In Re Dep Of: D.,m.g., Dob: 5/28/13 David Dorsch, App. v. Dshs, Resp.

• Court: Court of Appeals of Washington
• Decided: November 10, 2014
• Docket: 71600-0
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of No. 71600-0-1 D.M.G., DOB: 5/28/13, DIVISION ONE

Minor Child.

STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, UNPUBLISHED OPINION

Respondent, FILED: November 10, 2014

v.

DAVID DORSCH,

Appellant.

Becker, J. — David Dorsch appeals from the trial court orderfinding his daughter D.G. dependent. He contends that the trial court's decision rests on inadmissible hearsay. Because substantial admissible evidence supports the court's dependency determination, we affirm.

FACTS

Carrie Galbreath and David Dorsch are the parents of a daughter, D.G., who was born on May 28, 2013. D.G. was eight months old at the time ofthe dependency fact-finding hearing in January 2014. No. 71600-0-1/2

At birth, D.G. tested positive for marijuana, methadone, PCP, and

benzodiazepines. She remained hospitalized while doctors treated her with

morphine for significant withdrawal symptoms. The Department of Social and

Health Services filed a dependency petition on June 25, 2013. Galbreath

eventually entered into an agreed order of dependency and is not a party on

appeal.

D.G. was released from the hospital on June 26, 2013, and admitted into

the Pediatric Interim Care Center, where she remained until September 26, 2013.

The center is a highly structured facility, and D.G.'s treatment needs included a

low stimulus environment. After leaving the center, D.G. moved with Galbreath

to Genesis House, an in-patient treatment facility.

Dorsch did not personally appear for the dependency fact-finding hearing,

which began on January 21, 2014. David Norman, the Court Appointed Special Advocate, made several unsuccessful efforts to locate Dorsch before the

hearing. Dorsch's two telephone numbers were no longer valid. Norman went to

Dorsch's residence and learned that Dorsch no longer lived there. Norman also

determined that Dorsch no longer worked at his last known place of employment.

Dorsch has a substantial history of violent and aggressive criminal

behavior arising from substance and alcohol abuse. Since 2002, his criminal history includes convictions for driving under the influence and possession of a controlled substance, as well as a domestic violence assault conviction and two No. 71600-0-1/3

domestic violence no contact orders. Dorsch's most recent conviction occurred

in 2011.

Melissa McOmber, a Department social worker, testified that she had

contact with Dorsch multiple times over the course of several months. On at

least two occasions, McOmber observed Galbreath and Dorsch together.

Galbreath appeared "fearful" and "very much reserved" when Dorsch was

nearby. McOmber was also aware that Galbreath had accused Dorsch of

domestic violence.

McOmber was concerned by several aspects of Dorsch's behavior.

During meetings, Dorsch would repeatedly make the same requests, even

though he had been told "no." When McOmber once again denied the same

request, Dorsch would occasionally leave or become upset or nonresponsive.

On several occasions, Dorsch became upset when McOmber was unable to

meet with him immediately, even though he did not have an appointment.

Dorsch repeatedly asked to bring two nieces with him when he visited Galbreath

at the Pediatric Interim Care Center, even though extended family members were

not permitted to visit. McOmber concluded that Dorsch did not seem to

understand that the purpose of the policy was to maintain the facility's low

stimulus environment necessary for D.G.'s treatment needs.

In June 2013, just before the Department filed its dependency petition,

Dorsch's urine tested positive for methamphetamine and alcohol. The

dependency court directed Dorsch to submit to twice-weekly urine testing. In the No. 71600-0-1/4

initial June 2013 tests, Dorsch's urine repeatedly tested positive for alcohol

consumption. During July and August, Dorsch submitted several "diluted"

samples, which the Department considered to be positive for drug or alcohol use.

Dorsch failed to appear for any tests after September 26, 2013. Norman spoke

with Dorsch at a court hearing on October 11, 2013. Dorsch claimed that he had

quit drinking, but Norman noticed alcohol on Dorsch's breath.

