FILED
February 25, 2016
In the Ortice of the Clerk of Court
WA tale Court of Appeal . Di i ion III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Dependency of ) ) No. 32686-I-IIII R.B.S. and E.B.S. ) (Consolidated with · ) 32687-0-III, 32689-6-III ) and 32690-0-III) ) ) UNPUBLISHED OPINION )
KORSMO, J. - OS and BS appeal from the trial court's refusal to dismiss the
dependency action involving their two children on the basis of newly discovered
evidence. We affirm.
FACTS
The operative facts governing this appeal are largely procedural in nature. \ OS
gave birth to a daughter, EBS, in early 2006. The child was brought to a hospital in mid-
June that year. Doctors discovered several fractures in various stages of healing. The
infant also had scratches and bruises that had been covered with makeup.
A dependency action was initiated and proceeded to trial. Medical evidence was
presented by both sides concerning the child's condition. The parents explained that EBS
\ Additional factual allegations underlying specific arguments will be discussed in conjunction with those issues. No. 32686-1-II1 (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S & E.B.S
had been dropped in the bathtub once and had seizures; they also explained that the child
scratched herself with untrimmed fingernails. The trial court ultimately found EBS and
her older brother, RBS, dependent on the basis of numerous nonaccidental injuries
suffered by the younger child while in the exclusive control of her parents. 2 Clerk's
Papers (CP) at 1137. The order was entered in March 2007. The parents did not appeal
from the dependency order.
Soon thereafter criminal charges were filed against OS. The matter proceeded to
jury trial. OS defended on the basis that her brother likely had intlicted the injuries
suffered by EBS. The jury disagreed and convicted her as charged in late 2009. OS was
sentenced to 10 years in prison and a no-contact order entered prohibiting OS from seeing
EBS. Due to an instructional error, this court in August 2011 reversed the conviction in
an unpublished opinion, State v. [OS}, no. 28668-1-III. We also confirmed that the
evidence was sufficient to support the verdict and remanded for a new trial.
While the criminal conviction was on appeal, the juvenile court terminated the
parental rights of both OS and BS with respect to both children in June 2010. The basis
for termination was the criminal conviction of OS and the failure of BS to protect the
children. The parents had taken pali in all offered services but had not progressed toward
reuniting with the children.
2The court found that EBS had suffered fractures of the skull, arms, leg, and ribs. Clerk's Papers (CP) at 1135.
No. 32686-1-III (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S. & E.B.S.
The criminal case was tried to the bench in February 2014. For the retrial, OS had
retained a doctor who reviewed the injuries suffered by EBS. He opined that each of the
child's numerous injuries could have an innocent medical explanation and disagreed that
the child had been abused. A second doctor agreed that the child's X-rays did not
preclude finding the injuries were accidental. The trial judge acquitted OS.
Two months later, in April 2014, the termination orders were vacated and the
termination petitions dismissed due to the acquittal. The parents then moved to set aside
the initial, and all subsequent, dependency orders, relying primarily on the medical
evidence obtained for the criminal trial. The motion also alleged improper behavior by
various actors in the dependency proceeding.
The trial court denied the motion in June 2014. In a thorough written ruling, the
court concluded that the motion was untimely and that each argument also was
unavailing. CP at 3 14-3 17. The parents then timely appealed to this court.
ANALYSIS
The parents broadly cast three arguments for our consideration-whether the
dependency orders should have been set aside due to the medical evidence presented at the
second criminal trial or because of the misconduct by government workers, and whether
the parents were deprived of due process of law under the facts of this case by the burden
of proof. We address the new trial and misconduct arguments, and their respective sub-
arguments, plus the trial court's timeliness ruling, before turning to the due process claim.
No. 32686-1-III (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S. & E.B.s.
Medical Evidence and Fact ofAcquittal
Both parents argue that the acquittal of OS was an equitable basis for relief under
CR 60(b)( 6), and that the medical testimony was newly discovered evidence that should
have resulted in vacation of the dependency orders under CR 60(b)( 11). The former
argument fails on the facts of this case and basic logic, while the latter contention suffers
from numerous defects.
Initially, we note the basic fact that the parents never challenged the 2007
dependency ruling. That fact has a significant consequence in that this court is not in a
position to review that decision. E.g., In re Dependency ofK.R., 128 Wn.2d 129, 142
n.7, 904 P.2d 1132 (1995) ("the time to contest the dependency and the facts supporting
the dependency was on appeal of the dependency."); In re Dependency ofA. VD., 62 Wn.
App. 562, 565 n.5 , 815 P.2d 277 (1991) (court unable to review agreed dependency
order). Accordingly, the only dependency issues presented here involve the CR 60(b)
motion. We review trial court rulings on the motion for abuse of discretion. In re
Welfare ofJ.N., 123 Wn. App. 564, 570, 95 P.3d 414 (2004). Discretion is abused when
it is exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v.
Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (197l).
CR 60(b)( 6) permits relief from a judgment, in part, when "a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer equitable that
the judgment should have prospective application." The prior judgment aspect of this rule
No. 32686-l-III (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S & E.B.s.
has no application here. The criminal conviction was entered more than two years after
the initial dependency finding entered in March 2007 ; the criminal case had no effect on
the dependency case. However, the termination order did depend on the criminal
conviction. That order was vacated after the acquittal in the second criminal trial. All
necessary relief resulting from the criminal conviction was accorded the parents .
The parents also argue that it is no longer equitable to maintain the dependency
rulings in light of the acquittal of OS. This argument does not follow as a matter of basic
logic. The acquittal established no fact other than the fact that OS was not guilty of child
assault. It did not establish that she did not assault EBS. It most certainly did not
establish that the child's injuries were accidental. This is the fallacy of inferring a
positive fact from a negative finding. The fact that the prosecutor failed to prove beyond
a reasonable doubt that OS assaulted EBS neither establishes that she did not do so nor
that the child was not assaulted. As has long been noted, "the converse of stated
propositions does not in logic or law always follow." County Court v. Armstrong, 34 W.
Va. 326, 12 S.E. 488, 490 (1890) .3
3 Or as more recently stated: "But it is a fallacy of logic to conclude that the company's failure to prove that Nigerian courts were available ipso facto establishes the converse: that such courts were unavailable." Johnson v. PPI Tech. Servs., LP., 613 Fed. App'x. 309,312 (5th Cir. 2015).
No. 32686-1-II1 (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S. & E.B.s.
The fact of acquittal on the criminal charges was irrelevant to the dependency
finding that predated the original criminal case by more than two years. CR 60(b)( 6) did
not support a claim for relief.
Equally unavailing is the parents' reliance on CR 60(b )(11), which allows
consideration of "Any other reason justifying relief from the operation of the judgment."
This catch-all provision is not available when the grounds for relief are already covered
by a different subsection of the rule. Lane v. Brown & Haley, 81 Wn. App. 102, 107,
912 P.2d 1040 (1996) (citing cases). As the trial court noted, newly discovered evidence
is squarely addressed by CR 60(b)(3).4 While discussed in a following section of this
opinion, any motion brought under the authority of (b)(3) was untimely due to the one
year time limit imposed by CR 60(b).
The argument was without merit in any respect. Newly discovered evidence must
have been undiscoverable within the time frame of CR 59(b )-ten days from the date of
the judgment. No such showing was made here. The doctors who testified in the 2014
criminal trial were interpreting the original 2006 medical records. There was no reason
they could not have testified in the 2007 dependency trial. Medical evidence was
presented in that trial. The parents had every incentive for presenting this theory of
accident in that proceeding; nothing prevented them from doing so.
4 "Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b)."
No. 32686-l-II1 (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S & E.B.S
Accordingly, CR 60(b )(3) and (11) do not present any grounds for relief due to
newly discovered medical evidence. The trial court correctly rejected the contention .
Government Misconduct Claim
The parents also contend that they are the victims of misconduct by various
government actors, entitling them to relief under CR 60(b)(4) (" ... misconduct of an
adverse party"). One of the problems with this argument is that they never connected the
alleged misconduct to the dependency action. The trial court correctly rejected this claim.
The assistant attorney general (AAG) who tried the dependency action 5 and the
social worker on the dependency case engaged in an extra-marital affair that led to the
breakup of their respective marriages. According to filings from their respective 2008
dissolution proceedings, the relationship dated to at least 2007. The guardian ad litem
(GAL) in the dependency actions met the social worker in June 2006 and eventually
became close friends with her. The social worker and her child briefly lived with the
GAL and her husband after the break-up of the social worker's marriage.
After the criminal conviction, the social worker posted on Facebook that she
worked as a "professional baby snatcher." She also made disparaging comments about
the parents after the conviction. The social worker, however, was not involved in the
termination case.
5 A different AAG represented the State in this action.
7 No. 32686-1-III (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S & E.B.s.
It is from these facts the parents argue that the three noted state employees were
biased against them, imputing the social worker's postconviction remarks to all three due
to their respective friendships. There seems to be no basis for imputing the post-trial bias
of the social worker to the GAL or the AAG. But, even if one were to do so, the claim
fails on the fundamental fact that nothing ties the bias to the dependency trial. That a
person might be biased against a person convicted of abusing a child does not establish
that she also was biased several years earlier when the dependency case was tried. It also
tells us nothing of how the alleged bias affected the 2007 dependency trial.
