In re Welfare of R.S.G.

• Decision Date: 16 April 2013
• Docket Number: No. 42681–1–II.,42681–1–II.
• Citation: 299 P.3d 26,174 Wash.App. 410
• Parties: In the Matter of the WELFARE OF R.S.G.
• Court: Washington Court of Appeals

174 Wash.App. 410

299 P.3d 26

In the Matter of the WELFARE OF R.S.G.

No. 42681–1–II.

Court of Appeals of Washington, Division 2.

April 16, 2013.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, Charles W. Clapperton, Attorney at Law, Elma, WA, for Appellant.

Karen Mary Dinan, Office of the Attorney General, Olympia, WA, for Respondent.

VAN DEREN J.

¶ 1 Following our interlocutory decision filed on December 7, 2012, the trial court held a shelter care hearing on January 16 and 17, 2013. The trial court ordered RSG's ¹ continued placement in foster care after declining to place her with her grandmother, Christine Aker. The trial court also declined to order the Washington State Department of Social and Health Services (DSHS) to provide Aker with services. Aker seeks to vacate the shelter care hearing order and disqualify the trial judge from presiding over future proceedings in this case. We hold that the trial court more probably than not erred as a matter of law in refusing to order the State to provide services to Aker and, thus, we accept the issues raised in our hearing on March 1, 2013, as an interlocutory appeal of the trial court's response to our interlocutory opinion.

¶ 2 After review of the supplemental record and briefing, and following argument, we hold that the trial court and State substantially complied with our interlocutory decision in that Aker was made a party to the dependency matter, she was provided counsel, the trial court held a two-day shelter care hearing, and the State has agreed to provide her services in accord with our direction to respect Aker's nonparental custody rights to RSG and to reevaluate the need for RSG to remain in foster care. We also hold that the trial judge is not disqualified to continue to manage this matter and that any evidentiary errors did not prejudice Aker. We therefore lift our stay of the trial court proceedings in this dependency matter and remand to the trial court for further proceedings consistent with our rulings in this case.

FACTS

¶ 3 In our previous decision, we vacated the trial court's order vacating and dismissing Aker's nonparental custody decree. In re Welfare of R.S.G., 172 Wash.App. 230, 289 P.3d 708 (2012). We also held that if DSHS decided that a dependency should be established as to Aker, a proper petition and supporting documentation were required. R.S.G., 172 Wash.App. at 251, 289 P.3d 708. We remanded for further proceedings that were to (1) occur within 45 days of our interlocutory decision, (2) acknowledge and respect Aker's nonparental custody rights, and (3) reevaluate the need for RSG's foster care placement with Aker as her custodian. R.S.G., 172 Wash.App. at 255, 289 P.3d 708. As we concluded:

Should DSHS pursue dependency as to Aker, it will be required to adhere to its statutory duties to provide legal representation, notice, a shelter care hearing, and services, if necessary, to Aker in a good faith attempt to quickly reunite this child with her maternal family. Furthermore, any petition to modify Aker's custody rights as to RSG under the nonparental custody decree must follow the statutory requirements to avoid additional needless and harmful disruption to RSG's life.

R.S.G., 172 Wash.App. at 255, 289 P.3d 708.

¶ 4 Four days after this decision, DSHS sought a date for a dependency fact-finding hearing as to the nonparental custodian under the prior dependency cause number. Aker filed a memorandum contending that she was entitled to a shelter care hearing and complaining that DSHS had provided her with limited visitation but no other services. DSHS responded that it wanted the court to enter an order establishing dependency and a case plan with regard to Aker. DSHS was willing to provide services to Aker but argued that returning RSG to Aker's care was not in the child's best interests at this time. RSG's mother, Jennifer Ware, gave birth to a son while the appeal was pending, and RSG and her brother have been placed together in foster care.

¶ 5 The trial court agreed with Aker that it should conduct a shelter care hearing. During that hearing, 10 witnesses testified about Aker's marijuana use, her current living situation, her family history, the history of her involvement with DSHS, and RSG's development in foster care.

¶ 6 The first witness was Bobette Webber, a chemical dependency counselor who testified that when she evaluated Aker in April 2011, Aker did not describe any medical history that would require her to smoke marijuana. Webber evaluated Aker as chemically dependent and recommended treatment.

