In re Dependency of Schermer, 79440-5.

CourtUnited States State Supreme Court of Washington
Citation169 P.3d 452,161 Wn.2d 927
Docket NumberNo. 79440-5.,79440-5.
PartiesIn the Matter of the DEPENDENCY OF Henry SCHERMER (dob 2/7/90). Stephen Schermer and Margaret Schermer, Respondents, and State of Washington, Department of Social and Health Services, Petitioner, v. Henry Schermer, Respondent.
Decision Date11 October 2007

Christian Williams, Trisha L. McArdle, Attorney Generals Office, Seattle, WA, Sheila Malloy Huber, Attorney at Law, Olympia, WA, for Petitioner.

Rachel Levy, TeamChild, Everett, WA, for Respondent.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, Cheryl D. Aza, Expat-CAPE, Houston, TX, for Minor (H.S.).

MADSEN, J.

¶ 1 The State of Washington challenges a Court of Appeals decision reinstating a dependency petition filed by Stephen and Margaret Schermer on behalf of their son, Henry. The petition alleged that Henry was dependent under RCW 13.34.030(5)(c), in that he "[h]as 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." At the dependency hearing, the parents presented evidence that Henry requires two to three years of inpatient residential treatment to deal with sexually deviant behavior and other mental health issues. At the time, Henry was living in an out-of-state residential treatment facility. His parents testified that Henry would be released from the facility within two weeks because they could no longer pay for his treatment. They further stated they could not safely supervise Henry in their home, and they were unwilling to allow him back, primarily because of their fear that he would carry out his threats to kill his parents and two younger siblings, and/or commit sexual offenses. The trial court dismissed the petition on a CR 41(b)(3) motion. The court concluded there was insufficient evidence to establish dependency because Henry was currently safe at the treatment facility and his parents could finance six additional months of in-patient care if they sold their family home. The Court of Appeals reversed, holding that the parents established a prima facie case for dependency, and remanded for a full evidentiary hearing. We affirm the Court of Appeals.

FACTS

¶ 2 Henry was born on February 7, 1990. Henry had difficulty learning and socializing with other children, and his mother home-schooled him for a time. In 2003, when Henry reached adolescence, his behavior took a dramatic turn for the worse. He began having night rages and bouts of weeping that lasted for hours. His parents sought professional help. Henry got progressively worse, however. He began expressing suicidal thoughts and cutting himself. His parents took him to the hospital, and he was admitted for inpatient psychiatric treatment at Overlake Hospital. He began hearing voices, had hallucinations, and became increasingly frightened, angry, and aggressive. He was suspended from school for fighting with his peers. His treatment providers prescribed various medications, but none seemed to work effectively.

¶ 3 Over the course of 2003, Henry was hospitalized six times for inpatient psychiatric care, each stay lasting about a week. When Henry was at home, the Schermers complied with the advice of his physicians to minimize light, noise, and other irritations within the home, including keeping their younger son away from him. They also locked up items he might use to hurt himself.

¶ 4 Henry's symptoms continued to worsen, however. He became hateful and threatening to his siblings. After Henry's second or third hospitalization, his mother could no longer sleep while Henry was in the home. She did not trust Henry and feared that he would harm the two younger children. Henry is six feet one and weighs about 240 pounds.

¶ 5 Henry began directing his rage at his parents. He told them voices were telling him to kill his family and himself. He threatened to kill his tutor at school. The Schermers were unable to leave him at home alone.

¶ 6 On one occasion in mid-2003, Henry became highly agitated. He sat in a chair a short distance from a kitchen counter, with tightly clenched fists, staring intently at a block of kitchen knives. After about a half hour of coaxing from his parents, he told them voices were telling him to kill them all with one of the kitchen knives. His parents took the threat seriously and were "extremely scared" because Henry seemed "out of control." Verbatim Tr. of Proceedings (VRP) (Sept. 8-9, 2005) at 21. They took him to the hospital and again admitted him for treatment. He was admitted the next month after voices again told him he should kill his family. At the dependency hearing, his father testified, "He had the specific day based on the phase of the moon that he was supposed to do it with whatever costume he was supposed to wear when he did it." VRP at 22.

¶ 7 In January 2004, the Schermers sent Henry to a residential care facility in Idaho. He remained there until May 2004. While he was away, the Schermers' then five-year-old son disclosed that Henry had exposed himself to him. When confronted with this information, Henry admitted it was true. During counseling sessions, he admitted exposing himself to three other young boys while he was at home.

¶ 8 The incidents were reported to the police by both Henry's counselor and his parents, but neither Child Protective Services nor the police investigated the matter.

¶ 9 In May 2004, Henry was moved to Red Rock Canyon School in Utah to receive behavioral modification therapy. His parents visited him every six weeks and participated in weekly therapy sessions via telephone. His behavior seemed to be improving. But in January 2005, Henry was found in a sexual encounter with a peer. After further inquiry, his counselors discovered he had had sexual relations with a number of peers. His therapists concluded Henry was displaying sexually predatory behavior and grooming other children to engage in sexual activities. The facility discharged him because it was not licensed to deal with sexually aggressive youth. Henry's therapists advised the Schermers it was not safe to bring Henry home. They helped them find a different treatment facility that would be capable of dealing with such issues.

¶ 10 In January 2005, Henry was transferred to the Birdseye Boys Ranch, run by Heritage Youth Services. The professionals at that facility advised Henry's parents he required two to three years of intensive residential treatment, and that it was not safe for him to return home.

¶ 11 In January 2005, the Schermers contacted the Department of Social and Health Services (DSHS) for help because they realized they would soon exhaust their financial resources and would be unable to keep Henry at the residential treatment facility. They provided DSHS with Henry's medical records, said they were unable to care for him in their home, and asked DSHS to provide an out-of-home placement for Henry. DSHS declined. According to the Schermers, DSHS told them Henry's situation was not severe enough to warrant out-of-home placement and that their only remedy was to bring him home. They stated DSHS offered only the possibility of respite care and door alarms if Henry returned home. At the dependency hearing, a DSHS social worker testified that he declined the out-of-home placement request because he did not view Henry's situation as "an emergency," and Henry did not otherwise satisfy the department's criteria for voluntary foster care placement. VRP at 140.

¶ 12 In June 2005, the Schermers filed a dependency petition, alleging Henry was a dependent child under RCW 13.34.030(5)(c). Following a shelter care hearing, the court ordered Henry to remain in his parents' custody. The court appointed Henry a guardian ad litem and an attorney. The court ordered DSHS to arrange for the Schermers to meet with Second Chance, a social service agency, for an assessment "to determine the conditions under which the child may safely return home." Clerk's Papers (CP) at 22.

¶ 13 Following the evaluation, the Second Chance provider reported to DSHS:

Mr. & Mrs. Schermer made it quite clear that they have no intention of having their son, Henry, return home. They do not feel that they can adequately supervise him nor do they want to place their other children at risk for sexual or physical abuse. It is their hope[] that the Snohomish County juvenile court will grant an order for their petition to have the state of Washington take Henry into custody. At this time, they are not willing to accept in-home services as offered by my agency.1

CP at 17.

¶ 14 On September 8, 2005, the court held an evidentiary hearing on the dependency petition. The court heard testimony from the Schermers, Henry, Vicky Britt, the family therapist, and James Kairoff, a DSHS social worker. After Henry's father testified, the court allowed Henry to amend the dependency petition to include an additional allegation of abandonment, under RCW 13.34.030(5)(a).

¶ 15 Both parents testified as to Henry's psychological problems and their efforts to care for him. Both expressed their belief that it would not be safe for Henry to return to their home and stated they were unwilling to allow him to do so. Stephen explained that Henry's condition "progressively got worse" while at home and that since he left, it had become apparent that Henry has "much deeper and harder to deal with issues than we even knew were there." VRP at 33. He said he was not capable of taking care of Henry because he was gone most of the day and was not available to monitor him.

¶ 16 Stephen testified that based on his recent conversations with Henry and with his treatment providers, he felt it would not be safe for Henry to return home. He testified that even if he was at home and able to monitor Henry, he did not feel capable of physically...

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