Opinion
No. 65853-1-I, Consolidated w/No. 65854-9-I.
Filed: April 25, 2011.
Appeals from a judgment of the Superior Court for Island County, No. 10-7-00189-4, Alan R. Hancock, J., entered July 22, 2010.
Affirmed by unpublished opinion per Spearman, J., concurred in by Leach, A.C.J., and Cox, J.
Raife Johnson-Hulse and Nicole Hulse challenge the sufficiency of the evidence supporting the trial court's finding that their daughter E.L.H. was a dependent child as defined in RCW 13.34.030(6)(b) and (c). E.L.H was two years old when the trial court found dependency based on a number of concerns and ordered her placed in the home of a relative. We conclude that substantial evidence supported the challenged findings of fact. We also conclude that the trial court did not abuse its discretion in ordering out-of-home placement, and affirm.
FACTS
Raife Johnson-Hulse and Nicole Hulse (nee Manibusan) met and married in 2006, when Raife was on active duty in the Navy. Nicole had two children from a previous relationship. The couple's first child, E.L.H., was born on November 19, 2008 and their second child, J.M.H., was born on April 25, 2010. E.L.H. is the subject of this appeal.
For ease of reference, the parties will be referred to by their first names.
Those children were subject to dependency actions that were dismissed when Nicole voluntarily entered into a third-party custody agreement with her mother and stepfather.
The Hulses stipulated to J.M.H.'s dependency.
At the time E.L.H. was born in November 2008, the Hulses were living in Skagit County. Nicole was addicted to pain medications during the first seven months of her pregnancy. When E.L.H. was born, her parents were informed that her hearing test was not normal and that they should return for follow up. They never returned for further testing. In February 2009, Raife was arrested after giving a bad check to a dealership while purchasing a car. Raife brought the car back to the dealership, where Sergeant Robert Fuischhusen arrested him. Nicole and E.L.H. were with him. Raife was later charged with unlawful issuance of a bank check.
The Hulses moved to Idaho in March 2009. By that point, they had taken E.L.H. to standard "well baby" doctor's visits two or three times, but they did not take her to a doctor during the following year in Idaho except on one occasion when she had a bad cold. They chose not to follow the standard immunization schedule because they believed that one of their relatives was confined to a wheelchair and unable to talk as a result of reactions to vaccinations. They did not take E.L.H. to a dentist because they believed that it was not necessary until she was two years old or had all of her teeth.
In the summer of 2009, Nicole had an affair with a co-worker. Around that time, she and Raife had an argument outside of their house. E.L.H. was home at the time. Nicole called her co-worker to pick her up, and the co-worker called the police and reported a domestic violence assault before he arrived. Nicole later testified that Raife never assaulted her. Raife was charged with domestic violence assault but pleaded guilty to disturbing the peace. He briefly moved out of the family home after the incident. The couple decided to stay together and work through their problems.
The Hulses left Idaho in October 2009 and returned to Washington, moving in with Nicole's father in La Conner. Sometime after they left Idaho, Nicole was charged in that state with unlawful issuance of a bank check, for writing a former landlord a rent check with insufficient funds. At the end of November, the Hulses moved into an apartment in Oak Harbor, although they were eventually evicted from that apartment.
On January 10, 2010, Nicole was arrested for prescription fraud. By that time she was pregnant with the couple's second child, J.M.H. She told Detective Teri Gardner that she was afraid of withdrawal and needed pain medication. She admitted that she had pawned stolen goods to pay for Vicodin and obtained prescription pain medication using the alias "James Bliss." Nicole had been taking Vicodin from July 2009 through November 2009 for a knee injury. In August or September, she had surgery for a torn meniscus. She testified her doctor prescribed 10 milligrams of Vicodin and 800 milligrams of ibuprofen until November. She was taking Vicodin four times a day in the late fall of 2009 and early winter of 2010, and was still taking the drug as she neared term with J.M.H. in April 2010. Nicole attributed this to having a root canal about two weeks before J.M.H.'s birth and being prescribed 20 Vicodin pills.
J.M.H. was born at Mount Vernon Hospital on April 25, 2010 and was put on morphine because he exhibited signs of morphine withdrawal. Nicole had tested positive for opiates five days before giving birth. The hospital contacted the Department of Social and Health Services (DSHS) and reported that Nicole had tested positive for opiates and that J.M.H. showed signs of morphine withdrawal. Nicole and Raife were advised that J.M.H. should stay in the hospital until completely weaned from morphine. Against medical advice, the couple removed J.M.H. from the hospital on May 12, 2010 and took both children to Idaho. That same day, DSHS filed a dependency petition regarding E.L.H. and took both E.L.H. and J.M.H. into custody.
Nicole argues that the trial court erroneously took judicial notice of certain factual findings entered as part of the order declaring J.M.H. dependent and then relied on those findings in determining that E.L.H. was dependent. Specifically, that the Hulses transported J.M.H. to Idaho against the advice of doctors and that J.M.H. received treatment for opiate withdrawal. She argues that there was no other evidence in the record to support these findings because the GAL's and DSHS social worker's testimony about these facts was admitted for the limited purpose of showing the basis of those individuals' opinions. The State responds that the trial court did not err in taking judicial notice of the stipulated order in J.M.H.'s case. It points to the legislature's policy under RCW 13.34.110(2) that prior family involvement with Child Protective Services is relevant information for a court to consider at a dependency fact-finding. The State also points out that even if the trial court erroneously took notice, the trial court could have, sua sponte, introduced a certified copy of the agreed order of dependency, which both parents agreed were admissible. Finally, the State argues that any error was harmless because there was ample evidence to support the dependency even without including the evidence that J.M.H. was removed against medical advice and was treated for opiate withdrawal. We agree that even if the trial court erroneously considered this evidence, the other evidence was sufficient to support the trial court's finding that E.L.H. was a dependent child.
J.M.H. was placed in the Sedro Woolley home of Nicole's sister Marcella, Marcella's partner, Nicole's older brother Joshua Campos, and Campos' fiancee. At some point, Nicole and Raife decided that Marcella would adopt J.M.H. E.L.H. was initially placed in a non-relative foster home where she did not do well. DSHS social worker Leona Lidral testified that E.L.H. was aggressive around other children and that at first, she would not eat, but after she was able to eat would not stop eating. E.L.H. was transferred to Marcella's home on June 24, 2010. Nicole and Raife visited her twice a week. E.L.H. did well at her aunt's home. Marcella had no concerns about her development and described a child full of "personality" who "loves to babble and talk" and "loves to help." E.L.H. ate the same food as the adults. But Marcella observed that although E.L.H. was still "smiley" and playful, she was not as "bubbly" as she was before being removed from her parents. She noticed E.L.H. seemed sadder and believed the separation from her parents had been traumatic for her. Nicole's mother, Denie Covert, also testified that E.L.H. seemed more withdrawn as a result of the separation from her parents.
Nicole's mother also testified that in December 2009, E.L.H. was eating solid food. Raife testified that he and Nicole started feeding E.L.H. solid food around the time she was four or five months old.
E.L.H. was evaluated by the Skagit Preschool and Resource Center and found to be within the normal range of child development, with no present need for early intervention services. A formal hearing evaluation showed that her hearing was normal. E.L.H. had two cavities for which the dentist recommended that she be placed under general anesthesia.
After the dependency petition was filed, the Hulses returned to Washington so that they could visit E.L.H. and J.M.H. and be present for court dates. They moved in with Nicole's father, stepmother, and younger brother in La Conner. Raife found work as a mechanic on Camano Island, and Nicole searched for a job. A week after the petition was filed, Nicole was arrested at the Everett Wal-Mart for shoplifting. She was pulled over in her car by Officer Mike Bernardi and initially gave him a false name. When he informed her that she was being detained for theft, Nicole admitted to shoplifting on that occasion as well as two other times. She also acknowledged that there was a warrant for her arrest, based on driving while license suspended (DWLS). Nicole cried and told Bernardi that she was stealing in order to pay off court fines.