¶ 7 Justin Washington, a social worker for the Washington State Office of Public Defense, then testified on Aker's behalf. During a recent visit to Aker's home, Washington reviewed the list of 17 safety threats that DSHS reviews when considering removing children from the home. He found no safety threats that would prevent Aker from caring for RSG. He testified that Aker lives in a two-bedroom mobile home with an attached outer room where she smokes cigarettes. Her home is in a trailer park located on a highway. There is no fence between Aker's home and the highway, and the property contains two dilapidated cabins. After reviewing her home for safety threats, Washington gave Aker a parenting test on which she scored as a medium-risk candidate for parenting abuse or neglect.

¶ 8 Stephanie Frazier, a supervisor for Washington State Children and Family Services, testified that her assessment of Aker had revealed one safety threat based on “a caregiver who will not or cannot control their behavior and that their behavior impacts child safety.” Report of Proceedings (RP) (Jan. 16–17, 2013) at 33–34. Frazier admitted that her assessment was based on information from 2008 and 2009. She recommended continued out-of-home care for RSG while acknowledging that she had not offered Aker any type of services since 2008.

¶ 9 DSHS then called Aker, who testified that she has used marijuana since she was 24 years old. She admitted that her previous testimony that she started using marijuana 18 months ago was untrue. Now 42 years old, Aker stated that several medical needs warrant her use of the drug. Aker described her troubled relationships with her ex-husband and daughters, Jennifer; Jessica; and Justine,² and said she would not leave RSG in her daughters' care. She denied any responsibilityfor 18-year-old Justine's drug use because Justine no longer lives with her. Aker did say that she tries to have family dinners once a week and that Justine is allowed to spend the night when Aker is home. Aker added that she supports herself by working 80 hours a month at a motel.³

¶ 10 Aker admitted that RSG had medical needs concerning her eyes as well as developmental needs when DSHS took custody of the child. Aker has had sporadic visits with RSG since her placement in foster care and said that no services or parenting classes were offered at the time of that placement. She added that no parenting classes had been offered since this court's December 2012 decision. Aker also explained that the entire trailer park where she lives was “coming down” and would be totally revamped. New recreational vehicle pads were being added and the park would have a fence to keep children off the highway when it was complete.

¶ 11 Following her cross-examination, the trial judge asked Aker whether she had better judgment now than when she raised her daughters. Aker replied that her judgment improved at age 35, and when asked why, she replied, “I just grew up and quit partying and quit doing the stupid stuff that I used to do when I was younger.” RP (Jan. 16–17, 2013) at 82.

¶ 12 RSG's current foster mother testified that when the child came to her 6 months earlier after 15 months in a different foster home, she had significant developmental deficits as well as vision problems. RSG is in special education classes and will need special education services for several years but is making “great progress.” RP (Jan. 16–17, 2013) at 92. RSG's first foster mother testified that RSG was put on anxiety medication when first placed in foster care at age two, and that the child scored low for social, emotional, and communication skills.

¶ 13 DSHS social worker Natalie McLaughlin testified about Aker's history of being offered but refusing services such as chemical dependency treatment, anger management, domestic violence services, parenting classes, and random urinalysis [UA] tests. Such services were offered in 1993 and 1996. Aker requested family reconciliation services in 2002 but then said they were not needed. Aker continued to refuse services concerning Jessica in 2004, and she declined to attend a chemical dependency evaluation or take advantage of other services offered in 2006. McLaughlin saw several safety hazards around Aker's home, including the proximity of the highway without any protective fence, a large adjacent lot filled with water, and two unoccupied cabins. The trailer park did not appear to be thriving, but Aker had told McLaughlin that the entire park, including her own home, would be remodeled in three weeks.

¶ 14 McLaughlin again emphasized the services offered to Aker, “She has been offered chemical dependency services, domestic violence and anger management services, parenting classes, family counseling, at risk youth petitions on at least four occasions, voluntary placement, [child in need of] CHINS services, ⁴ family group conference, and family counseling.” RP (Jan. 16–17, 2013) at 128. McLaughlin added that safety plans, including plans with regard to RSG, had also been offered, but Aker was not interested. She testified that DSHS remains concerned about Aker's history, her ability to supervise children, and her longtime marijuana use. McLaughlin explained that even though the safety threats she had identified were present when RSG was removed and the dependency petition was filed, Aker had not participated...