In Re The Dep Of A.d., Patricia Dimitry v. Dshs, State Of Washington

• Court: Court of Appeals of Washington
• Decided: September 6, 2016
• Docket: 74227-2
• Status: Unpublished

Opinion

20/6 SEP -6 m 0:1*9

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE DEPENDENCY OF A.D. No. 74227-2-1

PATRICIA DIMITRY,

Appellant, DIVISION ONE v.

STATE OF WASHINGTON, UNPUBLISHED OPINION DEPARTMENT OF SOCIAL AND HEALTH SERVICES,

Respondent. FILED: September6. 2016

Spearman, J. — Patricia Dimitry claims that she is the "de facto" parent of

A.D. and therefore has a right to participate in the child's dependency

proceeding. Her motion to intervene in the case to assert the purported right was

denied and she appeals. At issue is whether the order denying her motion is

appealable under Washington's rules of appellate procedure. We conclude that it

is not. We further conclude that even if the order was appealable, the trial court

did not err when it denied Dimitry's motion to intervene. Accordingly, we dismiss

her appeal.

FACTS

Appellant Patricia Dimitry was the purported custodian of A.D. and J.J.,

two young children ages 3 and 7 at the time they were placed in dependency. In

March 2014, Dimitry and the children were residing at a local shelter in Seattle. No. 74227-2-1/2

Child Protective Services received a report that expressed concerns about

Dimitry's parenting, criminal history, and care of the children. The children were

placed in protective custody. The next day Dimitry met with a social worker and

reported that she had adopted the children at birth and that their mother, Laura

Jenkins, had relinquished all parental rights to her. Dimitry provided a consent

judgment from a Louisiana court that acknowledged Jenkins' agreement to give

Dimitry custody of J.J. Dimitry also provided a notarized statement signed by

Jenkins as evidence of her intent to give Dimitry custody of A.D. as well.

Respondent State of Washington, Department of Social and Health

Services (DSHS) filed a petition for dependency for A.D., listing Dimitry as the

mother on March 17, 2014. Both Jenkins and Dimitry testified at a shelter hearing

where the court ordered that both children remain in licensed care.

DSHS filed an amended petition for A.D. on April 15, 2014, naming

Jenkins as the mother and removing Dimitry as a party. On that same day,

Dimitry moved to dismiss the dependencies and have the children returned to

her. On April 24, the juvenile court commissioner entered an order requiring both

children to remain in licensed care pending trial, and setting additional shelter

care hearings with regard to Dimitry and Jenkins.

On May 8, 2014, the juvenile court entered agreed orders of dependency

for both children - with regard to Jenkins as the biological mother for A.D. and

with regard to Dimitry as the purported custodian for J.J. Both orders listed a

return to Dimitry as an option for the children's permanent plans. Dimitry did not No. 74227-2-1/3

object to the orders of dependency or the amended petition removing her as a

party to A.D.'s dependency.

On August 6, 2014, Dimitry again moved for the children to be returned to

her care. The juvenile court denied her motion and ordered that the children

remain in DSHS's custody. Dimitry filed a status report with the court on January

7, 2015, asking that she be found in compliance with the dependency orders and

that the children be placed with her. Jenkins also filed a report with the court

indicating that she advocated for placement of the children with Dimitry. On

January 15, 2015, the juvenile court denied the request, finding that it was not

properly before the court.

On June 2, 2015, Dimitry filed another report requesting that she be found

in compliance and that the children be returned to her. DSHS moved to strike the

filings. On June 10, 2015, the juvenile court entered an order in A.D.'s

dependency, stating that Dimitry's "status in this case is debated," because while

she had been removed as a party, the State did not appeal the orders stating that

Dimitry was still being considered as an option for permanent placement. Clerk's

Papers (CP) at 633 (quoting Commissioner's Order (6/11/15) at 10-11.

DSHS moved to revise the commissioner's ruling to remove the "legal

uncertainty" of Dimitry's status, arguing that she had no legal interest in the child,

the petition had been amended to remove her as a party to the dependency, and

she had never challenged the orders, moved to intervene, or otherwise

established that she has legal standing as a party. CP at 632. Following a

hearing on the motion, the trial court revised the commissioner's order, finding No. 74227-2-1/4

that Dimity had not established that she was a custodian of A.D. or otherwise

entitled to status as a party to the dependency. The court further ordered that if

Dimitry seeks to be added as a party, she must note a motion to intervene and

file it by August 3, 2015.

Dimitry moved to intervene on July 21, 2015. The commissioner granted

Dimitry's motion under CR 24(b)(2). The commissioner found that because

Dimitry met the criteria for a de facto parent under In re Parentage of LB., 155

Wn.2d 679, 708, 122 P.3d 161 (2005), she "share[d] a factual and legal interest

in the full panoply of issues before the court in [A.D.'s] dependency."1 CP at

1001. Relying on In re Dependency of P.M.. 136 Wn. App. 387, 149 P.3d 433

(2006), the commissioner also found that it could properly consider Dimitry's

motion for status as a de facto parent in the context of A.D.'s dependency. The

commissioner rejected DSHS's argument that de facto parentage could only be

established by petition in a separate action.