During her testimony, Nicole denied making any statements to the officers regarding the incident. She also denied that she was involved in any shoplifting.
The dependency trial was held on July 15 and 16, 2010. A number of the Hulses' relatives testified that both parents showed love and affection for E.L.H. and were bonded with her. They testified that they saw Nicole and Raife on various occasions with E.L.H. before the dependency and that the two of them were attentive parents who took good care of their daughter. Guardian ad litem (GAL) Calla Perkins testified that as long as Nicole and Raife engaged in recommended or court-ordered counseling and parenting education, and resolved their pending criminal matters, E.L.H.'s best interest would be served by returning her to them. She recommended dependency but testified that extended separation from her parents could traumatize E.L.H.
At the conclusion of the fact-finding hearing, the trial court found that E.L.H. was a dependent child under RCW 13.34.030(6)(b) and (c) as to both her mother and father. It made oral findings of fact upon which it based its conclusion of dependency. Written orders of dependency were entered on July 22, 2010.
A disposition hearing was held on July 21, 2010. The trial court found that DSHS had made reasonable efforts to prevent the need for removing E.L.H. from her parents' home, but that E.L.H.'s health, safety, and welfare could not be adequately protected in her parents' home. The court also found that it was currently contrary to E.L.H.'s welfare to live with her parents. It ordered that E.L.H. remain in her current placement with Marcella; that both parents complete parenting education assessments and psychological evaluations and follow all recommendations; that Nicole complete a drug and alcohol assessment and undergo random urinalysis testing; and that E.L.H. receive dentist-recommended treatment. Visitation plans for Nicole and Raife were set forth. Nicole and Raife appeal the trial court's dependency and disposition orders.
DISCUSSION
Nicole and Raife challenge a number of findings of fact in support of the trial court's determination that E.L.H. was a dependent child under RCW 13.34.030(6)(b) and (c). They also argue that the court erred in ordering out-of-home placement in its disposition order. We conclude that substantial evidence supports the challenged factual findings and that the sum of the findings of fact supports the determination of dependency. We also conclude that the trial court did not abuse its discretion in ordering out-of-home placement.
Standard of Review
In a dependency proceeding, the State must prove that a child is dependent by a preponderance of the evidence. RCW 13.34.110(1). In evaluating a claim of insufficiency of the evidence in a dependency proceeding, this court determines whether substantial evidence supports the trial court's findings of fact and whether those findings of fact support the trial court's conclusions of law. In re Dependency of C.M., 118 Wn. App. 643, 78 P.3d 191 (2003). Evidence is substantial if, viewed in the light most favorable to the prevailing party, a rational trier of fact could find the fact by a preponderance of the evidence. In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003). We do not weigh the evidence or credibility of the witnesses. Id. Rather, we pay deference to the trial court's advantage in directly observing witness testimony. In re Aschauer's Welfare, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). Unchallenged findings of fact are verities on appeal. In re Dependency of C.M., 118 Wn. App. 643, 649, 78 P.3d 191 (2003).
Nicole and Raife challenge numerous findings of fact. We address the challenged findings individually and conclude that all of them were supported by substantial evidence. First, the Hulses challenge the finding that the parents' failure to take E.L.H. to the dentist for the first 18 months of her life or to the doctor between the age of four months and 18 months, and their decision to not have her vaccinated were evidence of "poor judgment." Testimony from several individuals supports this finding. Raife testified that there had been situations in Nicole's family that led them to not vaccinate E.L.H., but he also admitted that they had not talked to a doctor or medical professional about their concerns regarding vaccines. Guardian ad litem (GAL) Calla Perkins testified that where the parents chose not to have E.L.H. immunized, they should have taken her to the doctor to ensure that she was healthy. Also, as of the time of dependency, Nicole and Raife took E.L.H. to the doctor only once or twice, excluding visits during her first two weeks of life. The visit they could recall was when she had a bad cold. They failed to seek recommended follow-up care after E.L.H. failed her hearing test at birth. Nicole and Raife also never took E.L.H. to a dentist. After E.L.H. was removed from her parents, it was discovered that she had two cavities.
