FILED FEBRUARY 21, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Dependency of ) ) No. 33786-3-111 I.W. ) ) ) UNPUBLISHED OPINION )
KORSMO, J. -A.J. appeals the trial court's decision to restrict his access to his
daughter, I.W., to four hours in one weekly visit. The trial court did not abuse its
discretion and we thus affirm.
FACTS
The facts of this interlocutory action need not be recited in detail due to the limited
issue left for our consideration. Subsequent to the appellant's initial briefing in this case,
the trial court issued an order clarifying a previous ruling that had the effect of rendering
many issues moot. We address the two remaining contentions related to the visitation
issue.
I.W. was born after her older brother, J.W.-J., had been found dependent, and both
of their parents had entered into services designed to remedy the conditions that lead to
that dependency. I. W. was subsequently determined to be dependent. A.J. successfully
underwent drug and alcohol treatment, and also engaged in anger management treatment. No. 33786-3-III In re the Dependency ofI. W.
The court directed that A.J. have four hours of supervised visitation with I.W. per week.
Because A.J. 's work schedule left him limited opportunities for visitation, the
Department of Social and Health Services (DSHS) provided a single weekly four hour
session at its visitation room.
Despite the apparently successful drug treatment that lead to clean test results in
2015, A.J. tested positive for methamphetamine use in February 2016, and for
methamphetamine, hydromorphone, and hydrocodone in March 2016. DSHS believed he
was appearing for visitation while under the influence of drugs or alcohol. Unhappy with
the amount of visitation and the location, A.J. sought clarification from the trial court.
DSHS filed a brief explaining the underlying facts and the reasons for its actions,
including deficiencies in A.J.' s parenting while visiting, his frequent failures to appear,
and the positive drug test results. Counsel for A.J. did not respond. The trial court
clarified its previous ruling and maintained the supervised four hour weekly visit at the
DSHS visitation room.
Unhappy with the result, counsel filed a motion for reconsideration and then
withdrew from the case. The hearing was continued for new counsel to come up to speed
on the case, but new counsel did not file additional pleadings. The matter proceeded to
hearing. The court explained the factual basis for its previous ruling; counsel did not
object to the court's explanation of how it adopted those findings. A.l's counsel then
2 No. 33786-3-111 In re the Dependency of I. W.
objected to the visitation location, explaining that A.J. had complaints about the
temperature and the amount of toys on the floor of the DSHS visitation room.
DSHS responded to A.J. 's suggestion that visitation be located elsewhere by
providing testimony from the social workers about their need to feel safe. Based on
A.J.'s past drug use and anger issues, DSHS did not want visitation in a place where there
was no provision for the safety of the visitation facilitators. After an outburst by A.J. in
court, during which his counsel encouraged him to remain quiet, the trial judge denied the
motion to reconsider, stating that his demeanor created a hostile environment for the
social workers and that his behavior in court over the course of the dependency hearings
indicated that A.J. lacked credibility when arguing that he would provide a safe place for
the children.
After the clarification ruling, this appeal proceeded on the issues of the limited
visitation and whether trial counsel performed ineffectively related to the visitation
question. A panel of this court considered the matter without argument.
ANALYSIS
The two issues both concern the limited visitation ordered by the trial court. We
first consider the merits of the issue before turning to the ineffective assistance allegation.
Limited Visitation
The paramount concern of juvenile dependency proceedings is the child's safety
and health. RCW 13.34.020. "When the rights of basic nurture, physical and mental
3 No. 33786-3-III In re the Dependency of I. W
health, and safety of the child and the legal rights of the parents are in conflict, the rights
and safety of the child should prevail." RCW 13.34.020. Accordingly, appellate courts
review the decision to limit, restrict, or deny visitation for abuse of discretion. In re
Dependency of Tyler L., 150 Wn. App. 800,804,208 P.3d 1287 (2009). Discretion is
abused when a decision is manifestly unreasonable or based on untenable grounds. Id.
Visitation is the right of the family in cases in which visitation is in the best
interest of the child. RCW 13 .34.136(2)(b )(ii)(A). "Early, consistent, and frequent
visitation is crucial for maintaining parent-child relationships." Id. "The supervising
agency or department shall encourage the maximum parent and child and sibling contact
possible, when it is in the best interest of the child, including regular visitation." Id.
Visitation may be limited or denied only if the court determines it is necessary to protect
the child's health, safety, or welfare. RCW 13.34.136(2)(b)(ii)(C); In re Welfare of
MR.H., 145 Wn. App. 10, 26, 188 P.3d 510 (2008). An express finding of harm is not
required if the evidence supports the conclusion that visitation is harmful. Tyler L., 150
Wn. App. at 804. The harm must be an actual risk, not speculation. Id. It is the State's
burden to prove that limiting visitation is necessary due to a current concrete risk to the
child; something more than opinion based on a single incident is necessary to support a
finding of risk of harm. Id.
The trial court limited visitation to four hours of supervised visits each week at the
DSHS office based on uncontested and definite evidence specifically describing A.J. 's
4 No. 33786-3-III In re the Dependency ofI. W.
physically aggressive interactions with his children during multiple visits, along with
evidence that this volatile behavior occurred simultaneously with multiple positive drug
tests for methamphetamines. Id. Furthermore, A.J. 's consistent canceling of scheduled
visits and his underdeveloped parenting skills (demonstrated by his inability to
appropriately feed his children, or attend to I.W.'s diapers) showed that it was unsafe to
leave the children with A.J. unsupervised. See MR.H, 145 Wn. App. at 28. Finally,
since the visits must be supervised for I.W.'s safety, precautions for the safety of the
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FILED FEBRUARY 21, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Dependency of ) ) No. 33786-3-111 I.W. ) ) ) UNPUBLISHED OPINION )
KORSMO, J. -A.J. appeals the trial court's decision to restrict his access to his
daughter, I.W., to four hours in one weekly visit. The trial court did not abuse its
discretion and we thus affirm.
FACTS
The facts of this interlocutory action need not be recited in detail due to the limited
issue left for our consideration. Subsequent to the appellant's initial briefing in this case,
the trial court issued an order clarifying a previous ruling that had the effect of rendering
many issues moot. We address the two remaining contentions related to the visitation
issue.
I.W. was born after her older brother, J.W.-J., had been found dependent, and both
of their parents had entered into services designed to remedy the conditions that lead to
that dependency. I. W. was subsequently determined to be dependent. A.J. successfully
underwent drug and alcohol treatment, and also engaged in anger management treatment. No. 33786-3-III In re the Dependency ofI. W.
The court directed that A.J. have four hours of supervised visitation with I.W. per week.
Because A.J. 's work schedule left him limited opportunities for visitation, the
Department of Social and Health Services (DSHS) provided a single weekly four hour
session at its visitation room.
Despite the apparently successful drug treatment that lead to clean test results in
2015, A.J. tested positive for methamphetamine use in February 2016, and for
methamphetamine, hydromorphone, and hydrocodone in March 2016. DSHS believed he
was appearing for visitation while under the influence of drugs or alcohol. Unhappy with
the amount of visitation and the location, A.J. sought clarification from the trial court.
DSHS filed a brief explaining the underlying facts and the reasons for its actions,
including deficiencies in A.J.' s parenting while visiting, his frequent failures to appear,
and the positive drug test results. Counsel for A.J. did not respond. The trial court
clarified its previous ruling and maintained the supervised four hour weekly visit at the
DSHS visitation room.
Unhappy with the result, counsel filed a motion for reconsideration and then
withdrew from the case. The hearing was continued for new counsel to come up to speed
on the case, but new counsel did not file additional pleadings. The matter proceeded to
hearing. The court explained the factual basis for its previous ruling; counsel did not
object to the court's explanation of how it adopted those findings. A.l's counsel then
2 No. 33786-3-111 In re the Dependency of I. W.
objected to the visitation location, explaining that A.J. had complaints about the
temperature and the amount of toys on the floor of the DSHS visitation room.
DSHS responded to A.J. 's suggestion that visitation be located elsewhere by
providing testimony from the social workers about their need to feel safe. Based on
A.J.'s past drug use and anger issues, DSHS did not want visitation in a place where there
was no provision for the safety of the visitation facilitators. After an outburst by A.J. in
court, during which his counsel encouraged him to remain quiet, the trial judge denied the
motion to reconsider, stating that his demeanor created a hostile environment for the
social workers and that his behavior in court over the course of the dependency hearings
indicated that A.J. lacked credibility when arguing that he would provide a safe place for
the children.
After the clarification ruling, this appeal proceeded on the issues of the limited
visitation and whether trial counsel performed ineffectively related to the visitation
question. A panel of this court considered the matter without argument.
ANALYSIS
The two issues both concern the limited visitation ordered by the trial court. We
first consider the merits of the issue before turning to the ineffective assistance allegation.
Limited Visitation
The paramount concern of juvenile dependency proceedings is the child's safety
and health. RCW 13.34.020. "When the rights of basic nurture, physical and mental
3 No. 33786-3-III In re the Dependency of I. W
health, and safety of the child and the legal rights of the parents are in conflict, the rights
and safety of the child should prevail." RCW 13.34.020. Accordingly, appellate courts
review the decision to limit, restrict, or deny visitation for abuse of discretion. In re
Dependency of Tyler L., 150 Wn. App. 800,804,208 P.3d 1287 (2009). Discretion is
abused when a decision is manifestly unreasonable or based on untenable grounds. Id.
Visitation is the right of the family in cases in which visitation is in the best
interest of the child. RCW 13 .34.136(2)(b )(ii)(A). "Early, consistent, and frequent
visitation is crucial for maintaining parent-child relationships." Id. "The supervising
agency or department shall encourage the maximum parent and child and sibling contact
possible, when it is in the best interest of the child, including regular visitation." Id.
Visitation may be limited or denied only if the court determines it is necessary to protect
the child's health, safety, or welfare. RCW 13.34.136(2)(b)(ii)(C); In re Welfare of
MR.H., 145 Wn. App. 10, 26, 188 P.3d 510 (2008). An express finding of harm is not
required if the evidence supports the conclusion that visitation is harmful. Tyler L., 150
Wn. App. at 804. The harm must be an actual risk, not speculation. Id. It is the State's
burden to prove that limiting visitation is necessary due to a current concrete risk to the
child; something more than opinion based on a single incident is necessary to support a
finding of risk of harm. Id.
The trial court limited visitation to four hours of supervised visits each week at the
DSHS office based on uncontested and definite evidence specifically describing A.J. 's
4 No. 33786-3-III In re the Dependency ofI. W.
physically aggressive interactions with his children during multiple visits, along with
evidence that this volatile behavior occurred simultaneously with multiple positive drug
tests for methamphetamines. Id. Furthermore, A.J. 's consistent canceling of scheduled
visits and his underdeveloped parenting skills (demonstrated by his inability to
appropriately feed his children, or attend to I.W.'s diapers) showed that it was unsafe to
leave the children with A.J. unsupervised. See MR.H, 145 Wn. App. at 28. Finally,
since the visits must be supervised for I.W.'s safety, precautions for the safety of the
visitation supervisors are also necessary given A.J.' s anger issues and his on the record
frustration with DSHS. The DSHS visitation room is a safe and logical place for the
visits because it satisfies all of these criteria.
The trial court had tenable grounds for its decision. A.J. has not demonstrated that
the court abused its discretion.
Effective Assistance of Counsel
A.J. also argues that both of his trial counsel performed ineffectively regarding the
visitation restrictions. Because he cannot demonstrate any prejudicial error, this
argument fails.
Parents are guaranteed the right to counsel in dependency proceedings. RCW
13.34.090(2); In re Dependency of Grove, 127 Wn.2d 221, 232, 897 P.2d 1252 (1995).
An ineffective assistance of counsel claim may be raised for the first time on appeal.
5 No. 33786-3-III In re the Dependency of I. W
State v. Kyllo, 166 Wn.2d 856,862,215 P.3d 177 (2009). Such claims are reviewed de
novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
Washington has applied two different standards to allegations of ineffective
assistance to parents in dependency or termination actions. In some instances the Sixth
Amendment standard has been applied. See Stricklandv. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (attorney failed to perform to the standards of the
profession, resulting in prejudice to client). The other standard is found in In re
Dependency of Moseley, 34 Wn. App. 179, 184, 660 P.2d 315 (1983). The Moseley test
for prejudice resulting from ineffective assistance is whether the hearing was
"meaningful" despite any errors by counsel. Id.
A.J. argues that his original attorney erred in not contesting the evidence at the
clarification hearing and that his new attorney erred by relying solely on the written
materials submitted in support of the reconsideration motion. Assuming that his
arguments are correct, they do not avail him under either ineffectiveness standard
because he has not shown that he had any other significant information that was not put
before the trial court.
A.J. certainly had a meaningful hearing under Moseley since he was able to set
forth his complaints about the condition of the meeting room. Similarly, he suffered no
prejudice under the Strickland standard since he was able to present those same concerns.
Critically, A.J. has failed to demonstrate that he had any additional evidence or new
6 No. 33786-3-111 In re the Dependency ofI. W
argument that he was unable to make to the trial court. 1 Accordingly, he can make no
showing that his counsel harmed him in any manner. The trial court allowed his new
evidence and argument at the reconsideration hearing and did not prevent A.J. from
bringing any additional concerns he may have had. In this circumstance, there was no
harm to A.J. 's case even if his attorneys had failed him.
A.J. has not demonstrated that he received ineffective assistance from his
attorneys. Accordingly, the trial court's clarification ruling is affirmed.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
j 1 Pennell, J. "'
1 Since the dependency is on-going, the trial court remains free to modify the conditions if there is a new factual basis for doing so.