In Re The Dependency Of E.c. Christopher Carr v. Dshs

• Court: Court of Appeals of Washington
• Decided: August 12, 2013
• Docket: 69458-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of No. 69458-8-I E.C., dob 10/25/07, DIVISION ONE Minor child,

STATE OF WASHINGTON, r—3 'J - — DEPARTMENT OF SOCIAL <=> —•". ',"-

t^> •"•*"! —-*: AND HEALTH SERVICES, UNPUBLISHED OPINION 3j£ m„,, i_— c3'-i 0 •- -n ^P'" Respondent, __

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CHRISTOPHER CARR, £T CP

Appellant. FILED: August 12, 2013

Schindler, J. — Christopher Carr challenges the "Order of Dependency"

because he did not receive notice of the dependency fact-finding hearing. In the

alternative, he argues the State did not establish the child was dependant under RCW

13.34.030(6)(c). We affirm.

FACTS

E.C. was born October 25, 2007 in Riverside County, California. Michele Moses

is E.C/s mother. Moses was E.C.'s primary caretaker. Christopher Carr was not listed

on the birth certificate but is the alleged father of E.C. By the time E.C. was four-years- No. 69458-8-1/2

old, he was diagnosed with autism. E.C. does not communicate well and speaks very

little. In 2011, E.C. and his mother moved to Whatcom County.

In early 2012, an apartment manager contacted the police about drug dealing in

the apartment where Moses and E.C. lived. In April, the police went to the apartment to

check on the welfare of E.C. and found drug paraphernalia. Moses told the police she

had relapsed and admitted using methamphetamine.

On May 2, Child Protective Services received an emergency referral from St.

Joseph Medical Center. A baby-sitter had taken E.C. to the emergency room. E.C. was

limp. The baby-sitter said that E.C. had been vomiting and shaking. E.C. was initially

diagnosed with a sepsis infection. Moses arrived at the hospital several hours later.

Moses told the doctor that she was moving and wanted to leave E.C. at the hospital.

The doctor told Moses she had to stay with the child. The next day, E.C.'s diagnosis

was changed from a sepsis infection to "severe hydration."

While E.C. was in the hospital, Moses spent long periods away from her child

and missed several scheduled meetings with the social workers. After Moses failed to

attend the meeting on May 3, the police placed E.C. into protective custody, and the

hospital released E.C. to foster care.

On May 4, the State filed a "Dependency Petition" on behalf of E.C. The

Dependency Petition alleged that E.C. is abused or neglected and has no parent

capable of caring for the child. As to Carr, the petition alleged, in pertinent part:

Christopher Carr is the alleged father of [E.C] Christopher is reported to not be listed on the birth certificate, reported to be possibly living in California, and reported to have severe mental health concerns. Ms. Moses explained when she gave birth to [E.C], she was listed in the hospital as "Jane Doe" as a protection due to severe domestic violence. Mr. Carr's exact whereabouts are unknown and there is no current contact No. 69458-8-1/3

information. The Department [of Social and Health Services (DSHS)] will continue searching for Mr. Carr.

The notice scheduled a shelter care hearing for May 8 and a fact-finding hearing

for June 4. Carr received the summons for the dependency proceedings, the

Dependency Petition, and the notice scheduling the shelter care and fact-finding

hearings.

Carr appeared at the shelter care hearing on May 8 and participated by

telephone. At Carr's request, the court appointed him an attorney and continued the

shelter care hearing to May 15. At the shelter care hearing on May 15, Carr's attorney

was present and Carr participated by telephone. The court denied Carr's request for

placement of E.C. with him.

Carr and his attorney were present at the fact-finding status conference hearing

on June 4. Carr participated by telephone. The court ordered the parents to file an

answer to the Dependency Petition by July 6 and submit witness lists by August 10.

The court scheduled a status conference for 2:30 p.m. on August 16, and scheduled a

contested fact-finding hearing for August 27. Carr's attorney was present at the status

conference hearing on August 16. Carr was not present. At the request of the mother,

the court appointed a new attorney to represent her and continued the fact-finding

hearing to September 20 at 2:30 p.m.1 The court also entered an order granting Carr's

motion to testify by telephone at the fact-finding hearing. "Compelling circumstances

and father's due process rights are sufficient to allow . . . father to testify telephonically."

1The orderstates the new attorney "needs time to prepare." The orderalso states that the "date may be moved if the social worker is still unavailable." No. 69458-8-1/4

Neither Moses nor Carr attended the fact-finding hearing on September 20. The

court-appointed special advocate told the court that she had "no contact with the father."

DSHS asked the court to proceed and allow the social worker to testify.

Ms. Moses is not present; Mr. Carr, I think [Carr's counsel] is trying to reach him yet again, but he is not present and so [DSHS] is asking that the court enter a judgment on the pleadings; that any pleadings or responses or answers filed by the parents be stricken; and that we would like to just take the expert testimony of [the social worker] to confirm and finalize a finding of dependency.

The attorney representing the mother told the court that Moses had received

notice to appear at the fact-finding, but despite "multiple" efforts, the attorney had not

been successful in contacting the mother. The attorney representing the father stated

that he had "instructed [Carr] via message, text and phone to call into court," and did not

know why Carr was not present by phone.

The court proceeded with the hearing. DSHS social work supervisor Annie

Taylor testified about the services provided to Carr.

[DSHS] asked that [Carr] complete a substance abuse evaluation and follow through with recommendations; that he complete some assessment around alleged domestic violence perpetrator behavior which the mother has alleged against him; and that he engage in mental health assessment and treatment series consistent with his self-report that he suffers from mental health symptoms that are at times debilitating.

Taylor also testified that Carr had not yet established paternity but had recently

completed an inpatient chemical dependency program. Taylor said that Carr was

currently living in "a shared clean and sober housing environment that is not appropriate

for the child." Taylor testified that the father had not spent any time with E.C

The recommendation for visitation with the mother has been weekly for two hours. The father, because of his distance from the child, has not been visiting at this time, but if he were to make himself available our recommendation would be similar, supervised weekly. No. 69458-8-1/5

The court entered an Order of Dependency. The court found that Carr was not

"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."

ANALYSIS

For the first time on appeal, Carr contends he did not receive notice of the fact

finding hearing on September 20.

The due process clause of the Fourteenth Amendment protects parental rights to

the custody, care, and companionship of their children. In re Welfare of Key, 119

Wn.2d 600, 609, 836 P.2d 200 (1992).

A parent's right to control and have custody of children is a fundamental civil right which may not be interfered with without the complete protection of due process safeguards, particularly notice and an opportunity to be heard.

In re Welfare of S.E.. 63 Wn. App. 244, 250, 820 P.2d 47 (1991).

To ensure proper notice and a meaningful opportunity to be heard, Washington

law requires service of the summons and Dependency Petition. RCW 13.34.070(1), (2).

"Upon the filing of the petition, the clerk of the court shall issue a summons ... to the

parents . . . requiring them to appear personally before the court at the time fixed to

hear the petition." RCW 13.34.070(1). Proper service is a necessary prerequisite for

jurisdiction over the parties. In re Dependency of A.G.. 93 Wn. App. 268, 276, 968 P.2d

424(1998).

Juvenile Court Rule 1.4(a) states that the Civil Rules "shall apply in proceedings

other than those involving a juvenile offense when not inconsistent with these rules and No. 69458-8-1/6

applicable statutes." CR 5(b)(1) states that service of pleadings and other papers

subsequent to the party's summons and complaint shall be on the party's attorney.

"The attorney's knowledge is deemed to be the client's knowledge, when the attorney

acts on his behalf." Hallerv. Wallis. 89 Wn.2d 539, 547, 573 P.2d 1302 (1978).

The record establishes that Carr had notice of the status hearing on August 16

and that his attorney was present. At the hearing, the court continued the fact-finding to

September 20 and granted Carr's motion to present testimony at the fact-finding by

telephone. Carr's attorney signed the order and acknowledged receipt of the order

continuing the fact-finding hearing to September 20. On September 4, DSHS served

Carr's attorney with a CR 43 notice requiring Carr to attend the fact-finding to testify.

The record also shows that Carr's attorney "instructed [Carr] via message, text and

phone to call into court" to testify at the fact-finding hearing on September 20. Because

the record establishes Carr had notice and the opportunity to be heard at the fact

finding hearing, his due process rights were not violated.

In the alternative, Carr claims insufficient evidence supports finding E.C.

dependent.

Parents have a fundamental liberty interest in the care and welfare of their

children, and State interference is never to be taken lightly. In re Dependency of

Schermer. 161 Wn.2d 927, 941, 169 P.3d 452 (2007) (citing In re Welfare of Sumev. 94

Wn.2d 757, 762, 621 P.2d 108 (1980)). But the State has an interest in protecting the

physical, mental, and emotional health of children. Schermer, 161 Wn.2d at 941. A

dependency is a preliminary proceeding that does not permanently deprive a parent of

rights. In re Dependency of T.L.G.. 126 Wn. App. 181,203, 108 P.3d 156 (2005); Key, No. 69458-8-1/7

119 Wn.2d at 609. Dependency proceedings are designed to protect children from

abuse and neglect, help parents alleviate problems that led to State intervention, and

reunite families if appropriate. In re Interest of J.F., 109 Wn. App. 718, 728, 37 P.3d

1227 (2001); In re A.W., 53 Wn. App. 22, 27, 765 P.2d 307 (1988).

To find a child dependent, the State must prove by a preponderance of the

evidence that the child meets one of the statutory definitions of dependency. RCW

13.34.110(1); Key, 119 Wn.2d at 612. In this case, the trial court found E.C. dependent

under RCW 13.34.030(6)(c). RCW 13.34.030(6)(c) provides that a child is dependent

where the child "[h]as 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."

In evaluating a claim of insufficiency of the evidence in a dependency

proceeding, we determine whether substantial evidence supports the findings of fact

and whether those findings support the court's conclusions of law. In re Dependency of

CM., 118 Wn. App. 643, 649, 78 P.3d 191 (2003). Evidence is substantial if, when

viewed in the light most favorable to the prevailing party, a rational trier of fact could find

the fact by a preponderance of the evidence. In re Dependency of E.L.F., 117 Wn. App.

241,245, 70 P.3d 163 (2003).

The legislature has determined that in balancing the legal rights of parents

against the rights of the child, the rights and safety of the child shall be the paramount

concern. RCW 13.34.020; Schermer, 161 Wn.2d at 942. There are no specific factors

a court must consider when determining whether a parent is capable of parenting under

RCW 13.34.030(6)(c); rather, the inquiry is highly fact specific. Schermer, 161 Wn.2d at No. 69458-8-1/8

951-52. Additionally, the State need not prove that a parent is unfit to prove a

dependency.

A dependency based on RCW 13.34.030[(6)](c) does not turn on parental "unfitness" in the usual sense. Rather, it allows consideration of both a child's special needs and any limitations or other circumstances which affect a parent's ability to respond to those needs. Under RCW 13.34.030[(6)](c), it is unnecessary to find parental misconduct in order to find a child dependent.

Schermer, 161 Wn.2d at 944.

The undisputed testimony established that Carr was living in post-treatment

housing that was not appropriate for the care of a child. The court found that Carr

suffered from mental illness that was occasionally debilitating, and there was no

evidence that he could care for the special needs of E.C The uncontroverted evidence

supports the finding that Carr was not capable of adequately caring for E.C, such that

the child is in circumstances which constitute a danger of substantial damage to the

child's psychological or physical development. We affirm.

j.^cOSL. WE CONCUR:

J.