05/13/2000, Minor Child v. Pa (In re LS)

• Citation: 200 Wash.App. 680,402 P.3d 937
• Decision Date: 02 October 2017
• Docket Number: No. 76111-1-I.,76111-1-I.
• Parties: In the MATTER OF the DEPENDENCY OF LS, DOB: 05/13/2000, Minor child, LS, Respondent, v. PA, Appellant.
• Court: Court of Appeals of Washington

200 Wash.App. 680

402 P.3d 937

In the MATTER OF the DEPENDENCY OF LS, DOB: 05/13/2000, Minor child,LS, Respondent,

v.PA, Appellant.

No. 76111-1-I.

Court of Appeals of Washington, Division 1.

FILED: October 2, 2017

Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, Jennifer L. Dobson, Attorney at Law, P.O. Box 15980, Seattle, WA, 98115-0980, for Appellant.

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Respondent.

Roberta Marie Edmiston, Associated Counsel for the Accused, 420 W. Harrison St., Ste. 201, Kent, WA, 98032-4491, Soc. & Hlth. Svcs. A.G. Office, Attorney at Law, 800 Fifth Ave., Suite 2000, MS-TB-14, Seattle, WA, 98104, for Other Parties.

PUBLISHED OPINION

Becker, J.¶1 A teenage girl who felt unsafe at home brought this action to have herself declared dependent so that she could continue to live apart from her mother. The mother seeks to have the order of dependency vacated on the ground that the Department of Social and Health Services was not joined as a party. The mother did not argue below that the department should be joined, and she has not identified a proper basis for considering the issue for the first time on appeal. We affirm.

FACTS

¶2 In fall of 2015, LS, then 15 years old, entered into counseling to deal with the anxiety and panic attacks she was experiencing. In January 2016, LS disclosed that her older brother had sexually abused her when she was younger. Her counselor reported this to Child Protective Services (CPS).

¶3 At the time, LS was staying with a friend and she refused to return home. A CPS family assessment response team interviewed LS and members of her family and made a written determination for the department that the family home was safe for LS because her brother no longer lived there. "The Department is not taking any action at this time to place [LS] outside of her home. Due to her brother no longer residing in the home, the Department does not feel that there are any active safety threats." The department anticipated that LS would remain with her friend's family on a short-term basis and that the family would "receive services to help her transition back home."

¶4 LS, acting pro se, filed a dependency petition on February 8, 2016. Using an online court form, she filled in the space for facts supporting the allegation of dependency with a 26-paragraph summary of the problems in her family life. These included:

• Her father is currently imprisoned for raping her older sister for a number of years.

• Her father physically abused her, her mother, and her siblings.

• Her mother allowed and even encouraged her father to physically abuse her.

• She was not sure her mother believed that she had been sexually abused by her brother. Her mother "doesn't understand why I don't feel safe." She was not sure that her older brother would stay away from the family's apartment. "I disagree with CPS stating that my home is no longer unsafe."

• Her mother did not pay attention to her educational needs, did not attend to her medical needs, and denied she suffered from anxiety and panic attacks. Her mother's current husband "gets angry.... I have a hard time trusting him."

• She was experiencing thoughts of self-harm and suicide.

¶5 Thereafter, LS was represented by counsel. LS's mother contested the dependency petition. LS's father, still incarcerated, agreed to an order of dependency.

¶6 The court issued a shelter care hearing order on February 18, 2016. The court found that LS was in need of shelter care "based on her high anxiety and possibility of self harm." The order provided that LS would remain in shelter care in the temporary custody of the couple she was living with. At her own discretion, she could have visitation with her mother and siblings. The court ordered family and individual counseling, with the goal of "reunification in a safe manner." The department did not participate in the shelter care hearing and was not a party to the order.

¶7 The dependency hearing took place over a total of nine days in October 2016. The department was not a party, and no one suggested that the department should be joined as a party. The CPS interviewer testified that the department had "no reason to be in the family's life" and did not consider joining LS's dependency petition. She said the department would have been involved in the case only if there was a safety concern.

