 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Dependency of
 M.C.L.,                                                 DIVISION ONE
 DOB: 10/18/2006
                                                         No. 79396-9-I
 M.C.L.,
                           Appellant,                    UNPUBLISHED OPINION

                 V.


 STATE OF WASHINGTON,
 DEPARTMENT OF CHILDREN,
 YOUTH AND FAMILIES,
                                                         FILED: December 16, 2019
                           Respondent.


        DWYER, J.     —   The Department of Social and Health Services (DSHS) filed

a dependency petition concerning M.C.L. in early 2018 and subsequently allowed

him to be placed with his mother.1 After continuing the dependency fact-finding

hearing several times, the State moved to dismiss its petition, as the conditions

that prompted the petition’s filing no longer existed. M.C.L.’s objections to

dismissal were unavailing, and a court commissioner ruled that the State had an

absolute right to dismissal. On a motion for revision, the superior court adopted

the decision of the commissioner.




        1 The Department of Social and Health Services’ role in this case was assumed by the

new Department of Children, Youth, and Families after July 1, 2018. LAWS OF 2017, 3d Spec.
Sess., ch. 6, § 101.
No. 79396-9-1/2

       M.C.L. filed a notice of appeal. We hold that the ruling from which the

appeal is sought is not an appealable ruling. We also do not believe that

discretionary review is warranted. Thus, we dismiss the appeal.



       M.C.L. is the son of father J.L. and mother J.P. At the time of the

dependency petition’s filing, M.C.L. lived with his father. However, a referrer

reported in late 2017 that the father was consistently using heroin and

methamphetamines, often in the presence of M.C.L., failing to provide M.C.L.

with basic needs such as food or clothing, neglecting to arrange for his

transportation to or from school, and often had M.C.L. stay at the homes of other

addicts. Teachers and staff at MCL’S school, and staff at a local family shelter,

corroborated these observations, leading a DSHS employee to file a dependency

petition on January 11,2018.

       That day, the juvenile court ordered that M.C.L. be placed in the care of a

relative in Ocean Shores. One week later, the court entered a new order placing

M.C.L. in the care of his mother, pursuant to which the mother was required to

engage in parenting instruction, complete a parenting plan, and submit to drug

testing. The court scheduled a dependency fact-finding hearing for March 2018.

       In the meantime, DSHS assigned a social worker to M.C.L.’s case. In

February, this social worker conducted a health and safety visit at the mother’s

home in the presence of the mother and child. During this visit, and later, M.C.L.

expressed his desire to return to living with his father. While the social worker

took note of this desire as evidence of the child’s maturity in understanding his



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No. 79396-9-1/3

father’s issues, she also noted that M.C.L. entered shelter care an entire grade

behind his peers and exhibited aggressive behavior in the classroom.

            Before the scheduled fact-finding hearing, the father’s attorney asked that

an attorney be appointed to represent M.C.L.’s interests. M.C.L.’s guardian ad

litem joined in this motion. The trial court granted the motion. Ultimately, the

dependency fact-finding hearing was continued several times. M.C.L. remained

in his mother’s care.

        At a status conference on August 28, 2018, the State’s attorney

announced that the Department of Children, Youth, and Families (DCYF)

intended to withdraw its petition and move to dismiss the dependency. The

father’s attorney objected. The court ruled that dismissal was precluded, on the

basis that the parties were not given adequate notice of the request.2 Following

this, the fact-finding hearing was continued until October. A hearing on DCYF’s

motion to dismiss was scheduled for September 25.

        At the hearing, the mother argued in support of DCYF’s motion, providing

evidence of her progress in substance use treatment and of her gainful

employment, as well as M.C.L.’s academic progress while in her care. M.C.L.,

opposing the motion, submitted evidence of past violent behavior and felony

convictions on the part of his mother’s live-in boyfriend, Olin Edwards, as well as

Edwards’s disrespect toward M.C.L. and his attorney. The commissioner was

concerned by Edwards’s behavior in spite of DCYF’s assertions that its safety




        2 The relevant local rule requires that motions “be filed and served upon all parties at
least nine (9) court days before hearing.” SCLCR 6(d)(2)(i).


                                                      3
No. 79396-9-114

assessment identified no present risks to M.C.L. The commissioner nevertheless

granted DCYF’s motion on the basis that its right to dismiss was absolute.

                I don’t think that I have the ability to keep the department
        from dismissing [the dependency]. I think that they have an
        absolute right to dismiss. However, I want findings of fact that I do
        not find it in the best interests of the child to dismiss this matter,
        and I feel that there are safety risks to this child, and if the
        department continues to want to dismiss the matter, they may do
        so.

               [M.C.L.] can file a private action or a CHINS,t3] or there’s a
        variety of other actions.

        The written findings stated, accordingly:

        The court reviewed the motion, declarations, if any, and relevant
        court records and finds that dismissal is granted but not in the
        child’s best interest and there are safety risks. However the
        Department has conducted a safety assessment. The court finds
        that the Department has a right to dismiss.

        The superior court adopted the commissioner’s decision on M.C.L.’s

motion for revision. M.C.L. appeals.



        M.C.L. first asserts a right to direct appeal of the superior court’s decision.4

Because the challenged order does not fall within the ambit of RAP 2.2(a),

governing when a case is appealable as a matter of right, M.C.L. may not appeal.

       When DCYF (formerly DSHS) files a dependency petition, the trial court

sets a fact-finding hearing within 75 days to allow DCYF and the parent, or

parents, to gather and present evidence as to whether the child is dependent.


        ~ Child In Need of Support.
       ~‘  We review the superior court’s ruling, not the commissioner’s.” State v. Ramer, 151
Wn.2d 106, 113, 86 P.3d 132 (2004). Once the superior court makes a decision on revision, ‘the
appeal is from the superior court’s decision, not the commissioner’s.” Ramer, 151 Wn.2d at 113
(quoting Statev. Hoffman, ll5Wn. App. 91,101,60 P.3d 1261 (2003)).


                                                  4
No. 79396-9-115

RCW 13.34.070(1). Children are entitled to a speedy resolution of dependency

and termination proceedings. ~ RCW 13.34.020 (“The right of a child to basic

nurturing includes the right to a safe, stable, and permanent home and a speedy

resolution of any proceeding under this chapter.”); see also RAP 18.13A(a)

(appeals of dependency “shall be heard as expeditiously as possible”).

       RAP 2.2(a) provides a complete list of superior court decisions that are

appealable as a matter of right. The only mention of dependency proceedings is

in RAP 2.2(a)(5), which states that a party may appeal from

        [t]he 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.

       This rule does not provide that the absence of a finding of dependency by

a juvenile court is appealable as a matter of right. Further, it does not provide a

right to appeal from an order granting a voluntary motion to dismiss a

dependency petition without prejudice. As we stated in a related context, “the

State is not entitled to appeal from the dismissal of a petition for dependency or

permanent deprivation. The failure to include such dismissals in RAP 2.2(a)(5)

    indicates the intent that such appeals not be permitted.” In re Welfare of

Watson, 23 Wn. App. 21, 23, 594 P.2d 947 (1979). M.C.L. does not establish a

right to appeal from the grant of the motion for voluntary dismissal.

       Only in his reply brief does M.C.L., in fact, address the dispositive

question of whether he is entitled to appeal from the order granting voluntary

dismissal. He asserts that a right to appeal exists under RAP 2.2(a)(3), which

allows an appeal from any “written decision affecting a substantial right in a civil



                                              5
No. 79396-9-116

case that in effect determines the action and prevents a final judgment or

discontinues the action.” However, in In re Dependency of AG., 127 Wn. App.

801, 807-08, 112 P.3d 588 (2005), we held that dismissal of a parental

termination petition without prejudice did not fall within the ambit of the RAP

2.2(a)(3) requirements for appealability when it did not bar a subsequent petition.

Similarly, the order in this case does not determine the case or prevent a final

judgment, as the dismissal was granted without prejudice—M.C.L. or his father

are both free to commence a new dependency action should either of them so

desire.

          The order granting DCYF’s motion for voluntary dismissal without

prejudice is not an appealable order.



          In the alternative, M.C.L. seeks discretionary review of the trial court’s

order. However, discretionary review is not warranted.

                                             A

          RAP 2.3(a) states that “[ujnless otherwise prohibited by statute or court

rule, a party may seek discretionary review of any act of the superior court not

appealable as a matter of right.” RAP 2.3(b) enumerates those superior court

actions from which discretionary review may be granted, with RAP 2.3(b)(1)

providing that discretionary review may be accepted if “[t]he superior court has

committed an obvious error which would render further proceedings useless.”

          RAP 2.3(b)(1) has been interpreted to allow discretionary review from the

denial of a summary judgment motion “to avoid a useless trial.” Douchette v.



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No. 79396-9-117

Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 808, 818 P.2d 1362 (1991) (citing

Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985)). It has also been

applied to reverse the denial of a plaintiff’s CR 41(a) motion for voluntary

dismissal. King County Council v. King County Pers. Bd., 43 Wn. App. 317, 318,

716 P.2d 322 (1986). This, of course, is the type of motion that was granted in

this case.

        The standard of RAP 2.3(b)(1) is not met here. To the contrary, the rule’s

obvious error standard would be more likely met had the superior court refused

to grant DCYF’s request for voluntary dismissal—such an order would be

contrary to the decision in King County Pers. Bd., 43 Wn. App. at 318, and

would cause exactly the sort of “useless trial” that the rule exists to prevent.

Thus, M.C.L. is not entitled to discretionary review pursuant to RAP 2.3(b)(1).

                                                 B

        RAP 2.3(b)(2) sets out a two-part test to determine whether discretionary

review should be granted. First, the superior court must have committed

“probable” error; second, the court’s decision must alter the status quo or

substantially limit a party’s freedom to act. RAP 2.3(b)(2). As the language

suggests, “probable error” is a lesser standard than “obvious error.”5 However,

the decision of the trial court herein evinces nothing that would satisfy either

requirement of RAP 2.3(b)(2).

        ~ Many Washington cases have conflated the two standards.       ~ Glass v. Stahl
                                                                       ~,


Siecialty Co., 97 Wn.2d 880, 883, 652 P.2d 948 (1982) (“[W]e have determined the trial court
committed obvious or probable error.”); Walden v. City of Seattle, 77 Wn. App. 784, 790, 892
P.2d 745 (1995) (“[W]e will grant discretionary review under RAP 2.3(b)(1) or (2) if obvious or
probable error is shown regardless of whether the error renders ‘further proceedings useless’ or
‘substantially alters the status quo or substantially limits the freedom of a party to act.”). To
conflate the standards, however, is to err.


                                                     7
No. 79396-9-I/S

       M.C.L. avers that probable error exists because, in his view, the superior

court’s application of CR 41 was inconsistent with the Juvenile Court Rules and

the Juvenile Court Act in Cases Relating to Dependency of a Child and the

Termination of a Parent and Child Relationship, chapter 13.34 RCW. This is so,

he asserts, because JuCR 1 .4(a) precludes application of civil rules inconsistent

with the Juvenile Court Act, which, per his reading, unconditionally requires a

fact-finding hearing once a dependency petition is filed. M.C.L. is wrong.

       CR 41 (a)(1) requires a dismissal when the plaintiff or petitioner requests it

prior to resting its case, absent a previously filed counterclaim. As we have

stated, in such a circumstance the court is obligated to dismiss.

              CR 41 is specific that an action will be dismissed upon
       motion of the plaintiff unless a counterclaim has been pleaded by
       the defendant prior to service upon him of the motion to dismiss.
       The plaintiff’s right in this respect is absolute and involves no
       element of discretion on the part of the trial court.

Coin v. Coin, 8 Wn. App. 801, 802, 508 P.2d 1405 (1973).

       JuCR 1 .4(a) provides that “[t]he Superior Court Civil Rules shall apply in

proceedings other than those involving a juvenile offense when not inconsistent

with [juvenile court] rules and applicable statutes.” Thus, in In re Dependency of

L.S., 62 Wn. App. 1,8,813 P.2d 133 (1991), we approved of the use ofa CR56

summary judgment hearing in lieu of a fact-finding hearing. Similarly, in both In

re Dependency of A.W., 53 Wn. App. 22, 26, 765 P.2d 307 (1988), and State v.

Norlund, 31 Wn. App. 725, 726, 644 P.2d 724 (1982), we held that the waiver

provisions in CR 12(h)(1), whereby certain defenses are forfeited if not promptly

pleaded, applies in dependency proceedings. In A.W., we noted that



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No. 79396-9-1/9

       it is particularly appropriate to strictly apply the waiver provisions of
       CR 12(h)(1) in dependency and termination proceedings. Parties,
       attorneys, and the court have an obligation to expedite resolution of
       child custody and parental rights issues, and to thereby limit the
       period during which children face an uncertain future.

53Wn.App. at 26.

       This case authority supports the notion that CR 41 properly applies in

dependency proceedings.

       The legislative intent in dependency actions is

       that the family unit should remain intact unless a child’s right to
       conditions of basic nurture, health, or safety is jeopardized. When
       the rights of basic nurture, physical and mental health, and safety of
       the child and the legal rights of the parents are in conflict, the rights
       and safety of the child should prevail. In making reasonable efforts
       under this chapter, the child’s health and safety shall be the
       paramount concern.

RCW 13.34.020.

       M.C.L. argues that it would be inconsistent with chapter 13.34 RCW for

DCYF to have an absolute right to dismiss its petition when it is against his best

interests and safety concerns are claimed to exist.

       Here, the dependency petition was filed by a DSHS social worker on

January 11, 2018. The case was dismissed prior to fact-finding on September

25, 2018. RCW 13.34.110(1) states that “[t]he court shall hold a fact-finding

hearing on the petition” and that the petitioner bears the burden of proof of

dependency. M.C.L. asserts that the use of ‘shall” implies that there must be a

fact-finding hearing whenever a petition is filed. However, nothing in chapter

13.34 RCW bars a voluntary dismissal of a petition prior to a fact-finding hearing.




                                              9
 No. 79396-9-1110

Indeed, the chapter is silent as to whether, or how, a dismissal may take place at

this stage of the proceedings.

            In L.S., we ruled that a hearing on a CR 56 summary judgment motion

could replace the fact-finding hearing. 62 Wn. App. at 8. This result obtained

despite statutory language and procedures in the Juvenile Court Rules that “[t]he

court shall hold a fact-finding hearing on the petition.” RCW 13.34.110(1); JuCR

3.7(a). Similarly, a petitioner should retain the right to dismiss its petition prior to

the fact-finding hearing when the petitioner believes that it cannot meet its

burden of proof as is mandated in RCW 13.34.110(1). Requiring a petition to be

prosecuted, regardless of changed circumstances and when the petitioner no

longer believes that it can meet its burden of proof, would be an unwarranted

invasion of the parent’s rights and would place the petitioner’s counsel in an

ethical quandary.

        Moreover, a finding of dependency requires more than proof of a child’s

best interests. For a petitioner to prevail at the fact-finding hearing, it must

establish the existence of parental deficiencies by a preponderance of the

evidence. RCW 13.34.130. Here, the petitioner did not believe that it could

prove its case. In such an instance, it is entitled to withdraw its allegations. CR

41(a). Indeed, the applicable rule gives the petitioner the absolute right to do

so.6


        6  M.C.L. cites to In re Dependency of RH., 129 Wn. App. 83, 117 P.3d 1179 (2005), to
support his assertion that a fact-finding hearing was mandatory. Therein, the dependency court
granted a father’s motion to dismiss a petition at the shelter care hearing; we held the dismissal
was improper because (1) shelter care hearings do not provide adequate notice and opportunity
for the parties to be heard on dependency-related issues and (2) the child had a fundamental
right to health and safety that the court could not “ensure without orderly inquiries.”
                                                                                     ~       129
Wn. App. at 87-89. We also, however, recognized that a fact-finding hearing would not be


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No. 79396-9-I/I 1

        The probable error requirement of RAP 2.3(b) is not met. Nor is RAP

2.3(b)’s second requirement, that the trial court’s decision alter the status quo or

a party’s freedom to act, met. “Any person may file a petition alleging

dependency.” JuCR 3.2(a). M.C.L. or his father can file a separate dependency

petition. Their freedom to act in this way is unrestricted by the order of dismissal

without prejudice. There is no basis for discretionary review.

        The appeal is dismissed.




WE CONCUR:



                     4(2-




required if “the petition is withdrawn or dismissed,” and that a dependency petition may be
dismissed prior to such a hearing. ~.Jj, 129 Wn. App. at 87-88. Thus, M.C.L.’s reliance on the
case is misplaced.


                                                  II