The Hulses challenge the finding that Raife's employment history was "somewhat spotty." But while Raife was in the Navy for five years after graduating from high school until April 2008, his testimony also indicated that in the years following, he was employed at numerous different jobs for generally brief periods of time. After leaving the Navy, he worked at Les Schwab in Anacortes and as a security officer at the Skagit Valley Casino. He quit his job at Les Schwab after a month. He worked at the casino for seven or eight months. When he moved to Idaho in March 2009, he worked at Hydroblend and was laid off, at which point he worked at Jackson's Food Store. He quit that job and worked for a while as a door-to-door meat salesman. In the beginning of 2010, he started working at Wal-Mart. His job as a mechanic on Camano Island at the time of the dependency trial had started the week prior. Raife also testified that he needed to find stable work, which might be difficult because of the economy. He believed his mechanic job might prove to be stable, but if the family moved to Idaho, he intended to work as a sheet metal worker. His testimony was sufficient for the trial court to find that his employment history was "somewhat spotty."
They challenge the finding that Raife downplayed Nicole's problems and was "willing to place his relationship with [her] over his relationship with [E.L.H.]" and the finding that "[i]t is evident that [the parents] are in what might be described as an enmeshed relationship and there is concern about whether they would be able to act independently for the best interests of" E.L.H. The trial court heard and observed Raife's testimony that he was not aware of Nicole's history with drug addiction. It heard Raife testify that he did not know what felonies Nicole had been convicted of, but then acknowledge that one of them had been an assault. Raife also testified that he "never had any reason to believe that [Nicole] had any drug addiction." He initially testified that he was "positive" Nicole did not have a significant history of domestic violence, but later acknowledged that she had previously been a victim of domestic violence. Nicole testified that although she and Raife were having a difficult time because they did not have E.L.H., they otherwise were together and loved each other. Raife also testified that because of the dependency proceeding, he and Nicole's relationship was "stronger than it has ever been. . . ." The sum of the foregoing testimony supports the trial court's finding that the Hulses had an "enmeshed" relationship and that they might not place E.L.H.'s interests before each other.
They next challenge the finding that Nicole's one extramarital affair in the summer of 2009 meant "there is, a very significant potential for further marital problems which may well have an effect on [E.L.H.'s] well-being." This is supported by Raife's testimony that he and Nicole had "never really split" during or after the time that she had an affair. He also testified that they had never received counseling after the affair. The trial court's finding was supported by substantial evidence, particularly in light of the domestic incident that took place around the time of the affair.
The Hulses challenge the trial court's finding that they had "unstable housing placing [E.L.H.] at risk of not having stable shelter." There was substantial evidence to support this finding. During their relationship, the couple moved frequently and had been evicted from at least one apartment. As for their living situation at the time of dependency, Raife testified that he and Nicole were currently living with Nicole's father, mother, stepmother, and brother. But Raife also testified that if he remained in Washington he would look for his own place to live, and that he was uncertain as to whether he would return to Idaho or stay in Washington if E.L.H. was returned to his and Nicole's care. George Manibusan, Nicole's father, testified that she and Raife had been living at his home for about two months. During that time, the couple had been living with him and his family "off and on," and when Nicole and Raife were not at George's home, they were in Idaho. The foregoing constitutes substantial evidence in support of the finding that E.L.H.'s parents had unstable housing that put her at risk of not having stable shelter.
Nicole challenges the finding that developmental testing showed delays. GAL Calla Perkins testified that E.L.H. was at the 22nd percentile for communication and physical ability, but that E.L.H. was not in need of early intervention at the time. Nicole points out that Perkins incorrectly interpreted testing results as indicating that E.L.H. was in the 22nd percentile for communication and physical ability, when the correct interpretation of that number was the "percentage by which E.L.H.'s development did not conform to the mean." Regardless, the trial court correctly interpreted the results. It noted, after reviewing the report, that while it indicated that a delay of 25 percent was considered a concern and E.L.H. did not rise to that level, she did have delays of between 16 percent and 22 percent in the areas of physical, self-help, academic, and communication. There was substantial evidence for the trial court to find that there was some delay in E.L.H.'s development.
