Opinion
No. 55327-5-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-7-00375-6. Judgment or order under review. Date filed: 10/29/2004 Judge signing: Hon. Joan B. Allison.
Counsel for Petitioner(s), Yale Lewis III, Attorney at Law, 101 Yesler Way Ste 605, Seattle, WA 98104-2580.
Counsel for Respondent(s), Mary F. Li, Attorney at Law Ofc of the Atty Gen, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Counsel for Respondent(s), Trisha L. McArdle, Ofc of The Atty Gen 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Pamela Idahosa, a licensed foster care provider, appeals the superior court order terminating the dependency guardianship of nine-year-old K.J. We agree with the parties that the court erred in terminating the guardianship without holding a hearing. We vacate the order and remand for further proceedings.
K.J. is a dependent child who has been in foster care since 1998. She was placed in Idahosa's home in April 2001. In November 2003, the Department established a dependency guardianship under RCW 13.34.232. On February 2, 2004, K.J. was removed from Idahosa's home following an emergency hearing. The parties dispute the reasons for the removal. Another child, M.A., was removed from Idahosa's home after he sexually assaulted K.J. On February 11, 2004, the Department filed a motion to terminate the dependency guardianship. At a hearing on February 25, the court appointed an attorney for Idahosa and a Court Appointed Special Advocate (CASA) for K.J. The commissioner continued the hearing several times, primarily to permit further investigation. At the hearing on September 24, 2004, the commissioner ordered the Department to provide Idahosa's counsel with the files, reports and discovery regarding M.A. related to K.J.'s removal from the home. The court further ruled that `[p]lacement shall abide by the termination of guardianship trial. Court recommends the termination of guardianship hearing be held before a judge so testimony and cross-examination can be held.'
The Department sought revision of the commissioner's discovery ruling. The superior court judge went beyond the requested relief and ruled as follows: the motion to terminate the guardianship was to be heard on the motions calendar and a trial was not required; the Department shall not provide M.A.'s files and records to Idahosa's attorney; and the alleged physical abuse of K.J. was corroborated by other children. The court concluded that placement at Idahosa's home was not in K.J.'s best interests, terminated the dependency guardianship, returned K.J. to dependency status, and authorized supervised visitation because K.J. was more than likely bonded to Idahosa regardless of the abuse.
A commissioner granted Idahosa's motion for discretionary review and expedited the appeal on the existing briefing.
RCW 13.34.233 provides in part:
(1) Any party may request the court under RCW 13.34.150 to modify or terminate a dependency guardianship order. Notice of any motion to modify or terminate the guardianship shall be served on all other parties. . . .
(2) The guardianship may be modified or terminated upon the motion of any party or the department if the court finds by a preponderance of the evidence that there has been a substantial change of circumstances subsequent to the establishment of the guardianship and that it is in the child's best interest to modify or terminate the guardianship. The court shall hold a hearing on the motion before modifying or terminating a guardianship.
(emphasis added).
Idahosa contends that when the trial court granted the Department's motion to terminate the guardianship without holding a hearing, the court violated RCW 13.34.233 and due process. See In re Dependency of R.L., 123 Wn. App. 215, 223, 98 P.3d 75 (2004) (in contested hearings where placement of a child is at issue, giving interested parties a meaningful opportunity to present evidence coincides with the best interests of the child); In re Dependency of H.W., 123 Wn. App. 237, 98 P.3d 81 (2004). The Department concedes that the trial court erred in terminating the dependency guardianship without affording Idahosa a hearing. The concession of error is well taken.
Idahosa raises several other issues that she wants addressed in this appeal that pertain to the procedure on remand. These issues are more properly raised in and addressed by the trial court on remand. We also deny Idahosa's request for attorney fees on appeal as she has failed to identify an applicable statute or recognized ground of equity to award fees. See Hwang v. McMahill, 103 Wn. App. 945, 15 P.3d 172 (2000) (a party is entitled to attorney fees on appeal if a contract, statute, or recognized ground of equity permits the recovery of attorney fees at trial and the party substantially prevail on appeal).
Idahosa contends that she should be given all due process protections set forth in RCW 13.34.090; her counsel on appeal should be appointed to represent her on remand; her counsel should be provided with either the sexually aggressive youth (SAY) evaluation of M.A. or a summary of it including the facts relevant to Idahosa's defense; K.J.'s dependency should be joined with the dependency of D.T., another child removed from Idahosa's home; the trial court should hold a pre-trial conference with both counsel to establish the rules and procedures for the hearing; and both parties should be provided with a transcript of previous hearings.
We vacate the order terminating the guardianship in its entirety and remand for further proceedings.
For the court: Appelwick, Ellington, Agid, JJ.