In Re Dep Of: L.d., Dob: 09/24/11 Cornelius Demps, App. v. Dshs, Resp.

• Court: Court of Appeals of Washington
• Decided: November 3, 2014
• Docket: 71207-1
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Dependency of: DIVISION ONE L.D., DOB: 09/24/2011 No. 71207-1-1 Minor child.

CORNELIUS DEMPS, UNPUBLISHED OPINION Appellant,

STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, FILED: November 3, 2014 Respondent.

Per Curiam—Cornelius Demps appeals the trial court's dependency and

dispositional orders finding his son L.D. dependent, placing L.D. in out-of-home

care, and requiring him to participate in services. He contends that he was

denied procedural due process when (1) the trial court reopened the dependency fact-finding hearing to hear evidence regarding a domestic violence incident that occurred after the parties had rested, and (2) the State was allowed to present

unsworn evidence at the dispositional hearing in support of its recommendation

that Demps undergo a domestic violence assessment. Because the trial court No. 71207-1-1/2

did not reopen the fact-finding hearing, and because Demps's challenge to the

dispositional order is moot, we affirm.

FACTS

L.D. was born on September 24, 2011. On March 1, 2013, the Department

filed a dependency petition based on concerns that (1) Demps assaulted L.D.'s

mother, Shauntae Patterson,1 (2) both Demps and Patterson physically abused

L.D.'s older sibling, and (3) Patterson was inebriated when picking up L.D. from

day care. At the time the petition was filed, Demps was alleged to be L.D.'s father

but paternity had not been established.

The dependency fact-finding hearing began on August 12, 2013. Demps

testified that he had an appointment with the King County Prosecutor's Office on

August 14 to be swabbed for paternity testing. After all parties delivered closing argument, the trial court continued the fact-finding hearing to August 28 in order to obtain the paternity results before ruling.

The test results confirmed that Demps was the father of L.D. However, on

or about August 21, Demps allegedly physically and sexually assaulted Patterson. The trial court continued the dependency fact-finding again to

September 16 to permit the parties to investigate the new allegations. The State sought to reopen its case in chief in order to present evidence about the incident. At a hearing on the State's motion on September 16, the trial

court ruled:

Patterson agreed to the establishment of dependency and is not a party to this appeal. No. 71207-1-1/3

What I'm going to do is review the record on the fact-finding, make the final determination as to whether there has been establish [sic] dependency apart from this new allegation. Ifthat's the case, I'll make that determination, then you won't need to reopen, at least to the fact-finding portion of the case. We'll still have to reopen as to disposition - well, we haven't done disposition, so I'll have to [sic] disposition still.

On September 20, 2013, the trial court issued a memorandum decision in

which it found that the Department had proven L.D. was dependent as defined in

RCW 13.34.030(5)(c) because (1) Demps did not attempt to establish paternity

until the fact-finding was underway, (2) Demps's claims that he was unaware that

Patterson was physically abusing the children was not credible, and (3) Demps

acknowledged he needed parenting assistance but declined to participate in a parenting assessment when it was offered by the Department. The trial court stated that it did not need "further evidence upon which to base the finding of

dependency as to the father." It scheduled a dispositional hearing for October

28.

The parties submitted briefing and exhibits for the dispositional hearing. The Department's exhibits included an unsworn declaration of L.D.'s social worker, Megan Stampfli. Stampfli recommended that L.D. be placed out of Demps's care and that Demps be required to participate in domestic violence batterers' treatment. Stampfli stated that, after reviewing the police reports and hospital records from the August 21 incident and interviewing both parents, she found Patterson's version of events to be more credible than Demps's. No party

requested to take oral testimony at the hearing. No. 71207-1-1/4

On November 4, 2013, the trial court entered a combined dependency and

dispositional order. The order stated that the child was dependent pursuant to

RCW 13.34.030(5)(c), consistent with the trial court's earlier memorandum

decision. The trial court ordered that L.D. be placed with his paternal aunt and

that Demps be required to do urinalysis testing, a fathers engagement program,

a parenting assessment, and a domestic violence assessment. Demps appeals.

DECISION

In the context of a dependency proceeding, "[d]ue process requires

that parents have notice, an opportunity to be heard, and the right to be

represented by counsel." In re Welfare of Key, 119 Wn.2d 600, 611, 836

P.2d 200 (1992); see also RCW 13.34.090(1) (party in dependency

proceedings has a right to introduce evidence, to be heard on his or her

own behalf, and to examine witnesses). Demps contends that he was

denied due process at the dependency fact-finding hearing when the trial

court reopened the evidence to allow the Department to provide evidence

about the August 21 incident because he was deprived of the opportunity

to cross-examine Stampfli or call witnesses of his own. But Demps is

mistaken. The record shows that the trial court denied the State's motion

to reopen the evidence and did not consider the August 21 incident, finding

that the evidence already presented established a basis for the

establishment of dependency.

Demps also claims that he was denied due process when the trial

court ordered him to undergo a domestic violence assessment based on No. 71207-1-1/5

Stampfli's unsworn declaration. But the record shows that Demps has

completed the domestic violence assessment and L.D. has been returned

to his care. An issue is moot if it is not possible for this court to provide

effective relief. Klickitat County Citizens Against Imported Waste v.

Klickitat County, 122 Wn.2d 619, 631, 860 P.2d 390, 866 P.2d 1256

(1993). Generally this court will not consider a moot issue unless it

involves matters of continuing and substantial public interest. Bavand v.

OneWest Bank. F.S.B.. 176 Wn. App. 475, 510, 309 P.3d 636 (2013).

Because the issue has been rendered moot and is not one of public

interest, we decline to address it.

We affirm the trial court's order of dependency and disposition as to

Demps.

FOR THE COURT: