wash. 2d 255,
262-63, 956 P.2d 312 (1998)).
43 Mead v. Park Place Props., 37 Wash. App. 403, 407, 681 P.2d 256
(1984).
44 id,
15
No. 71230-6-1/16
The suitability of the children's paternal grandmother was the subject of
both the March 20, 2012 hearing and the April 18, 2012 hearing. In the first
hearing, Benitez sought to have his mother serve as the guardian. The children's
mother and DSHS both opposed this. The court heard testimony from the
children and declined to appoint the paternal grandmother as guardian due to
issues of her suitability.
At the April 18, 2012 disposition hearing, Benitez again sought to have the
paternal grandmother appointed as guardian. The trial court declined this
request. As this court stated in the prior appeal of the disposition order, "Benitez
failed to refute the concerns that were raised about the paternal grandmother at
the March 20 hearing."45 And the supreme court denied review, quoting this
court's language characterizing the April 18, 2012 disposition hearing.46
In sum, there is no doubt that the question of the suitability of these
children's paternal grandmother was addressed in the prior proceeding. The
issue is identical to that presented in this proceeding.
In short, because the issue decided in the prior adjudication is the same
as the one presented here, the first element of collateral estoppel is satisfied.
Second, the trial court properly determined that there was a final judgment
on the merits of the placement decision by the trial court in the dependency that
was the subject of the prior appeal.
45 Welfare of A.N.B., 2013 WL 1739120, at *3.
46 Clerk's Papers at 257-61.
16
No. 71230-6-1/17
A disposition decision following a finding of dependency is a final and
appealable order under RAP 2.2(a)(5).47 The finality of that order is subject to
timely requests for review. But upon exhaustion of review, the order is a final
judgment.48
Here, it is undisputed that the disposition decision following the finding of
dependency was the subject of review, both in this court and the supreme court.
This court rendered its decision in the prior appeal, and the supreme court
denied review. Thus, the disposition decision of the trial court was a final
judgment for purposes of collateral estoppel.
The remaining issue is whether the disposition decision was a final
judgment on the merits on the suitability of the paternal grandmother for
placement.
In his prior appeal to this court on the disposition decision, Benitez
challenged the trial court's placement decision, arguing that it was based on
evidence shown to be false.49 This court rejected his challenge and stated:
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. 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
47 In re Dependency of Brown, 149 Wash. 2d 836, 839-40, 72 P.3d 757
(2003).
48 See Gronouist v. State, 177 Wash. App. 389, 397, 313 P.3d 416 (2013),
review denied, 180Wn.2d 1004(2014).
49 Welfare of A.N.B., 2013 WL 1739120 at *3.
17
No. 71230-6-1/18
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 placements
The supreme court denied review of this court's decision.51 In its ruling
denying review, it stated, "Contrary to Mr. Benitez's seeming argument, no
evidence shows that the children's allegations were false."52
The trial court considering the motion to dismiss the guardianship petition
at the time of the termination hearing properly relied, in part, on this court's prior
decision when it dismissed the guardianship petition. It stated:
The Court of Appeals . . . went on to decide that the trial
court Commissioner Paxton did not abuse its discretion in denying
Mr. Benitez's request to place the children with their paternal
grandmother and determining that continued placement in foster
care was in their best interest.
So in light of a clear mandate in the statute that the child
shall be placed with a relative unless there is a risk to the child in
doing so the Court of Appeals affirmed Commissioner Paxton's
ruling that the children should not be placed with the paternal
grandmother. / think that decision, the Court of Appeals'
decision, very clearly shuts the door on any future
guardianship proceedings. That decision by Commissioner
Paxton in the face of a statutory mandate that the children should
be placed with [a] relative unless there is something that was of
concern about the children's safety or welfare in that placement.
And the Court of Appeals affirming Commissioner Paxton's
50 jd, (emphasis added).
51 Clerk's Papers at 257-61.
52 Id. at 260.
18
No. 71230-6-1/19
decision not to place the children with their paternal
grandmother constitutes a decision which collaterally estops
Mr. Benitez from further pursuing placement with his mother
either as a foster placement relative, foster placement, or as a
guardianship placement. So the motion to dismiss the petition for
guardianship is granted.[53]
Generally, issues of placement are subject to regular review and
modification at review hearings.54 But, as the trial court stated, as to placement
with the paternal grandmother, this court's prior decision "very clearly shut[] the
door on any future guardianship proceedings."55 Notably, this court pointed out
that Benitez failed to refute concerns about the paternal grandmother at the
dependency hearing. Thus, the disposition decision was a final judgment on the
merits as to denying placement with the paternal grandmother.
