IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of ) W.W.S., d.o.b. 1/25/2008, and ) No. 79763-8-I C.G.S., d.o.b. 9/17/2012, ) (consolidated with 79764-6-I) ) Minor Children. ) DIVISION ONE ) STATE OF WASHINGTON, ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES, ) ) Respondent, ) ) v. ) ) PUBLISHED OPINION † MELODEE JANE STARVISH, ) ) Appellant. ) )
SMITH, J. — 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.
† Starvish has filed a motion to change the case caption and to use her initials in this opinion. The motion is denied. No. 79763-8-I/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.
FACTS
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).
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.
Brian was abusive and, following an incident at C.G.S.’s fifth birthday in
1 Attention Deficit Hyperactivity Disorder. 2 No. 79763-8-I/3
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.
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).
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.”
After describing CPS’s multiple unsuccessful attempts to speak with
Starvish after that intake, the Department’s petition described another intake, on
2 The Department filed two petitions, one for W.W.S. and one for C.G.S. Because the allegations in the two petitions are the same, this memorandum refers to both petitions collectively as the “petition.” 3 No. 79763-8-I/4
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.
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.
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.
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
4 No. 79763-8-I/5
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.
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
5 No. 79763-8-I/6
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.
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.
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
3At oral argument, the Department suggested that the juvenile court did order a chemical dependency evaluation. Although the record does contain an order that includes a drug/alcohol evaluation requirement, that order was entered on March 19, 2019, before the disposition hearing had concluded. Later, on March 27, 2019, the court stated at the disposition hearing that it was “not ordering a drug and alcohol evaluation,” and on March 28, 2019, it entered a second order without that requirement. 6 No. 79763-8-I/7
Department’s suspicion of use. Starvish appeals.4
DISCUSSION
GAL’s Brief
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 response to that motion, the GAL argued that she
was a party to the case and, thus, entitled to file a brief.
We disagree. The authorities primarily relied on by the GAL (and by the
Department in support of the GAL) establish, at most, that the GAL has party-like
rights below, and that the GAL may seek review to enforce those rights.6 Cf. In
4 In her opening brief, Starvish assigned error to the juvenile court’s finding that Brian agreed to an order of dependency. Because Starvish did not provide argument in support of that assignment of error, we do not consider it. RAP 10.3(a)(6); see also Escude ex rel. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190 n.4, 69 P.3d 895 (2003) (“It is well settled that a party’s failure to assign error to or provide argument and citation to authority in support of an assignment of error, as required under RAP 10.3, precludes appellate consideration of an alleged error.”). 5 Because the GAL proceeded to file a brief, we denied Starvish’s motion
in a letter ruling. We hereby deny the GAL’s motion for reconsideration of that ruling. See RAP 12.4(a) (“A party may file a motion for reconsideration only of a decision by the judges (1) terminating review, or (2) granting or denying a personal restraint petition on the merits.”). We also deny Starvish’s motion to strike (1) the GAL’s motion for reconsideration and (2) the notice of appearance filed by attorney Jennie Cowan of the Dependency CASA Program. 6 See In re the Dependency of M.H.P., 184 Wn.2d 741, 749-50, 364 P.3d
94 (2015) (review of ex parte orders entered in a termination proceeding without notice to the court-appointed special advocate (CASA)); In re Dependency of P.P.T., 155 Wn. App. 257, 263-64, 229 P.3d 818 (2010) (appeal taken by State and CASA from order in which court dismissed petition and denied CASA’s request to delay entry of written findings so that family could meet and discuss 7 No. 79763-8-I/8
re Dependency of D.L.B., 186 Wn.2d 103, 106 n.1, 376 P.3d 1099 (2016)
(observing, citing GALR 2(j) and GALR 4(h), that “guardian ad litem is treated as
a party, but only for certain purposes and only in superior court” (emphasis
added)). They do not support the proposition that the GAL is a party entitled to
file a merits brief in response to a parent’s appeal from a dependency order.
Furthermore, and although we have discretion to consider briefs from
nonparties under RAP 10.1(e) and (h), we do so on a case-by-case basis. To
that end, although the GAL correctly points out that she “is charged with
representing the best interest of” W.W.S. and C.G.S., the best-interests
determination is an inherently factual one to be made by the juvenile court. See
In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980) (“This court
has repeatedly said that the goal of a dependency hearing is to determine the
welfare of the child and his best interests. While the criteria for establishing the
best interests of the child are not capable of specification, each case being
largely dependent upon its own facts and circumstances . . . , the proof
necessary in order to deprive a person of his or her parental rights must be clear,
cogent and convincing.” (emphasis added) (citations omitted)). By contrast,
whether Starvish is entitled to relief on appeal is based not on the best interests
of her children, but on whether the juvenile court committed legal error. Thus,
the GAL’s input would not facilitate a decision on the merits in this appeal. We
accordingly decline, as an exercise of our discretion, to consider the GAL’s brief.
court’s earlier oral ruling); In re Welfare of B.D.F., 126 Wn. App. 562, 569, 572, 109 P.3d 464 (2005) (discretionary review of GAL’s appeal from trial court order that misinterpreted GAL’s authority below). 8 No. 79763-8-I/9
Due Process
Starvish asserts that reversal is required because a number of the juvenile
court’s findings (findings of fact 11-20 and 24) were based on allegations
regarding educational neglect and C.G.S.’s mental health of which she did not
receive fair notice. Specifically, in finding of fact 24, the juvenile court cited to
“the evidence of the number of days missed from school, the lack of attention to
the children’s mental health, [W.W.S.]’s serious mental health needs, [and
C.G.S.]’s expression of self-harm.” And, based on testimony from Cartwright,
Pearman-Gillman, and the GAL, the juvenile court made findings of fact 11-20
regarding the children’s educational deficiencies, C.G.S.’s lengthy absence from
school in fall 2018, both children’s recent progress, and specific incidents that
had occurred at Beacon Hill. These incidents included (1) a September 2018
incident when Starvish showed up on the Beacon Hill campus asking for her
children and, when she crossed paths with W.W.S., told him that he should not
take his ADHD medication and did not need it, (2) a December 2018 incident
where Starvish telephoned into an IEP7 meeting regarding W.W.S., became
belligerent and, after she was disconnected, showed up on the Beacon Hill
campus and became aggressive with school staff, and (3) the three incidents
involving C.G.S. that were the basis of the Department’s earlier motion to place
C.G.S. in shelter care. As further discussed below, we conclude that the juvenile
court did not deprive Starvish of due process in entering these findings.
As an initial matter, the Department argues that we should decline to
7 Individualized Education Program. 9 No. 79763-8-I/10
consider Starvish’s due process argument because it was raised for the first time
on appeal. Meanwhile, Starvish argues that her due process argument is
reviewable under RAP 2.5(a)(3) as an issue of constitutional magnitude. We
agree with Starvish and reach the merits of her argument. Cf. In re Dependency
of A.M.M., 182 Wn. App. 776, 790 & n.8, 332 P.3d 500 (2014) (reviewing, as
issue of constitutional magnitude, parent’s contention that her due process rights
were violated when the trial court terminated her parental rights based on a
parental deficiency of which she was not notified).
“The due process clause of the Fourteenth Amendment protects a
parent’s right to the custody, care, and companionship of her children.” In re
Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992). “That right cannot be
abridged without due process of law.” Key, 119 Wn.2d at 609. We review de
novo an alleged deprivation of due process. In re Welfare of A.G., 160 Wn. App.
841, 844, 248 P.3d 611 (2011). “In the context of a dependency proceeding, due
process requires that parents have notice, an opportunity to be heard and
defend, and the right to assistance of counsel.” In re Dependency of H.W., 70
Wn. App. 552, 555-56, 854 P.2d 1100 (1993).
We conclude that Starvish received adequate notice that educational
neglect and C.G.S.’s mental health issues would be at issue at the fact-finding
hearing. Specifically, with regard to educational neglect, the petition itself
referred to an April 2018 intake alleging that W.W.S. “had been falling asleep at
school for long periods of time and missing up to 7 days of school in a row” and
that he “was exhibiting symptoms of mental health issues that weren’t being
10 No. 79763-8-I/11
addressed and Ms. Starvish was not engaging with the school on these
concerns.” It also alleged that W.W.S. had exceptional needs and acted violently
toward others when not medicated but that Starvish nonetheless allowed him to
go without mental health treatment or medication in early 2017.
