Opinion
No. 66028-4-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for King County, No. 10-7-01957-8, Patricia H. Clark, J., entered September 3, 2010.
Affirmed by unpublished opinion per Spearman, J., concurred in by Leach, A.C.J., and Cox, J.
Trina Curry appeals the trial court order finding her child E.C. dependent and ordering out-of-home placement during the dependency. For the reasons stated below, we affirm the order of dependency and disposition.
FACTS
Trina Curry was born on December 3, 1978. Curry's mother had serious mental health difficulties, and the two were unable to maintain a stable relationship. Curry ended up alone and in foster care at a young age. Beginning at the age of 14, Curry gave birth to seven children. Curry has had her parental rights terminated as to the first six children, including the first two when she was still in foster care herself. E.C. is her seventh child, born on March 26, 2010. In general, the record reflects Curry has a history of being unable to maintain a stable residence, has multiple convictions for assault, and has been found by several psychotherapists to have mental health difficulties, including personality disorder diagnoses. The record also reflects that those therapists have found Curry loves her children, but has been able to provide non-neglectful care for them.
While Curry was in the hospital after giving birth to E.C., the State filed this petition for dependency, alleging E.C. had no parent capable of adequately caring for him, such that E.C. was in circumstances constituting a danger of substantial damage to her psychological or physical development. The State sought a disposition order that included out-of-home placement for E.C. during the pendency of the dependency. Following the dependency hearing, the trial court found E.C. to be dependent, and included out-of-home placement in the disposition order. Curry appeals.
DISCUSSION Dependency
Parents have a fundamental liberty interest in the care and welfare of their children, and State interference is never to be taken lightly. In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007) (citing In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). But the State has an interest in protecting the physical, mental, and emotional health of children. Schermer, 161 Wn.2d at 941. A dependency is a preliminary proceeding that does not permanently deprive a parent of rights. In re Dependency of T.L.G., 126 Wn. App. 181, 203, 108 P.3d 156 (2005); In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992). Dependency proceedings are designed to protect children from abuse and neglect, help parents alleviate problems that led to State intervention, and reunite families if appropriate. Key, 119 Wn.2d at 609; In re Interest of J.F., 109 Wn. App. 718, 728, 37 P.3d 1227 (2001); In re Dependency of A.W., 53 Wn. App. 22, 27, 765 P.2d 307 (1988).
To find a child dependent, the State must prove by a preponderance of the evidence that the child meets one of the statutory definitions of dependency. Key, 119 Wn.2d at 612; RCW 13.34.110(1). In this case, the trial court found E.C. dependent under RCW 13.34.030(6)(c), which provides that a child is dependent where the child "[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." Curry claims the evidence is insufficient to sustain the finding of dependency. We disagree.
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). The legislature has determined that in balancing the legal rights of parents against the rights of the child, the rights and safety of the child shall be the paramount concern. RCW 13.34.020; Schermer, 161 Wn.2d at 942. Thus, when a child's best interests conflict with the parent's interests, the child's interests must prevail. In re Dependency of J.B.S., 123 Wn.2d 1, 8-10, 863 P.2d 1344 (1993). A best interests determination is highly fact dependent. The deference paid to the trial judge's advantage in having the witnesses before him or her is particularly important in this context, and this court does not reweigh the evidence or evaluate the witnesses credibility. In re Aschauer's Welfare, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
Curry claims the State failed to prove she was incapable of parenting E.C., such that E.C. was in danger of damage to her physical or psychological health. Specifically, she contends that there was not sufficient evidence to prove she suffered from "untreated mental health issues[,]" and that the evidence showed she had "made progress" since her 2007 mental evaluation. But the State was not required to prove Curry suffered from "untreated mental health issues." Rather, the State's burden was to prove by the preponderance of the evidence that Curry was not capable of adequately caring for E.C., such that E.C. was "in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." RCW 13.34.030(6)(c). There are no specific factors a court must consider when determining whether a parent is capable of parenting under the statute; rather, the inquiry is highly fact specific. Schermer, 161 Wn.2d at 951-52. Additionally, the State need not prove that a parent is unfit to prove a dependency:
A dependency based on [former] RCW 13.34.030(5)(c) [(2009)] does not turn on parental "unfitness" in the usual sense. Rather it allows consideration of both a child's special needs and any limitations or other circumstances which affect a parent's ability to respond to those needs. Under [former] RCW 13.34.030(5)(c), it is unnecessary to find parental misconduct in order to find a child dependent.
Id. at 944.
In this case, numerous unchallenged findings of fact, which we accept as verities on appeal, Levine v. Jefferson County, 116 Wn.2d 575, 581, 807 P.2d 363 (1991), support the trial court's conclusion that E.C. was in circumstances which constitute a danger of substantial damage to her development. The unchallenged findings include the following:
1. [E.C.] was born on 3/26/10 to her mother, Trina Curry. Paternity is not established and the father's whereabouts are unknown.
2. The hospital placed an administrative hold on the baby because the Department sent a hospital alert letter out indicating that the mother's parental rights to six children had already been terminated.
3. The mother, Trina Curry, was born on 12/3/78. In 1989, at the age of 11, the mother came to the attention of DSHS due to instability in her home. Ms. Curry's mother had mental health difficulties. There were difficulties with the mother and her own mother such that they were unable to maintain a stable relationship.
4. Ms. Curry has given birth to seven children: [P.C.] (DOB: 03/25/1993), [L.S] (DOB: 11/04/1994), [J.C.] (DOB: 10/08/1996), [J.C.] (DOB: 10/08/1996), [V.J.] (DOB: 07/02/2003), [B.J.] (DOB: 07/05/2004) and [E.C.] (DOB: 03/26/2010).
5. Dependency was established as to [P.C.] on June 8, 1994. Dependency for [L.S] was established on May 31, 1995. The mother's parental rights to these children were terminated on January 6, 1997.
6. During the course of the dependencies for [P.C.] and [L.S], the mother was offered or provided the following services: individual counseling, family counseling with her mother, family counseling with the mother's foster families and extended family members, foster care placement for herself and with the children, placement in three teen parent homes, parenting classes and supportive services, public health services, education services, psychiatric evaluation and teen parent support services.
7. Dependency was established as to [J.C. and J.C.] on November 26, 1997. The mother had entered a voluntary placement agreement for [J.C. and J.C.] on February 11, 1997, and the children were placed into relative care. The children remained with relatives until April 10, 1997 when they were placed back in Ms. Curry's custody at the Broadway Shelter. While at the shelter, the mother was offered services by the Department including public health nurse services, assistance in obtaining more permanent housing, anger management classes, and parenting classes. The mother refused to participate with the services and failed to follow through with referrals given. On August 7, 2010, Ms. Curry left the shelter taking the children with her. The mother's parental rights to [J.C. and J.C.] were terminated April 27, 1999.
8. In the termination order for [J.C. and J.C.], the court entered finding 1.17 which stated that Ms. Curry presented a "sad case." Her parental deficiencies were created in part by "having children before she was ready." Ms. Curry was found to be "immature" and "unable to handle her emotions or control her anger." The finding 1.17 went on to say that she "first needs to learn to care for herself and meet her own needs."
9. During the dependency of [J.C. and J.C.] Ms. Curry reported she was too busy to visit with her twin daughter and son. Ms. Curry did not complete her services for anger management, nor did she complete her parenting program.
10. Dependency was established as to [B.J. and V.J.] on February 21, 2006. There had been a previous dependency on [V.J.] established on November 5, 2003 which ended in dismissal and return to the mother.
11. On May 25, 2004, the mother assaulted the father of [B.J. and V.J.]. The mother pled guilty to assault in the 3rd degree (DV) and malicious mischief in the 3rd degree (DV). In January of 2005 her criminal sentence on the assault included a no contact order with the father that remains in place until January 7, 2015. The mother was also sentenced to complete a state certified domestic violence treatment program.
12. In September of 2005, the mother left her one year old child, [B.J.], and possibly her other child, [V.J.], home alone unattended, and this action resulted in her being convicted of contributing to the delinquency of a minor. The mother testified that she was at the home of the father (in violation of the protection order) while the child(ren) was home alone. Her testimony varied at different times, however, and she testified both that the home was 2 blocks and 5 blocks away.
14. Dr. Kenneth Asher completed a psychological evaluation of the mother in 2007. Dr. Asher diagnosed the mother with a personality disorder with anti-social and narcissistic traits. The anti-social features were characterized by the mother's impulsivity, anger, rulebreaking, and legal problems. The mother's narcissistic features were characterized by her self-centered behavior, her inability to take into account others' feelings, her volatile relationships, and her selective heeding of others' advice. Dr. Asher provided a poor prognosis for Ms. Curry's ability to care for her children and recommended against returning the children to her care. Dr. Asher testified that Dialectical Behavior Therapy could have benefited the mother, but found that it would have required a year or more to see results.
15. During the course of the dependency of [B.J. and V.J.], the mother made no progress in the mental health counseling that she did attend.
16. The mother's parental rights to [B.J. and V.J.] were terminated on December 11, 2009.
. . .
18. On 3/27/2010, the Harrington House case manager, Angie Johnson, visited the mother at the hospital and observed her with the baby [E.C.] and noted the following concerns: (a) the mother did not support the infant's neck when she was holding her (b) the mother placed her entire breast on the infant's face when breast feeding and had to be instructed that the baby could be suffocated and that she needed to position the baby in a different fashion (c) the mother scolded the baby, telling the baby that it was not okay to bite when she was breast feeding. The case manager stated that she explained to the mother that the infant was not biting her but was only attempting to latch on to her breast. The mother then argued with the case manger.
19. The mother has reported that her pregnancy was the result of an acquaintance rape. She was not able to give the father's last name, or his address, but only gave the first name of "Kelvin" to the social worker.
. . .
24. The mother continues to deny that she has mental health issues and does not understand why her parental rights have been terminated to her six older children.
In addition to these unchallenged findings, the record contains a significant amount of evidence of Curry's long history of mental health and behavioral difficulties. A domestic violence evaluation of Curry in 2003 indicated she has two convictions for third degree assault, a conviction for violation of a no contact order, a conviction for misdemeanor assault, and one for resisting arrest. The evaluation concluded that the "risk of further violence in this relationship is very high and the risk that it could affect the child is very high." In a 2004 psychological evaluation, Curry was diagnosed with a personality disorder (not otherwise specified). The psychologist who evaluated Curry had "grave concerns" about returning one of Curry's daughters to her, based in large part of Curry's history of "abuse and neglect that she visited upon her children in the past[.]" The report also described the high likelihood of Curry abusing her children:
I am very concerned about her denial of problems with abuse and neglect of her children and violence toward family members. Based on my review of DCFS records, which included references to court records and time spent in jail, my impression is that Ms. Curry has had significant problems in these areas. Ms. Curry's inability to acknowledge these problems (either due to denial or repression or due to a deliberate attempt to withhold such information from me) suggests that she could be at high risk for engaging in such behaviors with her daughter . . . Without awareness that she is at risk for acting in physically abusive or neglectful ways towards her children, it could be extremely difficult for her to recognize early warning signs that she is losing control of her temper and could act out violently towards her children.
The evaluation concluded that Curry's prognosis, even with long-term psychotherapy was "poor." Likewise, a psychotherapist who evaluated Curry in 2007 diagnosed her as having "a personality disorder" with "some of the features of antisocial personality disorder and narcissistic or self-centered personality disorder[.]" Additionally, in June 2010, Curry was asked to leave her housing at Union Gospel Mission's Hope House after other resident complained she was "in the dining room yelling and screaming religious statements, that Satan was a healer and other statements to that nature."
Curry claims the psychological evaluations are old, and that there is evidence in the record tending to show her behavior has been improving. But our task on appellate review is not to weigh the evidence; rather, it is to determine whether the trial court's findings are supported, and whether the findings support the court's conclusions. We conclude the findings are supported, and the findings support the conclusions. Viewed in a light most favorable to the State, the unchallenged findings and other evidence in the record regarding Curry's behavior and mental state is sufficient to prove to a rational trier of fact that E.C. was in circumstances which constitute a danger of substantial damage to her development. RCW 13.34.030(6)(c). We affirm the trial court's finding of dependency as to E.C.
Disposition
Curry also challenges the out-of-home placement of E.C. in the disposition order. She claims that the State provided insufficient efforts to eliminate the need for removal, and that the State failed to provide Curry was unable to care for E.C. Disposition orders are reviewed for abuse of discretion, including the decision whether to place the child in care outside of the home. 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 T.L.G., 139 Wn. App. at 15.
The flaw in Curry's argument is that reasonable efforts to avoid removal do not have to be made where the health, safety, and welfare of E.C. cannot be adequately protected in Curry's home. Indeed, under RCW 13.34.130(3), out-of-home placement "may be made only if the court finds that reasonable efforts have been made to . . . eliminate the need for removal . . . unless the health, safety, and welfare of the child cannot be protected adequately in the home[.]" (Emphasis added.) In other words, in an appeal challenging an out of home placement, the remedy could never be to return the child to a home where the child's health, safety and welfare cannot be adequately protected. Here, as is described in detail above, the trial court's findings, both challenged and unchallenged, amply support the court's conclusion that "a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home[.]"
Affirmed.