In re the Dependency of: L.W.

Opinion

FILED APRIL 18, 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In the Matter of the Dependency of ) ) No. 33991-2-III L.W. ) ) ) ) ) UNPUBLISHED OPINION )

FEARING, C.J. -A mother appeals the trial court's order limiting her visitation

rights with her dependent daughter. Because the evidence supports harm to the child

from unsupervised and extended visitation, we affirm the trial court order.

FACTS

This appeal concerns care for the minor child, Lisa Wallace, whose mother is

appellant Joyce Bartz. Lisa Wallace and Joyce Bartz are pseudonyms.

Joyce Bartz and her husband suffer from mental disorders and sociopathy

endangering the life of any child in their care. Both Bartz and her husband tortured,

abused, and neglected at least two of Lisa Wallace's older siblings. The oldest child

exhibited significant scarring across her entire body. The Washington State Department No. 33991-2-III In re Dependency ofL. W

of Social and Health Services (DSHS) removed Lisa's three older siblings from their

parents' care in 2012. This court affirmed termination of parental rights for all three

children in In re Parental Rights to J.B., No. 33115-6-III (Wash. Ct. App. Apr. 19, 2016)

(unpublished), http://www.courts.wa.gov/opinions/pdf/331156.unp.pdf.

On May 16, 2015, Joyce Bartz bore Lisa Wallace.

PROCEDURE

On June 24, 2015, DSHS filed a dependency petition regarding Lisa Wallace.

DSHS then removed Lisa from the custody of her parents.

DSHS requested nurse practitioner Teresa Forshag, with experience and training

in evaluating and treating child abuse, to review Lisa Wallace's medical records because

of scarring on the infant's arms near her hands. Based on Forshag's review of birth and

one week checkup records of Lisa, Forshag discounted Joyce Bartz's claim that the

scarring was birth marks. The scarring likely resulted from inflicted bums. Lisa's

parents never sought medical treatment for Lisa's arm injuries.

On June 29, the trial court entered a shelter care hearing order, which placed Lisa

Wallace in foster care during the pendency of the dependency and limited Joyce Bartz

and Lisa's father to four hours per week visitation, with both parents visiting

simultaneously. On July 27, the trial court entered an order continuing shelter care and

an order of default against Lisa's father because of his failure to answer the dependency

petition.

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On October 19, 2015, the trial court entered an order regarding Lisa Wallace's

father's contact with Lisa. The order provided:

CONTACT: The parent shall regularly attend and the Department [DSHS] shall provide four hours of family therapy per week via C. Monge, M.Ed., at a DCFS [Division of Children and Family Services] approved location. Contact may be expanded at the discretion of the social worker in agreement with the Court Appointed Special Advocate, so long as the father regularly attends family therapy and is [in] compliance with safety provisions. No family therapy appointment shall take place if the parent is incarcerated or appears to be under the influence of drugs and/or alcohol. Family therapy may occur jointly with the mother so long as the parents agree and so long as the therapist does not identify harm to the child. Contact initially as the father joins the family therapy may be with the parents together, as is their desire. If there is physically or emotionally dangerous behavior by either parent or contact not in the child's best interests, the therapist may separate them for therapy, with each parent having two hours of contact per week. If the behavior is sufficiently dangerous to warrant in the family therapist's opinion, she may suspend family therapy for one or both parents, at which point any party may set contact issues for hearing. The parents shall not engage in contact outside the therapy sessions. They shall leave the therapy sessions immediately upon their conclusion and shall leave the premises; they shall not linger in the halls, act in a manner intimidating to a reasonable provider or caregiver or otherwise interfere with the child's well-being and placement.

Clerk's Papers (CP) at 185-86 (footnotes omitted).

On October 24, 2015, in response to a report from Joyce Bartz of domestic

violence, sheriff deputies traveled to Bartz's and her husband's home. An inebriated

Bartz complained of her husband, who reposed on a couch. The deputies left, but

returned an hour later. While the deputies questioned Joyce Bartz and her husband a

second time, Bartz flung keys at her husband's head. The deputies arrested Bartz for

3 No. 33991-2-III In re Dependency ofL. W

assault in the fourth degree, domestic violence. After the October 24 altercation, DSHS

separated the family treatment sessions for Joyce Bartz and her husband and gave two

hours of treatment for each instead of four hours together.