Later in the dependency proceeding but still more than four months before
the court’s fact-finding hearing, the Department moved for an order authorizing
W.W.S. to take ADHD medication as prescribed by his treating physician. The
Department alleged that it had approached Starvish to ask for her consent, and
she did not consent. In support of its motion, the Department submitted letters
from Cartwright and two teachers at Beacon Hill who described the noticeable
improvement in W.W.S.’s behavior and ability to attend and participate in school
after starting ADHD medication. After the juvenile court entered a temporary
order authorizing medication, the GAL filed a declaration in support of a final
order. In her declaration, the GAL stated that W.W.S. was held back a year in
school and although he was then in the fourth grade, he was reading at a
second-grade level. The GAL attributed W.W.S.’s struggles in school to his
untreated ADHD. In short, the record reflects that Starvish received ample notice
that W.W.S.’s performance in school would be at issue during the fact-finding
hearing.
As for C.G.S., Starvish does correctly point out that the Department’s
petition did not make specific allegations as to C.G.S.’s performance in school or
C.G.S.’s mental health. Nonetheless, Starvish received ample notice of these
allegations as well. Specifically, and as discussed, allegations regarding
11 No. 79763-8-I/12
C.G.S.’s absence from school and incidents that raised concerns regarding his
mental health, including self-harm ideations, were the subjects of the
Department’s October 2018 emergency motion to place him into shelter care.
Because Starvish received notice of these allegations in connection with the
shelter care motion and well before the fact-finding hearing, she had ample
notice that C.G.S.’s educational neglect and his mental health would be at issue
during the fact-finding hearing. Cf. In re Welfare of F.M.O., 194 Wn. App. 226,
231, 374 P.3d 273 (2016) (looking, in termination context, to entire case record to
determine whether parent received adequate notice of an alleged deficiency).
In sum, Starvish received fair notice of the Department’s allegations of
educational neglect with regard to both W.W.S. and C.G.S., and of the
Department’s allegations regarding C.G.S.’s mental health. Thus, the juvenile
court did not deprive her of due process by entering findings of fact 11-20 and 24
based on testimony regarding these allegations.
Starvish disagrees and points out that the Department’s petition contained
only allegations regarding events that occurred before it was filed. She then
relies on In re Dependency of A.J., 189 Wn. App. 381, 357 P.3d 68 (2015), for
the proposition that the fact-finding hearing is held “on the petition” and contends
that she was deprived of due process because the Department never amended
its petition to incorporate new allegations that arose later. But Starvish’s reliance
on A.J. is misplaced. There, the Department’s petition alleged only a “c”
dependency, and the court held a fact-finding hearing on that allegation alone.
A.J., 189 Wn. App. at 403. More than six months later, the Department filed a
12 No. 79763-8-I/13
“Motion to Establish Dependency” in which it for the first time alleged
dependency under RCW 13.34.030(6)(a), i.e., for abandonment. A.J., 189 Wn.
App. at 403. Without holding another fact-finding hearing, the trial court
determined A.J. to be dependent under both prongs. A.J., 189 Wn. App. at 403.
In concluding that the trial court denied the parent due process, we
observed that abandonment was never even pleaded in the dependency petition
and that the parent “had no notice of the abandonment allegation at the fact-
finding stage.” A.J., 189 Wn. App. at 403 (emphasis added). Here, by contrast,
the statutory basis for the Department’s dependency allegations was pleaded in
the petition, and as discussed, Starvish did have notice at the fact-finding stage
of the allegations on which the court’s challenged findings are based. Thus, A.J.
is not persuasive.8
Starvish also relies on our decision in A.M.M. to support her contention
that she was deprived of due process. But A.M.M. is unpersuasive for two
reasons. First, “[d]ue process is a flexible concept that may vary with the
interests that are at stake.” F.M.O., 194 Wn. App. at 230. To that end, A.M.M.
