In re the Welfare of R.S.G.

289 P.3d 708, 172 Wash. App. 230
CourtCourt of Appeals of Washington
DecidedDecember 7, 2012
DocketNo. 42681-1-II
StatusPublished
Cited by10 cases

This text of 289 P.3d 708 (In re the Welfare of R.S.G.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Welfare of R.S.G., 289 P.3d 708, 172 Wash. App. 230 (Wash. Ct. App. 2012).

Opinion

Van Deren, J.

¶1 — Christine Aker appeals the trial court’s orders (1) setting aside her nonparental custody decree as to her granddaughter, RSG;1 (2) finding that RSG was a dependent child as to her mother, Jennifer Ware; and (3) placing RSG in foster care. Aker argues that the trial court applied the incorrect standard in setting aside the nonparental custody decree and that the evidence was insufficient to support that decision as well as the dependency finding and the foster care placement. We hold that the trial court erred in vacating Aker’s noncustodial custody decree, that Jennifer Ware’s dependency is not before us, and that the trial court made no determination that RSG was a dependent child as to Aker. We reverse and vacate the order setting aside Aker’s nonparental custody decree and order that her custody rights be restored. We also remand for further proceedings that (1) are to occur within 45 days of issuance of this interlocutory decision under RAP 12.2, (2) acknowledge and respect Aker’s nonparental custody rights, and (3) reevaluate the need for RSG’s foster care placement with Aker as her custodian.

¶2 Following hearing on this remand to the trial court, the parties shall supplement the record on appeal with the trial court’s order(s) within 15 days of issuance of the order(s). This is not an opinion terminating our review. No mandate will issue until 30 days following our final opinion, which will be filed in a timely manner after receipt of the trial court order(s) in accord with our remand decision. RAP 12.5(b).

[235]*235FACTS

¶3 RSG was born on December 12, 2008. By the time she was three years old, RSG had lived most of her life in Aker’s home. RSG’s mother, Jennifer, is Aker’s daughter, as are Jennifer’s younger sisters, Jessica and Justine.2 RSG’s father was deported to Mexico after assaulting Jennifer when she was pregnant with RSG.

¶4 In September 2009, the Washington State Department of Social and Health Services (DSHS) received a referral alleging that Jennifer was at the hospital exhibiting mental health issues and that she had thoughts of harming RSG. The family agreed to a safety plan where RSG would reside with her grandfather and Jennifer would be referred for voluntary services. Jennifer did not want RSG placed with Aker because of Aker’s marijuana use, and she did not want RSG placed with Jessica because of Jessica’s Child Protective Services (CPS) history with her own children.

¶5 In November 2009, DSHS social worker Dan Escober went to meet Jennifer at Aker’s house and found RSG there. In violation of the safety plan, RSG was no longer living with her grandfather because of conflict with his girl friend. Aker asked that RSG remain with her. Because there were no founded allegations of abuse and neglect against Aker, Escober developed a second safety plan for RSG to reside in Aker’s home with Jennifer and Justine. At the time of that plan, Aker denied any alcohol or marijuana use. Conditions of the safety plan included: (1) DSHS would approve all supervisors for RSG; (2) RSG would not be exposed to individuals who posed risk, including those under the influence of drugs and alcohol; (3) RSG would not be provided primary care or transported in a motor vehicle by anyone under the influence of drugs or alcohol; and (4) RSG [236]*236would not be exposed to substance abuse. In addition, Jennifer was not to have unsupervised contact with RSG until she could demonstrate that RSG would not be at risk in her care.

¶6 When Escober went to Aker’s home in December 2009 to have the safety plan signed, he discovered that Jennifer and RSG were residing with RSG’s grandfather. The grandfather agreed to take RSG back but then changed his mind again and turned RSG over to Jennifer. Escober considered filing a dependency petition based on the family’s lack of cooperation in following the second safety plan, but Aker filed for nonparental custody because she did not want RSG to go into foster care. Jennifer joined her mother’s custody petition. DSHS supported Aker’s petition even though it was aware of the dependency established for Jessica in 2006 that had placed both Jessica and her daughter in foster care. During the 2006 dependency proceedings, DSHS refused Aker’s request to place Jessica’s daughter with her because Aker had tested positive for marijuana and had other parental deficiencies. Also in 2006, Aker had declined a chemical dependency evaluation because of her work schedule. This dependency was dismissed in 2007 when Jessica turned 18.

¶7 After Aker requested nonparental custody of RSG in 2009, Escober took Aker the necessary paperwork. He observed a greater bond between RSG and Aker than between RSG and Jennifer, and he had no concerns about RSG’s safety in Aker’s home. Escober did not review Aker’s completed paperwork before the hearing on her custody petition. DSHS was not a party to the nonparental custody proceedings, and Aker represented herself.

¶8 The nonparental custody decree was granted on March 2, 2010, and DSHS closed its file. The resulting nonparental custody decree appointed Aker as RSG’s custodian, and the trial court’s findings of fact stated that it was in RSG’s best interests to reside with Aker because of her parent’s mental health issues. The decree allowed [237]*237Jennifer to have limited visitation with RSG, but it did not specify that Jennifer’s visitation was to be supervised. In fact, the trial court checked a notation stating that limitations on visitation did not apply.

¶9 In January 2011, DSHS received a referral after the police found RSG outside Aker’s house at 10:30 am. RSG was alone and was wearing a T-shirt, a diaper, and tennis shoes. The investigation revealed that Aker had gone to work and left RSG in the care of Jennifer and Jessica. The youngest aunt, Justine, had left for school earlier, and Jennifer and Jessica were still asleep. Aker installed higher locks on the doors, and DSHS took no further action.

¶10 In April 2011, DSHS received two more referrals. One alleged that Aker had used marijuana with Justine and that Aker was allowing Jennifer to have unsupervised contact with RSG. The second alleged that Jessica had allowed Jennifer to move in with her and that Jennifer was not on medication for her mental health issues. When a social worker went to Jessica’s home, she found that Jennifer and RSG were living there in an enclosed porch. Jessica alleged that Aker had verbally abused RSG and that Jennifer and RSG lived with her 90 percent of the time; Jennifer and Aker refuted those allegations. On April 21, 2011, an officer and a social worker went to Aker’s house, and Aker admitted using marijuana as a stress reducer and to help her sleep. Aker then retrieved marijuana from the top of her nightstand, which was a location accessible to RSG. The social worker determined that it was not safe for RSG to remain in Aker’s home, and it was agreed that she would remain at Jessica’s home until a family meeting could be held.

¶11 The social worker then interviewed 16-year-old Justine, who said that Aker would give her money to buy marijuana and that they both used marijuana. The social worker also spoke with Jennifer, who was upset by the conflict between Aker and Jessica and preferred foster care for RSG over her placement with either relative. Jessica [238]*238contacted the social worker and said she no longer wanted to care for RSG.

¶12 DSHS filed a dependency petition on April 27 and placed RSG in shelter care the same day.

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Cite This Page — Counsel Stack

Bluebook (online)
289 P.3d 708, 172 Wash. App. 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-welfare-of-rsg-washctapp-2012.