In Re Welfare of Bdf

109 P.3d 464
CourtCourt of Appeals of Washington
DecidedMarch 30, 2005
Docket30937-8-II, 30943-2-II, 30947-5-II, 30953-0-II
StatusPublished
Cited by8 cases

This text of 109 P.3d 464 (In Re Welfare of Bdf) 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 Welfare of Bdf, 109 P.3d 464 (Wash. Ct. App. 2005).

Opinion

109 P.3d 464 (2005)
126 Wash.App. 562

In re the WELFARE OF B.D.F., N.J.F., J.R.F. and S.E.F.

Nos. 30937-8-II, 30943-2-II, 30947-5-II, 30953-0-II.

Court of Appeals of Washington, Division 2.

March 30, 2005.

*465 Holly Godfrey Banks, Attorney at Law, Port Orchard, WA, for Petitioner.

Garth Ahearn, Attorney Generals Office, Tacoma, WA, for Respondent.

David `Arthur' Gene Wecker, Attorney at Law, Port Orchard, WA, for Other Party Kimberly Forder.

Anne Marie Montgomery, Attorney at Law, Silverdale, WA, for Other Party Robert Forder.

Lisa Dabalos-McMahon, Attorney Generals Office, Tacoma, WA, for Other Party DSHS.

VAN DEREN, J.

¶ 1 The Kitsap County Juvenile Department Guardian Ad Litem (GAL) for B.D.F., N.J.F., J.R.F., and S.E.F, appeals the trial court's ruling vacating an order for a shelter care hearing. The trial court ruled that (1) a GAL in a chapter 13.34 RCW dependency action lacks standing to request a shelter care hearing; (2) the Department of Social and Health Services, Division of Children and Family Services (Department) is the only party that may request a shelter care hearing; (3) the court cannot initiate a shelter care hearing after the dependency petition is filed; and (4) the court lacks jurisdiction to order a chapter 13.34 RCW shelter care hearing absent the Department's request. The Department emphasizes that mootness precludes our review but concedes on appeal that the GAL has standing to request a shelter care hearing in dependency cases.

¶ 2 We review the merits of this appeal because the GAL raises issues of continuing and significant public interest that will assist superior and juvenile courts and other public officers who have a duty to protect the welfare of children. Because the trial court's ruling misinterpreted chapter 13.34 RCW, we reverse and vacate it.

FACTS

A. Background

¶ 3 On July 10, 2003, the Department filed dependency petitions on behalf of four minors, B.D.F., N.J.F., J.R.F., and S.E.F. The Department alleged that they were dependent under RCW 13.34.030(5)(b) and (c) because they were abused or neglected and had no parent or guardian capable of adequately caring for them. Each petition contained a Department social worker's affidavit describing the reasons for the dependency filing.

¶ 4 The social worker's affidavit asserted that the childrens' brother, C.F. (age eight), had recently died under circumstances suggesting negligence and/or physical abuse. C.F.'s autopsy report indicated that he died of bronchopneumonia and that there were multiple and significant blunt force injuries, both recent and old. The parents admitted to Child Protective Services that they abused and neglected C.F. and several of their other children.

¶ 5 According to a doctor's report, the parents failed to seek medical care for C.F. for at least three or four days before his death. In the four years before his death, C.F.'s height and weight had fallen from the 75th-95th percentile range to the 5th percentile range. The petitions requested that "the court inquire into this matter and make such order as the court finds to be in the best interest of the child and justice," but did not allege imminent risk to the remaining children if they were not taken into the Department's custody. Clerk's Papers (CP) at 5.

B. Preliminary Hearings Before the Court Commissioner

¶ 6 The Kitsap County Court Commissioner held two hearings. On July 14, 2003, the commissioner advised the parents of their rights and appointed counsel for them. He also appointed a court services officer of the Kitsap County Juvenile Department as the children's GAL.

¶ 7 At the second hearing on July 16, *466 2003,[1] the parents, their counsel, and the GAL discussed the dependency petitions and whether shelter care[2] was appropriate. The Department proposed an in-home placement that allowed the four children to remain at home, but it required the parents to attend parenting classes, and provided for visits by a social worker several times a week.

¶ 8 The GAL opposed an in-home placement for the children because the petitions alleged extraordinary abuse and neglect. The GAL cited Dr. Yolanda Duralde's report, referenced in the dependency petitions, expressing grave concerns for the children's safety in the home. The court commissioner was similarly cautious and rejected the Department's recommendation for an in-home dependency.[3]

¶ 9 When the Department failed to explain its recommendation to the court commissioner's satisfaction, the commissioner put the parties on notice, based on the facts before it, of the possibility that the court might find the in-home placement agreement insufficient to protect the children. Consistent with RCW 13.34.050(2), the commissioner set a subsequent hearing to allow Dr. Duralde to testify and the parents an opportunity to provide further information about whether shelter care was appropriate.

¶ 10 The mother and the Department argued that, because the Department had not requested a shelter care hearing, the court could not set one. The commissioner responded:

Shelter care is not a one way street. The State may agree with the parties. The parties may agree with the State. The Court is not obligated to follow any such agreements. The shelter care is being set for two reasons. Number one, because this court has rejected your agreement and [it's] on the Court's motion to have a shelter care hearing. But, number two, it's being conducted at [the GAL's] behest as well, as he has opposed the shelter care agreement that was offered.... I don't have information upon which I can conclude that this is appropriate.

Report of Proceedings (RP) (July 16, 2003) at 29-30 (emphasis added).

¶ 11 The commissioner then removed himself from hearing further proceedings, and set the matter for a hearing before a superior court judge on July 21, 2003.

C. Trial Court Hearing

¶ 12 Before the July 21 hearing, the mother, through her appointed counsel, filed a motion to quash the July 16 order, arguing that the court lacked jurisdiction to order a shelter care hearing where the Department had not requested it.[4] At the hearing, the Department stated, "In terms of the mother's motion, we are in agreement with [her] motion. The mother argues that the court does not have the authority to direct a shelter care hearing and that the present hearing should be dismissed absent a request filed by a party pursuant to [RCW] 13.34.150[sic]." RP at 13-14.

*467 ¶ 13 The court granted the motion to quash the shelter care hearing order and entered five conclusions of law:

(1) The Court has jurisdiction over the children based on the filing of a dependency petition.
(2) When a dependency petition is filed by the State, through the Department, the Department is the only party that can request a shelter care hearing.
(3) The Court can act in the best interests of the children pending a fact finding hearing, but neither the Court nor the Guardian ad Litem can initiate a shelter care hearing.
(4) The Guardian ad Litem has no standing to seek shelter care under RCW 13.34.065

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Bluebook (online)
109 P.3d 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-welfare-of-bdf-washctapp-2005.