The law of the case doctrine also supports this conclusion. This doctrine
provides that "once there is an appellate holding enunciating a principle of law,
that holding will be followed in subsequent stages ofthe same litigation."56 Thus,
we decline to revisit the holding in the prior appellate decision—that there was no
abuse of discretion because placement with the paternal grandmother was
inappropriate.
53 Report of Proceedings (Nov. 7, 2013) at 32 (emphasis added).
54 See RCW 13.34.138.
55 Report of Proceedings (Nov. 7, 2013) at 32
56 Roberson v. Perez, 156 Wash. 2d 33, 41, 123 P.3d 844 (2005).
19
No. 71230-6-1/20
Benitez argues that collateral estoppel does not apply because
dependency review orders are not final judgments.57 In doing so, he relies
heavily on In re Dependency of Chubb.58 It is true that dependency review
orders are not final orders. But, the relevant order here is the dependency
disposition order, not any of the review orders that followed. Thus, reliance on
Chubb is misplaced.
Benitez argues that this court "did not render a final judgment on the
merits as to [the paternal grandmother's] suitability, but merely found that the
commissioner did not abuse his discretion in denying [Benitez's] dependency
placement request."59 For the reasons already explained, this argument conflicts
both with this court's prior view of the record at the disposition hearing and our
view of the arguments in this case.
Benitez next argues that collateral estoppel does not apply because the
issue of suitability of the paternal grandmother was not actually litigated.60 He
argues that the commissioner "did not intend for his placement decisions to bar
any future placement of the children with their grandmother" and he cites
excerpts from the transcript of the hearings to support this contention.61 For
example, he cites the following statements by the commissioner: "I'm not in a
57 Motion for Accelerated Review Opening Brief of Appellant at 16.
58 112 Wash. 2d 719, 773 P.2d 851 (1989).
59 Motion for Accelerated Review Opening Brief of Appellant at 19.
60 id,
61 id, at 18.
20
No. 71230-6-1/21
position today to make any decision with regard to placing the children [with the
paternal grandmother]," "I'm not going to ruling [sic] today ... if we learn
something down the road okay, but not today."62
Notwithstanding these assertions, Benitez fails to address this court's prior
observations that there was nothing at the April 18, 2012 hearing that refuted the
allegations made at the March 20, 2012 hearing regarding placement with the
paternal grandmother. We do not depart from those observations here.
Finally, Benitez argues that the trial court's error in dismissing the
guardianship petition requires reversal of the termination order, because the
availability of a guardianship placement is material to whether the State can meet
its burden to prove RCW 13.34.180(1 )(f). Because we conclude that there was
no error, we reject this argument.
DENIAL OF MOTION TO REMAIN UNSHACKLED
Benitez argues that the trial court abused its discretion when it denied his
motion to remain unshackled during the termination proceeding.63 Any error in
this ruling was harmless.
It is well settled that "a prisoner is entitled to be brought into the presence
of the court free from restraints."64 "'Restraints are viewed with disfavor because
they may abridge important constitutional rights, including the presumption of
innocence, privilege of testifying in one's own behalf, and right to consult with
62 Clerk's Papers at 202-03, 231.
63 Motion for Accelerated Review Opening Brief of Appellant at 24-28.
64 State v. Damon, 144 Wash. 2d 686, 690, 25 P.3d 418 (2001).
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No. 71230-6-1/22
counsel during trial.'"65 "[Restraints should 'be used only when necessary to
prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or
to prevent an escape.'"66
"A trial judge must exercise discretion in determining the extent to which
courtroom security measures are necessary to maintain order and prevent
injury."67 In State v. Hartzog, the supreme court listed several factors the trial
court may consider in determining whether to use physical restraints:
"[T]he seriousness of the present charge against the defendant;
defendant's temperament and character; his age and physical
attributes; his past record; past escapes or attempted escapes, and
evidence of a present plan to escape; threats to harm others or
cause a disturbance; self-destructive tendencies; the risk of mob
violence or of attempted revenge by others; the possibility of rescue
by other offenders still at large; the size and the mood of the
audience; the nature and physical security of the courtroom; and
the adequacy and availability of alternative remedies."[68]
A court's discretion to restrain a defendant "must be founded upon a
factual basis set forth in the record."69 Thus, "the trial court should allow the use
65 State v. Turner, 143 Wash. 2d 715, 725, 23 P.3d 499 (2001) (quoting State
v. Hartzog, 96 Wash. 2d 383, 398, 635 P.2d 694 (1981)).
66 State v. Finch, 137 Wash. 2d 792, 846, 975 P.2d 967 (1999) (quoting
Hartzog, 96 Wash. 2d at 398).
67 Hartzog, 96 Wash. 2d at 400.
68 96 Wash. 2d 383, 400, 635 P.2d 694 (1981) (alteration in original) (quoting
State v. Tollev, 290 N.C. 349, 368, 226 S.E.2d 353 (1976)).
69 id,
22
No. 71230-6-1/23
of restraints only after conducting a hearing and entering findings into the record
that are sufficient to justify the use of the restraints."70
This court reviews a trial court's decision to shackle a defendant under an
abuse of discretion standard.71
"A claim of unconstitutional shackling is subject to harmless error
analysis."72 "[T]he Defendant must show the shackling had a substantial or
injurious effect or influence on the jury's verdict."73
Here, at the hearing on Benitez's motion to remain unshackled, defense
counsel requested "to have [Benitez] at least unshackled on his hands in order to
communicate with the attorneys" and to have his hands free while testifying.74
DSHS opposed the motion, stating that Benitez was in custody for extremely
violent crimes, and asked "that all he be allowed is one shackle."75 The following
exchange then occurred:
[DEFENSE COUNSEL]: Certainly we're not opposed to the leg
shackles remaining on. There are obviously deputies in the
courtroom. I would ask that both of his hands be unshackled.
THE COURT: Alright. Are you right handed or left handed?
[BENITEZ]: Right handed.
70 Damon, 144 Wash. 2d at 691-92.
71 Turner. 143 Wash. 2d at 724.
72 State v. Hutchinson, 135 Wash. 2d 863, 888, 959 P.2d 1061 (1998).
73 id,
74 Report of Proceedings (Nov. 7, 2013) at 4.
75 id, at 5.
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No. 71230-6-1/24
[THE COURT]: Alright. So the motion to change into civilian
clothes is denied. There is no jury present. I don't see any need
for that. The decision here is going to be made by the court. And
believe me I've seen a lot of people in red pajamas. So the right
hand can be uncuffed so that you can communicate with your
attorney and write if you need to. But the left hand will remain
shackled to the waist chain. Alright.[76]
Benitez does not contest that he was incarcerated for extremely violent
crimes, as DSHS stated. It is clear from the above exchange that Benitez did not
oppose the leg shackles. It is also clear that the court ordered that Benitez's
dominant right hand remain free so that he could communicate with counsel.
So the only real dispute is the effect of the court not explaining its
reasoning for the use of a restraint on Benitez's left hand, as case law dictates.77
Assuming, without deciding, this was error, it was harmless. Benitez's dominant
right hand remained free so he could communicate with counsel. Benitez never
appeared in front of a jury, and a proceeding without a jury "greatly reduces the
likelihood of prejudice."78 Further, the trial court indicated that it would not be
prejudiced. There is no reason to doubt this. In sum, Benitez fails to show that
the use of a restraint on his left arm substantially affected the trial court's fact
finding.
76 id,
77 See Damon, 144 Wash. 2d at 691-92; Hartzog, 96 Wash. 2d at 400.
78 State v. E.J.Y., 113 Wash. App. 940, 952, 55 P.3d 673 (2002).
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No. 71230-6-1/25
DSHS argues that Benitez "did not have a right to appear free from
shackles" because this "was a civil trial executed without a jury."79 Because of
our resolution of the issue, we need not address this argument.
We affirm in part, reverse in part, and remand for further proceedings to
address the recently amended statute.
6dxJ.
WE CONCUR:
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79 Respondent's Brief at 26.
25