involved a termination proceeding, which can result in a permanent deprivation of
a parent’s rights. By contrast, a dependency proceeding is “‘a preliminary,
remedial, nonadversary proceeding’” and “does not inevitably lead to a
termination of parental rights.” H.W., 70 Wn. App. at 556 (quoting Key, 119
8 Although we conclude that Starvish was not deprived of due process, we note that the best practice would have been for the Department to amend its petition. See JuCR 3.5 (providing that a dependency petition “may be amended at any time” and “[t]he court shall grant additional time if necessary to insure a full and fair hearing on any new allegations in an amended petition”). 13 No. 79763-8-I/14
Wn.2d at 609). Second, in A.M.M., there was “no evidence in the record” that the
mother could lose her parental rights based on the parental deficiency at issue in
that case. A.M.M., 182 Wn. App. at 792. But here, as discussed, the record
reflects that Starvish received ample notice of the allegations on which the
juvenile court’s challenged findings were based. Accordingly, and even
assuming that the same process is due in a dependency proceeding as in a
termination proceeding, Starvish was not—like the mother in A.M.M.—rendered
surprised, helpless, or disadvantaged when those allegations were tested at the
hearing. See A.M.M., 182 Wn. App. at 791 (purpose of notice is “‘to prevent
surprise, helplessness and disadvantage.’” (quoting In re Welfare of Martin, 3
Wn. App. 405, 410, 476 P.2d 134 (1970))). A.M.M. does not require reversal.
Out-of-Home Placement
Starvish argues that the juvenile court erred by ordering an out-of-home
placement. Specifically, Starvish contends that the juvenile court erred by finding
that she was not “available” to care for W.W.S. and C.G.S. under former
RCW 13.34.130(5)(a) (2018) (recodified as RCW 13.34.130(6)(a)). She
contends, in the alternative, that remand is required because the juvenile court
failed to make requisite findings. We reject both contentions.
“Available”
A juvenile court may order out-of-home placement only upon making
certain findings:
An order for out-of-home placement may be made only if the court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child’s home and to make it possible for the child to return home, specifying the
14 No. 79763-8-I/15
services . . . that have been provided . . . , and that preventive services have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and that: (a) There is no parent or guardian available to care for such child; (b) The parent, guardian, or legal custodian is not willing to take custody of the child; or (c) The court finds, by clear, cogent, and convincing evidence, a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger.
Former RCW 13.34.130(5) (emphasis added). Here, the juvenile court found, in
accordance with this statute, that (1) the Department “made reasonable efforts to
prevent or eliminate the need for removal of the children,” (2) “[t]he health, safety,
and welfare of the children cannot be adequately protected in the home,” and (3)
“there is no parent or guardian available to care for the children.” (Emphasis
added.) Starvish challenges this final finding. She contends that a parent is
“available” under former RCW 13.34.130(5)(a) so long as she is physically
available and because she was physically available, Starvish was available to
care for W.W.S. and C.G.S. We disagree.
Starvish’s argument raises a question of statutory interpretation, which we
review de novo. Leishman v. Ogden Murphy Wallace PLLC, 10 Wn. App. 2d
826, 831, 451 P.3d 1101 (2019), review granted, 194 Wn.2d 1023 (2020). Our
“fundamental objective in determining what a statute means is to ascertain and
carry out the legislature’s intent.” Durant v. State Farm Mut. Auto. Ins. Co., 191
Wn.2d 1, 8, 419 P.3d 400 (2018). “If the statute’s meaning is plain on its face,
then courts must give effect to its plain meaning as an expression of what the
15 No. 79763-8-I/16
legislature intended.” Durant, 191 Wn.2d at 8. To discern a statute’s plain
meaning, we consider the text of the provision in question, taking into account
the statutory scheme as a whole. Dep’t of Ecology v. Campbell & Gwinn, LLC,
146 Wn.2d 1, 11, 43 P.3d 4 (2012). “We may use a dictionary to discern the
plain meaning of an undefined statutory term.” Nissen v. Pierce County, 183
Wn.2d 863, 881, 357 P.3d 45 (2015). If, after conducting this inquiry, the statute
is “susceptible to more than one reasonable meaning, the statute is ambiguous
and it is appropriate to resort to aids to construction.” Campbell & Gwinn, 146
Wn.2d at 12.
Former RCW 13.34.130(5)(a) does not define “available.” The dictionary,
however, defines “available” as “capable of use for the accomplishment of a
purpose,” “immediately utilizable,” “that is accessible or may be obtained,” and
“at disposal.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 150 (2002). In
other words, the dictionary does not inform the plain meaning of “available”
because, under the dictionary definitions, “available” may refer to a parent who is
capable of taking on the responsibility of parenting, or one who is merely
physically available.
