Opinion
No. 66807-2-I No. 66808-1-I
11-21-2011
In re the Dependency of: J.C. (DOB: 2/20/03) and G.C. (DOB: 12/10/04), Minor children. ANDREA CERIO, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
UNPUBLISHED
Cox, J. — Andrea Cerio appeals the trial court order that her children, J.C. and G.C., are dependent. Her appeal from the order of dependency as to J.C. is rendered moot by the juvenile court's subsequent dismissal of that dependency. Accordingly, we do not review that order. The trial court's failure to appoint a guardian ad litem to represent the best interests of G.C., as required by RCW 13.34.100(1), does not require reversal because there was no prejudice to G.C. The findings of fact support the conclusion that G.C. is dependent. We affirm.
This matter is appropriate for accelerated review under RAP 18.13A.
Cerio is the mother of J.C. and G.C. M.W. is G.C.'s father. He was not involved in parenting G.C. and was incarcerated during the dependency hearing.
Charles Hill is J.C.'s father. A parenting plan was entered when J.C. was six months old, allowing Hill to have J.C. on Tuesday and Thursday evenings and every other weekend. Before the dependency action, Hill unsuccessfully attempted to obtain custody of J.C. in family court. Shortly thereafter, Hill's wife called 911 to request a welfare check on Cerio and the children.
Everett Police Department officers conducted the check at Cerio's home. Officer Hilly Carman noticed the smell of cat urine four or five feet before reaching the front door. Cerio did not let the officers into her home because she did not trust them. The officers advised Cerio that, unless she could show that there was enough food in the home, the children would be placed in protective custody. Cerio continued to deny the officers entry to her home and responded, "Fine, just take them."
The next day, social worker Nicole Hutches went to Cerio's home. Cerio showed her the food that was available for the children the day before. It included a gallon of milk, a jar of spaghetti sauce, cake mix, and some dried goods. Hutches did not believe that this was enough food for J.C. and G.C. Hutches also observed that Cerio's home had an "overwhelming, sickening" odor of cat urine and that the kitchen floor was sticky from debris. When Hutches communicated these concerns to Cerio, she denied that her home or her children were dirty or smelled.
The State then commenced this dependency action. The State called five witnesses at the dependency hearing, including Cerio, Hill, Hutches, Officer Carman, and the principal at J.C.'s and G.C.'s school. The trial court found that J.C. was dependent pursuant to RCW 13.34.030(6)(b), and that G.C. was dependent pursuant to pursuant to RCW 13.34.030(6)(b) and (c).
Cerio appeals.
DEPENDENCY
Cerio contends that the juvenile court erred in relying on her lack of food to find that G.C. is a dependent child pursuant to RCW 13.34.030(6)(b) and (c). We disagree.
Parents have a fundamental liberty interest in the care and welfare of their children, and State interference should not be taken lightly. But, the State has an interest in protecting the physical, mental, and emotional health of children. A dependency is a preliminary proceeding that does not permanently deprive a parent of rights. A dependency proceeding is designed to protect children from abuse and neglect, help parents alleviate the problems that led to State intervention, and reunite families, if appropriate.
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)).
Id.
In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992).
In re Dependency of T.L.G., 126 Wn. App. 181, 203, 108 P.3d 156
In order for a court to declare a child dependent, it must find by a preponderance of the evidence that the child meets one of the statutory definitions of a "dependent child" set forth in RCW 13.34.030(6). A "dependent child" is any child who:
Key, 119 Wn.2d at 612.
(a) Has been abandoned;"Abuse or neglect" includes "injury of a child by any person under circumstances which cause harm to the child's health, welfare, or safety . . . ."
(b) Is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child;
(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; or
(d) Is receiving extended foster care services, as authorized by RCW 74.13.031.
In reviewing a dependency proceeding, we determine whether substantial evidence supports the trial court's findings of fact and whether those findings of fact support the conclusions of law. Evidence is substantial if, when viewed in the light most favorable to the prevailing party, a rational trier of fact could find (2005); 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). the fact by a preponderance of the evidence. In deference to the trial judge's advantage in having the witnesses before him, we do not reweigh the evidence or evaluate the witnesses' credibility. Unchallenged findings of fact are verities on appeal.
In re Dependency of C.M., 118 Wn. App. 643, 649, 78 P.3d 191 (2003).
In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003).
Id.; Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009), review denied, 168 Wn.2d at 1041 (2010).
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
The juvenile court found G.C. dependent under RCW 13.34.030(6)(b) and (c). It entered the following unchallenged findings in support of this conclusion:
G. On December 1, 2010, the mother let social worker Nicole Hutches in the home and showed her the food she claimed was available the prior day. The food consisted of a gallon of milk, a jar of spaghetti sauce, cake mix, and some dried goods. There was no cereal. There was not sufficient food for children of these ages.These findings support the trial court's conclusion that, based upon a preponderance of the evidence, G.C. was abused. The juvenile court did not err in concluding that he is dependent.
H. The lack of cleanliness of the children and the home is a serious concern. The mother has a number of cats. [J.C.] had a number of scratches the mother said were caused by the cats. Officer Carman was not allowed in the home, but when she approached the closed front door she smelled an overwhelming odor of cat urine from 4 or 5 feet away.
I. When Ms. Hutches entered the home she encountered an overwhelming, sickening odor of cat urine. She also noticed the kitchen floor was sticky from debris. When Ms. Hutches mentioned the odor to the mother, the mother denied there was an odor and began to raise her voice. The mother denied her home was dirty or smelled. She denied her children were dirty or smelled, and attributed the concerns raised to a slander campaign against her.
J. Leslie Clauson, the principal of the elementary school the
children attended testified credibly, and was not influenced by Mr. Hill. She testified based on her personal observations. She testified that she had been dealing with [G.C.]'s special needs and substantial behavioral issues. She observed that his hair was not clean or combed, and his clothes were dirty. He often wore the same clothes day after day. He had a distinct foul odor.
. . . .
M. Mr. Hill tried to build a case for custody, but his description of the children's condition was consistent with Ms. Clauson's, and his testimony was credible. . . . He observed that the mother treated the children roughly on occasion.
N. There are substantial concerns regarding the mother's mental health. She escalates easily and believes everybody is out to get her. She only sees her point of view. She has no insight regarding her parenting of the children.
. . . .
Q. The mother was not credible when she testified that she washed the children's clothes often, bathed the children daily, and had sufficient food in the home. [J.C.] was hungry in the mother's care as she stated on more than one occasion, and the children's hygiene was sufficiently inadequate to impact their health, safety, and welfare.
Clerk's Papers at 80-81.
Cerio argues that Hutches's observation that there was not enough food in the house and J.C.'s complaints that she was hungry are not sufficient to support a finding that G.C. was abused. But, the lack of food was not the only factor supporting the trial court's conclusion. As described above, the children's hygiene and the home's uncleanliness were "serious" concerns, as well. In fact, the trial court specifically concluded that Cerio's failure to address G.C.'s hygiene impacted his health, welfare, and safety. There was no error in this respect.
Brief in Support of Motion for Accelerated Review at 11-13.
Clerk's Papers at 81 (Fact H).
Clerk's Papers at 81 (Fact Q states, in part, "the children's hygiene was sufficiently inadequate to impact their health, safety, and welfare.").
APPOINTMENT OF A GUARDIAN AD LITEM
Cerio argues that the trial court's failure to appoint a GAL to represent the interests of G.C. during the dependency trial was reversible error. We disagree.
RCW 13.34.100(1) requires the court to appoint a GAL for dependency actions. But, a court's failure to comply with that requirement is not necessarily reversible error where no party timely raises the issue.
RCW 13.34.100(1) provides, in part: "The court shall appoint a guardian ad litem for a child who is the subject of an action under this chapter, unless a court for good cause finds the appointment unnecessary."
In re Dependency of A.G., 93 Wn. App. 268, 280-81, 968 P.2d 424 (1998) (citing In re Dependency of O.J., 88 Wn. App. 690, 694-95, 947 P.2d 252 (1997), review denied, 135 Wn.2d 1002 (1998)).
In In re Dependency of O.J., K.J., this court considered whether the failure to appoint a GAL during a termination proceeding constituted reversible error where the parent failed to raise the issue below. This court concluded that there was no reversible error:
88 Wn. App. 690, 947 P.2d 252 (1997), review denied, 135 Wn.2d 1002 (1998).
[A] party may not be delinquent in raising such an issue and expect to obtain relief. This is especially true in dependency and termination cases where parties, attorneys and the court have an obligation to expedite resolution of the issues to limit the period during which children face an uncertain future. It is thus especially important that the trial court be apprised promptly of alleged errors in a termination case so that it can make any necessary corrections and avoid both appeal and further proceedings.
Id. at 696 (internal citations omitted and emphasis added).
In In re the Dependency of: A.G., B.D., the trial court also failed to appoint a GAL to represent the children during a termination hearing. The mother did not attend the hearing, despite multiple attempts to contact her, and the only witness that testified was a social worker. The trial court terminated the mother's parental rights.
93 Wn. App. 268, 968 P.2d 424 (1998).
Id. at 275.
Id.
Id.
On appeal, the mother argued that the termination order was void because the trial court failed to appoint a GAL for the children. This court explained that "[a]lthough a judgment terminating parental rights may be voidable by a minor contending his interests were not protected, the order is not void or subject to collateral attack." But, because the testimony presented to the trial court was "one-sided" and no one spoke on behalf of the children, the court remanded the case to the trial court to determine whether the children were prejudiced by the failure to appoint a GAL.
Id. at 280.
Id. (citing O.J., 88 Wn. App. 694-94).
Id. at 281.
Here, none of the attorneys raised the matter during the dependency trial, and the court did not address it sua sponte. A GAL was eventually appointed, but not until a few weeks after G.C. was found to be dependent. The trial court should have appointed a GAL to represent G.C. during the dependency trial. But, the trial court's failure to appoint one did not prejudice G.C. given the number of witnesses that testified about his hygiene, behavioral issues, and living conditions. In sum, reversal is not required.
Cerio argues that, under A.G., we are required to remand the case because there is evidence of a strong bond between her and G.C. There, the court ordered remand because it was concerned that, without representation by an advocate, the termination would not be in the best interests of the children, especially since the only witness that testified was the social worker. But here, Cerio had the opportunity to testify regarding the best interests of G.C. and her strong bond with him. And, as noted above, there were other witnesses who testified about G.C.'s situation. Therefore, the testimony was not so one-sided as to require remand, as was the case in A.G.
A.G., 93 Wn. App. at 281.
MOTION TO DISMISS
The State moved to dismiss Cerio's appeal from the order of dependency as to J.C. as moot. This is based on the entry of an order dismissing that dependency. Accordingly, we do not address Cerio's contentions that J.C.'s dependency is not supported either by the findings of fact or that the juvenile committed reversible error by failing to appoint a guardian ad litem to represent her.
"'A case is technically moot if the court cannot provide the basic relief originally sought, or can no longer provide effective relief.'" Here, Cerio sought reversal of the juvenile court's order of dependency such that J.C. would no longer be deemed dependent. Because J.C.'s dependency has been dismissed, this court cannot provide the relief sought because such relief has already been obtained. Cerio presents no persuasive reasons why this case is not moot.
Laffranchi v. Lim, 146 Wn. App. 376, 382, 190 P.3d 97 (2008) (quoting Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 622, 45 P.3d 627 (2002) (quoting Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546 (1993))).
We affirm the order of dependency.
WE CONCUR: