King v. Department of Social and Health Services

• Decision Date: 26 May 1987
• Docket Number: 8332-2-III,Nos. 7986-4-II,s. 7986-4-II
• Citation: 47 Wn.App. 816,738 P.2d 289
• Parties: In re the Dependency of J. Dawson KING and Sarah King, Appellants, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. In re the Personal Restraint Petition of Dawson KING, Petitioner.
• Court: Washington Court of Appeals

Page 816

47 Wn.App. 816

738 P.2d 289

In re the Dependency of J.Dawson KING and Sarah King, Appellants, v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, RespondentIn re the Personal Restraint Petition of Dawson KING, Petitioner.

Nos. 7986-4-III, 8332-2-III.

Court of Appeals of Washington Division 3, Panel Three.

May 26, 1987.

Dawson King, pro se.

Mark E. Wilson, University Legal Assistance, Spokane, for appellant.

Kenneth O. Eikenberry, Atty. Gen., Maureen E. McGuire, Asst. Atty. Gen., Spokane, for respondent.

McINTURFF, Chief Judge.

This appeal presents issues which arise from two decisions made by the Stevens County Superior Court: (1) an order finding Stevens County had jurisdiction to consider a dependency petition filed on behalf of J.; and (2) an order incarcerating the child's father, Dawson King, for contempt of court based upon his refusal to disclose the location of the child.We affirm the finding that Stevens County had jurisdiction; we reverse the order incarcerating Dawson King.

Twin boys, J. and L., were born prematurely to Dawson and Sarah King on March 11, 1985, in Spokane, Washington .Shortly after their birth, from approximately September to December 1985, their mother was hospitalized at Eastern State Hospital for depression and suicidal tendencies.In December 1985, while the children were in the care of relatives in southern Idaho, L. suffocated after allegedly being trapped between a mattress and a wall.An examination revealed broken bones and a skull fracture which had healed and which were believed to have occurred in November 1985.Because of the nature of L.'s injuries, J. was examined and was also found to have similar injuries.It was later revealed the babysitter's daughter claimed to have fallen down stairs while carrying both children.The record does not reveal whether criminal charges were filed, but it is undisputed Mr. King was in Washington state during the suffocation incident.

Mr. King brought J. back to the Colville area after L.'s death.On February 2, 1986, a caseworker from the Department of Social & Health Services(DSHS) contacted Mr. King and informed him of J.'s need for follow-up care.The caseworker talked with Mr. King at his home in Colville and observed a small child, identified by Mr. King as J., playing in the house.Mr. King brought his son to Deaconess Hospital.An examination revealed only the old injuries; after confirming the cause of those injuries to be the incident in Idaho, Deaconess released the child to his father.

On February 14, 1986, a complaint was made to Child Protective Services (CPS) by Sarah King, who was then a patient in the psychiatric ward of Sacred Heart Hospital in Spokane.She alleged Mr. King had violently spanked the twins, put tape over their mouths and dunked them into cold water to stop their crying, after they were approximately 3 months old and while the children were on the heart monitoring system.In an affidavit submitted to the trial court in June 1986, Mrs. King recanted these allegations.

As a result of Mrs. King's statements, a caseworker met with Mr. King at his home on February 14, 1986.Mr. King denied his wife's assertions and refused to produce the child or disclose his location.He said that the child was in good health and was with a babysitter in Spokane.The caseworker expressed concern about the child while in the care of the babysitter and a desire to insure the boy's safety.Mr. King agreed to meet the caseworker that night in Spokane and bring the child; however, they failed to appear.A dependency petition was filed and a shelter care order signed on February 19, 1986, alleging the child to be abused or neglected.A hearing was set for April 4, 1986.

On March 3, 1986, an attorney appeared on behalf of the child; on March 21, an attorney appeared for Mr. King.The original hearing date was continued to May 23 to allow the State to substitute counsel.A response to the petition was filed by Mr. King's attorney on April 30 alleging, inter alia, lack of jurisdiction, improper venue and insufficiency of process.

Mr. and Mrs. King were served with the dependency petition on May 27, 1986, the day of the hearing.The notice and summons ordered the Kings to appear at the hearing May 27 and to bring the child to the hearing.The following notice also appeared: "VIOLATION OF THIS ORDER OR SUMMONS IS SUBJECT TO PROCEEDING FOR CONTEMPT OF COURT, PURSUANT TO RCW 13.34.070."An order entered the same day advised the Kings to make the child available at the DSHS office on June 23 and set a shelter care hearing on June 27.On June 24, DSHS moved for an order to show cause why Mr. King should not be held in contempt for failing to produce the child as ordered by the court on May 27.The motion was granted and the order noted the following:

Dawson and Sarah King are hereby required to appear on June 27, 1986 at 1:30 p.m., to show cause, if any they may have, why contempt charges should not be filed against them for their failure to comply with the aforementioned order requiring them to produce the minor child in question.

The note for hearing/issue of law statement cited the applicable statute as RCW 7.20.040.

At the hearing June 27, several orders were entered.The first allowed Mr. King's counsel to withdraw and to substitute new counsel.The court also concluded it had sufficient reason to exercise jurisdiction over the matter, despite testimony from Mr. King and his witnesses that he had not been a resident of the state since early February 1986.Because the Kings failed to bring the child to the hearing and refused to disclose his location, the court found both parents in contempt, pursuant to RCW 7.20.110, and ordered them confined

until such time as they, individually or jointly, shall disclose the specific location of the child, [J.], and such disclosure is verified by the DSHS/DCFS, and the child, [J.], is placed in shelter care in Washington State or other equivalent protective custody in another state.No Bond is permitted.

Mrs. King was released shortly after her confinement when the court was advised she did not know the location of the child.Mr. King has remained confined since June 27, 1986; there have been no subsequent appearances before the trial court for the purpose of purging the contempt.

On July 21, Mr. King filed a notice of appeal from the jurisdiction order, asserting a court cannot find contempt where there is no jurisdiction.

An emergency motion to release Mr. King pending the appeal was argued before a commissioner of this court on September 3, 1986, but the request was denied because (a) the record disclosed a prima facie showing of jurisdiction to support the incarceration, and (2) the order was facially coercive.The matter was then set for argument on the merits November 13, and continued until December 16, 1986.On November 15, 1986, Dawson King, in a letter addressed to the Stevens County trial judge, claimed his Fifth Amendment privilege and requested release from jail.The letter was filed with the Court of AppealsNovember 19, 1986.Mr. King also indicated he would represent himself (pro se).A personal restraint petition was filed January 9, 1987; in the petition he noted a habeas corpus petition ad been filed and denied by the trial court.¹

JURISDICTION

Mr. King contends he moved to Utah prior to the filing of the petition and his witnesses, who were uncontroverted, substantiated his change in residency.The court chose to disbelieve their statements and found jurisdiction based upon Mr. King's receipt of a public assistance grant for the month of February and the fact he left no forwarding address at the Colville Post Office.

RCW 13.34.040 provides:

Any person may file with the clerk of the superior court a petition showing that there is within the county, or residing within the county, a dependent child and praying that the superior court deal with such child as provided in this chapter ...

(Italics ours.)

This court's review is limited to whether there is substantial evidence to support the trial court's findings and, if so, whether the findings in turn support the trial court's conclusions of law and the judgment.Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183(1959);Lahart v. Lahart, 13 Wash.App. 452, 457, 535 P.2d 145(1975).

Mr. King argues his witnesses presented uncontroverted testimony he was no longer a resident of the state of Washington, yet the judge failed to explain in the findings why he chose to disbelieve those witnesses.Even though the trial judge did not make a specific finding on this matter, this court is entitled to look to his oral opinion to supplement the findings.In re Marriage of Curran, 26 Wash.App. 108, 110, 611 P.2d 1350(1980).An examination of the oral decision indicates that the court did consider the credibility of Mr. King's witnesses and for reasons enumerated therein concluded they were not believable.It is not the function of this court to review decisions related to the credibility of witnesses.Davis v. Department of Labor & Indus., 94 Wash.2d 119, 124, 615 P.2d 1279(1980).

The court further found that Mr. King had lived in the state of Washington on and off during the past 5 years; Mr. King's brother, sister and mother lived in Colville, Washington; and Sarah King's family also resided in Stevens County.There was sufficient evidence to support the court's conclusion it had jurisdiction to hear the matter.

Additionally, we note the applicable sections of the Uniform Child Custody Jurisdiction Act provide that a custody proceeding includes child neglect and dependency proceedings.RCW 26.27.020(3).

Further, RCW 26.27.020(5) defines home state:

(5)"Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than...