State v. Starvish (In re W.W.S.)
| Decision Date | 30 March 2020 |
| Docket Number | No. 79763-8-I,consolidated with 79764-6-I,79763-8-I |
| Citation | 460 P.3d 651 |
| Court | Washington Court of Appeals |
| Parties | In the MATTER OF the DEPENDENCY OF W.W.S., d.o.b. 1/25/2008, and C.G.S., d.o.b. 9/17/2012, Minor Children. State of Washington, Department of Social and Health Services, Respondent, v. Melodee Jane Starvish, Appellant. |
Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Derek Paul Leuzzi, Kelly L. Taylor, Attorney General's Office, 800 Fifth Ave Ste 2000, Seattle, WA, 98104-3188, Soc. & Hlth. Svcs. A.g. Office, Attorney at Law, 800 Fifth Ave, Suite 2000, Ms-tb-14, Seattle, WA, 98104, for Respondent.
April M. Rivera, King County CASA Program, 1401 E Jefferson St. Ste. 500, Seattle, WA, 98122-5574, Dependency Casa Program King County, Mrjc-401 4th Avenue N, Suite 3081, Kent, WA, 98032, Kathleen Carney Martin, Dependency CASA Program, Jennie Mayberry Cowan, Attorney at Law, 401 4th Ave. N, Rm. 3081, Kent, WA, 98032-4429, for Guardian(s) Ad Litem.
PUBLISHED OPINION
¶1 Melodee Starvish appeals the order adjudging two of her sons, W.W.S. and C.G.S., dependent. She contends that the juvenile court (1) violated her due process rights by basing certain findings on allegations regarding educational neglect and C.G.S.’s mental health of which she did not receive fair notice, (2) erred by ordering an out-of-home placement, (3) erred by ordering her to submit to urinalysis, and (4) erred by concluding that it lacked authority to direct the Department of Children, Youth, and Families (Department) to assign a new social worker to her case.
¶2 Because the record reflects that Starvish received ample notice that educational neglect and C.G.S.’s mental health would be at issue during the dependency hearing, we hold that Starvish was not deprived of due process. We further hold that the juvenile court did not err by ordering an out-of-home placement or concluding that it lacked authority to direct the Department to assign a new social worker. But because there was no reliable evidence in the record that Starvish had a substance abuse issue that required remedying as a parental deficiency, the juvenile court abused its discretion by ordering Starvish to submit to urinalysis. Therefore, we reverse the juvenile court’s imposition of the urinalysis requirement, remand to strike that requirement, and affirm in all other respects.
¶3 Starvish is the mother of two boys, W.W.S., born January 25, 2008, and C.G.S., born September 17, 2012. The boys’ father is Brian Starvish (hereinafter, for clarity, Brian).
¶4 W.W.S. has been diagnosed with ADHD1 and hospitalized several times to treat his mental health issues. He was the subject of an earlier dependency proceeding in 2017 (2017 Dependency), prior to which Child Protective Services (CPS) had been involved with the family five times. W.W.S. was adjudged dependent as to Brian in the 2017 Dependency. That dependency was later dismissed after Starvish completed services.
¶5 Brian was abusive and, following an incident at C.G.S.’s fifth birthday in 2017, Starvish left Brian. Starvish is in the process of divorcing Brian. At some point, Starvish moved with W.W.S. and C.G.S. into a confidential housing shelter.
¶6 On August 3, 2018, the State, through the Department, filed the dependency petition in this case.2 It alleged that W.W.S. and C.G.S. were dependent as to both Brian and Starvish under RCW 13.34.030(6)(b) and (c). The former provides that a child is dependent if he "[i]s abused or neglected ... by a person legally responsible for [his] care" ("b" dependency), and the latter provides that a child is dependent if he "[h]as no parent, guardian, or custodian capable of adequately caring for [him], such that the child is in circumstances which constitute a danger of substantial damage to the child’s psychological or physical development" ("c" dependency). RCW 13.34.030(6)(b), (c).
¶7 The Department’s petition alleged that on July 22, 2018, CPS received an intake alleging that W.W.S. had been left alone at the housing shelter for about five hours. According to the petition, the intake alleged that W.W.S. "was in emotional distress and wanted to call Ms. Starvish because they were supposed to meet at the complex to go to the beach together" and that W.W.S. "went into the housing complex office at 1:00 pm and reported that he believed Ms. Starvish had left without him." According to the petition, the intake also alleged that "this was not the first time this had occurred at the complex."