Dorsch visited D.G. 26 times during the three months that she was at the

Pediatric Interim Care Center. Carolyn Burke, a social worker at the center,

described Dorsch's visits as generally "appropriate" but noted that he was "very

high energy" on a couple of occasions and would overwhelm D.G. Although

Dorsch seemed receptive when told of D.G.'s need for a low stimulus

environment,

he would say that he understood that he needed to be calm but he would still continue to be loud and hold the baby and be very interactive with [her] at times when we asked him to be calm with her.

Based on her observations of Dorsch's interaction with D.G., Burke concluded

that he was unable to "provide the low stimulus environment and the therapeutic

techniques without needing to be redirected."

Dorsch also visited D.G. after she moved with Galbreath to Genesis

House. By the end of November 2013, however, when Jason Haber became

Dorsch's caseworker, Dorsch was no longer participating in services and had

stopped visiting D.G. at Genesis House. No. 71600-0-1/5

The trial court found D.G. dependent as to Dorsch under RCW

13.34.030(c) (child has no parent or custodian capable of adequately caring for

the child). The court acknowledged that Dorsch had shown a willingness to care

for D.G. and demonstrated some positive efforts to bond with her. But based on

the evidence of Dorsch's criminal history and violent behavior, history of

substance and alcohol abuse, recent inconsistent and incomplete urinalysis,

erratic and unreliable behavior, and recent unavailability and lack of any

participation in D.G.'s life, the court found that the Department had satisfied its

burden of establishing that D.G. was dependent. The court ordered Dorsch to

submit to random urinalysis, a drug and alcohol evaluation, a psychological

evaluation, and a domestic violence assessment, and to participate in parenting

services.

ANALYSIS

Dorsch contends that the trial court erred in admitting inadmissible

hearsay and that the properly admitted evidence failed to support the trial court's

dependency determination. In particular, he argues that the trial court improperly

overruled hearsay objections to testimony by Melissa McOmber, Carolyn Burke,

and David Norman about "concerns" that staff at the Pediatric Interim Care

Center had expressed or "indicated" to them about Dorsch's visits with D.G. He

also challenges testimony that Galbreath told McOmber she did not want to visit

D.G. at the same time as Dorsch and told Jason Haber that Dorsch stopped No. 71600-0-1/6

visiting D.G. at Genesis House in late November 2013. Finally, Dorsch contends

the trial court's finding that Galbreath reported she was the victim of Dorsch's

domestic violence rests solely on inadmissible hearsay.

Hearsay is an out-of-court statement "offered in evidence to prove the

truth of the matter asserted." ER 801(c). The trial court sustained Dorsch's

hearsay objections repeatedly throughout the fact-finding hearing, appropriately

observing that if a witness was "going to move into what other people have told

her. . . then that is hearsay. Unless it's being offered for another purpose."

On other occasions, however, the court overruled hearsay objections

when a witness testified about what another person had "indicated." For

example, the court overruled Dorsch's hearsay objection and permitted

McOmberto testify that Galbreath had "indicated to me that she did not want to

visit [D.G.] at the same time [as Dorsch]." As Dorsch correctly argues, a witness

cannot insulate testimony from a hearsay objection merely by avoiding a direct

quotation and "indicating" the substance of an out-of-court statement. See State v. Martinez, 105 Wn. App. 775, 782, 20 P.3d 1062 (2001), overruled on. other

grounds by State v. Ranqel-Reves, 119 Wn. App. 494, 81 P.3d 157 (2003).

But the Department established the substance of the alleged hearsay

evidence through nonhearsay sources, and the unchallenged evidence amply

supports the trial court's material findings and dependency determination. Consequently, any error in the admission of the challenged evidence was No. 71600-0-1/7

harmless. See In re Welfare of XT.. 174 Wn. App. 733, 739, 300 P.3d 824

(2013) (erroneous admission of hearsay not prejudicial unless, within reasonable

probabilities, the outcome of the trial would have been materially affected had the

error not occurred).

