In Re Dependency of MJL

96 P.3d 996
CourtCourt of Appeals of Washington
DecidedAugust 24, 2004
Docket53363-1-I
StatusPublished
Cited by2 cases

This text of 96 P.3d 996 (In Re Dependency of MJL) 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 MJL, 96 P.3d 996 (Wash. Ct. App. 2004).

Opinion

96 P.3d 996 (2004)

In re the DEPENDENCY OF M.J.L., DOB: 7/13/88, Minor Child.
Jena Lamas, Appellant,
v.
State of Washington, Department of Social and Health Services, Respondent.

No. 53363-1-I.

Court of Appeals of Washington, Division 1.

August 2, 2004.
Publication Ordered August 24, 2004.

*997 Eric Broman, Jennifer L. Dobson, Nielsen Broman Koch Pllc, Attorney at Law, Seattle, WA, for Appellant.

Thomas More Masco, Office of The Attorney General, Seattle, WA, for Respondent.

GROSSE, J.

The issue before us is whether the juvenile court in the context of a dependency proceeding may order visitation between a dependent child and his or her non-dependent sibling over whom the court has no jurisdiction when the non-dependent child's parent objects to the visitation. We answer in the negative and reverse.

FACTS

Jena Lamas is the mother of two daughters: 16-year-old M.L. and 5-year-old E.L. The girls have different fathers. E.L.s father, Efren Delgadillo Ocampo, was convicted of molesting M.L. in 2001. After serving his sentence, Ocampo was deported to Mexico. On January 5, 2003, M.L. went to a police station and reported that her mother and Ocampo had reunited, and that Ocampo was visiting her home despite the fact that there was an order in place prohibiting him from contacting M.L. M.L.s statement to the police was somewhat unclear as to whether she had run away from home, or whether her mother had asked her to leave. In either event, when police contacted Lamas, she stated that she would not allow M.L. to return home.

As a result, M.L. filed a Children in Need of Services (CHINS) petition on January 7, 2003. M.L. was placed out of the home and the court ordered visitation between M.L. and E.L., but no visitation occurred during the pendency of the CHINS proceeding.

On August 1, 2003, the Department of Social and Health Services (DSHS) filed a petition alleging that M.L. was a dependent child. No dependency petition was ever filed as to E.L.

At the 72-hour shelter care hearing on August 4, 2003, the court again ordered visitation between M.L. and E.L. At the 30-day shelter care hearing on September 3, 2003, the court learned that no visitation had taken place between M.L. and E.L., and ordered DSHS to seek a bench warrant for Lamas if she did not arrange for visitation to occur. Over the next several months, M.L. and E.L. had two supervised visits.

On September 30, 2003, Lamas signed agreed orders of dependency and disposition as to M.L. Neither M.L. nor Lamas wished to have any contact with the other, and neither wished to reunite. The sole issue that the parties disagreed on was visitation between M.L. and E.L. Lamas did not want her younger daughter to have any contact with M.L., contending that M.L. was a bad influence on E.L. Lamas also contended that the court was without authority to order visitation because the court did not have jurisdiction over E.L.

*998 At a hearing on October 13, 2003, the court heard testimony from Lamas, M.L., and Dick Thomas, a Department of Child and Family Services (DCFS) social worker. The court found that visitation would be in M.L.s best interests, that there was no reasonable cause to believe that E.L.s health, safety, or welfare would be jeopardized by visitation, and that efforts to reunite M.L. and Lamas would not be hampered by the visitation. The court did not appoint a guardian ad litem to represent E.L.s interests, and did not make findings as to whether the visitation would be in E.L.s best interests. The court concluded that it had the authority to order the visitation notwithstanding the fact that it had no jurisdiction over E.L., and ordered supervised visitation between M.L. and E.L. as well as weekly telephone contact between the two.

Lamas appeals.

ANALYSIS

It is undisputed that the juvenile court had no jurisdiction over E.L.[1] The State has not filed a dependency petition as to E.L., and the State has not alleged that Lamas is an unfit mother as to E.L. A fit parent is presumed to act in the best interests of his or her child,[2] and has a right to limit visitation of his or her children with third persons.[3] The question before us is whether the juvenile court may order visitation between a dependent child and a non-dependent sibling, over whom the court has no jurisdiction, over the objections of a fit parent.[4]

Because this is an issue of first impression in Washington, we may look to guidance from cases from other jurisdictions.[5] The Supreme Court of Nebraska considered this issue under strikingly similar facts in In re Interest of D.W.[6] D.W. was found to be a delinquent child within the meaning of former Nebraska Revised Statutes of 1943, chapter 43, section 43-247(3)(b).[7] At the request of D.W.s guardian ad litem, the court ordered visitation over the objections of the parents, who believed that visitation would not be in their daughters best interests. As in this case, the court did not appoint a guardian ad litem to protect the sisters interests, and did not consider whether visitation was in the sisters best interests. The Court of Appeals affirmed, and the parents sought review in the Nebraska Supreme Court.

The Supreme Court reversed on the basis that the juvenile court had no jurisdiction over the sister, and that the court therefore did not have the power to order the parents to comply with the order requiring them to make their daughter available for visitation.

As restated, the issue before this court is whether the power of a juvenile court over parents under its jurisdiction extends to interfering with those parents rights over a non-adjudicated child. We find that it does not when the juvenile court lacks *999 personal jurisdiction over the non-adjudicated child.
There is nothing in the pleadings or record of this case to justify a juvenile court's assuming jurisdiction over an uncharged and unadjudicated child such as D.W.s sister.[8]

In so holding, the Court noted that the relationship between a parent and child is constitutionally protected, and that the protection applies to the relationship between a parent and each child as an individual. "Just because one child in a family is adjudicated as a child coming under the Nebraska Juvenile Code does not provide a juvenile court carte blanche jurisdiction over the adjudicated child's unadjudicated siblings."[9]

The State contends that In re D.W. is inapposite because D.W. was a delinquent, rather than a dependent, child. But this is a distinction without a difference under Nebraska law. Dependent and delinquent children are treated virtually identically under Nebraska law.[10] And contrary to the States assertion, the parents were parties to the proceeding and were before the court in In re D.W.[11] We agree with the reasoning of the Nebraska court, and find the States attempts to distinguish it unpersuasive.

While the State does not contend that the juvenile court had jurisdiction over E.L., it nonetheless argues that RCW 13.34.130(3)[12]

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96 P.3d 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dependency-of-mjl-washctapp-2004.