Opinion
No. 60876-2-I.
September 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-7-02631-1, Ronald Kessler, J., entered October 16, 2007.
UNPUBLISHED OPINION
The State of Washington appeals the trial court's mid-trial dismissal of the State's petition to determine the dependency of D.K.M., contending the court erred in concluding as a matter of law that no evidence existed that could persuade a reasonable trier of fact that D.K.M. was a dependent child. D.K.M.'s parents cross-appeal the trial court's refusal to impose fees and sanctions against the State for initiating a frivolous petition. Concluding that the State does have a right to appeal the trial court's final order dismissing the petition, that there was evidence that could support a finding that D.K.M. was dependent, and that the trial court did not abuse its discretion in denying fees, we partially reverse, partially affirm, and remand for further proceedings.
FACTS
Christa and Dan May are the parents of four-year-old D.K.M. In June 2007, the Department of Social and Health Services (DSHS) filed a petition alleging D.K.M. was a dependent child under RCW 13.34.030(5)(c). This followed an earlier filing by DSHS alleging that D.K.M.'s two older half siblings M.R. and A.R., who also resided with the Mays, were dependent children. M.R. and A.R., eleven and nine years old, had been taken into State custody in January 2007 based on allegations of abuse and neglect by their mother Christa and step-father Dan. They were thereafter placed with Christa's mother, Sandra Looney. At approximately the same time, Christa and Dan voluntarily arranged to place D.K.M. with Christa's father, Charles Priddy. The children remained in those placements through the time of the dependency fact-finding hearing in September and October of 2007.
First names are used for the sake of clarity.
During the fact-finding hearing, the State presented testimony from twenty witnesses including Christa, Dan, M.R., A.R., state social workers, teachers and other employees at M.R. and A.R.'s school, family therapists and psychological evaluators, police officers, members of D.K.M.'s extended family, and the children's court appointed guardian ad litem. After the State's witnesses concluded their testimony, counsel for the parents moved to dismiss the petitions as to each of the three children. After hearing argument, the trial court denied the motions as to M.R. and A.R. and granted the motion as to D.K.M. At the conclusion of proceedings, Christa and Dan moved for an award of attorney fees against the State for filing a frivolous petition. The trial court denied the motion.
The State appeals the dismissal of the petition. Christa and Dan cross-appeal the denial of attorney fees.
Appealability
Preliminarily, the parties dispute whether the State's appeal is properly before the court. Citing RAP 2.2(a) and In re Welfare of Watson, 23 Wn. App. 21, 23, 594 P.2d 947 (1979), Christa and Dan contend the State is not entitled to appeal as a matter of right from the order dismissing the dependency petition. The State notes, however, that appellate courts have broadened their interpretation of RAP 2.2(a) since Watson was decided and found a number of juvenile actions appealable as a matter of right. In light of this court's 2005 opinion in In re Dependency of A.G., 127 Wn. App. 801, 112 P.3d 588 (2005), the State urges us to conclude that the rule against the State appealing orders relating to dependency and termination is properly limited to circumstances in which the practical effect of a dismissal order is in the nature of a dismissal without prejudice. We find the State's argument compelling.
RAP 2.2 provides, in pertinent part:
(a) Generally. Unless otherwise prohibited by statute or court rule and except as provided in sections (b) and (c), a party may appeal from only the following superior court decisions:
(1) Final Judgment. The final judgment entered in any action or proceeding, regardless of whether the judgment reserves for future determination an award of attorney fees or costs.
. . .
(3) Decision Determining Action. Any written decision affecting a substantial right in a civil case that in effect determines the action and prevents a final judgment or discontinues the action.
. . .
Juvenile Court Disposition. The disposition decision following a finding of dependency by a juvenile court, or a disposition decision following a finding of guilt in a juvenile offense proceeding.
Termination of All Parental Rights. A decision depriving a person of all parental rights with respect to a child.
See, e.g., In re Dependency of T.J.B., 149 Wn.2d 836, 839, 72 P.3d 757 (2003); In re Dependency of E.L.F., 117 Wn. App. 241, 244, 70 P.3d 163 (2003); In re J.W., 111 Wn. App. 180, 185, 43 P.3d 1273 (2002).
In Watson, based on a brief analysis of the then-recently established provisions of RAP 2.2(a)(5) and (6), this court concluded that the State had no right to appeal a denial of a petition for permanent deprivation or for continued dependency. Watson, 23 Wn. App. at 23.
Notwithstanding Watson, the State recently sought to appeal the mid-trial dismissal of a petition for termination of parental rights in In re Dependency of A.G., 127 Wn. App. 801, 112 P.3d 588 (2005). In A.G., the State argued that even absent a right to appeal under RAP 2.2(a)(5) and (6), the dismissal of its petition was independently appealable as a final judgment under RAP 2.2(a)(1) and (3). This court rejected the State's argument, but did not simply rely on Watson to do so. Instead, the A.G. court reasoned that the dismissal of the petition to terminate parental rights there in issue was not a final decision under RAP 2.2(a)(1) and (3) because the underlying dependency remained in place.
The court looked to the practical effect of the dismissal order, which merely temporarily discontinued or postponed termination proceedings until the parent received another opportunity to remedy her parental deficiencies through the ongoing dependency proceeding. A.G., 127 Wn. App. at 807.
Here, however, the effect of the trial court's ruling dismissing the dependency is final without question. No authority to continue any supervision or restriction of the Mays' parental rights regarding D.K.M. remains in place. We accordingly conclude that the trial court's order constitutes a final decision that is appealable under RAP 2.2(a)(1) and (3). Sufficiency of the Evidence
Christa and Dan filed no reply to the State's argument regarding appealability, resting on their citation to the court rule and Watson. But for the reasons stated above, we read A.G. as at least implicitly acknowledging that Watson did not apply to an analysis based on RAP 2.2(a)(1) and (3) rather than RAP 2.2(a)(5) and (6).
The State challenges the trial court's order granting dismissal of the petition at the conclusion of the State's case under CR 41(b)(3). To grant such a motion, a trial court may either weigh the evidence and make a factual determination that the plaintiff has failed to produce credible evidence of a prima facie case, or it may view the evidence in the light most favorable to the plaintiff and rule, as a matter of law, that the plaintiff has failed to establish a prima facie case. N. Fiorito Co. v. State, 69 Wn.2d 616, 618-19, 419 P.2d 586 (1966); see also 4 Karl B. Tegland, Washington Practice: Rules Practice CR 41 author's cmts. at 55 (5th ed. 2006).
The parties agree here that the trial court dismissed the case as a matter of law. Our review is therefore de novo and questions of the weight of the evidence or the credibility of the witnesses are not before us. See In re Dependency of M.P., 76 Wn. App. 87, 90, 882 P.2d 1180 (1994); In re Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). The issue on appeal is simply whether, viewing the evidence in the light most favorable to the State, there was sufficient evidence from which a rational finder of fact could conclude that D.K.M. was a dependent child. In re Dependency of Schermer, 161 Wn.2d 927, 169 P.3d 452 (2007).
To declare a child dependent, the court must find by a preponderance of the evidence that the child meets one of the statutory definitions of dependency. RCW 13.34.130; See In re Key, 119 Wn.2d 600, 612, 836 P.2d 200 (1992); In re Welfare of J.K., 49 Wn. App. 670, 673-74, 745 P.2d 1304 (1987). A dependent child is one who "is abused or neglected" by a person responsible to care for that child, or who "[h]as 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." RCW 13.34.030(5)(b), (c). Here, the State submits that sufficient evidence exists from which a reasonable trier of fact could have found D.K.M. a dependent child under subsection "(c)," which applies when no parent, custodian or guardian is available to care for a child. We agree.
As the trial court implicitly acknowledged in denying the motion to dismiss the petitions in regards to M.R. and A.R., there was substantial evidence that both Christa and Dan had abused M.R. and A.R. Testimony from M.R., A.R. and other witnesses described multiple instances of M.R. and A.R. suffering excessive and abusive physical discipline. This included both parents spanking them with belts, paddles and other wooden implements hard enough to cause injury. In addition, there were incidents during which Dan swung the children around by their legs when angry with them and lay on top of M.R. to restrain her, held her mouth and nose closed, threw her against a wall and pulled her by her hair.
There was also disputed evidence that, if believed, showed that Christa and Dan failed to provide adequate clothing, did not attend to the children's special educational challenges and developmental needs, and required a level of chore work that was inappropriate to the children's age and actually caused them visible injuries from using harsh cleaning materials without gloves. This evidence was buttressed by proof that the children's condition and behavior substantially improved once they were removed from the home. See In re Dependency of E.L.F., 117 Wn. App. 241, 70 P.3d 163 (2003).
Dan and Christa point out that the record could support a narrower view of their mistreatment of A.R. and M.R. as limited to a few isolated incidents. But they ignore the contrary inferences that can be drawn from testimony, for example, by the school employees. According to those witnesses, A.R. and M.R. repeatedly appeared at school with apparent physical injuries or signs of neglect, depression and despondency that suggested a home environment of chronic abuse and led to thirteen referrals to the State for suspected abuse.
Christa and Dan also emphasize that the State did not present an independent case that either of them ever neglected or abused D.K.M. But the State's theory of how the evidence could show D.K.M. was dependent was always based on RCW 13.34.030(5)(c), which does not require proof of actual harm, only a danger of harm. Schermer, 161 Wn.2d. at 951. "Nothing in the statute suggests that [the State] must stay its hand until actual damage to the endangered child has resulted." Schermer, 161 Wn. 2d at 951, quoting In re Welfare of Frederiksen, 25 Wn. App. 726, 733, 610 P.2d 371 (1979).
Here, the State's concern, as expressed in the testimony of the social worker who filed the petition regarding D.K.M., was that there was a significant risk that the harm that had occurred to A.R. and M.R. would also occur to D.K.M. absent court intervention. The record discloses a rational basis for such concern.
Because of her age, D.K.M. can be viewed as the most vulnerable of the three children. Evidence of Dan's violence against the older children suggested that notwithstanding his contrary testimony, he believed abusive corporal punishment was appropriate discipline, and often found fault with the children that required such punishment. There was evidence that D.K.M. was present during episodes of violence against the older children and at least on one occasion attempted to protect M.R. from the abuse by trying to pull Dan off her. And testing of D.K.M. indicated she suffered from similar developmental issues as her siblings, which suggested that Dan would likely find reasons to discipline her similarly as she moved into her school years. Accordingly, while other inferences could also be drawn, a rational finder of fact could conclude that Dan was not capable of adequately caring for D.K.M. and presented a danger of substantial damage to her psychological and physical development.
The record also contains evidence supporting an inference that Christa was incapable of protecting her children from Dan. A psychological evaluation of Christa resulted in a diagnosis that she suffered from post-traumatic stress disorder and dependent personality disorder. Christa's history showed she had previously continued living with M.R. and A.R.'s father even though he had been physically and emotionally abusive to her and the children, and left them with their father full-time when she joined the military. There was evidence that could be interpreted as showing that she knew about Dan's abuse of M.R. and A.R. but did nothing to stop it, denied it occurred and attempted to conceal it by such means as putting makeup on A.R.'s bruises when he went to school. There was also evidence that could be construed as showing Christa was unresponsive to M.R. and A.R.'s behavioral and educational issues.
Christa and Dan contend that evidence that Christa's mental health problems were linked to her abuse by persons other than Dan and were being adequately addressed in counseling show her mental condition did not affect her parenting. But adopting that reasoning requires choosing among competing inferences. We are required here to draw all reasonable inferences in favor of the State. Similarly, Christa and Dan point to evidence from which a finder of fact might choose to believe that the children's reports of abuse were influenced by Christa's mother and former mother-in-law, who did not like Dan and believed him dangerous to the children. But there was no evidence compelling such a finding. Rather, a fact-finder weighing credibility could have found both of those witnesses credible when they denied influencing the children's reports.
In sum, the constellation of evidence in this record could support a rational finding that D.K.M. was a dependent child under RCW 13.34.030(5)(c), which does not require a showing of actual abuse. We accordingly reverse the trial court's order of dismissal and remand for completion of the fact-finding hearing. Attorney fees
At the resumed hearing, all parties will be allowed to produce evidence relevant to the question of whether D.K.M. is presently a dependent child. Schermer, 161 Wn.2d at 958-59.
Dan and Christa cross-appeal the trial court's refusal to award them attorney fees under RCW 4.84.185. Under RCW 4.84.185, the trial court may require the nonprevailing party to pay the prevailing party's attorney fees and expenses incurred in opposing an action that is "frivolous and advanced without reasonable cause." We review the award or denial of fees under the statute for abuse of discretion. State ex. rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998.) "A lawsuit is frivolous when it cannot be supported by any rational argument on the law or facts." Tiger Oil Corp. v. Dep't of Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997.)
As demonstrated by our resolution of the State's appeal, the State presented sufficient evidence to establish a prima facie case that D.K.M. was a dependent child. The trial court accordingly did not err in declining to award fees. For the same reason, we deny Christa and Dan's request for fees on appeal. While Christa and Dan contend that there is no valid purpose to the appeal because the State did not seek to stay the order returning D.K.M. to her parents' home, the issue of whether the dependency was properly dismissed is a separate legal issue from D.K.M.'s placement. See RCW 13.34.130; In re Dependency of R.H., 129 Wn. App. 83, 89-90, 117 P.3d 1179 (2005). The question is whether the State had a good faith basis to file the petition and to advance its appeal. It did.
We reverse the order of dismissal and remand for completion of the trial.
For the court: