In re Z.A.

• Docket Number: 84122-0-I,84123-8-I,84124-6-I
• Decision Date: 26 December 2023
• Parties: In the Matter of the Dependency of: Z.A., S.M.A., and S.A.A.,Minor Children.
• Court: Washington Court of Appeals

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In the Matter of the Dependency of: Z.A., S.M.A., and S.A.A.,Minor Children.

Nos. 84122-0-I, 84123-8-I, 84124-6-I

Court of Appeals of Washington, Division 1

December 26, 2023

Coburn, J.

The Department of Children, Youth and Families (Department) asks us to hold that it need only prove by a preponderance of the evidence that parents are not "available" under RCW 13.34.130(6)(a) before a court orders their children placed out of the home following a finding of dependency. We reject the Department's misreading of In re Dependency of W.W.S., 14 Wn.App. 2d 342, 469 P.3d 1190 (2020), and hold that, under RCW 13.34.130(6)(a), the Department still has the burden to prove by clear, cogent, and convincing evidence that a parent's deficiency jeopardizes the child's rights to conditions of basic nurture, health, or safety in circumstances where an in-home placement would pose a manifest danger to the children. Because the juvenile court did not apply the correct legal standard in its disposition order for an out-of-home placement, we reverse that order and remand for further proceedings.

The father, M.A., also appeals the court's determination of dependency and the court-ordered services. He contends that the finding of dependency reflects cultural biases and rests on an impermissible basis. We agree with the father that some of the court's findings, such as finding the father was not "prioritizing the children over the mother" did not constitute a danger of substantial damage to the children's psychological or physical development. However, substantial evidence did support the court's other findings that the father minimized or failed to recognize signs of the mother's drug use and did not understand how the mother's severe and worsening mental health issues affected the children. Accordingly, the lack of insight as to how the mother's deficiencies could pose a danger to the psychological well-being of the children and the court's finding that the father would provide the mother unlimited access to the children supported the determination of dependency.

We also remand for the court to strike the domestic violence (DV) component to a psychological evaluation because the basis for that service is not supported in the record. We otherwise affirm the order of dependency and other ordered services.

FACTS

This case involves the dependency of three siblings. A year after their father, M.A., was detained by Immigration and Customs Enforcement (ICE) in Minnesota, the children's mother D.J., moved them back to Washington state. The mother's admitted drug use and mental health issues led to this dependency action, but this appeal involves the dependency action as to the father, who returned to Washington to reunite his children and help the mother.

After receiving multiple intakes (child abuse or neglect reports) in the summer of 2021, the Department petitioned in August for dependency of Z.A. (then 10 years old), S.M.A. (then 7 years old), and S.A.A. (then 4 years old), because of their mother's struggles with drugs and "severe mental health issues."^[1] The Department reported that the mother had admitted using "Meth," that her "brain is hijacked," that she needed help, and that she knew because of the drugs and mental health she could not watch her children or parent them properly. The children were placed into protective custody with the mother's sister Yasmin Aden.

The Department alleged that the children were dependent under RCW 13.34.030(6)(b) because they were "abused or neglected as defined in chapter 26.44 RCW" or subsection (c) because they "ha[d] no parent, guardian or custodian capable of adequately caring for [the children], such that [they are] in circumstances which constitute a danger of substantial damage to [their] psychological or physical development."

At the time the petition was filed, M.A. was living in Minnesota where the family had previously lived. The mother, D.J., had moved the children back to Seattle around March 2019, about a year after ICE detained the father in Minnesota in March of 2018. ICE later released the father from detention in 2019 but, according to the father, he was still on "probation" with the Department of Homeland Security and therefore unable to move to live with the family in Seattle at that time.

At the time of the shelter care hearing on August 19, 2021, where parties appeared by telephone, the father was living in sober support housing in Minnesota.

The father admitted having a history of problems with alcohol use, depression and anxiety. Though no one disputed that the father was the biological father of all three children, his name only appeared on the birth certificate of S.M.A. The court found that the children had "no parent, guardian, or legal custodian to provide supervision or care" and that the release of the children "would present a serious threat of substantial harm to the [children]; . . . (mother only)." The Department recommended the same services for both the mother and father: "random [urinalysis (UAs)], chemical dependency evaluations and follow recommendations, mental health assessment and follow recommendations, parenting assessment and follow recommendations and in-home services upon reunification." The court did not order the mother or father to participate in any of the recommended services. The court ordered the father to cooperate in establishing paternity within 30 days of entry of the order. The court noted that the

[f]inding of shelter care is made without prejudice to [the father]. Father can bring a motion on shortened time regarding shelter care once father establishes paternity to all 3 children and can provide the Department proof that he can safely parent all 3 children himself or that his sister and their family can provide a safe environment in her home.^[2]

The children remained placed with their aunt Aden. The mother was allowed supervised visits and the father allowed unsupervised visits. Aunt Aden was designated as an approved visit supervisor.

The Department amended the petitions in September 2021 adding information related to the father's criminal history between 2002 and 2018 in Washington and Minnesota. The Department also alleged that the father had been living in a halfway house for his mental health for three months and previously lived in a halfway house for substance use for two years. The Department alleged that the father was in town in June 2020 when the mother, who reportedly appeared under the influence, had attempted to drive away in a vehicle with her children in the car, and also that the mother had on another occasion taken the father's rental car without his permission and crashed it.

The court entered an order finding dependency as to the mother in October 2021 after the mother did not appear or file an answer. The court found that the children would be at substantial risk of harm if they were placed in the care and control of the mother. The court found the mother was observed to invite strangers to her home and use drugs in her home, and that she is reported to have severe mental health issues and to not supervise her children properly.

In November, the father, with the assistance of the Department, arrived in Seattle, and the parties entered an agreed order on November 29 extending shelter care. If the father followed conditions in the order and engaged in services as set forth in the order, and if there were no new child safety concerns, the Department intended to dismiss the dependency petition on the new fact-finding date. The conditions included "[p]romptly obtain[ing] safe housing for the children and himself that passes a Department walk-through." The order provided that "[o]nce the father obtains suitable housing, and provides documentation to show that he has been swabbed and DNA paternity is pending as to the 2 children, the children shall be placed in the father's care." Other conditions in the order related to requirements that would apply once the children were placed with the father, such as the father not supervising the mother's visitation with the children, but would work to make the children available for court- ordered visitation with their mother. The only services mentioned were the Department agreeing to pay the father's first month's rent in order to facilitate the children's return home, and Family Preservation Services. The father also agreed to continue to work diligently to establish legal paternity as to S.A.A. and Z.A., and to make efforts to obtain a protective parenting plan, if possible, though the last provision "shall not be interpreted to prevent dismissal if a parenting plan has not yet been obtained by the fact-finding date." Nothing in the order required the father to submit to UAs or complete any type of evaluation or assessment. The fact-finding hearing was continued to January 28, 2022.

The same day the extended shelter care order was entered, the father, through his counsel, had asked the assigned Department social worker at the time, Diana Wairimu, for help with housing because he had located two emergency shelters, but one would not allow children and he was not eligible for the other. Unbeknownst to the father or his counsel, Wairimu was no longer with the Department when social worker Amanda Subcleff took over the case around November 30.

The father established biological paternity as to S.A.A. and Z.A. on December 2 and provided proof to the Department the next day in an email from father's counsel. The email, sent to counsel representing the Department, Wairimu, and Department supervisor Amy Holmes, asked for assistance in next steps to establish legal paternity and also asked for help finding housing:

[The father] could also use assistance with

...