State v. Fletcher

117 Wash. App. 241
CourtCourt of Appeals of Washington
DecidedJune 9, 2003
DocketNo. 50441-0-I
StatusPublished
Cited by49 cases

This text of 117 Wash. App. 241 (State v. Fletcher) 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
State v. Fletcher, 117 Wash. App. 241 (Wash. Ct. App. 2003).

Opinion

Becker, C.J.

A court found Terri Fletcher’s son dependent after concluding that his failure to thrive was the result of Fletcher’s abuse or neglect. She appeals, and argues that the record shows only that she failed to respond to the inconsistent messages of social workers about nutrition. We find, however, that substantial evidence — includ[243]*243ing the testimony of physicians — supports the court’s determination that the boy’s growth pattern was not healthy and demanded intervention which Fletcher refused to provide. The evidence sufficiently demonstrated a clear and present danger to the child’s health, welfare, and safety. Accordingly, we affirm.

The child, E.F., was born on March 3, 2000. At birth he weighed 5 pounds 13 ounces, and as he grew he generally tracked near the fifth percentile in his growth curve. At the age of 15 months, he stopped gaining weight. Between September and November 2001, the Department of Social and Health Services (DSHS) received a number of referrals expressing concern about the baby’s low weight. Fletcher brought the child to Northwest Hospital for a checkup on November 27, 2001. Emergency room staff, concerned about their findings of malnutrition, dehydration, and a low blood platelet count, referred E.F. to Children’s Hospital. Children’s Hospital allowed the boy to return home with Fletcher, on the condition that she bring him back the following day. When she did not bring him back, Child Protective Services filed a dependency petition.1

The court conducted a dependency hearing with respect to Fletcher in March 2002, when E.F. was two years old. The trial court found E.F. dependent due to abuse or neglect and the lack of a parent or guardian capable of adequately caring for him. Fletcher appeals from these determinations.

The State initially argues that Fletcher cannot maintain this appeal as a matter of right, based on this court’s recent decision in In re Dependency of T.J.B., 115 Wn. App. 182, 62 P.3d 891 (2003). At issue in that case was the rule of appellate procedure that allows an appeal as a matter of right from the “disposition decision following a finding of dependency by a juvenile court.” RAP 2.2(a)(5). The appellant attempted to appeal from the order of dependency without regard to the dispositional order. See In re T.J.B., [244]*244115 Wn. App. at 183. We held that the rule does not allow for a direct appeal from an order of dependency separately from the disposition decision. If it did, an unsuccessful appellant could later appeal from the dispositional order, thereby having “two bites at the apple” — a result that would “encourage multiple appeals and piecemeal review.” In re T.J.B., 115 Wn. App. at 186.

In the present case, the trial court entered both the order of dependency and the related dispositional order on the same date. Although Fletcher’s notice of appeal seeks review of both orders, her assignments of error pertain solely to the findings and conclusions in the order of dependency. The State argues that her failure to assign error to the order of disposition means that she is appealing only the dependency finding, which under T.J.B. is not appealable as a matter of right.

By appealing from the order of disposition, Fletcher brings up for review the finding of dependency. This procedure does not implicate the policy concern expressed in T.J.B. Because Fletcher is bringing a single appeal of both orders, she will not be afforded “two bites at the apple.” The Rules of Appellate Procedure are to be interpreted “to promote justice and facilitate the decision of cases on the merits.” RAP 1.2(a). A parent may wish to contest a finding of dependency while at the same time agreeing to the service plan and other provisions of the dispositional order. It would be pointless to require an appellant to mount a pro forma attack upon specific provisions of the dispositional order, if the appellant’s only real interest is in reversing the finding of dependency and thereby eliminating the dispositional order altogether. Having appealed from the dispositional order in order to bring the dependency finding up for review, Fletcher is entitled to review of the dependency finding as a matter of right.

The trial court acknowledged Fletcher’s evident love for her son and strong emotional attachment to him, and the fact that she did not physically abuse the child by hitting or striking him. The court nevertheless concluded that E.F. [245]*245was dependent because he was “abused or neglected.” See RCW 13.34.030(5)(b). “Abuse or neglect” includes “negligent treatment, or maltreatment of a child by any person under circumstances which indicate that the child’s health, welfare, and safety is harmed.” RCW 26.44.020(12). “Negligent treatment or maltreatment” requires “an act or omission that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the child’s health, welfare, and safety.” RCW 26.44.020(15). A second basis for the dependency identified by the trial court was that E.F.’s circumstances constituted a danger of substantial damage to his development. See RCW 13.34.030(5)(c).

The order of dependency is supported by findings that E.F. was experiencing significant delays in his development. The court attributed the delays to Fletcher’s tendency to deny the existence of her son’s problems and refuse help in addressing them. Fletcher challenges the findings as insufficient to show that the boy was genuinely in danger or that her care of him amounted to actionable neglect.

We review a claim of insufficient evidence in a dependency case to determine whether substantial evidence supports the court’s findings of fact and whether the findings support the conclusions of law. In re Dependency of M.P., 76 Wn. App. 87, 90, 882 P.2d 1180 (1994), review denied, 126 Wn.2d 1012 (1995). “[E]vidence is substantial if, when viewed in the light most favorable to the party prevailing below, it is such that a rational trier of fact could find the fact in question by a preponderance of the evidence.” In re Dependency of M.P., 76 Wn. App. at 90-91. In making this determination, this court does not weigh the evidence or the credibility of witnesses. In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973).

The trial court’s primary finding was that E.F. failed to thrive while in his mother’s care, especially during the second year when his weight “essentially flat-lined.” The court also found that there was no likely explanation [246]*246for the boy’s developmental delays other than a deficiency in his home environment.

Fletcher challenges this finding. She refers to her own testimony in which she described E.F. as small but healthy.

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Bluebook (online)
117 Wash. App. 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fletcher-washctapp-2003.