That said, “[p]lain language interpretation of a statute looks not only to the
provision in question, but to other related provisions that illuminate legislative
intent.” Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 438,
395 P.3d 1031 (2017). To this end, the dependency statutes contain, at RCW
13.34.020, an express declaration of that intent. Specifically, the legislature
declared “that the family unit should remain intact unless a child’s right to
16 No. 79763-8-I/17
conditions of basic nurture, health, or safety is jeopardized.” RCW 13.34.020
(emphasis added). Additionally, “[w]hen the rights of basic nurture, physical and
mental health, and safety of the child and the legal rights of the parents are in
conflict, the rights and safety of the child should prevail.” RCW 13.34.020
(emphasis added). In other words, the best interests of the child are the juvenile
court’s paramount concern in making placement decisions. In re Dependency of
Ca.R., 191 Wn. App. 601, 610, 365 P.3d 186 (2015).
In light of this clear declaration of legislative intent, “available” must refer
to something more than physical availability. Otherwise, and contrary to the
legislature’s declared intent, a child could be placed with a parent even though
that placement would jeopardize the child’s right to basic nurture, health, or
safety. Cf. Columbia Riverkeeper, 188 Wn.2d at 439 (conducting plain language
analysis and rejecting interpretation of statute that would have frustrated express
declaration of legislative intent). For these reasons, we conclude that under the
plain language of former RCW 13.34.130(5)(a), a parent is not “available” if she
has deficiencies that jeopardize the child’s rights of basic nurture, physical and
mental health, and safety.9 Indeed, this interpretation is supported by the text of
that statute, which requires not just a finding that no parent is “available,” but that
no parent is “available to care for such child.” Former RCW 13.34.130(5)(a)
(emphasis added).
9 In In re Dependency of A.Z.B., No. 49737-9-II, slip op. at 17-21 (Wash. Ct. App. Oct. 24, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049737-9- II%20Unpublished%20Opinion.pdf, Division Two reached the same conclusion after determining that the term “available” was ambiguous. 17 No. 79763-8-I/18
Starvish contends that reading “available” to mean more than physical
availability would “render[ ] meaningless [former RCW 13.34.130(5)(c)], which
considers whether clear and convincing evidence shows a manifest danger of
abuse or neglect in placing the child with the parent.” But there may be
circumstances where a parent is “available” in that she has the ability to provide
for a child’s basic nurture, physical and mental health, and safety, but where an
in-home placement would nonetheless pose a manifest danger to the child for
other reasons, such as the presence of an abuser or environmental dangers in or
around the parent’s home. Therefore, Starvish’s contention fails.
Starvish next argues that a broader reading of “available” violates the
presumption that the legislature intends different meanings when it uses different
terms in the same statutory scheme. She points out that the legislature could
have chosen to adopt the “no capable parent” standard for determining a “c”
dependency as the standard for determining whether a parent is “available,” but it
did not. Thus, she argues, “[r]eading the ‘no available’ parent standard to mean
the same thing as the no capable parent standard would add words to the statute
that are not there” and render the availability inquiry superfluous. But the canon
of construction on which Starvish relies cannot trump the statute’s plain meaning,
as informed by the legislature’s declared intent that the child’s best interests are
of paramount importance. Cf. Heritage Grove v. Dep’t of Health, 11 Wn. App. 2d
406, 411, 453 P.3d 1022 (2019) (court considers canons of construction only if
ambiguity exists). And as discussed, accepting Starvish’s interpretation of
“available” would allow in-home placement even when a child’s physical and
18 No. 79763-8-I/19
mental health and safety are in jeopardy, contrary to the legislature’s declared
intent. Therefore, Starvish’s argument fails.
Starvish next contends that a broader reading of “available” would “turn
the preference for in-home dependencies on its head.” But the inquiry required
under former RCW 13.34.130(5) already recognizes this preference by
authorizing out-of-home placement only when reasonable efforts have been
made to prevent removal. Once that threshold has been met, placement
decisions are based on the child’s best interests. See In re Dependency of A.C.,
74 Wn. App. 271, 279, 873 P.2d 535 (1994) (holding that trial court erred by
failing to give paramount consideration to child’s best interests in making
placement decision). Indeed, and as discussed, the legislature expressly
declared that “the family unit should remain intact unless a child’s right to
conditions of basic nurture, health, or safety is jeopardized.” RCW 13.34.020.
Therefore, Starvish’s contention fails.
Findings
Starvish contends, in the alternative, that remand is required because the
juvenile court did not make sufficient findings to support its conclusion that out-of-
home placement was warranted. Specifically, Starvish asserts that the court’s
determinations that (1) the Department “made reasonable efforts to prevent or
eliminate the need for removal of the children,” (2) “[t]he health safety, and
welfare of the children cannot be adequately protected in the home,” and (3)
“there is no parent or guardian available to care for the children” were
conclusions of law for which more detailed findings were required. We disagree.
19 No. 79763-8-I/20
“‘If a determination concerns whether evidence shows that something
occurred or existed, it is properly labeled a finding of fact.’” Inland Foundry Co.,
v. Dep’t of Labor & Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001) (quoting
State v. Niedergang, 43 Wn. App. 656, 658, 719 P.2d 576 (1986)). “However, ‘if
the determination is made by a process of legal reasoning from facts in evidence,
it is a conclusion of law.’” Inland Foundry, 106 Wn. App. at 340 (quoting
Niedergang, 43 Wn. App. at 658-59).
Here, the juvenile court’s determinations are plainly findings of fact and
not conclusions of law. Indeed, the governing statute, former RCW 13.34.130(5),
expressly characterizes these determinations as findings:
An order for out-of-home placement may be made only if the court finds that reasonable efforts have been made . . . and that preventive services have been offered or provided . . . and that . . . [t]here is no parent or guardian available to care for such child.
Former RCW 13.34.130(5)(a) (emphasis added). Furthermore, whether the
Department has made reasonable efforts, whether services have been offered,
and whether a parent is available involve determinations of whether something
occurred or existed. Therefore, contrary to Starvish’s contentions, these
determinations are findings of fact. And because Starvish does not argue that
the evidence was insufficient to support these findings, neither remand nor
reversal is required. See Perry v. Costco Wholesale, Inc., 123 Wn. App. 783,
792, 98 P.3d 1264 (2004) (“Where the trial court has weighed the evidence,
appellate review is limited to determining whether substantial evidence supports
the findings of fact and, if so, whether the findings support the conclusions of
law.”).
20 No. 79763-8-I/21
Starvish contends that the juvenile court’s determinations are insufficient
because they parrot the statutory language. But findings of fact that parrot
statutory requirements are not invalid if they are specific enough to permit
meaningful appellate review. See In re Dependency of K.R., 128 Wn.2d 129,
143, 904 P.2d 1132 (1995) (“Findings of fact which closely follow and which may
to a certain extent parrot [statutory] requirements . . . are not rendered invalid if
they are sufficiently specific to permit meaningful review.”). Here, the juvenile
court’s findings are specific enough to permit meaningful review even though
they closely track the statutory language. Specifically, had Starvish challenged
the court’s findings—which she did not—we could readily determine, with
reference to the record, whether the findings were supported by substantial
evidence. Therefore, Starvish’s contention fails.
Urinalysis Requirement
Starvish argues that the juvenile court erred by directing her to submit to
random urinalysis for 90 days and additional urinalysis upon the Department’s
suspicion of use. We agree.
“The dependency statutes provide a broad framework from which the
juvenile court may order services to facilitate parent-child reunification.” In re
Dependency of D.C-M., 162 Wn. App. 149, 158, 253 P.3d 112 (2011). But as the
Department itself acknowledges, “[o]nce intervention into the family’s life is
authorized by the establishment of dependency, the court can require a parent to
participate in a service when the circumstances in the record support the
particular service.” (Emphasis added.) To that end, RCW 13.34.025, regarding
21 No. 79763-8-I/22
coordination of services, expressly provides that “[t]his section . . . does not
create judicial authority to order the provision of services except for the specific
purpose of making reasonable efforts to remedy parental deficiencies identified in
a dependency proceeding under this chapter.” RCW 13.34.025(2)(d) (emphasis
added). That statute also mandates that the number of contacts a parent is
required to make should be minimized to the extent possible.
RCW 13.34.025(1)(b).
We review the juvenile court’s decision to order a particular service for
abuse of discretion. D.C-M., 162 Wn. App. at 158. “The juvenile court abuses its
discretion when its decision is manifestly unreasonable or based on untenable
grounds or reasons.” In re Dependency of BF, 197 Wn. App. 579, 586, 389 P.3d
748 (2017). Here, there was no reliable evidence in the record establishing that
Starvish had a substance abuse issue that required remedying as a parental
deficiency. Therefore, we conclude that the juvenile court abused its discretion
by ordering urinalysis.
