Watson's Welfare, In re

• Decision Date: 26 November 1979
• Docket Number: No. 7274-9-I,7274-9-I
• Citation: 610 P.2d 367,25 Wn.App. 508
• Parties: In re the Welfare of Tyrome WATSON, a minor. In re the Welfare of Jerome WATSON, a minor.
• Court: Washington Court of Appeals

Page 508

25 Wn.App. 508

610 P.2d 367

In re the Welfare of Tyrome WATSON, a minorIn re the Welfare of Jerome WATSON, a minor.

No. 7274-9-I.

Court of Appeals of Washington, Division 1.

Nov. 26, 1979.

Philip G. Hubbard, Asst. Atty. Gen., Seattle, for appellant.

Frederick Rogovy, Seattle, for guardian ad litem.

Mary Fung Koehler, Seattle, for respondent.

DORE, Judge.

This is an appeal from a trial court order which denied the petitions for permanent deprivation and continued dependency of the Department of Social and Health Services.

ISSUE

Whether the trial court erred in denying the petitions of the Department of Social and Health Services for permanent deprivation and continued dependency.

FACTS

In January 1972, Ms. Watson, the respondent, placed her 3-month-old twins, Jerome and Tyrome, in the temporary custody of the Department of Social and Health Services(Department), with the hope that she could solve certain domestic problems.

Between January 1972 and April 1973, the twins were moved back and forth between numerous foster homes and the Watson home.Finally in April 1973, the twins were placed in the foster home of the Harbisons where they have resided up to the present time.

Prior to 1973, the mother made repeated efforts to contact the twins but was rebuffed by the Department.Since 1973, respondent has not seen nor talked with the twins.In April 1978, the Department filed a petition for dependency and permanent deprivation, pursuant to former RCW 13.04.100¹ and former RCW 13.04.140.²The basis for the petition included (1) the children were abandoned by their parents (2) their parents were unable to care for them, and (3) the children had formed psychological bonds with their foster parents.

A lengthy trial was held in December 1978.The Department's case consisted primarily of the expert testimony of caseworkers and two psychiatrists.They testified that the twins were suffering from "maternal deprivation"(severe neglect coupled with multiple moves) during the first 18 months of their lives and that such deprivation has adversely affected the twins emotionally.The psychiatrist further testified that to remove the twins from their foster mother would be a potential disaster.

Respondentmother testified that she never intended to abandon the twins and dearly loved them and could adequately care for them.The court heard testimony that the respondent had successfully raised her other three children.

The trial court denied the deprivation and dependency petitions and ordered the twins returned to respondent.

In March 1979, this court held in In re the Welfare of Watson, 23 Wash.App. 21, 594 P.2d 947(1979), that discretionary review should be granted pursuant to RAP 2.3(b)(1), and that the restoration of custody to respondent should be stayed pending this appeal.As Watson did not appeal this decision, further discussion on this jurisdictional issue would be nonproductive.

DECISION

The Department initially argues that the trial court abused its discretion when it refused to accept the medical conclusions reached by two of the Department's expert witnesses.

The Department elicited testimony from two psychiatrists, Drs. Raskin and Reiter, to the effect that the twins were suffering from "maternal deprivation" and abandonment.The doctors testified that the deprivation was caused by the many custodial moves made by the twins.Dr. Raskin concluded that the moves subjected the twins to abandonment.He defined abandonment as:

At any time a child is living with an individual, and any time a child becomes involved with a person, that person becomes meaningful to that child, and if that is terminated, that is abandonment.

The trial court rejected the testimony of the psychiatrists in finding of fact No. 12, stating:

Little consideration will be given to this testimony as the doctor told us about psychiatric concepts and philosophies rather than any specifics relating to the Watson twins.

The doctors' definition of abandonment is "preposterous" in that it is impossible for an 18 month old child to formulate a concept of severe abandonment such as the Doctor described.

It is the well-settled law of this state that the trial judge is empowered with the discretion to determine the credibility of witnesses and the weight which should be given their testimony.In re Marriage of Mahalingam, 21 Wash.App. 228, 584 P.2d 971(1978).

It is also true that a trial judge can accept or refuse expert testimony as long as he does not act in an arbitrary and capricious manner.This principle was enunciated in Brewer v. Copeland, 86 Wash.2d 58, 74, 542 P.2d 445(1975), wherein the court stated:

A trial court has the right to reject expert testimony in whole or in part in accordance with its views as to the persuasive character of that evidence.In light of the court's explanation, we cannot say the court acted arbitrarily or capriciously in refusing to accept the evidence as to proper speed.

Applying the rationale of Brewer to the subject case, we are unable to say that the trial court acted arbitrarily or capriciously in refusing to give any weight to the expert testimony of Drs. Reiter and Raskin.The record indicates that neither of the doctors were board-certified psychiatrists.The court noted in its oral opinion, and in finding of fact No. 9, that "both psychiatrists were slanted in their thinking favorably toward the Harbisons, and very unfavorably toward Watson."

The Department's remaining assignments of error deal with the insufficiency of the evidence to support the findings and conclusions of the trial court.Findings of fact by the trial court will not be disturbed if there is substantial evidence to support those findings.Sylvester v. Imhoff, 81 Wash.2d 637, 503 P.2d 734(1972).

The Department argues that there is no substantial evidence to support findings of fact Nos. 7 ³ and 20, ⁴ which found that the Department did not prove respondent was unfit to parent the twins.We disagree.

It is not the role of an appellate court to substitute its findings for those of the trial court.This principle was best enunciated in In re Sego, 82 Wash.2d 736, 513 P.2d 831(1973), wherein the court stated at 739-40, 513 P.2d at 833:

As an appellate tribunal, we are not entitled to weigh either the evidence or the credibility of witnesses even though we may disagree with the trial court in either regard.The trial court has the witnesses before it and is able to observe them and their demeanor upon the witness stand.It is more capable of resolving questions touching upon both weight and credibility than we are.

In the subject case substantial evidence exists to support the findings that respondent is a fit parent for the twins.Testimony was produced indicating that respondent's three older children were well integrated into society, were above average in school, and participated in numerous extra-curricular activities.The trial court's oral opinion placed a great deal of emphasis on this evidence, stating:

The Court was impressed with the way these three children have developed, two boys and the little girl.It looks to me that the older boy certainly is a well-integrated child.It appears that he gets along with everybody.He is doing way above average, way above normal in many fields.He has athletic ability.He has mental ability here by winning these certificates.There wasn't that much said about the second boy, but apparently he is average.And the little girl seemed...