¶8 The court entered an order finding LS dependent as defined in RCW 13.34.030(6)(c) ("has no parent, guardian, or custodian capable of adequately caring for the child"). According to the court's findings, which are unchallenged on appeal, LS needs therapy and "a stable, structured environment where she feels both supported and emotionally and mentally safe." LS's mother is a survivor of abuse and is struggling with mental health issues of her own. The mother "minimizes or refuses to acknowledge" the severity and even the reality of LS's trauma. The mother does not understand the seriousness of her daughter's mental health condition and is unable to understand "appropriate roles and boundaries" when communicating with her. The court found that allowing LS to be returned to her mother's care would place LS "at serious risk of substantial harm and substantial damage" to her psychological and physical development.

¶9 LS's mother filed this timely appeal from the order of dependency. She argues that the department is a necessary party in a dependency proceeding and that because the department was not joined as a party, the trial court lacked subject matter jurisdiction and the dependency order must be vacated.

¶10 Several months after the appeal was filed, LS moved the trial court to join the department as a party to the ongoing dependency proceedings. LS wanted the department to provide services for her and her family. Her mother resisted the motion. She asserted that the desired service—family therapy—was available through the family's medical insurance. She expressed concern about department involvement because her past experiences with the department were not positive.¹ Over the mother's objection, the court granted the motion, finding that joining the department was "necessary for this youth and her family to have the appropriate services, visitation and oversight."

¶11 At this court's request, the parties briefed the question of whether the mother's appeal is moot now that the department is a party. The parties agree that the appeal is not moot. A case is moot when the court can no longer provide effective relief. In re Dependency of H., 71 Wash.App. 524, 859 P.2d 1258 (1993). If the mother's argument is correct, this court not only can but must grant the relief she requests—vacation of the dependency order. Where a court lacks subject matter jurisdiction to issue an order, the order is void. In re Marriage of Buecking, 179 Wash.2d 438, 446, 316 P.3d 999 (2013). cert. denied, ––– U.S. ––––, 135 S.Ct. 181, 190 L.Ed.2d 129 (2014). If the dependency order is void because the department was not a party, making the department a party after the dependency order was entered would not cure the order's invalidity. Accordingly, we conclude the appeal is not moot.

SUBJECT MATTER JURISDICTION

¶12 Below, LS's mother did not argue that the department is a necessary party in dependency proceedings. She contends she may raise the issue for the first time on appeal because the failure to join a necessary party deprives a trial court of subject matter jurisdiction.

¶13 An appellate court may refuse to review any claim of error not raised in the trial court. RAP 2.5(a). However, a party may raise a claim of lack of trial court jurisdiction for the first time on appeal. RAP 2.5(a). A question as to subject matter jurisdiction is reviewed de novo. Buecking, 179 Wash.2d at 443, 316 P.3d 999.

¶14 Article IV, section 6 of the Washington Constitution grants to superior courts "original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court." There is no other court exclusively vested with subject matter jurisdiction in dependency proceedings.

¶15 The mother argues, though, that the superior court's subject matter jurisdiction depends on joinder of necessary parties. This court rejected that argument in MHM & F, LLC v. Pryor, 168 Wash.App. 451, 458, 277 P.3d 62 (2012). We followed Supreme Court cases that identify article IV, section 6 as the source of the superior court's subject matter jurisdiction, and we noted that exceptions to the constitution's jurisdictional grant are narrowly construed. Pryor, 168 Wash.App. at 459, 277 P.3d 62.

¶16 Appellant asks this court to abandon Pryor and hold instead that a trial court lacks jurisdiction to adjudicate a matter if all necessary parties are not joined. In support of this argument, she cites a trio of cases from Division Two in which the failure to join a necessary party is referred to as a jurisdictional issue: Woodfield Neighborhood Homeowner's Ass'n v. Graziano, 154 Wash.App. 1, 3, 225 P.3d 246 (2009) ; Treyz v. Pierce County, 118 Wash.App. 458, 462, 76 P.3d 292 (2003), review denied, 151 Wash.2d 1022, 91 P.3d 94 (2004) ; and Henry v. Town of Oakville, 30 Wash.App. 240, 633 P.2d 892 (1981), review denied, 96 Wash.2d 1027, 1982 WL 226473 (1982).

¶17 Woodfield was a quiet title action challenging the validity of a Pierce County treasurer's deed restriction. Pierce County was not joined as a party. The trial court entered a judgment without the county's participation. The appellate court raised the issue of nonjoinder sua sponte, decided that the county was a necessary party, and ordered vacation of the judgment. The court determined that the necessary party issue could be raised for the first time on appeal, in part because "the trial court lacks jurisdiction to adjudicate a dispute if all necessary parties are not before it." Woodfield, 154...