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                                                                SUlLur WASHINGTON
                                                               2013APR 22 PM |:32




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of             No. 68931-2-1
A.B.-W., dob 10/10/11,
                                               DIVISION ONE
                         A minor child,

STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,

                         Respondent,           UNPUBLISHED OPINION




ARTHUR S. BARBARINO,

                         Appellant,

ERIN L. WILLIS,

                         Defendant.            FILED: April 22, 2013
      Schindler, J. —The State of Washington Department of Social and Health

Services (DSHS) filed a petition for dependency of A.B.-W. alleging there was no parent

capable of caring for A.B.-W. such that the circumstances constituted a danger of
substantial damage to the child. The mother stipulated to entry of an agreed order of
dependency and entered into an inpatient drug treatment program. The father was

incarcerated and admitted he was unable to care for the child. DSHS filed a motion for

summary judgment on the grounds that A.B.-W. was dependent because itwas
No. 68931-2-1/2


undisputed there was no parent capable of caring for the child. In opposition, the father

argued there were material issues of fact as to whether the mother was currently

capable of caring for the child. We affirm.

                                         FACTS


      A.B.-W. was born October 10, 2011. The child's mother is Erin L. Willis and the

father is Arthur S. Barbarino. Both parents have a history of drug addiction. Barbarino

has a number of convictions for violation of the Uniform Controlled Substances Act.

Willis admitted using heroin but said she did not use drugs during her pregnancy.

       In January 2012, Barbarino was incarcerated at the Olympic Corrections Center.

Willis and three-month-old A.B.-W. were living with two other women in an apartment in

Bellingham. On January 18, police executed a search warrant at the apartment. The

police found cocaine, a bag with methamphetamine residue, and other drug

paraphernalia in the apartment. The police found a methamphetamine pipe in the

bedroom Willis shared with A.B.-W. The police arrested Willis. The maternal

grandmother Vickie Willis agreed to care for A.B.-W.

       On February 3, DSHS filed a dependency petition alleging there was no parent,

guardian, or custodian capable of caring for the child such that circumstances

constituted a danger of substantial harm to A.B.-W. Willis and Barbarino agreed to

placement of the baby with Vickie Willis. The court appointed counsel for Barbarino and

scheduled a fact-finding hearing on the dependency petition for March 26.

       At the hearing on March 26, Willis agreed to stipulate that A.B.-W. was a

dependent child. Willis stipulated to entry of an agreed order of dependency of A.B.-W.
No. 68931-2-1/3


In the "Declaration and Stipulation to Entry of Agreed Order of Dependency," Willis

states, in pertinent part:

       I understand that the entry of the agreed order of dependency is an
       admission by me that my child is a dependent child as defined by RCW
       13.34.030. I also understand that the agreed order of dependency has the
       same legal effect as a finding by this court from a fact finding hearing that
       my child is dependent by at least a preponderance of the evidence. I
       further understand that once the agreed order of dependency is entered
       by this court, I will not have the right to challenge or dispute the fact that
       my child was found to be dependent in any subsequent review hearing,
       proceeding for termination of parental rights, proceeding for dependency
       guardianship, or proceeding for nonparental custody pursuant to chapter
       26.10 RCW.

Barbarino appeared by telephone at the hearing on March 26. Barbarino did not object

to entry of the agreed order of dependency as to Willis. The court found Willis was not

capable of caring for the child and entered an "Order of Dependency" as to the mother.

The court ordered the mother to obtain a drug and alcohol evaluation and participate in

random urinalysis (UA), and scheduled a dependency review hearing for June 18. The

court also scheduled a fact-finding hearing on whether the child was dependent as to

the father for April 23.

       On April 9, Barbarino filed a response to the dependency petition. Barbarino

admitted that because he was incarcerated, there was no parent capable of adequately

caring for A.B.-W. "such that the child is in circumstances which constitute a danger of

substantial damage to the child's psychological or physical development."

       On April 19, DSHS filed a summary judgment motion. DSHS argued that there

was no dispute that the child was dependent because there was no parent capable of

caring for A.B.-W. In opposition, Barbarino argued that there were material issues of

fact as to whether Willis was currently capable of parenting the child.
No. 68931-2-1/4



        An April 26 court order states that Willis was accepted into the Family Treatment

Court Program and had begun phase one. The court ordered Willis to participate in

outpatient and inpatient drug and alcohol treatment, participate in random UA, and

attend daily alcoholics anonymous or narcotics anonymous meetings. Willis began

inpatient drug treatment on April 30.

        On May 16, Barbarino filed an amended response to the dependency petition.

Barbarino admits he "cannot parent full-time in prison," but states that he "is working on

chemical dependency issues and can parent upon his release." Barbarino also asserts

the "mother is currently capable of adequately caring for the child."1
        On May 17, the court held a hearing on the motion for summary judgment.

Barbarino's attorney was present and Barbarino appeared by telephone. The court

ruled that "[t]he issue of the mother's capability to parent was already determined by the

court when she stipulated to finding the child dependent," and it was undisputed that

"[t]he father has chemical dependency issues that he reports he is working on in prison

[and] has a criminal history which includes many controlled substance, narcotics and

possession convictions." The court concluded that as a matter of law, A.B.-W. was a

dependent child.

        The child has no parent, guardian or custodian capable of adequately
        caring for him, such that he is in circumstances which constitute a danger
        of substantial damage to the child's psychological or physical
        development. The mother has stipulated to this fact and the father
        admitted this fact in his original Response due to his incarceration.

        On May 29, the court entered an order of dependency and an order of disposition

as to the father.



        1On May 22, Barbarino filed a second amended response to the dependency petition which was
identical to the first amended response.
No. 68931-2-1/5


                                         ANALYSIS

       Barbarino argues the court erred in granting summary judgment because there

were genuine issues of material fact as to whether the mother was capable of caring for

the child. The undisputed record does not support Barbarino's argument.

      When reviewing a grant of summary judgment, an appellate court undertakes the

same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030

(1982). We consider the evidence and all reasonable inferences in the light most

favorable to the nonmoving party. Schaafv. Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665

(1995).

       The moving party has the burden of showing the absence of evidence to support

the nonmoving party's case. Young v. Key Pharms.. Inc., 112 Wn.2d 216, 225, 770

P.2d 182 (1989). Once the moving party shows an absence of a genuine issue of

material fact, the burden shifts to the nonmoving party. Young, 112 Wn.2d at 225.

"[Mjere allegations, denials, opinions, or conclusory statements" do not establish a

genuine issue of material fact. Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co., 122

Wn. App. 736, 744, 87 P.3d 774 (2004): see also Ranger Ins. Co. v. Pierce County, 164

Wn.2d 545, 552, 192 P.3d 886 (2008).

       The civil rules apply to dependency proceedings. JuCR 1.4(a). Where the facts

are not in dispute, the court may enter summary judgment. In re Dependency of L.S..

62 Wn. App. 1,8,813 P.2d 133 (1991) (holding that "[ujnder JuCR 3.7 and RCW

13.34.110, the trial court is only required to hold a hearing when facts are in dispute").

          To establish that a child is dependent, the State must prove by a preponderance

of the evidence that the child "[h]as no parent, guardian, or custodian capable of
No. 68931-2-1/6


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."

RCW 13.34.030(6)(c). A parent may "waive his or her right to a fact-finding hearing by

stipulating or agreeing to the entry of an order of dependency establishing that the child

is dependent within the meaning of RCW 13.34.030." RCW 13.34.110(3)(a).

       Barbarino argues there were genuine issues of material fact as to whether the

mother was currently capable of caring for A.B.-W. because the mother's "situation had

greatly improved" in the two months between the entry of the stipulation and the

summary judgment motion. But because Barbarino presented no evidence establishing

a genuine issue of material fact to support his conclusory argument, the court did not err

by granting summary judgment. Further, the undisputed evidence shows that

approximately two months after entry of summary judgment, the mother was "still

stabilizing" in the inpatient drug treatment program.

       Barbarino also claims that the court violated his procedural due process rights by

granting summary judgment.

       "Parents have a fundamental liberty interest in the care and welfare of their minor

children." In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007).

The State has an interest in protecting "the physical, mental, and emotional health of

children." Schermer, 161 Wn.2d at 941. "[Wjhen a child's physical or mental health is

seriously jeopardized by parental deficiencies, 'the State has a parens patriae right and
responsibility to intervene to protect the child.'" Schermer, 161 Wn.2d at 942 (quoting
In re Welfare of Sumev. 94 Wn.2d 757, 762, 621 P.2d 108 (1980)).
No. 68931-2-1/7


      In the context of a dependency proceeding, "[d]ue process requires that parents

have notice, an opportunity to be heard, and the right to be represented by counsel." ]n

re Welfare of Key. 119 Wn.2d 600, 611, 836 P.2d 200 (1992). Here, Barbarino was

represented by counsel, appeared by telephone at the hearing, and had the opportunity

to be heard when Willis agreed to enter into an order of dependency, and at the hearing

on the motion for summary judgment.

      We affirm.




                                                     ^4   nlfl,,'
WE CONCUR




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