Before the hearing on the dependency petition, Joyce Bartz regularly attended

offered visits with her daughter. During visits, Bartz rendered appropriate care to Lisa

with regards to feeding, changing, holding, and soothing. Bartz also accepted parenting

instruction from the family therapist.

On November 30, 2015, the trial court conducted a contested fact-finding hearing

in the dependency as to the petition against Joyce Bartz. Nurse practitioner Teresa

Forshag testified that Lisa Wallace is not safe with her father or mother. Forshag

recommended only supervised visits with a professional holding the highest level of

training, a master's degree level therapist. Supervision by any other professional would

not suffice because of the need for constant intense supervision. Charise Monge, a

licensed mental health counselor associate who provided family therapy sessions for

Joyce Bartz and Lisa, testified that future contact between Bartz and her daughter should

only occur in a therapeutic setting and supervision provided for the visitation of other

dependent children did not suffice. Joyce Bartz testified that two hour weekly visits

would not facilitate bonding with her daughter.

The trial court declared Lisa Wallace to be dependent and ordered that the child

remain in foster care under the supervision of DSHS. The court found that injuries to

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Lisa resulted from "objective evidence of mistreatment of [Lisa]." Report of Proceedings

at 154. The trial court's order of dependency adopted the allegations of the petition,

found the marks on Lisa' hands to be caused by abuse while in her parents' care, and

found Bartz's chronic deficiencies to be exacerbated by her alcohol abuse. The court

order limited contact between the mother and daughter:

CONTACT: The Order re: Contact entered 10/9/15 is incorporated by reference. As agreed in the Order re: Contact entered 10/9/15, the mother shall regularly attend and the Department shall provide a minimum of two hour family therapy per week via C. Monge, M.Ed., at a DCFS approved location. Family therapy shall not occur with the parents together (four hour option together for the parents) given recent and untreated domestic violence (therapy of the parents having been separated per the 10/9/15 Order). No contact shall take place if the parent is incarcerated or appears to be under the influence of drugs and/or alcohol.

CP at 246.

LAW AND ANALYSIS

On appeal, Joyce Bartz does not challenge the order of dependency. She instead

assigns error to the trial court's limitation of visitation with her infant daughter to two

hours of supervised visitation per week. The State responds that, given the dangers posed

to the child by the mother alone and the parents together, the trial court's order limiting

contact was manifestly reasonable. We agree with the State that the trial court did not

abuse its discretion when awarding Bartz a minimum of two hours of visitation because

Bartz posed significant risks to Lisa. Thus, we affirm.

Trial courts possess broad discretion to determine the best interests of a child in

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cases touching on a child's welfare. In re Custody ofSmith, 137 Wn.2d I, 39, 969 P.2d

21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed.

2d 49 (2000). Trial courts enjoy considerable flexibility to receive and evaluate all

relevant evidence in reaching a decision that recognizes both the welfare of the child and

parental rights. In re Dependency of Schermer, 161 Wn.2d 927, 952, 169 P.3d 452

(2007). A trial court abuses its discretion when its decision is manifestly unreasonable or

based on untenable grounds. In re Dependency a/Tyler L., 150 Wn. App. 800, 804, 208

PJd 1287 (2009).

The legislature declares that "the family unit should remain intact unless a child's

right to conditions of basic nurture, health, or safety is jeopardized." RCW 13.34.020.

RCW 13 .34. l 36(2)(b )(ii) states:

(A) Visitation is the right of the family, including the child and the parent, in cases in which visitation is in the best interest of the child. Early, consistent, and frequent visitation is crucial for maintaining parent-child relationships and making it possible for parents and children to safely reunify. 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 and participation by the parents in the care of the child while the child is in placement.

(C) Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child's health, safety, or welfare.

To restrict liberal visitation, DSHS must prove that visitation poses a current

concrete risk to the child. In re Dependency a/Tyler L., 150 Wn. App. at 804 (2009).

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Harm to the child must create "' an actual risk, not speculation based on reports.'" In re

Dependency of Tyler L., 150 Wn. App. at 804 (quoting In re Dependency ofTL.G., 139

Wn. App. 1, 15, 156 P.3d 222 (2007)). If the evidence supports the conclusion that

visitation will harm the child, RCW 13.34.136 does not require an express finding that a

visitation limitation is necessary to protect the child's health, safety, or welfare. In re

Dependency of TH, 139 Wn. App. 784, 794, 162 P.3d 1141 (2007).

In deciding whether our trial court abused its discretion, we juxtapose two

Washington decisions: In re Dependency of TH., 139 Wn. App. 784 and In re

Dependency of Tyler L., 150 Wn. App. 800. Inln re the Dependency of Tyler, 150 Wn.

App. 800, this court granted discretionary review to a mother whose visitation with her

sons was extinguished, not because of the mother's conduct, after a finding of

dependency. The guardian ad litem requested termination of the mother's visitation

because the children became agitated before and after the mother's visits. A child mental

health specialist recommended and the mother requested future contact in a therapeutic

setting. The trial court denied the request for therapeutic visitation and suspended the

mother's visitation, despite finding that the mother caused no harm to her sons. This

court found that the dependency court erred in suspending visitation because no finding

showed the mother caused harm to the children during the visits.

In In re Dependency of TH, 139 Wn. App. 784, Stella Hackney-Farias appealed

the limitation of her rights to visit her son, T.H., while he was dependent. Hackney-

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Farias physically and verbally abused T.H., neglected T.H., and knew of her boyfriend's

sexual abuse of T.H. but took limited protective actions. While in foster care, Hackney-

Farias accused T.H. of lying about the abuse, sent him e-mails accusing him oflying, and

contacted T.H. through social media. The trial court, while recognizing the mother's

refusal to participate in treatment and the emotional damage her contact imposed on T.H.,

denied Hackney-Farias' requests for personal visitation. The trial court limited visitation

to telephone conversations. This court reasoned that the trial court's limitation of

visitation constituted "an attempt to maximize parent-child contact while protecting T.H.

from harm." In re Dependency of T.H., 139 Wn. App. at 796. We found the order

consistent with former RCW I3.34.136(l)(b)(ii) (2006), since the order acknowledged

the importance of visitation by permitting telephone conversations, but also considered

the risk of harm to T.H. by prohibiting personal visitation.

Lisa Wallace's dependency order and the facts of this appeal echo the order and

facts in In re Dependency ofT.H., not In re Dependency of Tyler. Unlike In re

Dependency of Tyler, where the trial court refused any visitation, our trial court ordered

supervised visitation in a therapeutic setting as recommended by nurse practitioner

Forshag and therapist Charise Monge. The mother in Tyler did not cause harm to her

children during the visits. Lisa suffered physical abuse during the first month of life, and

the injuries echoed injuries received by Lisa's siblings from the conduct of Joyce Bartz.

Alcohol abuse exacerbated Bartz's chronic parental deficiencies.

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Joyce Bartz argues that the evidence did not support the need for intense

supervision by family a therapist with a master's degree and the facts did not support the

need to restrict visitation to two hours. We disagree. All experts testified to the need for

constant and intense supervision based on Bartz's history with Lisa Wallace and Bartz's

other children. Lisa suffered untreated and unexplained bums at the hands of her parents.

Also, the trial court did not limit visitation to two hours per week. The court instead

established a minimum period of visitation as being two hours. The therapist could

expand visitation as the therapist saw fit.

Like in In re Dependency ofT.H, Bartz's trial court attempted to maximize

parent-child contact by ordering two hours of weekly visitation in a therapeutic setting.

The court further acknowledged the importance of visitation by allowing expanded

visitation at the discretion of the social worker and Lisa's special advocate. As in In re

Dependency ofT.H, our trial court provided reasonable visitation to an abusive and

neglectful mother.

CONCLUSION

We affirm the trial court's order of dependency limiting the visitation rights of

Joyce Bartz to her daughter, Lisa Wallace.

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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.

Fearing, C.J.

WE CONCUR:

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