                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         January 18, 2017




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II
    In re the Matter of the Dependency of:                          No. 47829-3-II

    BF,
                                                                PUBLISHED OPINION
                                 a minor.



          BJORGEN, C.J. — MF1 appeals the juvenile court’s dispositional order for a dependency

regarding her child, BF. She argues that the juvenile court erred in its disposition by declining to

order PA, BF’s father, to undergo a psychosexual evaluation. The Department of Social and

Health Services (Department) contends that MF lacks standing to appeal this ruling. We hold

that in these circumstances MF qualifies as an aggrieved party with standing to appeal and that

the juvenile court did not abuse its discretion by declining to order a psychosexual evaluation for

PA. Accordingly, we affirm.




1
 It is appropriate to provide some confidentiality in this case. Accordingly, pursuant to RAP
3.4, it is hereby ordered that initials will be used in the case caption and in the body of the
opinion to identify parties involved.
No. 47829-3-II


                                              FACTS

       BF is the child of MF and PA. A juvenile court found BF dependent. At the disposition

hearing2 for the dependency, the Department and MF moved the juvenile court to require PA to

undergo a psychosexual evaluation before allowing him to have contact with BF. The basis for

this request was MF's belief that PA had raped her, causing her to become pregnant with BF. To

factually support that claim, the Department submitted a sexual assault protection order

forbidding PA from coming into contact with MF. The Department submitted the protection

order to “simply establish that the mother sought one out, not that . . . there was any type of

contested hearing” between MF and PA. Report of Proceedings (RP) at 29.

       In addition to the protection order, the Department submitted police reports detailing

interviews with MF and PA in which they described the nature of their sexual encounter. In her

interview, MF recounted that PA invited her into his home and that they slept together in the

same bed. When she woke up in the morning, she discovered PA penetrating her with his fingers

and penis. MF stated that “she was so stunned that she was afraid if she said no or moved away

he would just force himself on her.” Exh. 2 at 3. PA recounted in his interview that MF

instigated the sexual encounter by putting PA’s hand on her bottom and repeating that she

wanted his “cock.” Exh. 2 at 7. He stated that he only agreed to have sex after her insistence. A

final police report indicates that the prosecutor declined to charge PA with any crime because

there was not “sufficient evidence to pursue criminal prosecution.” Exh. 2 at 11.




2
  The disposition hearing allowed the juvenile court to outline services for the parents and child
to serve the goals of the dependency. See In re Interest of Mahaney, 146 Wn.2d 878, 891, 51
P.3d 776 (2002).

                                                  2
No. 47829-3-II


       Based on this evidence, the Department contended that the psychosexual evaluation was

appropriate despite its intrusiveness because it could potentially protect BF and help PA reunify

with BF. The Department’s counsel stated that

               [w]e understand that this evaluation is intrusive, but when balancing the
       intrusiveness to the father with the safety of [BF], that [BF] has to win out in this,
       and that these concerns have to be dispelled before the department would be willing
       to advocate or ask this Court to place [BF] with his father.

RP at 25.

       After hearing arguments from both sides, the juvenile court denied the request for

a psychosexual evaluation, stating:

                I’m going to deny the request for the psychosexual. I’m not persuaded
       there’s sufficient evidence of sexual deviancy here to warrant it. I recognize that
       there is a reaction from the mother as to the events that took place on the night in
       question. But we have two adults, and one interpretation of the investigating
       officer’s report is that it was consensual sex, and another interpretation could be
       that it was not. And just because there is that uncertainty, I don’t believe requires
       the full exploration of the father’s sexuality.
                ....
                Certainly, if other incidents of inappropriate sexual conduct came forward,
       the Court could review the issue, but, based on this record, I'm not going to order
       it today.

RP at 30.

       MF appealed and moved this court to accelerate review of her case under RAP 18.13A.

RAP 2.2(a)(5). Pending the outcome of the motion, the Department reversed its position at trial

and argued that the juvenile court did not err by declining to order the psychosexual evaluation

and, further, that MF lacked standing to appeal that determination. Our court commissioner

denied MF’s motion to accelerate review and dismissed her appeal, agreeing with the

Department that she had no standing.




                                                 3
No. 47829-3-II


       MF moved to modify the commissioner’s ruling, which we granted. We now address

whether MF had standing to appeal the dispositional order and whether the juvenile court abused

its discretion by not ordering a psychosexual evaluation.

                                            ANALYSIS

                                           I. STANDING

       The Department argues that MF lacks standing to appeal because she is not an aggrieved

party. We disagree.

       Under RAP 3.1, “[o]nly an aggrieved party may seek review by the appellate court.” The

Basic Juvenile Court Act similarly provides that any person “aggrieved” may appeal a court’s

final order. RCW 13.04.033. Generally, “[a]n aggrieved party is one who was a party to the trial

court proceedings, and one whose property, pecuniary and personal rights were directly and

substantially affected by the lower court's judgment.” In re Welfare of Hansen, 24 Wn. App. 27,

35, 599 P.2d 1304 (1979).3

       In support of its position that MF lacks standing, the Department compares her situation

to the appellants in In re Guardianship of Lasky, 54 Wn. App. 841, 776 P.2d 695 (1989) and

Breda v. B.P.O. Elks Lake City 1800 So-620, 120 Wn. App. 351, 90 P.3d 1079 (2004). In Lasky,

54 Wn. App. at 843-44, an attorney was appointed by the court to be the guardian for a

beneficiary of a trust. The attorney sued the trustee on the beneficiary’s behalf, but did not

prevail. Id. at 845, 847. In the same proceeding, the trial court removed the attorney as guardian

and appointed a new guardian for the beneficiary. Id. at 847, 850. The attorney appealed the

ruling removing him as guardian, but the Lasky court held that he lacked standing and that only


3
  “In rare cases,” a person who is not formally a party to a case may have standing to appeal a
trial court’s order because the order directly affects that person’s legally protected interests.
Polygon Nw. Co. v. Am. Nat. Fire Ins. Co., 143 Wn. App. 753, 768, 189 P.3d 777 (2008).

                                                 4
No. 47829-3-II


the replacement guardian, who now represented the beneficiary’s interest, could appeal that

determination. Id. at 850.

       A similar outcome occurred in Breda, 120 Wn. App. at 352, where the trial court

imposed sanctions on the Bredas’ counsel. The attorney did not appeal the judgment, but the

Bredas did. Id. The court held that while the attorney had standing to appeal the sanctions, the

Bredas did not, since they were not damaged by the sanctions against their counsel. Id. at 353.

Because the attorney did not appeal the sanctions, the court dismissed the appeal brought by the

Bredas. Id.

       Lasky and Breda illustrate situations when one’s perceived injury falls below the

threshold to qualify as an aggrieved party permitted to appeal a judgment. The interest of a

former guardian in appealing his removal and the interest of a client in appealing a sanction

against an attorney, though, are of much less moment than the interest of a parent in preventing

sexual harm to her child and in preserving and mending family ties with that child.

       This principle is supported by Hansen, 24 Wn. App. at 29, where the Corderos became

the guardians of a child and raised the child for eight years. The child’s mother moved a

California court to terminate their guardianship rights, which the California court granted. Id. at

30. The Corderos then petitioned a Washington court to declare the child dependent, which it

did. Id. The Washington court also expressed its intention to effect an eventual reunification of

the natural mother with the child. Id. On appeal, the mother argued the Corderos had no

standing to appeal, but the Hansen court disagreed:

       As Tammy’s guardians for a period in excess of 8 years, the Corderos’ personal
       rights are directly affected by the juvenile court’s order and judgment, especially in
       light of the judge’s expressed intent to effect an eventual reunification between
       Tammy and her natural mother. Faced with the possibility of forfeiture of a
       valuable human relationship, we find the Corderos have standing to appeal.



                                                 5
No. 47829-3-II


Id. at 35; see also State v. Casey, 7 Wn. App. 923, 926-27, 503 P.2d 1123 (1972) (mother

deemed an aggrieved party in a filiation proceeding).

       The statute governing dependencies and terminations begins with the legislative

declaration that “the family unit should remain intact unless a child’s right to conditions of basic

nurture, health, or safety is jeopardized.” RCW 13.34.020. Our case law reflects this principle

through holdings that the purpose of a dependency is “to ensure the safety of the child and

reunification with the parent,” In re Interest of Mahaney, 146 Wn.2d 878, 891, 51 P.3d 776

(2002), and that the “primary purpose of a dependency is to allow courts to order remedial

measures to preserve and mend family ties, and to alleviate the problems that prompted the

State's initial intervention.” In re Dep. of T.L.G., 126 Wn. App. 181, 203, 108 P.3d 156 (2005).

       MF challenges the failure of the juvenile court to order a psychosexual evaluation of PA,

arguing that this places her child at unreasonable risk of harm. The threat of sexual harm to a

child from a family member directly implicates the child’s right to health and safety and the

purpose of preserving and mending family ties. The threat to these interests in these

circumstances directly affects the personal right of MF, as a parent, to the safety of her child and

the mending of family ties under RCW 13.34.020, Mahaney, and T.L.G., discussed above.

Therefore, we hold that under these circumstances MF is aggrieved by this aspect of the

dispositional order and has standing to appeal it.

                                 II. PSYCHOSEXUAL EVALUATION

       MF argues that the juvenile court abused its discretion either (1) by failing to order the

psychosexual evaluation based on the evidence before it or (2) by failing to conduct a further

inquiry to determine whether a psychosexual evaluation may have helped protect BF or

improved the chances for reunification. For the reasons discussed below, both arguments fail.



                                                 6
No. 47829-3-II


       The juvenile court has broad discretion in dealing with matters of child welfare, and we

review orders issued in dependency cases for an abuse of discretion. In re Dep. of R.W., 143

Wn. App. 219, 223, 177 P.3d 186 (2008). The juvenile court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of

Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005).

       Dependency proceedings are designed to protect children from harm, help parents

alleviate the problems that led to intervention, and reunite families. In re Dep. of P.H.V.S., 186

Wn. App. 167, 181, 339 P.3d 225 (2015), review denied (Aug. 17, 2015). A juvenile court is

thus statutorily authorized to order a wide array of services for the parents and child that may

effectuate those goals. See generally In re Dep. of D.C-M., 162 Wn. App. 149, 158-60, 253 P.3d

112 (2011) (citing chapter 13.34 RCW); see also Mahaney, 146 Wn.2d at 891. Within the scope

of its authority, a juvenile court can order a psychosexual evaluation if “attuned to the needs of

an individual case.” D.C-M., 162 Wn. App. at 160.

       The parties rely on D.C-M for their respective positions. In D.C-M, KM was the mother

of several children found to be dependent. Id. at 152-53. During the dependency proceedings,

the children had disclosed acts of sexual abuse by KM. Id. at 153-55. However, after reviewing

the evidence, the prosecutor declined to charge KM. Id. Similarly, the Department found the

children’s allegations inconclusive. Id. The juvenile court nonetheless ordered a psychosexual

evaluation based on the children’s repeated disclosures that KM abused them. Id. at 156-57.

The D.C-M court reversed in part because the children’s unfounded disclosures did not support

the juvenile court’s determination that the proposed psychosexual evaluation would be helpful

for reunification of the family. Id. at 162. It remanded the case for the juvenile court to

determine, inter alia, what underlying sexual abuse allegations served as a basis for the



                                                 7
No. 47829-3-II


psychosexual evaluation, whether such an evaluation was necessary, and whether it would

further the goal of reunification. Id. at 162-63.

       Here, unlike D.C-M, the juvenile court declined to order a psychosexual evaluation for

PA based on the evidence before it. The police reports and sexual assault protection order were

submitted to the juvenile court, and the attorneys for each side were permitted to make

arguments regarding the appropriateness of the psychosexual evaluation. Based on that, the

juvenile court found insufficient evidence of sexual deviancy to require a psychosexual

evaluation of PA. The juvenile court noted that if other evidence emerged later indicating other

inappropriate sexual misconduct, it may reevaluate the need for a psychosexual evaluation.

       On this record and viewed in light of D.C-M, the juvenile court did not abuse its

discretion. The juvenile court weighed both the parties’ arguments and evidence and reasonably

decided that a psychosexual evaluation was not appropriate at the time to carry out the goals of

the dependency. Contrary to MF’s position, the police reports and sexual assault protection

order do not per se demonstrate that the juvenile court abused its discretion in declining to order

the psychosexual evaluation. The protection order was only offered to establish that MF sought

one and not that any contested hearing took place between her and PA. Further, the police

reports do not conclusively establish that PA raped MF; rather, the reports only provide

conflicting perspectives about the night BF was conceived. Deference to the juvenile court is

required in deciding which services best carry out the goals of a dependency. See D.C-M., 162

Wn. App. at 158-60; see In re Welfare of A.B., 181 Wn. App. 45, 60, 323 P.3d 1062 (2014). On

this evidence, we cannot say the juvenile court’s ruling was manifestly unreasonable or based on

untenable grounds or reasons. The juvenile court did not abuse its discretion.




                                                    8
No. 47829-3-II


       MF further contends that the evidence before the juvenile court required it to at least

conduct a further inquiry to determine whether a psychosexual evaluation would protect BF and

promote reunification. At the juvenile court proceeding, the Department argued that BF’s safety

outweighed the intrusive impact of a psychosexual evaluation on PA and that it could not

advocate for BF to be placed with PA without the psychosexual evaluation. Thus, although the

juvenile court did not explicitly state it considered BF’s safety or the impact on reunification

when it made its ruling, those interests were argued to the juvenile court and were among the

interests the court was required to consider. See Mahaney, 146 Wn.2d at 891. No legal authority

required the juvenile court to articulate which specific goals of the dependency would or would

not be served when declining to order a psychosexual evaluation. For these reasons, we presume

the court fully considered the evidence before it.

       As held above, declining to order the psychosexual evaluation on the basis of evidence

before the juvenile court was neither unreasonable nor based on untenable grounds or reasons.

Under the abuse of discretion standard, the mere presence of evidence on either side of the issue,

without more, does not mandate further investigation by the juvenile court. Therefore, the

juvenile court considered the evidence and arguments before it and did not abuse its discretion

by declining to conduct a “further inquiry” to determine whether a psychosexual evaluation was

warranted to protect BF and promote reunification.

       Accordingly, MF’s claims fail.




                                                 9
No. 47829-3-II


                                        CONCLUSION
       MF had standing to appeal the juvenile court’s dispositional order, and the juvenile court

did not abuse its discretion by declining to order a psychosexual evaluation for PA. Therefore,

we affirm.



                                                    BJORGEN, C.J.
 We concur:



WORSWICK, J.




LEE, J.




                                               10
