In re Dependency of AS
| Decision Date | 24 April 2000 |
| Docket Number | No. 44281-3-I, No. 44133-7-I. |
| Citation | 6 P.3d 11,101 Wash.App. 60 |
| Court | Washington Court of Appeals |
| Parties | In re the DEPENDENCY OF A.S., b.d. 05-05-97 Minor Child, State of Washington, Respondent, v. Aziz Safouane and Sarah Safouane, Appellants. In re the Welfare of: A.S., b.d. 05-05-97 Minor Child, Washington State Department of Social and Health Services, Appellant, v. Sarah Safouane and Aziz Safouane, Respondents. |
Aziz and Sarah Safouane, pro se, Kent, for Appellants.
Marilyn R. Gunther, for the Safouanes.
Joel J. Delman, Noella A. Rawlins, Christine L. Currie, Office of Attorney General/DSHS, Seattle, for Respondents.
Following the death of their 22-month-old son Mohammed, the Safouanes' four remaining children and a later born child were found dependent. The Safouanes' parental rights were later terminated as to each child after they refused to participate in court-ordered services and refused to visit their children in foster care. The Safouanes then had a seventh child, A.S., who is the subject of this appeal. A.S. was found dependent. The Safouanes appeal pro se from the dependency disposition order. In a later proceeding, the State's termination petition was dismissed on the grounds that the State had failed to prove the facts underlying the dependency by clear, cogent and convincing evidence. The Department of Social and Health Services (DSHS) appeals the dismissal of the termination petition.
We affirm the dependency disposition order. Because the State is not required to relitigate the facts underlying the dependency, we reverse the order dismissing the termination petition and grant the termination petition.
Aziz and Sarah Safouane's youngest child, 22-month-old Mohammed Safouane, died as a result of a blunt trauma to his abdomen. Two of his older siblings told law enforcement officers that Mohammed had been "disciplined" and "stomped" on by his father and had vomited "blood and stuff." Mohammed's four older siblings were removed from the Safouanes' custody and DSHS initiated dependency proceedings. In addition, Aziz Safouane was charged with homicide. However, the charges were dismissed without prejudice following a ruling that the children's hearsay testimony was inadmissible under the excited utterance exception.
At the dependency trial before Judge Deborah Fleck, the Safouanes claimed that Mohammed sustained his injuries in a bicycle accident, and they presented an expert medical witness who supported that theory. DSHS presented expert medical witnesses who testified that the injury was caused by an intentionally inflicted blow to the abdomen, not a bicycle accident, and that Mohammed could have survived his injury had he received prompt medical attention.
Judge Fleck entered an order finding the four surviving children dependent pursuant to RCW 13.34.030(4)(c)1. The court found that the bicycle accident theory was not plausible, and that the injury to Mohammed was inflicted, rather than accidental. Despite the criminal court's order suppressing the hearsay evidence, Judge Fleck ruled that she could consider the children's statements as excited utterances, and based thereon, found that the father inflicted the blow. The court found the children dependent as to their father because he inflicted the blow and because Mohammed exhibited sufficient signs and symptoms to alert the father that immediate medical treatment was required, but he failed to seek treatment until Mohammed was in extremis. The court found the children dependent as to their mother because her adherence to the implausible bike accident theory showed that her desire to have her family together overrode her ability to protect her children.
The court ordered that both parents undergo psychological evaluations, that the children be returned to the mother subject to ongoing monitoring by DSHS, and that the father move out of the family home. The court entered a no-contact/restraining order as to the father, with the exception of supervised visits with the children. The court also established a community support panel consisting of four members, including at least one member of the parents' Muslim faith, to serve in an advisory capacity to the court and to assist the family in accessing services and complying with the court order.
The parents appealed the dependency and disposition orders. We held that the children's statements were not admissible as excited utterances, but found the error harmless because medical evidence indicated that Mohammed died from an inflicted blow rather than a bicycle accident, and the hearsay evidence had been used solely to establish that the father, rather than the mother, inflicted the blow.2
The Safouanes refused to comply with the dispositional plan. At a dependency review hearing, Judge Fleck ruled that continuing noncompliance would result in the children's removal from the mother's home and possible termination of parental rights. The parents still refused to comply, and Judge Fleck ordered the four children removed from the mother's home and returned to foster care.
Several months later, a sixth child was born to the Safouanes. DSHS filed a dependency petition, citing Judge Fleck's findings that Mohammed's death was the result of abuse. The child was removed from the Safouanes' home, and after a hearing, the court found the sixth child dependent. The disposition order was similar to Judge Fleck's, but did not require that the parents submit to psychological evaluations and would permit return of the child if the parents visited him in foster care. However, the Safouanes refused to visit any of their children in foster care and refused all court-ordered services. DSHS filed termination petitions, and after a trial, the court terminated the Safouanes' parental rights to all five of their children. The Safouanes appealed, and we upheld the termination orders.3
A.S., the Safouanes' seventh child and the subject of this appeal, was born during the termination trial. DSHS filed a dependency petition almost immediately after her birth. At a 72-hour shelter care hearing, the juvenile court commissioner denied DSHS's request to have A.S. placed in foster care, but issued a shelter care order that would allow A.S. to remain with her parents subject to extensive monitoring and other conditions designed to insure her safety. At the 30-day shelter care hearing, the commissioner set additional conditions, including psychological evaluations, and specified that A.S. would be removed if the parents did not comply. The Safouanes refused to comply with the orders, and A.S. was removed from their home without notice pursuant to a writ of habeas corpus. The Safouanes have steadfastly refused to visit A.S. in foster care ever since.
At the fact finding dependency trial before Judge LeRoy McCullough, DSHS offered into evidence all trial court and Court of Appeals decisions regarding the previous dependency and termination proceedings. DSHS presented this evidence to demonstrate that Mohammed had died of an inflicted blow, that timely medical care could have saved him, and that the circumstances surrounding the death had not changed because the Safouanes had refused to comply with court orders. The Safouanes countered with evidence that A.S. was not presently suffering from abuse or neglect. The Safouanes continued to maintain that they were completely innocent of any wrongdoing in Mohammed's death; that following the court's orders would be a dishonor to their children and the Muslim community because the orders would force them to take actions inconsistent with their belief in their innocence; and insisted that visitation was unnecessary because nothing could violate the sacred bond they had with their children.
The court found A.S. dependent. The court acknowledged that there was no evidence that A.S. was currently being abused, but found that the parents' continuous refusal to comply with court orders meant that there was no substantial change since the original dependency action and that the parental deficiencies remained. The court also relied on Judge Fleck's findings in the dependency of A.S.'s older siblings regarding the facts surrounding the death of Mohammed and the risks to the children. The court ordered that A.S. remain in foster care and that the parents visit her at least twice a week to re-establish the parent-child bond. The court also ordered psychological evaluations for the Safouanes and ordered them to accept treatment if recommended. The court stated its willingness to return A.S. to her parents, but ordered that DSHS would be relieved of its burden to provide services if the parents refused to comply within 30 days of the order. The Safouanes refused to comply, and now appeal the dependency order.
DSHS petitioned to terminate parental rights to A.S., and a trial was held before Judge Dale Ramerman. At the trial, DSHS did not attempt to reprove the facts underlying Mohammed's death by clear, cogent and convincing evidence. Instead, as in the termination trial for the older children, DSHS offered into evidence copies of prior court orders in the dependency and termination cases involving A.S. and her older siblings. The court admitted this evidence with the caveat that it was not ruling on what collateral effect, if any, those orders would be given. DSHS also offered testimony that the Safouanes' total refusal to comply with court orders and continuing claims that they were in no way responsible for the death of Mohammed indicated that the underlying parental deficiencies have not been corrected. The Safouanes continued to base their refusal to engage in court ordered services or visitation on their innocence in the death of Mohammed and their religious and legal rights.
The trial court found that DSHS had offered all ordered services; that the parents' willful decision not to visit A.S. had adversely affected the...
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