D.C-M. is instructive. There, Division Two considered whether the juvenile
court erred by ordering the mother, KM, to undergo a psychosexual evaluation.
D.C-M., 162 Wn. App. at 157-58. The court concluded that the juvenile court did
err. D.C-M., 162 Wn. App. at 162. Specifically, the court acknowledged that the
juvenile court had broad discretion to order services aimed at reunification. D.C-
M., 162 Wn. App. at 158. It nevertheless concluded that the juvenile court
abused that discretion by ordering a psychosexual evaluation “because (1) the
order relies solely on the children’s allegations, which [the Department] ruled
22 No. 79763-8-I/23
were unfounded, and (2) there was no evidence before the court sufficient to
show its usefulness as a service to reunify this family.” D.C-M., 162 Wn. App. at
157. The court also observed that the juvenile court failed to consider an
alternative approach recommended by the children’s therapist, i.e., “consult[ation
with] a sexual therapist who, after engaging with KM and DC-M for treatment,
could then make recommendations about what testing, if any, would assist the
identification of particular services aimed at reunification.” D.C-M., 162 Wn. App.
at 162.
Here, as in D.C-M., the evidence in the record is insufficient to support the
urinalysis requirement imposed on Starvish. Specifically, the urinalysis
requirement was based primarily on Bolduan’s testimony. But when asked at the
fact-finding hearing why she suspected drug use, the only sign Bolduan
mentioned was that she had observed pockmarks on Starvish on several
occasions. Later, at the disposition hearing, Bolduan also referred to Starvish’s
“unpredictable behavior, her outbursts, . . . [and] how she interacts with people,
you know it’s very hostile, very demanding.” At no point, however, did Bolduan
explain why she believed this behavior indicated that Starvish was using drugs.
Indeed, in her earlier testimony, Bolduan twice attributed the same behavior to
Starvish’s mental health issues, not to suspected drug use. Moreover, when
asked at the disposition hearing why she was requesting urinalysis, Bolduan
responded only that “the Department would hope that random UAs would
motivate Ms. Starvish to lead a clean and sober life” and “[m]aybe to rule out
drug use.” But this reasoning would justify subjecting any parent to urinalysis
23 No. 79763-8-I/24
regardless whether there was evidence of drug use, and Bolduan provided no
further testimony explaining how urinalysis would promote reunification for this
family.
In short, the evidence was not sufficient to show that Starvish had a
substance abuse issue that required remedying as a parental deficiency. Indeed,
the juvenile court itself acknowledged that the evidence was not sufficient even to
support a drug and alcohol evaluation to determine, as an initial step, whether
there was a chemical dependency issue at all and to identify services aimed at
reunification. By nonetheless ordering urinalysis under these circumstances, the
juvenile court increased the number of contacts Starvish would need to make for
a service whose usefulness to reunify the family was not supported by the
record. This was an abuse of discretion.
The Department disagrees and argues that the juvenile court “had a
tenable basis for ordering random urinalysis testing.” The Department points out
that Bolduan testified that C.G.S.’s caregivers had told her that their daughter
and Starvish “used to do drugs together.” The Department also points out that
there was a CPS intake alleging that Starvish had been seen regularly at a
known drug house with W.W.S. and C.G.S. But not only is the caregivers’
statement hearsay, it is unreliable given that there is no additional testimony
about how long ago the alleged use occurred or how it is relevant to Starvish’s
current ability to parent. And although under ER 1101(c)(3) the rules of evidence
do not apply at a disposition hearing in juvenile court, due process nonetheless
requires that the disposition be based on reliable evidence. See State v.
24 No. 79763-8-I/25
Strauss, 119 Wn.2d 401, 419, 832 P.2d 78 (1992) (sentence must be based on
reliable evidence); State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993)
(restitution must be based on reliable evidence).
To this end, the “known drug house” evidence also is unreliable. Although
the Department’s witness list included a fact witness who would have testified as
to his observations and interactions that led to the “known drug house” intake,
the Department did not call that witness. And the Department points to no other
testimony that substantiated that intake, much less how it was “known” that the
house in question was a “drug house.” Moreover, the intake also alleged that
Starvish’s brother was in the house, and the Department points to no evidence in
the record that Starvish was not allowed to be there or to see her brother. In
short, the additional evidence cited by the Department is not sufficient to justify
urinalysis.10
Request to Replace Social Worker
Starvish contends that the juvenile court erred by concluding that it lacked
authority to direct the Department to assign a new social worker to Starvish’s
case. We disagree.
The issue of a trial court’s legal authority is a question of law reviewed de
novo. O’Neill v. City of Shoreline, 183 Wn. App. 15, 21, 332 P.3d 1099 (2014).
10 Because we conclude that the juvenile court abused its discretion in directing Starvish to submit to urinalysis, we do not address Starvish’s argument that the urinalysis requirement violated her rights under article I, section 7 of the Washington Constitution. See State v. McEnroe, 179 Wn.2d 32, 35, 309 P.3d 428 (2013) (appellate court will avoid deciding constitutional questions where case may be fairly resolved on other grounds). 25 No. 79763-8-I/26
Here, Starvish argues that the juvenile court had authority to direct the
Department to assign a new social worker because of the communication
breakdown between Starvish and Bolduan. Meanwhile, the Department argues
that the juvenile court did not have that authority because granting the relief
requested by Starvish would have violated separation of powers. We agree with
the Department.
“Under the separation of powers doctrine, the fundamental function of
each branch of government must remain inviolate, and one branch may not
threaten the independence or integrity of another.” Afoa v. Wash. Dep’t of Labor
& Indus., 3 Wn. App. 2d 794, 810, 418 P.3d 190 (2018). To this end, “[c]ourts
will not interfere with the work and decisions of an agency of the state, so long as
questions of law are not involved, and so long as the agency acts within the
terms of the duties delegated to it by statute.” Wash. State Coal. for the
Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 913, 949 P.2d 1291
(1997).
Here, the Department’s decisions about how to manage internal
resources, including decisions about what staff is to be assigned to what cases,
fall squarely within the purview of the executive branch. See RCW 43.216.025
(“The internal affairs of the [D]epartment are under the control of the secretary in
order that the secretary may manage the department in a flexible and intelligent
manner as dictated by changing contemporary circumstances. Unless
specifically limited by law, the secretary has the complete charge and
supervisory powers over the [D]epartment.”). And Starvish does not explain how
26 No. 79763-8-I/27
maintaining Bolduan as the social worker in her case would be contrary to law or
constitute agency action that falls outside the terms of the duties delegated to it
by statute. Nor does she contend that interference is authorized because the
Department’s decision to assign Bolduan is arbitrary, tyrannical, or predicated
upon a fundamentally wrong basis. See Wash. State Coal. for the Homeless,
133 Wn.2d at 914 (“[W]here the acts of public officers are arbitrary, tyrannical, or
predicated upon a fundamentally wrong basis, then the courts may interfere to
protect the rights of individuals.”). Therefore, the juvenile court did not err in
concluding that it was without authority to direct the Department to assign a new
social worker.
Starvish contends that “[t]he court may order the Department to take
action consistent with chapter 13.34 RCW.” She cites, as an example,
RCW 13.34.136(3), which expressly directs the court to require the Department
to file a termination petition under certain circumstances. She then asserts that it
follows that “when it is in furtherance of reunification or the best interests of the
child, the court may order a new social worker substitute[d] in.” But the fact that
the court is authorized by statute to direct the Department to act in certain
circumstances does not mean that the court otherwise has the authority to
interfere with the Department’s personnel assignments based on the goal of
reunification or the child’s best interests.
Starvish also points out that “if a social worker disregards a court order,
the court has authority [to] take action through sanctions or other measures.” But
as discussed, the court may of course interfere if the Department acts contrary to
27 No. 79763-8-I/28
law. Starvish does not explain, however, how Bolduan’s continued assignment
as the social worker on Starvish’s case would be contrary to law.
Finally, Starvish points to In re Dependency of T.L.G., where we reversed
a termination order in part because the Department failed to demonstrate that it
had offered the parents all services necessary to correct parental deficiencies.
126 Wn. App. 181, 206, 108 P.3d 156 (2005). But the fact that the Department
has a duty to offer a parent necessary services does not mean that the court may
interfere with the Department’s internal personnel decisions made in the course
of carrying out that duty. Therefore, T.L.G. is not persuasive here.
We reverse the juvenile court’s imposition of the urinalysis requirement,
remand to strike that requirement, and affirm in all other respects.
WE CONCUR: