State, Dep't of Soc. & Health Servs. v. Gabhart (In re Dependency of P.H.V.S.)

Decision Date08 December 2014
Docket Number71301–9–I.,Nos. 71300–1–I,s. 71300–1–I
Citation339 P.3d 225,186 Wash.App. 167
CourtWashington Court of Appeals
PartiesIn the Matter of the DEPENDENCY OF P.H.V.S., dob 3/29/13, a minor child, State of Washington, Department of Social and Health Services, Respondent, v. Heidi Gabhart and Richard Smith, Appellants.

Washington Appellate Project, Sungah Annie Chung, S. Annie Chung PLLC, Nielsen Broman Koch PLLC, Attorney at Law, Kevin Andrew March, Nielsen, Broman & Koch, PLLC, Seattle, WA, for Appellants.

Social & Health Services A.G. Office, Attorney at Law, Kelly L. Taylor, Office of the Attorney General, Seattle, WA, for Respondent.

Craig Schreiber McDonald, Shawn Roric Crowley, Attorney at Law, Seattle, WA, Guardian Ad Litem.

SCHINDLER, J.

¶ 1 Richard Smith and Heidi Gabhart are the parents of P.H.V.S. Smith and Gabhart seek reversal of the order of dependency and disposition order. The court found P.H.V.S. dependent because neither parent was capable of adequately caring for the child such that the circumstances constituted a substantial danger to the child's psychological or physical development under RCW 13.34.030(6)(c). Smith contends the absence of his guardian ad litem (GAL) during a portion of the dependency fact-finding hearing violated the mandatory statutory and GALR requirements and his right to due process. Smith also asserts insufficient evidence supports finding that he was not capable of adequately caring for P.H.V.S. or that the child was in circumstances constituting a danger of substantial harm. Gabhart contends insufficient evidence supports finding the Washington State Department of Social and Health Services made reasonable efforts to eliminate the need to remove P.H.V.S. Gabhart also asserts her attorney provided ineffective assistance of counsel and violation of her right to due process. We hold the absence of Smith's GAL during a morning session of the four-day dependency fact-finding hearing violated the mandatory statutory and GALR requirements. However, because the record shows there was little or no risk of error, we hold there was no violation of his right to due process. We also hold that substantial evidence supports the finding of dependency under RCW 13.34.030(6)(c), and Gabhart cannot establish either ineffective assistance of counsel or violation of due process. Accordingly, we affirm.

FACTS

¶ 2 Heidi Gabhart and Richard Smith have lived together since 2010. Gabhart and Smith are the parents of P.H.V.S., born on March 29, 2013.

¶ 3 Gabhart is the mother of three other children: 20–year–old F.O., 7–year–old J.S., and 4–year–old A.G. F.O. has lived with his father since the age of 13. In May 2007, the Washington State Department of Social and Health Services (Department) removed six-month-old J.S. from Gabhart because of concerns about her “deteriorating mental health.” The court found J.S. dependent and ordered Gabhart to participate in a psychological evaluation, mental health counseling, and medication management. Gabhart did not participate in services. The Department placed J.S. with her father.

¶ 4 A.G. was born in Nevada on September 7, 2008. While in the hospital, Nevada child protective services removed A.G. from Gabhart's care. Gabhart was diagnosed with paranoid schizophrenia. The court found A.G. dependent. Gabhart did not participate in mental health services or follow through with referrals for housing. In 2009, the court terminated Gabhart's parental rights to A.G.

¶ 5 In February 2013, Gabhart went to Dr. Nicole Ingrisano for prenatal care. Gabhart told Dr. Ingrisano that she had not engaged in mental health services for “well over a year” and had “no desire to be on medications.” When Dr. Ingrisano tried to talk to Gabhart about her mental health, Gabhart became “very easily agitated” and “angry.” Gabhart made comments to Dr. Ingrisano about the father of the child, suggesting he was “temperamental and that she was looking at moving out from him because he could be violent.” Concerned about Gabhart's ability to care for an infant, Dr. Ingrisano instructed the hospital to put a “hold” on the baby.

¶ 6 After P.H.V.S. was born on March 29, 2013, Dr. Ingrisano asked clinical social worker Jennifer Cruze to assess Gabhart. Cruze met with Gabhart on March 30. Gabhart told Cruze she had a diagnosis of “psychosis NOS”1 and reported “hearing voices in her head sometimes.” Gabhart said she was not engaged in mental health treatment and was not currently on any medication to treat her illness. Gabhart told Cruze that she received Social Security disability income “for her mental health diagnosis.” Cruze made a referral to Washington State Department of Social and Health Services Child Protective Services (CPS)

¶ 7 CPS social worker Molly Rice met with Gabhart and Richard Smith at the hospital that same day. Beforehand, hospital staff told Rice that Gabhart reported having hallucinations and hearing voices. During the meeting, Rice had to repeat questions multiple times “due to [Gabhart] just not answering them.” Rice said Smith's breath smelled of alcohol and he was “not able to answer questions directly.”

¶ 8 CPS social worker Kyla Madsen met with Smith on April 1. Smith told Madsen that he had been “taking care of [Gabhart] for the last 2–3 years.’ Smith said that Gabhart had been ‘passing out, falling over, and losing consciousness for “years.” Madsen testified that Smith ‘appeared to have some cognitive delays or difficulty communicating in a clear way,’ and while he was ‘obviously concerned about both Mom and child,’ he ‘appeared unable to understand [the] severity of [the] circumstances.’

¶ 9 On April 2, Madsen, a CPS supervisor, Gabhart, Smith, and Smith's niece Amanda Twiggs–Johns attended a “Family Team Decision Making” meeting. During the meeting, Gabhart “almost passed out or fell asleep. Her eyes became groggy, her mouth was slightly agape, [and] her head bobbed.” After approximately five to seven minutes, Gabhart “returned to a normal state and continued with the conversation.” Gabhart said she had “a neurological condition.” Twiggs–Johns told Madsen and the CPS supervisor that “the family has seen several instances where Mom has passed out during busy family functions.” Twiggs–Johns said she did not think Smith “fully processed or understood the seriousness of Mom's condition.” Twiggs–Johns did not know if Smith had a mental illness but said he “has behaviors that are concerning including his inability to clearly process information, communicate with others, and recognize the signs of Mom's condition.”

¶ 10 On April 3, the Department filed a dependency petition alleging the child was abused or neglected, or had no parent, guardian, or custodian capable of adequately caring for the child such that circumstances constituted a danger of substantial damage to the child's psychological or physical development under RCW 13.34.030(6)(b) and (c).

¶ 11 The Department recommended P.H.V.S. remain in out-of-home care, asserting Gabhart's untreated mental health issues constituted a danger to the child.

The mother cannot control her behavior due to her significant mental health issues and this threatens child's well-being and safety. She is exhibiting psychotic like features in her behavior and has minimal insight into how her mental health impacts her parenting despite the assistance of multiple providers to facilitate her understanding. The mother's mental health issues prevent her from meeting child's cognitive, emotional, and developmental needs.

The Department alleged Smith's mental health status was unknown and he exhibited an “inability to recognize signs of concerns in Mom's behavior.”

¶ 12 At the shelter care hearing on April 8, the court placed P.H.V.S. in foster care. The court entered an order requiring Gabhart and Smith to each obtain a psychological evaluation and follow treatment recommendations. The court authorized weekly supervised visits with P.H.V.S. and set a dependency fact-finding hearing for June 7.

¶ 13 In May, Smith's attorney Lorraine Roberts filed a motion to investigate Smith's competency and determine whether to appoint a guardian ad litem (GAL). The court appointed Shawn Crowley as the investigative GAL for Smith. In early June, Gabhart's attorney Matthew Pang asked the court to appoint a GAL to investigate Gabhart's competency. The court appointed Craig McDonald as the investigative GAL for Gabhart. The court continued the dependency fact-finding hearing to August 23.

¶ 14 Crowley recommended the court appoint a GAL for Smith. Crowley stated that Smith had “difficulty in comprehending abstractions,” and because he was not “capable of weighing the merits of the various legal options involved in this case[,] I'm doubtful he can meaningfully assist his attorney beyond stating his goal of having the child returned home.”

¶ 15 McDonald recommended the court appoint a GAL for Gabhart. McDonald stated Gabhart's “understanding of the legal process is, at best, minimal,” and she did not seem to retain information, veered off track and ultimately became unresponsive.”

¶ 16 After holding separate competency hearings, the court ruled Smith and Gabhart were “not competent.” The court found that neither Smith nor Gabhart could understand or intelligently “comprehend the significance of the legal proceedings and their effect on [his/her] best interests.” The court appointed Crowley as the GAL for Smith and McDonald as the GAL for Gabhart “to assist” each parent “in these dependency proceedings.” The court continued the dependency fact-finding hearing to September 10.

¶ 17 The dependency fact-finding hearing began on October 22. Gabhart, her GAL McDonald, her attorney Pang, Smith, his GAL Crowley, his attorney Roberts, the court appointed special advocate (CASA) for P.H.V.S., the attorney representing the CASA, the Department, and social worker Noemi Peredo appeared for the dependency fact-finding hearing....

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