Nicole challenges the finding that the parents' arrests and pending criminal charges supported the determination that E.L.H. is dependent. Nicole's criminal history is supported by substantial evidence. In 2004, she pleaded guilty to assault in the third degree, theft in the third degree, forgery, and burglary. She was charged with driving while license suspended on three separate occasions. In one of those instances, she pleaded guilty. At the time of the dependency trial, she was facing a possible charge of organized retail theft for the theft at Walmart, charges in Washington for bail jumping and prescription fraud, and an Idaho charge for unlawful issuance of a bank check. Raife was also facing a criminal charge, for unlawful issuance of a bank check, and was awaiting trial at the time of the dependency hearing. The evidence showed, despite Nicole's testimony that "I wouldn't break the law with my daughter," that E.L.H. had been present during at least one instance involving unlawful activity. E.L.H. was present when Nicole was stopped by the police in what she knew to be a stolen car. E.L.H. was also present during the incident for which Raife pleaded guilty to disturbing the peace. At the time of the dependency trial a year later, Raife still had not completed the eight hours of anger management classes that he was ordered to complete as a result of his guilty plea. There was substantial evidence to support the court's finding that the parents' past and current criminal activity constituted an obstacle in their ability to parent E.L.H.
The assault and theft charges both related to an incident at Albertson's. Nicole was with her former partner when they were approached on suspicion of having stolen baby formula. An employee approached the couple and, according to Nicole, put her hands on Nicole's shoulders. Nicole shrugged her off.
The forgery charge was based on an incident where Nicole attempted to cash a check at Money Tree.
The burglary charge related to an incident at Walmart where Nicole and a companion attempted to change a price tag on a laptop to an 89-cent sticker. The charge was burglary because Nicole was trespassing at the Walmart at the time.
According to her testimony, she mistakenly wrote the check from a closed account, believing it to be an account with funds. She testified that the landlord agreed that if she made payment by a certain date, he would dismiss the charge.
Nicole also challenges the finding that her addiction to pain medication placed E.L.H. at risk. She argues that there was no evidence to show that her drug use negatively affected her ability to parent E.L.H., no expert testimony about how Vicodin negatively affected her. First, the State was not required to present such testimony. Under RCW 26.44.020(14), "[w]hen considering whether a clear and present danger exists, evidence of a parent's substance abuse as a contributing factor to negligent treatment or maltreatment shall be given great weight." Moreover, there was testimony about how Nicole's addiction to pain medication contributed to her behavior in other ways. Significantly, Nicole was arrested for prescription fraud in January 2010. Detective Teri Gardner testified that Nicole told her that she was afraid of withdrawal and needed pain medication. Nicole admitted to drug-seeking behavior, telling Gardner that she had sought additional medication from a physician's assistant who declined, so she went to another doctor at the same facility who did prescribe her more pain medication. Nicole told Gardner that she pawned items to pay for Vicodin that she took four times a day. Furthermore, one of the main issues in the 2004 dependency related to Nicole's two other children was substance abuse. There was substantial evidence for the trial court to be concerned not only about the effects of Vicodin use, but also about Nicole's actions in attempting to obtain the drug. All of the factual findings challenged by Nicole and Raife are supported by substantial evidence. These findings and the unchallenged findings, which are verities on appeal, support the trial court's conclusion that E.L.H. was dependent as defined under both RCW 13.34.030(6)(b) and (c). Under RCW 13.34.030(6)(b) and (c), a dependent child is defined as any child who:
(b) Is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child; or
(c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.
Regarding whether a child is "abused or neglected," chapter 26.44 RCW provides:
(1) "Abuse or neglect" means sexual abuse, sexual exploitation, or injury of a child by any person under circumstances which cause harm to the child's health, welfare, or safety, excluding conduct permitted under RCW 9A.16.100; or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. An abused child is a child who has been subjected to child abuse or neglect as defined in this section. . . .
(14) "Negligent treatment or maltreatment" means an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42.100. When considering whether a clear and present danger exists, evidence of a parent's substance abuse as a contributing factor to negligent treatment or maltreatment shall be given great weight. The fact that siblings share a bedroom is not, in and of itself, negligent treatment or maltreatment. Poverty, homelessness, or exposure to domestic violence as defined in RCW 26.50.010 that is perpetrated against someone other than the child does not constitute negligent treatment or maltreatment in and of itself.
RCW 26.44.020(1)(14) (emphases added). DSHS need not wait until a child suffers actual harm, but may instead act when there is a discrete danger of harm. In re Dependency of Schermer, 161 Wn.2d 927, 951, 169 P.3d 452 (2007) (citing In re Welfare of Frederiksen, 25 Wn. App. 726, 733, 610 P.2d 371 (1979)).
The trial court's findings support its determination of dependency under RCW 13.34.030(6)(b) in that E.L.H. was "abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child." The trial court's main findings in support of dependency consisted of the following concerns: Nicole's addiction to pain medication and her use of them during her pregnancies; Raife's unawareness or lack of concern with Nicole's drug use; outstanding criminal charges against both parents that could result in jail time; a history of instability in the parents' lives, residence, and ability to provide care for their children; the parents' failure to provide proper health care for E.L.H.; and the parents' poor judgment. The totality of these findings demonstrates that E.L.H. was subject to negligent treatment consisting of "the cumulative effects of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child's health, welfare, or safety. . . ." RCW 26.44.020(14). Furthermore, "[w]hen considering whether a clear and present danger exists, evidence of a parent's substance abuse as a contributing factor to negligent treatment or maltreatment shall be given great weight." There was extensive testimony about Nicole's history of substance addiction and abuse, as well as testimony about criminal activity in connection with her substance abuse.
The trial court noted, "It is perhaps true no one of these considerations taken in isolation would give rise to the need for a dependency finding, but it is also true that it is another matter when we take all of these considerations into account as a whole." The court also found, "[t]he parents and [E.L.H.] are bonded, and I note that there is cause for hope of reuniting the parents with [E.L.H.] because these parents are intelligent people who I believe have the ability to benefit from services that will be offered, but they most definitely do need such services."
The findings also support the determination of dependency under RCW 13.34.030(6)(c), in that E.L.H. "[had] no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." We reject the argument, made by both parents, that even if the trial court properly found E.L.H. dependent with respect to Nicole under RCW 13.34.030(6)(c), the State did not prove that Raife was unavailable to care for E.L.H. under that statute. We agree with the State that the risk factors faced by E.L.H. could not be attributed to the mother alone. Although Nicole was the parent with the drug addiction, the evidence showed that Raife was either unaware of it or unwilling to protect E.L.H. from it. And although Nicole was the parent with the more extensive criminal history, Raife also had prior and current charges. Furthermore, the issues with E.L.H.'s lack of health care and the family's housing instability were due as much to Raife as to Nicole. Finally, the trial court's findings that Raife minimized Nicole's problems and that the parents would not act independently to place E.L.H.'s needs above their own, support the court's determination that E.L.H. had no parent capable of adequately caring for her.
Out-of-Home Placement
Nicole and Raife argue that the trial court erred in ordering out-of-home placement in its dispositional order. A trial court's placement decision in a dependency proceeding will be overturned only upon a showing of an abuse of discretion. In re Dependency of A.C., 74 Wn. App. 271, 275, 873 P.2d 535 (1994). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. In re Dependency of T.L.G., 139 Wn. App. 1, 15, 156 P.3d 222 (2007).
Where a child is found dependent, the court may order out-of-home placement if, under RCW 13.34.130(3),
[T]he court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home, specifying the services, including housing assistance, that have been provided to the child and the child's parent, guardian, or legal custodian, and that preventive services have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and that:
(a) There is no parent or guardian available to care for such child;
(b) The parent, guardian, or legal custodian is not willing to take custody of the child; or
(c) The court finds, by clear, cogent, and convincing evidence, a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger.