It was the parents ' burden under CR 60(b)( 4) to establish that fraud or misconduct
of the opposing party prevented them from fully presenting their case. Peoples State
Bank v. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1056 (1989). They did not do so. The
trial court expressly noted that it did not put much weight on the testimony of the social
worker or the GAL at the dependency trial; the significant evidence was that from the
medical doctors. CP at 314. Given that the fact-finder knew the relative lack of
significance of the testimony of the now-challenged witnesses, the parents are unable to
prevail on this claim.
The trial court had a very tenable basis for rejecting the CR 60(b)( 4) claim. There
was no abuse of discretion.
No. 32686-1-II1 (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S. & E.B.S.
Timeliness
The trial court also found the CR 60(b) claims untimely. While this basis alone is
dispositive of these aspects of this appeal, we have addressed it later to put the arguments
in their proper context. Most of the previously discussed claims were untimely.
The first sentence of the final paragraph of the rule expressly provides:
The motion shall be made within a reasonable time and for reasons (1), (2) or (3) not more than 1 year after the judgment, order, or proceeding was entered or taken.
CR 60(b).
The "newly discovered evidence" claim involving the medical testimony failed
due to the one year time bar for motions brought under CR 60(b)(3). While the opinions
of the two doctors were recent, having been obtained for the second criminal trial, they
were not newly discovered evidence. Each doctor based his opinion on the original 2006
medical records. The records existed at the time of the dependency trial. The experts
could have been called for that trial.
The other claims had to have been brought within a reasonable time. While the
acquittal in the second trial was brought to the dependency court's attention within a
reasonable time, as required for claims under CR 60(b)(6), it also was irrelevant in the
dependency actions for the reasons previously noted.
The misconduct claim involving the government employees, CR 60(b)( 4), failed
the reasonable time test. The information in the 2008 dissolution filings was available for
No. 32686-1-III (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S. & E.B.s.
six years before the motion for a new trial was filed, and the Facebook postings were
available from the time of the first criminal trial in late 2009. There is no reason that
these claims were not presented earlier. Waiting five or six years was not reasonable.
The trial court correctly determined that the newly discovered evidence and
misconduct theories were untimely brought.
Due Process
Lastly, the parties claim that the use of the preponderance of evidence standard in
the dependency action violated their due process rights. Because they insist that EBS
was not abused, they contend that a more stringent evidentiary standard should be applied
before finding abuse because parental denial of abuse precludes reunification with a
dependent child. This claim was not brought in the trial court and is not properly before
this court. It also is without merit.
RAP 2.5(a) sets forth the basic policy of appellate review in this state: an appellate
court will generally not review an issue that was not presented to the trial court, although
some limited permissive exceptions apply to that policy. The parents argue that the
exception for manifest constitutional error found in RAP 2.5(a)(3) permits them to raise
this argument now. However, further complicating the problem in this case is the scope
of review. RAP 2.4(a). The 2007 dependency orders are not before this court. These
appeals were taken from the 2014 denial of their motion to vacate the dependency orders.
No. 32686-1-111 (Consolidated with 32687-0-III; 32689-6-111; and 32690-0-111) In re R.B.S. & E.B.s.
The parents argue that CR 60(b )(11) permits them to argue whether the proper
evidentiary standard was applied to the dependency trial. However, they did not even
raise that claim in the motion to vacate. 6 In essence, they are trying to argue to this court
a motion that they did not bring in the trial court in order to use their CR 60(b) motion as
a vehicle to present a constitutional challenge to the dependency trial that is not even on
appeal. This claim is at least two steps removed from what is before this court. Under no
stretch of the imagination does this claim amount to manifest constitutional error. RAP
2.5(a)(3). This due process claim is not properly before this court.
Even if we reached the merits, the argument would be rejected. It is well
established that the preponderance of the evidence standard in the dependency statute
satisfies due process. See in re Dependency a/Schermer, 161 Wn.2d 927, 942-943, 169
P.3d 452 (2007); In re Welfare 0/J.K., 49 Wn. App. 670,673-674, 745 P.2d 1304 (1987);
In re Dependency a/Chubb, 46 Wn. App. 530, 533-537, 731 P.2d 537 (1987); see also In
6 The motion also would have failed in the trial court. Although CR 60(b)( 11) broadly permits a motion to vacate for "[a]ny other reason justifying relief," that provision only is applied to extraordinary circumstances involving irregularities that are extraneous to the action or go to the regularity of the proceedings. In re Marriage 0/ Flannagan, 42 Wn. App. 214, 221, 709 P.2d 1247 (1985); In re Marriage a/Thurston, 92 Wn. App. 494,499-500, 963 P.2d 947 (1998); Tatham v. Rogers, 170 Wn. App. 76, 100, 283 PJd 583 (2012); see also State v. Gamble, 168 Wn.2d 161, 189,225 P.3d 973 (2010) (applying the CR 60(b )(11) standard in analyzing the ends ofjustice exception to the mandatory joinder rule). Errors oflaw do not justify reliefunder CR 60(b)(11) because the appellate process provides adequate protection. In re Marriage 0/ Furrow, 115 Wn. App. 661, 674, 63 P.3d 821 (2003); In re Marriage a/Hammack, 114 Wn. App. 805,810, 60 P.3d 663 (2003); State v. Keller, 32 Wn. App. l35, 140,647 P.2d 35 (1982).