¶8 After describing CPS’s multiple unsuccessful attempts to speak with Starvish after that intake, the Department’s petition described another intake, on July 31, 2018, alleging that Starvish "had been seen regularly at a known drug house with [C.G.S.] and [W.W.S.]" According to the petition, the intake alleged that the two men in the house were Starvish’s brother and another man. The petition alleged that in the days following the July 31st intake, the Department and CPS made additional, unsuccessful attempts to contact Starvish and meet with W.W.S.
¶9 The petition also described the family’s prior involvement with CPS, alleged facts regarding the 2017 Dependency, and described three additional CPS intakes involving Starvish that occurred after the 2017 Dependency was dismissed. According to the petition, all three of those intakes were closed as unfounded. One of the intakes, from April 2018, involved a report that W.W.S. had been falling asleep at school for long periods of time and missing up to seven days of school in a row.
¶10 After the Department filed its petition, the juvenile court held a shelter care hearing and, on August 9, 2018, entered an order placing W.W.S. in shelter care but releasing C.G.S. to Starvish.
¶11 On October 26, 2018, the Department filed an emergency motion to place C.G.S. into shelter care as well. The Department argued, relying on a social worker’s declaration, that after shelter care was denied with respect to C.G.S. in August, "the mother ha[d] kept this child out of school for three weeks, alleging he [wa]s ill, but ha[d] not taken him to a doctor." The Department’s motion also alleged that "[t]he mother appeared [at] the child’s school this week causing a scene with school officials around contact with [W.W.S.]." The social worker’s declaration also described a September 20th incident at school, where C.G.S. "was aggressive and said he was mad at his mother." According to the declaration, when Starvish came to the classroom to talk with the teacher, C.G.S. "started to get angry with his mother and did not want to go with her" and "started to flip her off repeatedly (about 6 times) before the teacher got him to stop." The social worker’s declaration described a second incident a week later, where C.G.S. "dr[e]w overlapping circles over and over again in an angry manner." The declaration stated that when C.G.S. was asked about what he drew, he responded that "it was ‘the school getting sucked into a black hole’ and he ‘is in the school in the black hole’ because he ‘wants to be dead.’ " Finally, the social worker’s declaration described a third incident during which C.G.S.’s teacher saw him "trying to cut himself in the wrist with children[’s] scissors." The juvenile court ordered that C.G.S. be taken into custody and, on November 2, 2018, after a review hearing, ordered that C.G.S. be placed into shelter care.
¶12 The juvenile court subsequently entered an order of default and an order of dependency as to Brian. The court held a two-day fact-finding hearing as to Starvish on February 27 and 28, 2019. The court heard testimony from Christina Cartwright, the vice principal of Beacon Hill International School (Beacon Hill), where W.W.S. was in fourth grade and where C.G.S. had attended kindergarten from September to approximately October 2018; Alexandria Pearman-Gillman, C.G.S.’s kindergarten teacher at Beacon Hill; Kirsten Bolduan, the Department’s assigned social worker; Jennifer Moore, a visitation supervisor; Megan Notter, the guardian ad litem (GAL) for W.W.S. and C.G.S.; and Starvish. After the hearing, the court found by a preponderance of the evidence that a "c" dependency had been established as to both W.W.S. and C.G.S.
¶13 At a later disposition hearing, the court heard testimony from Bolduan and argument from Starvish, the Department, and the GAL. Starvish argued for an in-home dependency and asked the court to consider directing the Department to substitute Bolduan and assign a new social worker to her case. The GAL, too, asked the court "to encourage the Department to seriously consider reassignment to a different social worker" and stated her belief "that it’s going to be very difficult for both of them to work together." The GAL further requested that the court "either ... order a chemical dependency evaluation or ... something like 90 days twice a week random UAs, and if there is a missed ... or positive that [Starvish] then be required to take chemical dependency evaluation." The GAL’s request echoed earlier testimony from Bolduan, who also requested random urinalysis.
¶14 The juvenile court ultimately ordered an out-of-home placement and concluded that it did not have the authority to direct the Department to assign a new social worker to Starvish’s case. Although the court did not order a chemical dependency evaluation,3 it ordered Starvish to submit to random urinalysis once a week for 90 days and, additionally, up to 6 times per month upon the Department’s suspicion of use. Starvish appeals.4
¶15 As an initial matter, after Starvish filed her appeal, the GAL moved for an extension of time to file "the GAL’s brief." A commissioner granted the GAL’s request for an extension of time but expressly declined to address whether the GAL was entitled to file a brief at all. Starvish then filed a motion to preclude the GAL from filing a brief.5 In her...
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