Dependency of H., In re

• Decision Date: 25 October 1993
• Docket Number: Nos. 29580-2-,29681-7-,30830-1-I and 30880-7-I,29680-9-,s. 29580-2-
• Citation: 859 P.2d 1258,71 Wn.App. 524
• Parties: In Re The DEPENDENCY OF H., et al., Minor Children. Division 1
• Court: Washington Court of Appeals

Page 524

71 Wn.App. 524

859 P.2d 1258

In Re The DEPENDENCY OF H., et al., Minor Children.

Nos. 29580-2-I, 29680-9-I, 29681-7-I, 30830-1-I and 30880-7-I.

Court of Appeals of Washington,

Division 1.

Oct. 25, 1993.

Kathleen Barry, Washington Appellate Defender, Seattle, for appellant

Catherine Cruikshank, Asst. Atty. Gen., Seattle, for respondent.

WEBSTER, Chief Judge.

Pamela Brigham appeals (1) the denial of motion for revision of a commissioner's order providing emergency 72-hour sheltercare for her three minor children; (2) a trial court order finding two of her three children to be "dependent" as defined in RCW 13.34.030. We affirm.

SHELTERCARE APPEAL

FACTS

On October 29, 1991, the State filed petitions alleging that Brigham's three children, A (age 5 months), H (age 3 years) and A.B. (age 9 years), were dependent under RCW 13.34.030. The allegations of the petitions indicated that A and H were not adequately cared for or supervised by their mother, to the extent that their health and safety were threatened, and that A.B. was frequently left in charge of the two younger On November 1, 1991, a 72-hour shelter-care hearing was held. Al Baxter, the social worker who signed the petition, testified in conformity with the allegations in the petition. Brigham asked to call three witnesses: her fiancee, a close friend, and her mental health case manager from her current treatment program at Northwest Mental Health Services. Only the mental health case manager was allowed to testify. The trial court did not allow the remaining two witnesses to testify under ER 403.

                siblings.   Symptoms of delayed development were alleged as to both younger children.   The petition further alleged that Brigham is mentally ill and has been diagnosed as "Schizophrenic with a paranoid reaction".   She has been involuntarily committed twice for treatment, most recently in July of 1991
                

On November 1, 1991, the court, pursuant to RCW 13.34.050, entered an order placing the children in sheltercare pending a dependency determination. The court "checked" boxes on a pre-printed form which provided, in the "Findings" portion, that:

(X) 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, and that the child is in need of shelter care because:

(X) The child has no parent, guardian, or custodian or other suitable person to provide supervision and care; or

(X) The release of the child would present a serious threat of substantial harm to such child....

The court then filled in additional blanks directing Brigham to take prescribed medication and to undergo a psychiatric evaluation.

On November 7, 1991, Brigham filed a Motion for Revision of the Commissioner's Order and to stay enforcement of the medication requirement. On November 12, 1991, the court granted the motion to stay and on November 19, 1991, denied the motion for revision.

On November 25, 1991, Brigham filed an emergency Motion to Stay with this court (pending a Motion for Discretionary Review). The motion was granted as to the requirement she Meanwhile, on December 3, 1991, a second 30-day sheltercare hearing was held. On January 7, 1992, the Motion for Discretionary Review was denied on two grounds: (1) that no authority was offered establishing that checking a box with an "X" was insufficient to satisfy RCW 13.34.060(8)(a)'s requirement of a finding of "reasonable efforts"; (2) even though the trial court abused its discretion by failing to allow Brigham's witnesses to testify, the issue was moot since no remedy could be afforded due to the fact that the factfinding hearing was forthcoming. On March 12, 1992, after the final factfinding hearing (initially set for January 8, 1992) A and H were found to be dependent. The court dismissed the dependency as to A.B. Eight days later, on March 20, 1992, this court overturned the January 7, 1992, ruling and granted discretionary review.

take medication but denied as to the requirement that the she undergo a psychiatric evaluation.

DISCUSSION

Before reaching the merits of the issues Brigham raises concerning the sheltercare hearings, we must first address the question of whether they are moot. As the commissioner noted in the January 7 order denying the Motion for Discretionary Review, a full dependency factfinding hearing has already occurred, technically rendering the sheltercare issues moot. A case is moot when the court can no longer provide effective relief. In re Swanson, 115 Wash.2d 21, 24, 793 P.2d 962, 804 P.2d 1 (1990). Ordinarily, "where only moot questions or abstract propositions are involved, ... the appeal ... should be dismissed." Sorenson v. Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972).

However, there are exceptions to this requirement which allow a reviewing court to consider issues that have been raised and briefed "when the court discerns a likelihood of recurrence of the same issue, generally in the framework of a 'continuing' or 'recurring' controversy, and 'public interest' in the controversy." DeFunis v. Odegaard, 84 Wash.2d 617, 627 529 P.2d 438 (1974). Where a technically-moot issue implicates due process rights, it is one in which there is sufficient public interest to warrant deciding it. In re Marriage of T, 68 Wash.App. 329, 336, 842 P.2d 1010 (1993).

Both of the sheltercare issues presented in this appeal involve the rights of parents to due process at statutorily-mandated hearings. In addition, because of the short time between the initial sheltercare hearing, the 30-day hearing and the factfinding hearing, these are clearly issues that are " ' "capable of repetition, yet evading review." ' " In re Marriage of Irwin, 64 Wash.App. 38, 60, 822 P.2d 797, review den'd, 119 Wash.2d 1009, 833 P.2d 387 (1992) (quoting Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, reh'g den'd, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973)). There is little or no possibility that the procedure followed at a sheltercare hearing can be reviewed by an appellate court before it is mooted by a subsequent hearing. We will therefore review the issues appellant has raised.

Under RCW 13.34.060, an initial sheltercare hearing must occur within 72 hours after a child's removal from the parents' custody. RCW 13.34.060(1). The initial 72-hour hearing is followed by a second sheltercare hearing, set 30 days after the initial hearing. A factfinding hearing (the final hearing on dependency) is set at the second sheltercare hearing, and must occur within 75 days of the initial hearing. RCW 13.34.060(1); 13.34.070(1). In addition to these hearings, additional hearings can be set at any time by any party. RCW 13.34.060(10).

RCW 13.34.060(8) provides:

The court shall release a child alleged to be dependent to the care, custody, and control of the child's parent, guardian, or legal custodian unless the court finds there is reasonable cause to believe that:

(a) After consideration of the specific services that have been provided, 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; and

(b)(i) The child has no parent, guardian, or legal custodian to provide supervision and care for such child; or (ii) The release of such child would present a serious threat of substantial harm to such child; or

(iii) The parent, guardian, or custodian to whom the child could be released is alleged to have violated RCW 9A.40.060 or 9A.40.070.

If the court does not release the child to her or her parent, guardian, or legal custodian, the court shall order continued shelter care or order placement with another suitable person, and the court shall set forth its reasons for the order.

Brigham claims the court commissioner violated RCW 13.34.060(8) when he failed to make a finding that "reasonable efforts" were made by DSHS to prevent removal of the children from their home. Here, other than checking an "X" on the pre-printed form containing a standardized finding, the court completely failed to make a finding that...