In Re Dependency of CM

78 P.3d 191
CourtCourt of Appeals of Washington
DecidedOctober 14, 2003
Docket51144-1-I
StatusPublished
Cited by25 cases

This text of 78 P.3d 191 (In Re Dependency of CM) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Dependency of CM, 78 P.3d 191 (Wash. Ct. App. 2003).

Opinion

78 P.3d 191 (2003)
118 Wash.App. 643

In re the DEPENDENCY OF C.M., a minor.
State of Washington/D.S.H.S., Respondents,
v.
Dale McCracken, father, Appellant.

No. 51144-1-I.

Court of Appeals of Washington, Division 1.

September 15, 2003.
Publication Ordered October 14, 2003.

*192 Susasn Wilk, Nancy Collins, WA Appellate Project, Seattle, WA, for Appellant.

Winifred Melinda Wong, Office of The Public Defender, Seattle, WA, for Defendant.

Trisha McArdle, Lisa Peterson, Ofc of The Atty General, Seattle, WA, for Respondent.

COX, A.C.J.

Dale McCracken appeals the trial court's determination that his son, C.M., is a dependent child under RCW 13.34.030(5)(c). The Department of Social and Health Services ("Department") moved to modify a commissioner's ruling granting McCracken's motion to amend his notice of appeal to include the dispositional order as well as the dependency order entered in this case. We grant the motion in part. We also hold that the dependency order is subject to review by appeal, notwithstanding McCracken's decision not to assign error to the agreed dispositional order. And substantial evidence supports the challenged findings and the determination that C.M. is a dependent child. Accordingly, we affirm.

McCracken is the father and primary caregiver of C.M. McCracken and C.M.'s mother, Margery McCracken, are divorced but live together to share C.M.'s care. The Department investigated an allegation by Margery in April 2002 that McCracken had physically abused C.M. C.M. had been the subject of previous referrals and a previous dependency petition. Following the April 2002 allegation, the Department commenced a dependency proceeding, alleging that C.M. was a dependent child under RCW 13.34.030(5)(b) and (c). The trial court rejected the Department's reliance on RCW 13.34.030(5)(b), but granted the petition under RCW 13.34.030(5)(c).

McCracken appeals.

Motion to Modify Commissioner's Ruling

As a threshold matter, we address the Department's motion to modify a commissioner's ruling granting McCracken's motion to amend his notice of appeal. We grant the motion in part.

The original notice designated only the dependency order. The Department moved to dismiss the appeal because McCracken had neither appealed the dispositional order nor moved for discretionary review of the dependency order. In response, McCracken moved to amend the notice of appeal to include the dispositional order. The Department then took the position that the dispositional order in this case is not appealable because it is an agreed order. A commissioner granted the motion to amend the notice of appeal to include the dispositional order. The Department moved to modify that ruling.

Following the supreme court's recent ruling in In re Dependency of Brown,[1] we directed additional briefing by the parties in this case. In response to that directive, the Department states that it "no longer advocates that the only way to challenge the underlying dependency order is through discretionary review."[2] But it continues to assert that an agreed dispositional order in a dependency proceeding is not subject to appeal. Based on that assertion, the Department *193 requests modification of the commissioner's ruling.[3]

In Brown, the father of the child filed a notice of appeal designating both the dependency order and the dispositional order in that case. But in his opening brief, Brown only challenged the dependency order, not the dispositional order. In considering these facts and RAP 2.2(a)(5), the supreme court held that a dispositional order is an appealable order that, when designated in a notice of appeal, entitles one to advance any argument going to the validity of that order.[4] "A dispositional order depends on a valid dependency order."[5] Thus, an appeal of a dispositional order also brings up for review any proper challenge to the foundational dependency order.[6]

The commissioner's ruling here is consistent with these principles. McCracken originally designated only the dependency order in his notice of appeal. In response to the Department's motion to dismiss, he sought to amend the notice by adding to his designation the dispositional order. As illustrated by his brief, the focus of his appeal is directed to the dependency order, which the supreme court characterizes as the foundation for a dispositional order.[7] He does not directly attack the dispositional order itself. The amendment of the notice of appeal to include both orders puts this case on the same footing as Brown — both orders are effectively included within the notice of appeal.

Relying on the Washington Asphalt Co. v. Harold Kaeser Co.[8] line of cases, the Department maintains that McCracken should not be allowed to appeal the dispositional order in this case because it is an agreed order. The substance of the commissioner's ruling is not inconsistent with the rule stated in this line of cases. Under Brown, McCracken need not directly attack the dispositional order because such an attack is unnecessary. Rather, designation of the dispositional order in the notice of appeal without attacking it in the brief is permissible in order to obtain review by appeal of the dependency order. However, to the extent the commissioner's ruling states that the "appeal of the dispositional order may proceed limited to the finding of dependency,"[9] we modify that ruling. Direct attack on the agreed dispositional order is not necessary to obtain review of the foundational dependency order. We otherwise leave undisturbed the commissioner's ruling.[10]

McCracken's challenge to the dependency order is properly before us.

Sufficiency of the Evidence

Moving to the merits of the case, McCracken argues that there was insufficient evidence to support the court's finding that C.M. is a dependent child. We disagree.

The goal of a dependency hearing is to determine the welfare of the child and his best interests.[11] To declare a child dependent, the trial court must find by a preponderance of the evidence that the child meets one of the statutory definitions of dependency.[12] RCW 13.34.030(5) provides in part that a "dependent child" is one who:

*194 ...

(b) Is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child; or
(c) Has 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 State alleged in the dependency petition that C.M. was dependent under subsections (b) and (c).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dependency Of J.d.r.
Court of Appeals of Washington, 2025
In Re The Dependency Of K.v.
Court of Appeals of Washington, 2024
In Re The Dependency Of S.i.l.
Court of Appeals of Washington, 2023
In re the Dependency of: Q.S.
Court of Appeals of Washington, 2022
In Re Dependency Of M.S.
Court of Appeals of Washington, 2021
In Re Dependency Of M.s., Sharrah Viola Wood v. Dcyf
Court of Appeals of Washington, 2020
In Re The Dependency Of: J.g.
Court of Appeals of Washington, 2020
In Re The Dependency Of M.l.w., Eli Spaulding v. Dcyf
Court of Appeals of Washington, 2020
In Re The Welfare Of A.l.c.
439 P.3d 694 (Court of Appeals of Washington, 2019)
In Re The Parentage Of C.j.m.
Court of Appeals of Washington, 2018
In Re The Dependency Of: C.s.j.
Court of Appeals of Washington, 2017
In Re The Dependency Of: J.a.g.
Court of Appeals of Washington, 2016
In Re the Dependency of Ca.R.
365 P.3d 186 (Court of Appeals of Washington, 2015)
In Re The Dependency Of E.c. Christopher Carr v. Dshs
Court of Appeals of Washington, 2013
Rousseau v. Department of Social & Health Services
160 Wash. App. 929 (Court of Appeals of Washington, 2011)
In Re Dependency of JMR
249 P.3d 193 (Court of Appeals of Washington, 2011)
Schermer v. Department of Social & Health Services
161 Wash. 2d 927 (Washington Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
78 P.3d 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dependency-of-cm-washctapp-2003.