To establish dependency, the State was required to prove by a

preponderance of the evidence that D.G. met one of the statutory definitions of

dependency. In re Dependencv of Schermer, 161 Wn.2d 927, 942, 169 P.3d 452

(2007). Here, the trial court found D.G. dependent under RCW 13.34.030(6)(c),

which requires proof that the child "[h]as no parent, guardian, or custodian

capable of adequately caring for the child, such that the child is in circumstances

which constitute a danger of substantial damage to the child's psychological or

physical development."

The primary purpose of a dependency hearing "is to allow courts to order

remedial measures to preserve and mend family ties." In re Dependencv of

T.L.G., 126 Wn. App. 181,203, 108 P.3d 156 (2005). Unlike a parental

termination proceeding, a dependency hearing is "'a preliminary, remedial,

nonadversary proceeding' that does not permanently deprive a parent of any

rights." In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (quoting In re Dependencv of A.W.. 53 Wn. App. 22, 30, 765 P.2d 307 (1988)), cert

denied, 507 U.S. 927 (1993). Consequently, a dependency under RCW

13.34.030(6)(c) No. 71600-0-1/8

does not turn on parental "unfitness" in the usual sense. Rather, it allows consideration of both a child's special needs and any limitations or other circumstances which affect a parent's ability to respond to those needs. Under RCW 13.34.030([6])(c), it is unnecessary to find parental misconduct in order to find a child dependent.

Schermer, 161 Wn.2d at 944.

The trial court's determination of dependency is necessarily highly fact

specific; there are no specific factors that a court must consider when determining whether the child is dependent under RCW 13.34.030(6)(c). Schermer, 161 Wn.2d at 951-52. The trial court has broad discretion when

evaluating all of the evidence. Schermer, 161 Wn.2d at 951-52. When reviewing a challenge to the sufficiency of the evidence, an appellate court determines whether substantial evidence supports the trial court's findings of fact and

whether the findings support the conclusions of law. In re Dependencv of M.P., 76 Wn. App. 87, 90, 882 P.2d 1180, review denied, 126 Wn.2d 1012 (1995). Here, the alleged hearsay evidence regarding "concerns" expressed by staff at the Pediatric Interim Care Center was not prejudicial. Carolyn Burke, a

caseworker at the center, acknowledged that Dorsch's visits with D.G. were "appropriate" for the most part. But she also described without objection her concern about incidents that she observed when Dorsch became "very high

energy" with D.G. and failed to calm down, despite multiple staff requests. In an August 7, 2013, letter to Melissa McOmber, which was admitted without objection as exhibit 27, Burke also described several incidents reflecting Dorsch's "concerning behaviors," including his difficulty in understanding or complying with

8 No. 71600-0-1/9

facility rules and his occasional inability to modify his behavior to respond

appropriately to D.G.'s special needs.

The unchallenged evidence was sufficient to support the trial court's

finding that Dorsch's efforts to bond with D.G. were "variable," that his contact

with D.G. "had to be redirected on several occasions," and that he had

"deficiencies providing for the child's basic needs" while visiting at the Pediatric

Interim Care Center, as well as difficulty modulating his own behavior.

Dorsch's hearsay challenge to testimony that Galbreath told Haber that

Dorsch stopped visiting D.G. at the end of November and to Galbreath's allegation of domestic violence is also unavailing. Norman testified without objection that Dorsch's last contact with D.G. at Genesis House was on November 24, 2013, and that he was concerned by Dorsch's failure to visit for

nearly two months. McOmber testified without objection that she was aware that Galbreath had reported that she was a victim of domestic violence. McOmber also testified that she discussed the report with Dorsch, who called Galbreath "a

liar" and told McOmber that she should not believe Galbreath's statements about

domestic violence. In summary, unchallenged evidence established that Dorsch stopped visiting D.G. at the end of November 2013 and that Galbreath had reported she was the victim of domestic violence. Dorsch further contends that the evidence was insufficient to support the

trial court's dependency determination. He argues that the evidence of his No. 71600-0-1/10

parental deficiency, criminal history, and substance and alcohol abuse failed to

establish a substantial risk of harm to D.G.

The unchallenged findings established that Dorsch has a criminal history

from 2002 to 2011 that includes assault convictions associated with substance

and alcohol abuse. In early June 2013, Dorsch tested positive for

methamphetamines and alcohol. Later that month, the dependency court

ordered Dorsch to submit to twice-weekly urinalysis. Dorsch then tested positive

for alcohol on several occasions. Although the trial court noted that the testing

eventually showed some improvement, Dorsch stopped participating without

explanation on September 26, 2013. In October 2013, Dorsch told Norman that he had stopped drinking but appeared to have recently consumed alcohol.

Although Dorsch visited D.G. regularly during the three months she was at

the Pediatric Interim Care Center, social workers at the center became

concerned by his erratic and unreliable behavior. On several occasions, Dorsch was clearly unable to moderate his behavior to meet D.G.'s special needs in the facility, despite repeated instructions from the staff. Dorsch also demonstrated some difficulty in understanding the nature and purpose of the facility's rules. Dorsch exhibited similar erratic behavior in his contacts with Department

social worker McOmber. He repeatedly made the same requests, even after they were denied. Dorsch was "aggressive" and "adamant" in his requests, and occasionally became upset, frustrated, and nonresponsive.

10 No. 71600-0-1/11

Finally, Dorsch stopped visiting D.G. nearly two months before the

dependency fact-finding hearing. At that point, he "basically ... refused to

participate" in the dependency proceeding. He apparently left his last known

residence and place of employment without notifying the Department and

effectively became unavailable to parent D.G.

In summary, Dorsch's significant criminal history of violent and aggressive

behavior associated with substance and alcohol abuse was undisputed. The results

of his recent urinalysis testing were inconsistent, and he failed to complete a full

round of testing. During some of his visits with D.G., Dorsch had difficulty modulating

his behavior to respond to D.G.'s specific needs without redirection and

understanding the facility's rules. On occasion, his behavior became erratic when

encountering unexpected or frustrating circumstances. Finally, at the time of the

dependency hearing, Dorsch had failed to participate in the proceeding for two

months, and he was completely unavailable to provide D.G. with a safe home

environment. Viewed together, the foregoing circumstances supported a reasonable

inference that Dorsch's inability to meet D.G.'s current needs posed a substantial

danger to her physical or psychological development. See Schermer, 161 Wn.2d at

952.

The trial court has broad discretion in evaluating the risk of harm, and a

dependency finding under RCW 13.34.030(6)(c) does not require proof of actual

harm, "only a 'danger' of harm." Schermer, 161 Wn.2d at 951. Substantial

evidence supports the trial court's dependency determination.

11 No. 71600-0-1/12

Dorsch argues that the "enthusiasm for parenting" he demonstrated during

his visits at the Pediatric Interim Care Center is a positive trait now that D.G. has

left that facility and that his criminal history, which involved a use of alcohol or

drugs, is no longer a factor because his last conviction was in 2011. But these

contentions involve the weight or persuasiveness of the evidence and are not

subject to review on appeal. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d

850 (1990) (appellate court defers to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence).

Dorsch also contends that the trial court improperly shifted the burden of

proof when it found that "there is no evidentiary support to show [the father] can

safely provide care for this child" and that the "evidence does not establish that

Mr. Dorsch is able to provide a safe environment and to adequately care for [the]

child." Viewed in context, however, these findings reflect only the statutory

dependency requirements under RCW 13.34.030(6)(c) and the trial court's

reliance on Dorsch's complete unavailability for the past two months as a

significant factor in the dependency determination. During its oral decision, the

trial court expressly noted that "as all of the parties have acknowledged, it's the

State's burden to establish by a preponderance of the evidence that the child is

dependent as to the father." The court did not shift the burden to Dorsch to disprove dependency.

12 No. 71600-0-1/13

Affirmed.

d ^ Jt- WE CONCUR:

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