DSHS moved to revise the commissioner's decision. In granted DSHS's

motion, the trial court found that Dimitry's motion to intervene as untimely and

that in any event, she had shown no basis for intervention under CR 24(a) or (b).

The LB. court held:

To establish standing as a de facto parent we adopt the following criteria ... : (1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.... In addition, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life. C.E.W., 845 A.2d at 1152 No. 74227-2-1/5

The court reversed the commissioner's finding that Dimitry was A.D.'s de facto

parent and concluded that "the establishment of de facto parentage cannot be

made via a motion in a juvenile dependency proceeding." CP at 1202. Dimitry

appeals.2 DSHS contends the appeal should be dismissed because the order is

not appealable under RAP 2.2(a).

DISCUSSION

RAP 2.2(a) delineates the types of superior court decisions that may be

appealed. Dimitry appears to argue that the order denying her motion to

intervene is like those described in subsections (a)(3) and (a)(5).3 Subsection

(a)(3) allows an appeal for "[a]ny written decision affecting a substantial right in a

civil case that in effect determines the action and prevents a final judgment or

discontinues the action." Subsection (a)(5) permits the appeal of '[t]he disposition

decision following a finding of dependency by a juvenile court...." In determining

whether an order is appealable under these rules, it is the practical effect of the

order that controls. In re Dependency of A.G.. 127 Wn. App. 801, 808, 112 P.3d.

588 (2005) (citing Munden v. Hazelriqq. 105 Wn.2d 39, 44-45, 711 P.2d 295

(2012)).

Dimitry contends that she has the right to participate in A.D.'s dependency

proceeding because she claims to be the child's de facto parent. Thus, she

2 Dmitry does notassert that the matter is appropriate for discretionary review under RAP 2.3(b)(2).

3 Dimitry also appears to suggest that as a de facto parent she falls within the definition of a "parent" or "custodian" as set out in RCW 13.04.011(5) and (6), respectively, and therefore has a statutory right to participate in A.D.'s dependency. Br. of Appellant at 5. We note that Dimitry cites no authority in support of this position, but, in any event, we need not resolve the question because, as noted herein, she has not established that she is a de facto parent to A.D. No. 74227-2-1/6

argues the order denying her motion to intervene is appealable under subsection

(a)(3) because it denied her right to participate in that proceeding and

discontinued the action as to her. DSHS argues that Dimitry has no right to

participate in the dependency. It points to the trial court's unchallenged order on

the first motion for revision, which found that Dimitry had not established de facto

parentage, was not a party to A.D.'s dependency and therefore had no standing

to participate in that case. In response, Dimitry relies on the commissioner's

ruling on her motion to intervene, which she claims established her to be A.D.'s

de facto parent. We agree with DSHS, because once revised, a commissioner's

order is a nullity. See In re Marriage of Dodd. 120 Wn. App. 638, 644, 86 P.3d

801 (2004). Thus, Dimitry's reliance on that ruling is misplaced.

On revision of a commissioner's decision, the superior court reviews the

findings of fact and conclusions of law de novo. In re Marriage of Moody, 137

Wn.2d 979, 993, 976 P.2d 1240 (1999). Ifthe superior court simply denies the

motion to revise the commissioner's findings or conclusions, the court, in effect,

adopts the commissioner's findings, conclusions, and rulings as its own. Grieco

v. Wilson, 144 Wn. App. 865, 877, 184 P.3d 668 (2008). But when the court

makes independent findings and conclusions, the court's revision order then

supersedes the commissioner's decision. Id.

In Grieco, the court commissioner found that the grandparent petitioners

had established adequate cause for a nonparental custody action "'based on the

fact that the children are in the physical custody of the grandparents and have

been for a few years and it would be detrimental to remove them from the No. 74227-2-1/7

grandparents' care.'" 144 Wn. App. at 870. The father moved for revision and the

superior court denied the motion, but declined to find detriment, reasoning that it

only needed to find "'that the children are not in the custody of parents to find

adequate cause.'" Id at 871. On appeal, the order was reversed because it was

an error of law to conclude the fact that the children were not in the father's

custody was sufficient for adequate cause. Id. at 876.

The Grieco grandparents argued that regardless of the trial court's error,

they had established adequate cause based on the commissioner's findings of

actual detriment. 144 Wn. App. at 877. These findings, however, were

superseded by the judge's entry of "a separate and distinctly different order" that

stated that the denial of the motion to revise was based on the court's

interpretation of the statute, not the commissioner's findings, jd.

Likewise, here, the trial court's revision order rendered the commissioner's

determination of de facto parentage a nullity. Thus, Dimitry cannot rely on that

ruling to establish her right to participate in A.D.'s dependency. Because Dimitry

cannot show she has a right to participate in the dependency, neither can she

show that the order denying intervention is appealable under RAP 2.2(a)(3).

Relying on In re Interest of J.W.. 111 Wn. App. 180, 43 P.3d 1273 (2002),

Dimitry also argues that the order denying her motion to intervene is appealable

under RAP 2.2(a)(5). The rule provides in pertinent part, the "disposition

decision following a finding of dependency by a juvenile court . . ." is an

appealable order. In J.W., the mother entered into an agreed order of

dependency as to five of her children. DSHS subsequently filed petitions for No. 74227-2-1/8

dependency guardianships as to three of the children. After a trial, the court

granted the petitions and the mother appealed.

On appeal, DSHS contended that the mother's appeal should be

dismissed because the order establishing the dependency guardianship was not

appealable. It argued that RAP 2.2 explicitly allow appeals of an order following a

finding of dependency and an order terminating parental rights4 and because the

order at issue was neither, it was not appealable. We noted however, that in In re

Dependency of Chubb, 112 Wn.2d 719, 773 P.2d 851 (1989), the Court held

"that RAP 2.2(a)(5) allows an appeal not only from the disposition following the

initial finding of dependency, but also from any subsequent disposition that

effects a 'marked change in the status quo [and] amounts to a new disposition.'"

J.W., 111 Wn. App. at 185 (quoting Chubb, 112 Wn.2d at 725). We held that

because the order converting the dependency to dependency guardianship was

a marked change in the status quo that amounted to a new disposition, it was

appealable.

Dimitry attempts to analogize her case in J.W. but the effort is unavailing

because again she relies on the commissioner's ruling finding her to be A.D.'s de

facto parent. She contends the commissioner's order established the status quo

and that the order denying her motion to intervene effected a marked change in

that status. Dimitry is mistaken. The status quo at the time of the motion to

intervene was that Dimitry was not a party to A.D.'s dependency. And since the

4 See RAP 2.2(a)(5) and (6), respectively.

8 No. 74227-2-1/9

commissioner's ruling was revised, it had no effect on that status. Thus, the trial

court's denial of the motion to intervene preserved the status quo, it did not

change it. The order is not appealable under subsection (a)(5).

Finally, Dimitry argues that the denial of her motion to intervene is

appealable because the order denies her ability to establish de facto parentage

in the context of A.D.'s dependency proceeding. But the only authority she cites

does not support the argument. In LB., the court held that under the common

law, a person may have standing to prove that he or she is a de facto parent. Id.

at 707. But the court does not address the proposition Dimitry urges here, that

one has a right to establish de facto parentage in the context of an ongoing

dependency proceeding.

Nor does In re Dependency of P.M., 136 Wn. App. 387, 149 P.3d 433

(2006), support Dimitry's contention. In that case, an aunt and her partner

(hereinafter, custodians) were legal custodians of two children by virtue of a third

party custody order entered in superior court. When DSHS commenced a

dependency action as to the two children, the petition named the custodians as

parties, as well as the children's biological mother. During the dependency, the

third-party custody order was vacated. Sometime later, a hearing was held

regarding termination of biological mother's parental rights. The trial court did not

allow the custodians to participate in the hearing. The custodians did not argue to

the trial court that as de facto parents, they were entitled to participate in the

termination proceeding. No. 74227-2-1/10

On appeal, we declined to address whether the exclusion was proper,

concluding that the custodian would not have been allowed to participate in any

event because they "fail[ed] to meet even the first LB. threshold criterion to

establish de facto parent status." Id. at 397.

We reject Dimitry's argument that she has a right to participate in A.D.'s

dependency to establish de facto parent status because she cites no relevant

authority in support of it. But even if it was appealable, we would affirm the denial

based on the trial court's finding of untimeliness.

Intervention in a dependency action by anyone other than the child's

natural parent will "rarely be appropriate." In re Welfare of Coverdell, 39 Wn. App.

887, 891, 696 P.2d 1241 (1984). Any such decision permitting intervention is

within the court's informed discretion and will be reviewed under an abuse of

discretion standard. In re Dependency of J. H., 117 Wn.2d 460, 471-72, 815 P.2d

1380 (1991). An appellate court will review a trial court's evaluation of timeliness

in particular only for abuse of discretion. Olver v. Fowler, 161 Wn.2d 655, 665,

168 P.3d 348 (2007).

Dimitry argues that her motion to intervene was timely, because it was

filed before the commencement of trial. Br. of Appellant at 17, citing American

Discount Corp., Inc. v. Saratoga West, Inc., 81 Wn.2d 34, 499 P.2d 869 (1972)).

She contends that intervention may be allowed at any stage in the proceeding.

Id. But as the trial court noted, Dimitry did not file her motion to intervene until

more than a year after she was removed as a party from A.D.'s dependency. It

observed that Dimitry "waited far too long to intervene, when she had full notice

10 No. 74227-2-1/11

of these proceedings." CP at 1202. Dimitry offered no reason then or now as to

why her motion to intervene was not filed earlier in the proceedings. Nor has she

shown that the trial court's finding of untimeliness is manifestly unreasonable, or

exercised on untenable grounds or for untenable reasons.

Because the order on revision denying Dimitry's motion to intervene is not

appealable, we dismiss her appeal.

Dismissed.

^Pfr,//"*^Q . WE CONCUR:

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