Dependency Of K.v.m.

• Court: Court of Appeals of Washington
• Decided: June 10, 2024
• Docket: 85938-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of: No. 85938-2-I

K.V.M. DIVISION ONE

a minor child. UNPUBLISHED OPINION

FELDMAN, J. – R.R. appeals the trial court’s order of disposition on

dependency placing her daughter, K.V.M., with K.V.M.’s stepmother rather than

with R.R. R.R. argues that the trial court abused its discretion because it applied

the wrong legal standard (“preponderance of the evidence” rather than “clear,

cogent, and convincing evidence”) when it concluded that R.R. is an unavailable

parent under RCW 13.34.130(6)(a). Because we conclude that R.R. waived this

argument on appeal, we affirm.

I

K.V.M. was born in Peru to R.R., her mother, and H.L., her father. K.V.M

lived with her mother in Peru until 2022. After R.R. allegedly physically abused

K.V.M., K.V.M. moved to Washington to live with her father and his wife (K.V.M.’s

stepmother), B.P. During the time K.V.M. was living with her father, he was

arrested and charged with assault and became subject to a pretrial no contact

order prohibiting him from contacting K.V.M. No. 85938-2-I

Because K.V.M.’s father could no longer have any contact with K.V.M., and

because K.V.M. did not want to live with her mother (who had allegedly physically

abused her), the Washington Department of Children Youth and Families (the

Department) filed a dependency petition. The court entered a separate order of

dependency as to each parent, both of which were agreed to by the respective

parent.

The agreed order as to K.V.M.’s father is not at issue in this appeal. In the

agreed order as to R.R., the court found (i) “there is no parent or guardian available

to care for the child,” (ii) K.V.M. “should be placed” with her stepmother (B.P.), and

(iii) “this placement is in the child’s best interests.” R.R. did not appeal this agreed

order.

Thereafter, the Department filed a motion for an order of disposition on

dependency. Consistent with the parties’ agreed order, the Department

represented, “In this case, [the] parties have already agreed that [K.V.M.] should

remain placed out of her mother’s home and care.” Notwithstanding her prior

agreement, R.R. argued that “[t]he Department has not made reasonable efforts”

to prevent removal of K.V.M. from the home or eliminate the need for removal and,

therefore, K.V.M. “must be returned to the care of her mother.”

The trial court rejected R.R.’s argument and ruled instead that the

Department had “made reasonable efforts to prevent or eliminate the need for

removal of the child from the child’s home; but those efforts were unsuccessful.”

Addressing placement, the court’s order states, “N/A, already agreed in mother’s

order of dependency.” R.R. appeals.

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II

R.R. argues that the trial court abused its discretion because it applied the

wrong legal standard when it placed K.V.M. with her stepmother rather than with

R.R. Citing In the Matter of the Dependency of Z.A., _ Wn. App. 2d _, 540 P.3d

173, 189 (2023), R.R. claims the correct legal standard, applicable here, is clear

and convincing evidence. Yet as R.R. notes, the trial court’s order of disposition

on dependency, like the agreed order of dependency, states, “Except where

otherwise indicated, the following facts have been established by a preponderance

of the evidence.” The Department responds that R.R. waived this argument. We

agree with the Department and find waiver on two separate grounds.

First, R.R. agreed to and did not appeal the trial court’s order of

dependency. When a dependency order is agreed and not appealed, this court is

“unable to review it despite our misgivings as to its propriety under the facts of this

case.” In re Dep. of A.V.D., 62 Wn. App. 562, 565 n.5, 815 P.2d 277 (1991).

Stated another way, “A judgment by consent or stipulation of the parties is

construed as a contract between them embodying the terms of the judgment. It

excuses all prior errors and operates to end all controversy between the parties,

within the scope of the judgment.” Wash. Asphalt Co. v. Harold Kaeser Co., 51

Wn.2d 89, 91, 316 P.2d 126 (1957). The order of disposition on dependency at

issue here, as noted previously, expressly noted that R.R. “already agreed” in the

order of dependency that K.V.M. “should be placed” with her stepmother (B.P.)

because “there is no parent or guardian available to care for the child.” By agreeing

to the order of dependency and failing to appeal it, R.R. waived her current

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arguments to the contrary.

Second, under RAP 2.5(a), we “may refuse to review any claim of error

which was not raised in the trial court.” Here, R.R. did not argue below that a “clear

and convincing evidence” standard, and not a “preponderance of evidence

standard,” applied to the trial court’s determination that K.V.M. should be placed

with her stepmother rather than with R.R. While we may exercise our discretion

to address an issue for the first time on appeal where an aggrieved party shows

“manifest error affecting a constitutional right,” R.R. makes no such argument and

offers no response to the Department’s assertion that she has failed to adequately

preserve this argument. Thus, this argument is also waived. See State v. Garcia,

177 Wn. App. 769, 785-86, 313 P.3d 422 (2013) (finding waiver where defendant

failed to “provide argument or legal authority supporting our review on any other

ground we could address for the first time on appeal under RAP 2.5(a)”).

In sum, even if the trial court applied an incorrect legal standard when it

ruled that K.V.M. “should be placed” with B.P. because “there is no parent or

guardian available to care for the child,” R.R. waived any argument that the trial

court abused its discretion in so ruling.

Affirmed.

WE CONCUR:

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