In Re JF

37 P.3d 1227
CourtCourt of Appeals of Washington
DecidedDecember 31, 2001
Docket47459-6-I
StatusPublished
Cited by76 cases

This text of 37 P.3d 1227 (In Re JF) 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 JF, 37 P.3d 1227 (Wash. Ct. App. 2001).

Opinion

37 P.3d 1227 (2001)
109 Wash.App. 718

In re Interest of J.F.,
Barbara Hamilton, Appellant,
v.
Department of Social & Health Services, Respondent.

No. 47459-6-I.

Court of Appeals of Washington, Division 1.

December 31, 2001.

*1229 Oliver Davis, Washington Appellate Project, Seattle, for Appellant.

Melissa Nelson, Office of the Attorney General, Bellingham, for Respondent.

*1228 KENNEDY, J.

Barbara Hamilton appeals the juvenile court's order declaring her 9-year old daughter J.F. to be a dependent child. Hamilton contends that the court erred in concluding that the counselor-patient privilege provided by RCW 18.19.180 does not apply in dependency proceedings, and by ordering the testimony of her counselors and the production of evidence from the clinic she attended. According to Hamilton, the State failed to produce sufficient admissible evidence to sustain a finding of dependency. The State correctly contends that the evidence was admissible under the subpoena exception to RCW 18.19.180 and under applicable case law, and that there is sufficient evidence to uphold the dependency order even without the challenged evidence. We affirm on these grounds and on an additional ground as well: The reporting requirements of RCW 26.44 trump the counselor-patient privilege found in RCW 18.19.180, whether or not the counselor actually reported the neglect or abuse that is a basis for the dependency petition.

I

The Division of Children & Family Services (DCFS) of the Department of Social and Health Services (DSHS) filed a dependency petition regarding Barbara Hamilton's 9 year old daughter J.F. The State served Michelle Stach, Alice Hilton, and the records custodian at Whatcom Counseling and Psychiatric Clinic with subpoenas ordering them to testify in this case. Stach and Hilton had provided Hamilton and J.F. with counseling services in the recent past. At trial, Hamilton sought to have this evidence excluded on the ground that it violated her counselor-patient privilege granted in RCW 18.19.180.

The juvenile court concluded that the counselor-patient privilege does not apply in dependency proceedings, and admitted the evidence over Hamilton's objection. The court reasoned that "the best interest[ ] of the child outweighs the counselor/patient privilege where the fitness of the parent and the emotional or physical condition of the child are at issue." Report of Proceedings at 287-88.

The court found that J.F. was a dependent child pursuant to former RCW 13.34.030(5)(b) and (c).[1] The court found *1230 that the State had proved eight out of twelve allegations in the dependency petition, and concluded that those facts established the child's dependency. The following findings supporting the order of dependency are unchallenged by Hamilton and are, therefore, verities on appeal. In re Dependency of P.A.D., 58 Wash.App. 18, 30, 792 P.2d 159 (1990). These unchallenged findings form the factual background for this case.

Unchallenged Findings of Fact

1. It was reported to [the Whatcom County Sheriff's Office] WCSO on 6/14/00 that 8 year old [J.F.] had been sent by her mother, Barbara Hamilton, on a trip to California with the mother's boyfriend, a long haul truck driver. The driver, identified by WCSO as Joel Brian Mitchell, has an extensive criminal history including charges of assault, attempted robbery, stalking, and violations of court orders. Mr. Mitchell has been investigated by DCFS for physical abuse of other children. [J.F.] has had little previous contact with this man as she had been living with her aunt since he had moved into her mother's home about 2 months ago, after he was released from prison. The mother had allegedly met Mr. Mitchell through a personal advertisement in a newspaper.

2. In a conversation with worker Linda Conroy on 6/14, Ms. Hamilton said that she had allowed her daughter to go with Mr. Mitchell. She said that children could get molested any where so she didn't see that she was putting her child at risk; on the contrary she saw this as a "chance of a lifetime" for the child.

. . . .

4. [J.F.] was taken into protective custody by WCSO on 6/17/00 after being returned to Whatcom County by Mr. Mitchell.

5. On 6/19/00, in an interview with WCSO and CPS worker, the child stated that her mother said she could go with Brian to look at the truck. Once in the truck, her mother gave her a bag of clothing and they left. She said, "I didn't know we were going on a trip, I just thought we were going around the block." She said that she had met Mr. Mitchell only twice before. She said that he told her to call him dad as "people would call the cops and take me away" if they knew he was not her dad.

6. In July 1999 WCSO and the Department had investigated an incident of child sexual abuse concerning [J.F.] being sexually abused by a male friend of Ms. Hamilton, who Ms. Hamilton had met through a personal advertisement. That man was since charged with molestation of the child. At that time Ms. Hamilton was strongly advised by the Department not to put her child in any situations where she might be at risk of further harm by adult friends of the mother.

10. DCFS has investigated 7 reports of abuse or neglect in this family since 1993. Two were founded for physical abuse by the child's father Kim Fletcher, and one was inconclusive. One allegation of sexual abuse by Mr. Fletcher was inconclusive. Allegations of emotional abuse were founded for both parents. One allegation of neglect was founded with respect to the mother and two others were inconclusive. Additionally there have been several concerns expressed for the child's safety as there are frequently many different people in and out of the home, and the family lifestyle is described as chaotic.

11. The father, Kim Fletcher, has not had direct contact with the child for more than 3 years, following a no contact order issued after he was charged with assault of Ms. Hamilton. There is no current parenting plan giving him visitation.

Clerk's Papers at 104-105.

The court made 22 additional findings of fact, most of which are unchallenged by Hamilton. The additional unchallenged findings are summarized as follows:

J.F. was first sexually molested when she was approximately 2 to 3 years old. She was *1231 molested again in 1999 by Mr. Nielsen, a man whom Barbara Hamilton met through a personal ad. At the time of the truck trip to California, Hamilton knew that J.F. had been molested at least twice, that J.F. had no sense of boundaries with strangers, and that J.F. was impulsive and had acted out sexually in the past.

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Bluebook (online)
37 P.3d 1227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jf-washctapp-2001.