No. 32686-1-II1 (Consolidated with 32687-0-III; 32689-6-III; and 32690-0-III) In re R.B.S & E.B.S
re Welfare ofA. W, 182 Wn.2d 689, 701-7l0, 344 P.3d 1186 (2015) (discussing
dependencies in holding that the preponderance of the evidence standard in the
guardianship statute satisfies due process); In re Marriage of Wehr, 165 Wn. App. 610,
613,267 P.3d 1045 (2011) (applying the dependency standard by analogy to relocation
hearings).
The due process claim does not relate to the appeal from the order denying the
motion to vacate. It is not properly before this court.
The judgment is 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.
I CONCUR:
Lawrence-Berrey, J. j
Nos. 32686-1-III; 32687-0-III; 32689-6-III; 32690-0-III
FEARING, 1. (concurrence) - I concur with the majority's decision and analysis.
The trial court did not abuse its discretion in denying OS's and BS' s motions to vacate
the dependency order. I write separately for four reasons.
First, a dependency finding and order significantly impacts a parent's right to the
care and custody of a child. The rights to conceive and to raise one's children are
deemed "'essential,'" "'basic civil rights of man.'" Stanley v. Illinois, 405 U.S. 645,
651,92 S. Ct. 1208,31 L. Ed. 2d 551 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390,
399,43 S. Ct. 625, 67 L. Ed. 1042(1923); Skinner v. Oklahoma, 316 U.S. 535, 541,62 S.
Ct. 1110, 86 L. Ed. 1655 (1942)). The custody, care, and nurture of the child reside first
in the parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder. Stanley v. Illinois, 405 U.S. at 651 . The United
States Supreme Court has long re<;;ognized a constitutionally protected interest of parents
to raise their children without state interference. Wisconsin v. Yoder, 406 U.S. 205, 235
36, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Pierce v. Society ofSisters, 268 U.S. 510,
534,45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399,43 S.
Ct. 625, 67 L. Ed. 1042 (1923). Nos. 32686-1-III; 32687-0-III; 32689-6-III; 32690-0-II1 In re Welfare ofR.B.S.; In re Welfare ofE.B.S.
Because of a dependency action's impact on parental rights, the State should be
required to prove grounds for the dependency by clear, cogent, and convincing evidence.
The majority is correct in noting, however, that the Washington Supreme Court has
approved the preponderance of evidence standard in a dependency action. In re
DependencyafSchermer, 161 Wn.2d 927, 942, 169 P.3d 452 (2007). This court remains
bound by Supreme Court rulings.
OS and BS argue that the unique circumstances of this case demand the imposition
of a high burden of proof. I readily agree that this appeal entails exceptional
circumstances. Nevertheless, the Supreme Court has not announced any exception to its
acceptance of a preponderance of evidence burden in a dependency action. Any deviance
from the burden of proof will need Supreme Court approval.
Second, the majority fails to note the futility of OS and BS seeking to vacate the
dependency order until after the acquittal of OS in the second criminal trial. The trial
court did not vacate the termination of parental rights and would certainly not vacate the
dependency order until after the acquittal. This obstacle explains the parents' delay in
filing a motion to vacate the dependency. I agree with the majority, however, that CR 60
and principles emanating from the rule do not sanction such a delay.
Third, this court's opinion should not be read to sanction the behavior of the social
worker. The social worker's Facebook postings particularly cause alarm. Instead, this
court upholds the trial court's finding that he primarily relied on medical evidence, not
testimony of the social worker or guardian ad litem, when granting the dependency
Nos. 32686-1-111; 32687-0-111;32689-6-111; 32690-0-111 In re Welfare ofR.B.S.; In re Welfare ofE.B.S.
petition.
Fourth, the majority correctly notes that OS has not proven her innocence with
regard to the injuries suffered by EBS. An acquittal only connotes the State failed to
prove beyond a reasonable doubt the guilt of OS. This court should ponder, nonetheless,
the possibi lity, if not probability, of OS being innocent and hope for a soon reuniting of
OS and BS with their children in a manner amenable to the well-being of the children.
Fearing, J.