(Emphasis added.). The statute does not, as a matter of law, preclude placement with a relative on the ground that one parent is "available." See In re A.C., 74 Wn. App. at 277. Rather, the child's best interest is "the paramount concern in placement decisions." Id. at 277 (citing In re Dependency of J.B.S., 123 Wn.2d 1, 8, 863 P.2d 1344 (1993)).
Here, in the placement section of its written dependency orders, the trial court checked the following boxes:
[x] It is currently contrary to the child's welfare to return home. The child should be placed or remain in the custody, control and care of DSHS/Supervising Agency for the following reasons:
[x] there is no parent or guardian available to care for the child; and/or . . .
. . .
[x] the court finds by clear, cogent and convincing evidence that a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home, and an order under RCW 26.44.063 will not protect the child from danger.
. . .
[x] DSHS/Supervising Agency made reasonable efforts to prevent or eliminate the need for removal of the child from the child's home; but those efforts were unsuccessful because:
[x] The health, safety, and welfare of the child cannot be adequately protected in the home.
[x] Specific services have been offered or provided to the parent(s), guardian or legal custodian and have failed to prevent the need for out-of-home placement and make it possible for the child to return home. The following services have been offered or provided to the child and the child's parent(s), guardian or legal custodian:
[x] as listed in the social study (ISSP); and/or
[x] emergency shelter care and out-of-home placement for the child; case work management services;
Therefore, the court ordered out-of-home placement under both bases of the statute. The Hulses challenge both the finding that E.L.H.'s health, safety, and welfare could not be adequately protected in her parents' home and the finding that they were offered or provided specific services to make it possible for E.L.H. to return home. The State does not contend that it provided all possible services to prevent the need for removing E.L.H. from her parents' home, but instead relies upon the argument that the health, safety, and welfare of E.L.H. could not be protected adequately in her parents' home.
It also points out that the Hulses, at a May 3, 2010 Family Team Decision Meeting with DSHS, indicated that they were unwilling to work with the agency because they saw it as an unwarranted intrusion into their lives. At this meeting, Nicole denied having drug problems and refused to submit to random urinalysis testing. Nicole and Raife both indicated that they did not see drug exposure to an infant as being negligent.
We agree with the State that the health, safety, and welfare of E.L.H. could not be protected adequately in the home and that there was no parent available to care for E.L.H. We note that while Raife contends that the trial court disregarded the GAL's recommendation that E.L.H. be placed with her parents, the State is correct in that this argument misconstrues the record. The GAL's testimony about placement during the dependency trial was somewhat equivocal, but at the disposition hearing, the GAL program supervisor, Carla Grau-Egerton, clarified that Perkins' position was to support placement out of home. As we have explained with regard to the trial court's determination of dependency, the evidence indicated that the risk factors faced by E.L.H. in living with her parents were due to the actions and inactions of both parents. The trial court's findings that Raife minimized Nicole's problems and that the parents would not act independently to place E.L.H.'s needs above their own, support the court's determination on disposition that E.L.H. had no parent available to care for her. We therefore affirm the trial court's placement decision.
Nicole and Raife point out that the trial court orally indicated at the disposition hearing that one of the main reasons for its placement decisions was the parents' residential situation:
The issue of the placement of [E.L.H.] with the parents is also going to depend to some extent on their personal residential situation. They're living with Ms. Hulse's father in La Conner. Sounded to me like a crowded household and not a — not a long-term placement that would be appropriate. It is very possible, I would think, that Mr. Johnson-Hulse and Ms. Hulse would obtain suitable housing. When they do that, then very definitely we'll be looking at placing the child with them subject to the services I'm outlining.
However, the trial court also emphasized the importance of the results of Nicole's random monitored urinalysis tests and stated that "I find that there is clear and convincing evidence that the child should remain in out-of-home care. . . ."
In sum, substantial evidence supported the trial court's findings, which in turn supported the court's conclusion that E.L.H. was a dependent child as defined under RCW 13.34.030(6)(b) and (c). Furthermore, the trial court did not abuse its discretion in ordering out-of-home placement.
Affirmed.
WE CONCUR: