COURT n;: a SUlLur WASHINGTON 2013APR 22 PM |:32
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 68931-2-1 A.B.-W., dob 10/10/11, DIVISION ONE A minor child,
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES,
Respondent, UNPUBLISHED OPINION
ARTHUR S. BARBARINO,
Appellant,
ERIN L. WILLIS,
Defendant. FILED: April 22, 2013 Schindler, J. —The State of Washington Department of Social and Health
Services (DSHS) filed a petition for dependency of A.B.-W. alleging there was no parent
capable of caring for A.B.-W. such that the circumstances constituted a danger of substantial damage to the child. The mother stipulated to entry of an agreed order of dependency and entered into an inpatient drug treatment program. The father was
incarcerated and admitted he was unable to care for the child. DSHS filed a motion for
summary judgment on the grounds that A.B.-W. was dependent because itwas No. 68931-2-1/2
undisputed there was no parent capable of caring for the child. In opposition, the father
argued there were material issues of fact as to whether the mother was currently
capable of caring for the child. We affirm.
FACTS
A.B.-W. was born October 10, 2011. The child's mother is Erin L. Willis and the
father is Arthur S. Barbarino. Both parents have a history of drug addiction. Barbarino
has a number of convictions for violation of the Uniform Controlled Substances Act.
Willis admitted using heroin but said she did not use drugs during her pregnancy.
In January 2012, Barbarino was incarcerated at the Olympic Corrections Center.
Willis and three-month-old A.B.-W. were living with two other women in an apartment in
Bellingham. On January 18, police executed a search warrant at the apartment. The
police found cocaine, a bag with methamphetamine residue, and other drug
paraphernalia in the apartment. The police found a methamphetamine pipe in the
bedroom Willis shared with A.B.-W. The police arrested Willis. The maternal
grandmother Vickie Willis agreed to care for A.B.-W.
On February 3, DSHS filed a dependency petition alleging there was no parent,
guardian, or custodian capable of caring for the child such that circumstances
constituted a danger of substantial harm to A.B.-W. Willis and Barbarino agreed to
placement of the baby with Vickie Willis. The court appointed counsel for Barbarino and
scheduled a fact-finding hearing on the dependency petition for March 26.
At the hearing on March 26, Willis agreed to stipulate that A.B.-W. was a
dependent child. Willis stipulated to entry of an agreed order of dependency of A.B.-W. No. 68931-2-1/3
In the "Declaration and Stipulation to Entry of Agreed Order of Dependency," Willis
states, in pertinent part:
I understand that the entry of the agreed order of dependency is an admission by me that my child is a dependent child as defined by RCW 13.34.030. I also understand that the agreed order of dependency has the same legal effect as a finding by this court from a fact finding hearing that my child is dependent by at least a preponderance of the evidence. I further understand that once the agreed order of dependency is entered by this court, I will not have the right to challenge or dispute the fact that my child was found to be dependent in any subsequent review hearing, proceeding for termination of parental rights, proceeding for dependency guardianship, or proceeding for nonparental custody pursuant to chapter 26.10 RCW.
Barbarino appeared by telephone at the hearing on March 26. Barbarino did not object
to entry of the agreed order of dependency as to Willis. The court found Willis was not
capable of caring for the child and entered an "Order of Dependency" as to the mother.
The court ordered the mother to obtain a drug and alcohol evaluation and participate in
random urinalysis (UA), and scheduled a dependency review hearing for June 18. The
court also scheduled a fact-finding hearing on whether the child was dependent as to
the father for April 23.
On April 9, Barbarino filed a response to the dependency petition. Barbarino
admitted that because he was incarcerated, there was no parent capable of adequately
caring for A.B.-W. "such that the child is in circumstances which constitute a danger of
substantial damage to the child's psychological or physical development."
On April 19, DSHS filed a summary judgment motion. DSHS argued that there
was no dispute that the child was dependent because there was no parent capable of
caring for A.B.-W. In opposition, Barbarino argued that there were material issues of
fact as to whether Willis was currently capable of parenting the child. No. 68931-2-1/4
An April 26 court order states that Willis was accepted into the Family Treatment
Court Program and had begun phase one. The court ordered Willis to participate in
outpatient and inpatient drug and alcohol treatment, participate in random UA, and
attend daily alcoholics anonymous or narcotics anonymous meetings. Willis began
inpatient drug treatment on April 30.
On May 16, Barbarino filed an amended response to the dependency petition.
Barbarino admits he "cannot parent full-time in prison," but states that he "is working on
chemical dependency issues and can parent upon his release." Barbarino also asserts
the "mother is currently capable of adequately caring for the child."1 On May 17, the court held a hearing on the motion for summary judgment.
Barbarino's attorney was present and Barbarino appeared by telephone. The court
ruled that "[t]he issue of the mother's capability to parent was already determined by the
court when she stipulated to finding the child dependent," and it was undisputed that
"[t]he father has chemical dependency issues that he reports he is working on in prison
[and] has a criminal history which includes many controlled substance, narcotics and
possession convictions." The court concluded that as a matter of law, A.B.-W. was a
dependent child.
The child has no parent, guardian or custodian capable of adequately caring for him, such that he is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development. The mother has stipulated to this fact and the father admitted this fact in his original Response due to his incarceration.
On May 29, the court entered an order of dependency and an order of disposition
as to the father.
1On May 22, Barbarino filed a second amended response to the dependency petition which was identical to the first amended response. No. 68931-2-1/5
ANALYSIS
Barbarino argues the court erred in granting summary judgment because there
were genuine issues of material fact as to whether the mother was capable of caring for
the child. The undisputed record does not support Barbarino's argument.
When reviewing a grant of summary judgment, an appellate court undertakes the
same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030
(1982). We consider the evidence and all reasonable inferences in the light most
favorable to the nonmoving party. Schaafv. Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665
(1995).
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COURT n;: a SUlLur WASHINGTON 2013APR 22 PM |:32
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 68931-2-1 A.B.-W., dob 10/10/11, DIVISION ONE A minor child,
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES,
Respondent, UNPUBLISHED OPINION
ARTHUR S. BARBARINO,
Appellant,
ERIN L. WILLIS,
Defendant. FILED: April 22, 2013 Schindler, J. —The State of Washington Department of Social and Health
Services (DSHS) filed a petition for dependency of A.B.-W. alleging there was no parent
capable of caring for A.B.-W. such that the circumstances constituted a danger of substantial damage to the child. The mother stipulated to entry of an agreed order of dependency and entered into an inpatient drug treatment program. The father was
incarcerated and admitted he was unable to care for the child. DSHS filed a motion for
summary judgment on the grounds that A.B.-W. was dependent because itwas No. 68931-2-1/2
undisputed there was no parent capable of caring for the child. In opposition, the father
argued there were material issues of fact as to whether the mother was currently
capable of caring for the child. We affirm.
FACTS
A.B.-W. was born October 10, 2011. The child's mother is Erin L. Willis and the
father is Arthur S. Barbarino. Both parents have a history of drug addiction. Barbarino
has a number of convictions for violation of the Uniform Controlled Substances Act.
Willis admitted using heroin but said she did not use drugs during her pregnancy.
In January 2012, Barbarino was incarcerated at the Olympic Corrections Center.
Willis and three-month-old A.B.-W. were living with two other women in an apartment in
Bellingham. On January 18, police executed a search warrant at the apartment. The
police found cocaine, a bag with methamphetamine residue, and other drug
paraphernalia in the apartment. The police found a methamphetamine pipe in the
bedroom Willis shared with A.B.-W. The police arrested Willis. The maternal
grandmother Vickie Willis agreed to care for A.B.-W.
On February 3, DSHS filed a dependency petition alleging there was no parent,
guardian, or custodian capable of caring for the child such that circumstances
constituted a danger of substantial harm to A.B.-W. Willis and Barbarino agreed to
placement of the baby with Vickie Willis. The court appointed counsel for Barbarino and
scheduled a fact-finding hearing on the dependency petition for March 26.
At the hearing on March 26, Willis agreed to stipulate that A.B.-W. was a
dependent child. Willis stipulated to entry of an agreed order of dependency of A.B.-W. No. 68931-2-1/3
In the "Declaration and Stipulation to Entry of Agreed Order of Dependency," Willis
states, in pertinent part:
I understand that the entry of the agreed order of dependency is an admission by me that my child is a dependent child as defined by RCW 13.34.030. I also understand that the agreed order of dependency has the same legal effect as a finding by this court from a fact finding hearing that my child is dependent by at least a preponderance of the evidence. I further understand that once the agreed order of dependency is entered by this court, I will not have the right to challenge or dispute the fact that my child was found to be dependent in any subsequent review hearing, proceeding for termination of parental rights, proceeding for dependency guardianship, or proceeding for nonparental custody pursuant to chapter 26.10 RCW.
Barbarino appeared by telephone at the hearing on March 26. Barbarino did not object
to entry of the agreed order of dependency as to Willis. The court found Willis was not
capable of caring for the child and entered an "Order of Dependency" as to the mother.
The court ordered the mother to obtain a drug and alcohol evaluation and participate in
random urinalysis (UA), and scheduled a dependency review hearing for June 18. The
court also scheduled a fact-finding hearing on whether the child was dependent as to
the father for April 23.
On April 9, Barbarino filed a response to the dependency petition. Barbarino
admitted that because he was incarcerated, there was no parent capable of adequately
caring for A.B.-W. "such that the child is in circumstances which constitute a danger of
substantial damage to the child's psychological or physical development."
On April 19, DSHS filed a summary judgment motion. DSHS argued that there
was no dispute that the child was dependent because there was no parent capable of
caring for A.B.-W. In opposition, Barbarino argued that there were material issues of
fact as to whether Willis was currently capable of parenting the child. No. 68931-2-1/4
An April 26 court order states that Willis was accepted into the Family Treatment
Court Program and had begun phase one. The court ordered Willis to participate in
outpatient and inpatient drug and alcohol treatment, participate in random UA, and
attend daily alcoholics anonymous or narcotics anonymous meetings. Willis began
inpatient drug treatment on April 30.
On May 16, Barbarino filed an amended response to the dependency petition.
Barbarino admits he "cannot parent full-time in prison," but states that he "is working on
chemical dependency issues and can parent upon his release." Barbarino also asserts
the "mother is currently capable of adequately caring for the child."1 On May 17, the court held a hearing on the motion for summary judgment.
Barbarino's attorney was present and Barbarino appeared by telephone. The court
ruled that "[t]he issue of the mother's capability to parent was already determined by the
court when she stipulated to finding the child dependent," and it was undisputed that
"[t]he father has chemical dependency issues that he reports he is working on in prison
[and] has a criminal history which includes many controlled substance, narcotics and
possession convictions." The court concluded that as a matter of law, A.B.-W. was a
dependent child.
The child has no parent, guardian or custodian capable of adequately caring for him, such that he is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development. The mother has stipulated to this fact and the father admitted this fact in his original Response due to his incarceration.
On May 29, the court entered an order of dependency and an order of disposition
as to the father.
1On May 22, Barbarino filed a second amended response to the dependency petition which was identical to the first amended response. No. 68931-2-1/5
ANALYSIS
Barbarino argues the court erred in granting summary judgment because there
were genuine issues of material fact as to whether the mother was capable of caring for
the child. The undisputed record does not support Barbarino's argument.
When reviewing a grant of summary judgment, an appellate court undertakes the
same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030
(1982). We consider the evidence and all reasonable inferences in the light most
favorable to the nonmoving party. Schaafv. Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665
(1995).
The moving party has the burden of showing the absence of evidence to support
the nonmoving party's case. Young v. Key Pharms.. Inc., 112 Wn.2d 216, 225, 770
P.2d 182 (1989). Once the moving party shows an absence of a genuine issue of
material fact, the burden shifts to the nonmoving party. Young, 112 Wn.2d at 225.
"[Mjere allegations, denials, opinions, or conclusory statements" do not establish a
genuine issue of material fact. Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co., 122
Wn. App. 736, 744, 87 P.3d 774 (2004): see also Ranger Ins. Co. v. Pierce County, 164
Wn.2d 545, 552, 192 P.3d 886 (2008).
The civil rules apply to dependency proceedings. JuCR 1.4(a). Where the facts
are not in dispute, the court may enter summary judgment. In re Dependency of L.S..
62 Wn. App. 1,8,813 P.2d 133 (1991) (holding that "[ujnder JuCR 3.7 and RCW
13.34.110, the trial court is only required to hold a hearing when facts are in dispute").
To establish that a child is dependent, the State must prove by a preponderance
of the evidence that the child "[h]as no parent, guardian, or custodian capable of No. 68931-2-1/6
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."
RCW 13.34.030(6)(c). A parent may "waive his or her right to a fact-finding hearing by
stipulating or agreeing to the entry of an order of dependency establishing that the child
is dependent within the meaning of RCW 13.34.030." RCW 13.34.110(3)(a).
Barbarino argues there were genuine issues of material fact as to whether the
mother was currently capable of caring for A.B.-W. because the mother's "situation had
greatly improved" in the two months between the entry of the stipulation and the
summary judgment motion. But because Barbarino presented no evidence establishing
a genuine issue of material fact to support his conclusory argument, the court did not err
by granting summary judgment. Further, the undisputed evidence shows that
approximately two months after entry of summary judgment, the mother was "still
stabilizing" in the inpatient drug treatment program.
Barbarino also claims that the court violated his procedural due process rights by
granting summary judgment.
"Parents have a fundamental liberty interest in the care and welfare of their minor
children." In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007).
The State has an interest in protecting "the physical, mental, and emotional health of
children." Schermer, 161 Wn.2d at 941. "[Wjhen a child's physical or mental health is
seriously jeopardized by parental deficiencies, 'the State has a parens patriae right and responsibility to intervene to protect the child.'" Schermer, 161 Wn.2d at 942 (quoting In re Welfare of Sumev. 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). No. 68931-2-1/7
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." ]n
re Welfare of Key. 119 Wn.2d 600, 611, 836 P.2d 200 (1992). Here, Barbarino was
represented by counsel, appeared by telephone at the hearing, and had the opportunity
to be heard when Willis agreed to enter into an order of dependency, and at the hearing
on the motion for summary judgment.
We affirm.
^4 nlfl,,' WE CONCUR
A~/