                                                                          FILED 

                                                                        DEC. 8,2015 

                                                                In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 




             COURT OF APPEALS, STATE OF WASHINGTON DIVISION III

                                                 )      No. 32765-5-111 cons. wI
In re Welfare of:                                )      No. 32776-1-111; No. 32777-9-111
                                                 )
Ca.R.,                                           )      ORDER WITHDRAWING
CI.R.,                                           )      OPINION
G.R.,                                            )
                         Minor(s).               )


         The Court on its own motion, does hereby withdraw the opinion filed with this

Court in the above-entitled case on October 27,2015.

         PANEL: 3, Brown, Siddoway, Fearing

         FOR THE COURT:




                                          CHIEF JUDGE 

                                                                          FILED 

                                                                        DEC. 8,2015 

                                                                In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


In re the Welfare of:                         )        No. 32765-5-111 cons. wi
                                              )        No. 32776-1-111; No. 32777-9-111
Ca.R.,                                        )
CLR.,                                         )
G.R.,                                         )
                                              )
                                              )        PUBLISHED OPINION
                        Minor(s).             )

         BROWN, J. - T.T. appeals a superior court judge's denial of her request to revise

a commissioner's ruling granting the Department of Social and Health Services'

(Department's) dependency petition for her daughters, Ca.R., CLR., and G.R. T.T.

contends the court erred in finding she was not capable of adequately caring for the

girls, ordering out-of-home placement, and ordering an Interstate Compact on the

Placement of Children investigation (ICPC) with Nevada before the children's placement

with her. We find no abuse of trial court discretion in the trial court's dependency and

placement decisions. We lack a record of Nevada's ICPC involvement. Thus, T.T.'s

ICPC concerns are both premature and ungrounded. Accordingly, we affirm.

                                          FACTS

         In 2011, the State of Nevada removed Ca.R. (born 1/19/02), CLR. (born 1/17/05),

and G.R. (born 1017/06) from T.T.'s care along with a younger stepbrother, A.G., who is
No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ga.R., GI.R., and G.R.


not the subject of this appeal. Nevada then petitioned for dependency based on Ca.R.'s

allegations of sexual abuse by her mother's boyfriend, AG.'s father; domestic violence;

and T.T.'s drug use. Later, the three girls were placed with their father in Oregon after

an approved ICPC. The Nevada dependency was then dismissed as to the girls. The

girls moved to Spokane with their father in the summer of 2013.

       In January 2014, Ca.R. alleged her father sexually abused her and the

Department petitioned for dependency. T.T. appeared through counsel. The girls had

not seen T.T. since leaving Nevada, but had frequent telephone conversations with her.

On March 26, 2014, the girls' father agreed to dependency. T.T. participated

telephonically in a family team decision meeting, unsuccessfully requesting placement

of the girls with her in Nevada as soon as possible, without having to wait for the results

of an ICPC request.

      A fact-finding hearing was held in May. Ca.R. was then in her second

placement, while CI.R. and G.R. were still together in their first placement. The

Department moved Ca. R. to a receiving home from her first placement because she

had displayed disruptive behavior, including head banging and excessive attention-

seeking behavior and over-attachment to people. Ca.R. reports she is very angry and

has nightmares. Evidence showed T.T. suffers from post-traumatic stress disorder and

panic disorder with agoraphobia. G.R. and CI.R. struggle with being overly afraid of

bugs, the outdoors, and trees. T.T. related she lives with her significant other, AO., and

her two sons, AG., and Z.O.



                                             2

No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ca.R., CI.R., and G.R.


      After fact-finding, the commissioner entered findings of fact noting the amount of

work T.T. had done to have her younger boys returned to her care, but found, "The

court is concerned that the services provided during mother's dependency in Nevada

were not directed at reunifying her with [Ca.R., CI.R., and G.R.]." Clerk's Papers (CP)

at 85. Specifically, the commissioner found, "The trauma that the children experienced

in the mother's home (mother's substance abuse and domestic violence as well as

[Ca.R.'s] disclosure of sexual abuse by mother's former partner) has not been

addressed." Id. Further, "[Ca.R.] has significant behavioral and emotional issues. She

is just now beginning to deal with these issues in counseling. Her behavior appears to

be parentified. If she were to be placed with her mother today she would suddenly have

new siblings and a new father figure as well as re-adjusting to living with her mother.

This could set the family up for failure." CP at 86. The commissioner found, "An ICPC

approval is needed so that the State of Nevada will provide oversight of the family if

[Ca.R.] is placed in the home." CP at 86 (Finding of Fact i).

      The commissioner granted the, dependency petition, ruling "[T.T.] is currently not

capable of parenting [Ca.R., CI.R. or G.R.] due to the unresolved issues that led to the

dependency in Nevada. Specifically, T.T. needs to repair her relationship with the girls,

and to demonstrate that she can attend to their emotional needs including partiCipating

in any family counseling or other therapy needed. Mother also needs to continue her

commitment to sobriety." CP at 86.




                                            3

        No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
        In re the Welfare of Ca.R., CI.R., and G.R.


               The commissioner then found "an ICPC approval is needed so that the State of

        Nevada will provide oversight of the family if [Ca.R] is placed in the home." CP at 86.

        The commissioner noted in her oral ruling she wanted "the ICPC ... process to get

        started, not because it's required for a parent but because of the additional oversight

        and it's clear that you have a very good relationship with your social worker and they

        may be happy to supervise and give us the oversight there that we need." CP at 327.

               T.T. moved to revise the commissioner's order, arguing she could provide

I   '   counseling for the girls in Nevada through state agencies and insisting she was capable

        of caring for all five children. The court denied her revisions request, adopting the

        commissioner's findings of fact, and finding the dependency was based on "the

        children's needs, to ensure their safety and that a move to their mother's home would

        be done in an appropriate manner that meets their needs." CP at 385. The court found,

        "It will be helpful to this family to have a social worker in Nevada, assigned through the

        ICPC process, who will help to provide services and supports in reintroducing these

        children to their mother's home." CP at 385. T.T. appealed.

                                               ANALYSIS

                                         A. Dependency Finding

              The issue is whether the revision judge erred by abusing her discretion when

        denying revision of the commissioner's dependency finding. T.T. contends substantial

        evidence does not support the court's finding she is not capable of parenting Ca.R.,

        CI.R, and G.R



                                                     4

No. 32765-5-111 cons. w/32776-1-1I1 and 32777-9-111
In re the Welfare of Ga.R., GI.R., and G.R.


       "We review the superior court's ruling, not the commissioner's." State v. Ramer,

151 Wn.2d 106, 113,86 P.3d 132 (2004). "Commissioner rulings are subject to revision

by the superior court." RCW 2.24.050. On revision, the superior court reviews the

commissioner's findings of fact and conclusions of law de novo based on the evidence

and issues presented to the commissioner. In re Marriage of Moody, 137 Wn.2d 979,

992-93,976 P.2d 1240 (1999). We review a superior court's dependency placement

decision for abuse of discretion. In re Dependency of A.G., 74 Wn. App. 271, 275, 873

P.2d 535 (1994). A court abuses its discretion when it "applies the wrong legal

standard, or bases its ruling on an erroneous view of the law." Gildon       v.   Simon Prop.

Grp., Inc., 158 Wn.2d 483,494, 145 P.3d 1196 (2006).

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

children" must be balanced with the State's "interest in protecting the physical, mental,

and emotional health of children." In re Dependency of Schermer, 161 Wn.2d 927,941,

169 P.3d 452 (2007). Unless a child's right to nurture, physical and/or mental health, or

safety is endangered, "the family unit should remain intact." RCW 13.34.020. But when

the rights of the child and the legal rights of the parents conflict, the child's rights prevail,

as the child's health and safety [are] the paramount concern. Id. Declaring a child

"dependent" transfers legal custody to the State. Schermer, 161 Wn.2d at 942. After

filing a dependency petition, a fact-finding hearing is held to decide if the allegations are

true. Id. The petitioner must show "by a preponderance of the evidence that the child

meets one of the statutory definitions of dependency." Id.



                                               5

No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ca.R., CI.R., and G.R.


       Relevant here, Washington defines a "dependent child" as a child who "has no

parent ... 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." RCW 13.34.030(6)(c). Dependencies based

on RCW 13.34.030(6)(c) do not require a finding of parental unfitness; instead, they

"allow[ ] consideration of both a child's special needs and any limitations or other

circumstances which affect a parent's ability to respond to those needs." Schenner,

161 Wn.2d at 944. A child is not dependent if a capable parent exists. In re Walker, 43

Wn.2d 710,715,263 P.2d 956 (1953).

       When evaluating evidence to determine whether a child is dependent, trial courts

have broad discretion and considerable flexibility to reach '''a decision that recognizes

both the welfare of the child and parental rights.'" Schenner, 161 Wn.2d at 952 (quoting

In re Welfare of Becker, 87 Wn.2d 470,478,553 P.2d 1339 (1976». A court has no

required factors to consider. Becker, 87 Wn.2d at 477 (interpreting predecessor

statute). Decisions to dismiss a dependency cannot "be based upon hunches or snap

judgments": all parties have a right to be heard, and children need a well-considered

decision. In re Dependency of R.H., 129 Wn. App. 83, 88, 117 P.3d 1179 (2005).

       Our "appellate review is limited to whether substantial evidence supports the trial

court's findings and whether the findings support its conclusions of Jaw." Schenner, 161

Wn.2d at 940. "Substantial evidence exists if, when viewing the evidence in the light

most favorable to the prevailing party, a rational trier of fact could find the fact more



                                              6

No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ga.R., GI.R., and G.R.


likely than not to be true." In re Welfare of X. T., 174 Wn. App. 733, 737, 300 P.3d 824

(2013). Furthermore, we do not reweigh evidence or reassess witness credibility. Id.

       Here, the girls had not seen their mother since they were removed from her

Nevada home three years earlier. They were removed based on allegations of sexual

and physical abuse, substance abuse, and exposure to domestic violence. A

dependency was started but dismissed without services to address the removal

problems because the girls relocated to their father's home in Oregon. The girls now

show concerning behaviors such as head banging, unhealthy attachments, unfounded

fears, anger, and nightmares. Nothing in this record indicates T.T. understands what

the girls would need from her to address the girls' difficult behaviors. Moreover, no plan

is in place for preventing interaction between A.G.'s father and the girls in Nevada.

Sending the girls to live with T.T. without an investigation and services in place would

subject them to extraordinary risk of additional trauma due to a lack of emotional and

behavioral support, as well as exposure to a former abuser. T.T. argues services are

available through a program she is currently involved in, but further investigation is

needed to make sure the girls qualify for these services and that the services are

tailored to their, and T.T.'s, specific needs.

       T.T. next incorrectly argues the court was required to find her unfit. The

Department need not prove a parent is unfit to prove a dependency. Schermer, 161

Wn.2d at 944. A dependency based on RCW 13.34.030(6)(c) does not turn on parental




                                                 7

No. 32765-5-111 cons. wi 32776-1-111 and 32777-9-111
In re the Welfare of Ga.R., GI.R., and G.R.


"unfitness" but allows consideration of both a child's special needs and any limitations or

other circumstances which affect a parent's ability to respond to those needs. Id.

       This case, like the Schermer case involves special needs and circumstances.

The girls have not lived with their mother since 2011 when they were removed from her

home and dependency proceedings started. No services were offered because the girls

relocated to Oregon to live with their father. The girls have been exposed to phYSical,

sexual, and substance abuse resulting in their present concerning behaviors. Here, it is

sufficient for the Department to prove T.T. is not capable of adequately caring for Ca.R.,

CI.R., and G.R., based on their special needs and the case circumstances. The

Department has met this burden. Placing the girls with T.T. would put the children in

circumstances which constitute a danger of substantial damage to their psychological or

physical development; thus, satisfying RCW 13.34.030(6)(c). Given all, we conclude

the court did not abuse its discretion in finding th~ girls dependent.

                                        ANALYSIS

                           B. Placement and ICPC Involvement

       Based on her rejected adequate-parent arguments, T.T. contends the trial court

erred in not placing the children with her. Thus, she incorrectly argues ICPC

involvement is an unnecessary delay to placing the girls with her.

       Dependency hearings determine what course of action serves the child's best

interests. Schermer, 161 Wn.2d at 942. In dependency proceedings, discretionary

placement decisions are reviewed for an abuse of discretion. In     re Dependency of AG.,


                                             B

No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ca.R., CI.R., and G.R.


74 Wn. App. 271, 276, 873 P.2d 535 (1994). "A trial court abuses its discretion when its

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

Kovacs, 121 Wn.2d 795,801,854 P.2d 629 (1993).

       When placing a child, "the best interests of the child are the court's paramount

concern." In   re DependencyofR.W, 143 Wn. App. 219, 223,177 P.3d 186 (2008).
Because each case is fact specific, no exact criteria exists for determining what the

child's best interests are. Id. Even though a child's interests are the paramount

concern, the parents' interests still have weight: courts are directed "to adopt a program

which will 'least interfere with family autonomy, provided that the services are adequate

to protect the child.'" In   re DependencyofJ.B.S., 123 Wn.2d 1, 12,863 P.2d 1344
(1993) (quoting RG.W 13.34.130{1)(a». But, if it is not in the child's best interests, a

court is not required to reunite children with the parent who had custody at the time of

the dependency action. R.W., 143 Wn. App. at 223.

       The girls were not living with T.T. when the Washington dependency proceedings

were initiated and had been previously removed from T.T.'s Nevada home for

dependency proceedings. Nothing shows the girls' special needs were remedied when

they were sent to Oregon to live with their father. These facts provide tenable grounds

for the court to deny in-home placement.

       T.T. incorrectly argues the court erred by mandating ICPC proceedings before

making a placement determination. The superior court judge adopted the

commissioner's findings of fact. Finding of fact i states, "An ICPC approval is needed



                                              9

No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ca.R., CI.R., and G.R.


so that the State of Nevada will provide oversight of the family if [Ca.R.] is placed in the

home." CP at 86. The word "needed" is not used to connote a prerequisite.

       "The ICPC was drafted in the 1950s by a group of state social service

administrators to address the problem of providing services to children placed across

state lines." In re Dependency of D.F.-M., 157 Wn. App. 179, 187,236 P.3d 961

(2010). Its purpose is to encourage cooperation and information sharing among

member states. Id. It is a tool for foster care placement or preliminary to an adoption.

Id. at 188. Division One of this court held, "the ICPC governs only the placement of

children in substitute arrangements for parental care." Id. at 191. The ICPC process

does not govern placement of children with parents. Placement decisions are made by

the courts. Our record does not disclose what, if any, response Nevada has made to

Washington's ICPC request. Thus, T.T.'s ICPC concerns are premature. Our case is

unlike D.F.-M. where the court dealt with an Oklahoma ICPC process that interfered

with Washington's placement decision. Here the goal remains to investigate placement

of the girls with T.T. with Nevada's ICPC assistance.

       In sum, the commissioner correctly noted the ICPC process was "not ...

required for a parent." CP at 327. But this does not eliminate cooperation between the

two states as the parties work toward reunification. Rather, consistent with D.F.-M., it

leaves the decision of whether T.T. is capable of parenting the girls within the sound

discretion of the trial court rather than an administrative agency. See D.F.-M., 157 Wn.

App. at 192.



                                             10
No. 32765-5-111 cons. wI 32776-1-111 and 32777-9-111
In re the Welfare of Ga.R., GI.R., and G.R.


      Affirmed. 



                                                     Brown, J. 

1CONCUR:




                                              11 

                No. 32765-5-111; consolidated with 32776-1-111; 32777-9-111


         FEARING, J.    (dissent) This appeal arises from consolidated dependency petitions

involving eight children all related by blood or cohabitation. The appeal concerns three

of the children identified in the majority opinion as Ca.R., born January 19, 2002; CLR.,

born January 17,2005; and G.R., born October 7, 2006. For ease in reading, I refer to the

three girls respectively and fictitiously as Karen, now age thirteen, Cathy, now age ten,

and Georgia, now age nine. The three girls are sisters and the biological daughters of

appellant T.T., who resides in Las Vegas. W.R. is the biological father of Karen and

Georgia and listed on the birth certificate of Cathy as Cathy's father, although another

gentleman is the biological father. The parties consider W.R. as the father of all three

girls.

         In January 2014, when the State of Washington intervened in the lives of Karen,

Cathy, and Georgia, the three lived with their father \V.R. and his girlfriend, Alicia

Huante, in Spokane. Huante bore other children, who resided in the household, including

male twins born in December 2012. W.R. is the father of the twins. The State removed

Karen, Cathy and Georgia from their Spokane home because of allegations of sexual
No. 32765-5-III Cons. wi 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


abuse by W.R .. The State of Washington also removed from the household the twins and

three Greenleaf children, two girls and one boy, whose mother is Alicia Huante.

       The trial court declared Karen, Cathy and Georgia dependents of the State of

Washington based on a conclusion that neither T.T. nor W.R. are capable of parenting the

three within the meaning ofRCW 13.34.030(6)(c). The statute allows a dependency

when no parent is capable of adequately caring for a child, such that the child is in

circumstances which constitute a danger of substantial damage to the child's

psychological or physical development. The trial court did not find that T.T.'s care for

any of the three daughters would constitute a danger of substantial damage and the

evidence would not support such a finding. The State would not return the two younger

girls to T.T. because the girls have a fear of the outdoors, bugs, and trees. T.T. appeals

the dependency ruling and argues that substantial evidence does not support the

dependency finding. I agree. I would reverse the trial court and dismiss the dependency

petition.

       The trial court ordered a placement study by Nevada authorities, under the

"Interstate Compact on Placement of Children" (ICPC) ch. 26.34 RCW. In addition to

determining whether to uphold the dependency, this court must also decide whether the

trial court had authority to order such a study. It did not.




                                                  2

No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare ofCa.R; CI.R and G.R.


                                         FACTS

       The case's facts derive from a one-day dependency trial before a court

commissioner. During the trial, the State's sole witness, social worker Amanda Plumb,

testified to the background ofT.T. Plumb's basis of knowledge for the background was

Nevada Child Protective Service (CPS) binders, but the State did not seek to introduce

the records in the binders as an exhibit. During her testimony, Plumb did not refer to the

records to confirm she testified consistently with the records. Plumb never met T.T. and

thus never observed her with children. Plumb only knew T.T. from what Plumb read,

including recent Nevada reports that establish that T.T. performs well as a mother.

       T.T. is the mother of seven children, three of whom are the subject of this appeal.

In addition to Karen, Cathy, and Georgia, T.T. bore Faith, a daughter older than the three

girls, Terrance, who resides on an Indian reservation in North Dakota, Andrew, born in

2011, and Zeke, born in 2013. Andrew and Zeke are also ersatz monikers. The ages of

Faith and Terrance are unknown.

       Physicians have diagnosed T.T. with posttraumatic stress disorder, panic disorder,

and agoraphobia. She has suffered domestic violence. T.T. now receives counseling for

her mental health disorders.

       At trial, Amanda Plumb averred that a report in the binder commented that Faith

tried to drown a seven year old. According to one report, both Faith and T.T. bang each's

respective head against a wall.

                                                3
No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare ofCa.R; CI.R and G.R.


       Karen, Cathy and Georgia lived with their mother T.T. in Nevada until 2011. We

do not know when T.T. and W.R., the father of the three girls, separated. In 2011, the

State of Nevada removed Karen, Cathy, Georgia, and younger brother Andrew from

T.T.'s home in Las Vegas. Nevada filed a dependency and alleged sexual abuse of Karen

by T.T. 's former boyfriend and Andrew's father, Mark Gregory, domestic violence

against T.T. by Gregory, and T.T.'s drug use. Authorities later determined that Karen

fabricated the allegation of sexual abuse by Gregory.

       Upon removal from their mother's Nevada home, Karen, Cathy, and Georgia lived

with their father, W.R., in Oregon. The State of Nevada then dismissed the dependency

proceeding with regard to the three girls. In 2013, the sisters moved to Spokane with

their father and his companion, Alicia Huante.

       Amanda Plumb testified that children ofT.T. have been "removed, returned,

removed, and returned" by Nevada on multiple occasions, beginning in 2000. Clerk's

Papers (CP) at 162. Plumb gave scant details. As already written, the State of Nevada

removed Andrew, along with the three girls, in 2011. Nevada returned Andrew to T.T.

sometime in 2011. Nevada removed Andrew again on February 22, 2013.

      T.T. has not had physical contact with Karen, Cathy and Georgia since their

removal from her Nevada home in 2011. Since removal, T.T. has regularly spoken on

the telephone with all three daughters, particularly with the oldest daughter, Karen. She

speaks with Karen at length every evening for up to an hour. She helps Karen with

                                                 4
No. 32765-5-II1 Cons. wi 32776-1-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


homework. The mother and daughter discuss school, grades, attitudinal problems,

positive ideals, and helping around the house. Karen initially expressed frustration to

T.T. about mistakes T.T. made in the latter's life. According to T.T., Karen has forgiven

her, in part, because T.T. unfailingly calls Karen and speaks consistently.

       T.T. respectively speaks with Cathy and Georgia about once a week for five

minutes to a half hour. T.T. speaks to the younger girls about school and favorite things.

The foster mother of Cathy and Georgia taught them songs to sing to their mother

because they initially lacked subjects to discuss.

       As a result of the 2011 Nevada dependency proceeding, T.T. underwent intensive

outpatient drug treatment for six months. Since April 2012, T.T. has successfully

completed random and frequent urinalyses. T.T. also underwent domestic violence

counseling for one year and still engages in mental health counseling. She took a

parenting class.

       Upon the May 2013 birth ofZeke, T.T. remained under the specter ofa Nevada

dependency, so the State assigned Zeke to reside with his father, Anton Ort. Ort has no

CPS history. Ort and T.T. now cohabit, and Nevada returned Andrew to T.T. on July 1,

2013. Anton Ort helps raise both boys. Ort and T.T. plan to marry.

       Anton Ort, T.T., Andrew, and Zeke live in a three bedroom, two bathroom

apartment obtained for them by Las Vegas' Women's Development Center. Random

urinalyses is a prerequisite to occupancy in the apartment complex. Women's

                                                 5
No. 32765-5-III Cons. wi 32776-1-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


Development Center could establish family counseling for T.T. and her three daughters.

T.T. has a support system through her church, Victory Outreach, and through other

families she met. A YMCA, providing recreation for the children, is a five minute walk.

       In January 2014, Karen Rees and one of the Greenleaf daughters respectively

alleged that W.R. sexually abused her. Spokane authorities currently investigate the

allegations, but the State has filed no criminal charges against W.R .. Since some of the

purported abuse of Karen allegedly occurred in Oregon, Oregon authorities also currently

investigate the charges. As of the May 2014 trial in this dependency proceeding, Karen

lived in Spokane's Sally's Home and Cathy and Georgia resided together in foster care.

      Amanda Plumb, the State social worker, testified at trial that Karen, Cathy, and

Georgia currently fare well. The three encounter no medical problems. According to

Plumb, Karen Rees is a very sweet, happy, and bright girl, who has overcome adversity.

Cathy and Georgia are also happy, and they perform well academically and

developmentally.

      According to Amanda Plumb, Karen, despite her happiness, exhibits behavioral

issues. Plumb opined that Karen "may" have reactive attachment disorder in that she

attaches quickly to others. Karen occasionally expresses rage, and she bangs her head

against the wall. Plumb declared that Karen needs constant attention.

      Amanda Plumb testified that Karen reports nightmares. Karen fears that her father

will kidnap and punish her for reporting sexual abuse. She is anxious when she rides on

                                                6
No. 32765-5-II1 Cons. wI 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


the Spokane street where she lived with her father and Alicia Huante. Plumb hinted that

Karen suffers from posttraumatic stress disorder, but Plumb did not provide any

background to qualify her for diagnosing the disorder. Plumb declared that a caretaker of

Cathy and Georgia reported that both lasses are afraid of "everything, bugs, outdoors,

trees, everything." CP at 169.

       Amanda Plumb testified that T.T. has not agreed to engage in any services with

the State. Plumb did not identify what, if any, services the State offered to T.T. T.T.

called Plumb to inform her that Karen's glasses broke. T.T. advocated for new glasses

for her daughter.

       During trial, Amanda Plumb recommended denial of placement at this time of

Karen, Cathy and Georgia with T.T. Plumb opined that raising older girls differs from

raising one and three year old boys. According to Plumb, the girls were repeatedly

traumatized in T.T.'s care. Plumb did not provide details of any of the purported trauma.

Remember that Nevada authorities concluded that Karen had not been sexually abused.

       Amanda Plumb testified that the Rees daughters reported to her fear of Mark

Gregory, the purported sexual abuser of Karen. Plumb provided no testimony that Mark

would have contact with the girls ifplaced with T.T. Plumb declared: "from what I've

gathered [Andrew] has visits with him [Mark.]" CP at 165.

      Amanda Plumb conveyed concern about T.T.'s ability to care for Karen when

Karen exhibits difficult behavior. Plumb declared:

                                                7
No. 32765-5-III Cons. wi 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; Cl.R and G.R.


              my concern is does [T.T.] right now, currently have the ability and is
       she suited to take care of those behaviors. I'm not saying she can't but I
       wanna make sure before we just place [Karen] who has been traumatized
       by several different people back into a situation into the same city ....
       What's, what how is that PTSD gonna manifest in [T.T.'s] home and is
       T.T. equipped to handle that.

CP at 169. Plumb wants "to make absolute sure with an ICPC [study] that these children

are gonna be moving back to a safe environment." CP at 213.

       Amanda Plumb expressed concern to the trial court that placement of Karen,

Cathy and Georgia with T.T. would more than double T.T.'s household. Plumb has not

seen the facility in which T.T. resides. Plumb expressed concern about T.T. relapsing

into drug use. Plumb desires T.T. to undergo training geared toward parenting children

with behavioral issues and to engage in family therapy with the daughters.

       Amanda Plumb recognized T. T. ' s recent improvements in parenting skills and the

potential of returning the three daughters to T.T. Nevertheless, Plumb wished Nevada to

perform an ICPC placement study and the family to engage in counseling before a return.

       During her trial testimony on the telephone from Las Vegas, T.T. pledged to care

for her two young boys and her three daughters. She does not work outside the home.

Her fiance, Anton Ort, remains available to assist. T.T. noted that all but one of the

children is of school age, so she will receive daily breaks. T. T. wishes to engage the

children in church activities.

       T.T. recognizes now that she earlier chose abusive partners, took controlled


                                                 8
No. 32765-5-II1 Cons. wi 32776-I-III; 32777-9-II1
In re the Welfare ofCa.R; CI.R and G.R.


substances, and placed her children in unsafe situations. She testified she will not repeat

these errors because of her support system, her drug treatment, and ongoing counseling.

T.T. is pleased with her life during the last two years.

       The State ignores trial testimony from Melissa Blodgett, a family services

specialist with the Department of Family Services in Clark County, Nevada. Blodgett

serves as a caseworker who works with parents and children involved with CPS. She has

a bachelor's degree in human resources management and intensive training with the

Department of Family Services. Blodgett served as T.T.'s case worker from August 2013

until January 2014, when Nevada dismissed the dependency action concerning Andrew.

Upon assuming duties with T.T., Melissa Blodgett reviewed T.T. 's Nevada case file. The

file did not confirm a chronic history of drug abuse or neglect of children claimed by the

State of Washington.

       According to Melissa Blodgett, T.T. completed intensive outpatient therapy

services. She also completed parenting and domestic violence counseling. T.T. passed

urinalyses during the entire dependency proceeding.

       Melissa Blodgett observed T.T. during ten to twelve visits with her two young

boys. T.T. performed well as an attentive parent. Nevada returned the children to T.T.

because of T.T.' s performance and at the recommendation of service providers and

experts, including drug and alcohol treatment experts.

       Melissa Blodgett testified that T.T.'s son Andrew has special needs and receives

                                                  9
No. 32765-5-II1 Cons. wi 32776-1-III; 32777-9-II1
In re the Welfare ofCa.R; CI.R and G.R.


speech therapy. T.T. diligently safeguards the therapy, and Andrew has progressed far

with his speech development. Despite the dependency ending, Blodgett saw Andrew in

April 2014, and Blodgett understood each word uttered by the boy. Andrew's mental and

physical development has progressed well.

       According to Melissa Blodgett, Anton Ort, who lives with T.T. and the two young

boys, has no CPS history. The State of Nevada kept Zeke with Ort, upon Zeke's birth,

despite the dependency pending with T.T. Ort performed well as Zeke's father. He

could assist in parenting Karen, Cathy, and Georgia. Blodgett supports all five children

living in T.T.'s current physical residence. The home has three bedrooms and adequate

space for the children. The home is fully furnished.

       According to Melissa Blodgett, Las Vegas' Women's Development Center

continues to provide services to T.T. The center assisted T.T. obtain the housing,

referred her to counseling, and assists her in safety planning, money management, and

daily living skills.

       Melissa Blodgett observed that T.T. is motivated to be a parent and is capable of

caring for more than the two boys. Blodgett holds that T.T. could care for older children.

T.T. has shown exemplary parenting skills for her two sons. The two boys are well loved

and cared for. T.T. has a clear understanding of appropriate parenting and demonstrates

it through her behavior and interactions with her children. She continues to engage in

counseling and mental health services. Blodgett exudes confidence in T.T. despite

                                               10
No. 32765-5-III Cons. wi 32776-1-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


Blodgett's knowledge ofT.T.'s CPS history. Blodgett credits the intensive outpatient

substance abuse treatment as changing T.T.

       Melissa Blodgett testified that, ifT.T. needed assistance, she knows where to

obtain help. T.T. has been proactive in obtaining assistance for Andrew. T.T. remains in

contact with Blodgett, despite no requirement of contact. T.T. continues to ask Blodgett

for advice and updates Blodgett on the condition of the T.T.'s two young boys.

                                      PROCEEDING

       The State of Washington petitioned for a dependency of Karen, Cathy and

Georgia Rees, among others. W.R. agreed to the dependency with regard to his five

children that are the subject of the petition. T.T. requested that her three daughters be

returned to her in Nevada.

       After a one-day trial, the court commissioner refused to return Karen, Cathy, and

Georgia to T.T. The commissioner concluded that all three daughters are dependent

within the meaning ofRCW 13.34.030(6)(c).

       The court commissioner entered the following findings of fact:

               a. Ms. T.T. has done an extraordinary amount of work during her
       dependency in Nevada to obtain the return of two of her children, [Zeke]
       Orton, age 1, and [Andrew] Gregory, age 3. She successfully completed
       the following services: Intensive outpatient treatment, domestic violence
       counselling, mental health counselling, parenting classes, and providing
       clean UAs. Ms. T.T. has maintained stable housing and has regular contact
       with her previously assigned social worker, Melissa Blodgett. Prior to the
       Nevada Dependency, she had a significant history of concerning behavior,
       including substance abuse and making poor choices in relationships.

                                                 11
No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare ofCa.R; Cl.R and G.R.



              c. The children have experienced traumatic situations while placed
      with their father. [Karen] has disclosed that she has suffered sexual abuse
      by her father.
              d. The court is concerned that the services provided during mother's
      dependency in Nevada were not directed at reunifying her with [Karen,
      Cathy, and Georgia] because they were already placed with their father.
      Instead, the services were focused on returning the children's half siblings.
              e. The trauma that the children experienced in the mother's home
      (mother's substance abuse and domestic violence as well as [Karen's]
      disclosure of sexual abuse by mother's former partner) has not been
      addressed. The allegations of sexual abuse were investigated and did not
      result in a founded finding by Nevada CPS. Service of counseling will
      address this concern.
              f. [Karen] has significant behavioral and emotional issues. She is
      just now beginning to deal with these issues in counseling. Her behavior
      appears to be parentified. If she were to be placed with her mother today
      she would suddenly have new siblings and a new father figure as well as re­
      adjusting to living with her mother. This could set the family up for failure.
      This case needs to progress slowly enough that it won't disrupt the family.
              g. [Karen] needs individual and family counseling to process what
      she has been through.

              i. An ICPC approval is needed so that the State of Nevada will
       provide oversight of the family if [Karen] is placed in the home.
              j. The court finds that a "C" [RCW 13.34.030(b)(c)] dependency
       has been established by a preponderance of the evidence. Ms. T.T. is
       currently not capable of parenting [Karen, Cathy, or Georgia] due to the
       unresolved issues that led to the dependency in Nevada. Specifically, Ms.
       T.T. needs to repair her relationship with the girls, and to demonstrate that
       she can attend to their emotional needs including participating in any
       family counsel[ ling or other therapy needed. Mother also needs to
       continue her commitment to sobriety.

CP at 393-94.

       RCW 13 .34.030(6)( c) requires a finding, before entry of a dependency, that the

inability of the parent to care for the child creates circumstances which constitute a

                                                 12
No. 32765-5-III Cons. wi 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; Cl.R and G.R.


danger of substantial damage to the child's psychological or physical development. The

court commissioner entered no finding of fact or conclusion of law that placement of any

or all of the three daughters with T.T. would create a danger of substantial harm.

       T.T. asked a superior court judge to revise the commissioner's order. The court

denied her revision request. The court adopted the commissioner's findings of fact and

added the following finding:

             2. A dependency is an appropriate vehicle to provide a family with
      services do [to] remedy issues in the parent/child relationship and to ensure
      a smooth transition when adding three additional children to the home. The
      finding of dependency was based upon the children's needs, to ensure their
      safety and that a move to their mother's home would be done in an
      appropriate manner that meets their needs. It will be helpful to this family
      to have a social worker in Nevada, assigned through the ICPC process, who
      will help to provide services and supports in reintroducing these children to
      their mother's home.

CP at 385.
                                  LEGAL ANAL YSIS

                          Dependency Sufficiency of Evidence

      T.T. argues a lack of evidence supports the declaration of her children as State

dependents. RCW 13.34.030(6) lists four conditions under which a court may declare a

child a dependent of the State of Washington. To declare a child dependent, the trial

court must find by a preponderance of evidence that the child meets one of the statutory

definitions. In re Welfare ofKey, 119 Wn.2d 600,612,836 P.2d 200 (1992); In re




                                                13 

No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare o/Ca.R; Cl.R and G.R.


Dependency o/CM, 118 Wn. App. 643, 648, 78 P.3d 191 (2003). The State relies on

the definition found in RCW 13.34.030(6)(c).

       RCW 13.34.030(6)(c) defines "Dependent child," in part, as any child who:

              (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. ...

The language ofRCW 13.34.030(6)(c) recognizes the inability to judge the capability or

incapability of a parent in the abstract. Simply finding a parent incapable is insufficient

for a dependency. Instead capability must be evaluated in the context of whether the

parenting constitutes a danger of substantial damage to the child's psychological or

physical development. The trial court made no such assessment.

       T.T. argues that the State must show her an unfit parent in order to establish a

dependency over her children. Much law supports T.T.'s position. The due process

clause of the state and federal constitution may also demand such a conclusion.

      A longstanding tenet of Washington law declares that a parent has the natural and

legal right to the custody and control of her children, unless so completely unfit for such

duties that the welfare of the children themselves imperatively demanded another

disposition of their custody. In re Dependency o/T.J.B., 115 Wn. App. 182, 187,62 P.3d

891 (2002), review granted, judgment rev'd sub nom., In re Dependency o/Brown, 149

Wn.2d 836, 72 P.3d 757 (2003). The legislature recognized this right in RCW 13.34.020,


                                                14
No. 32765-5-III Cons. wi 32776-1-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


in which it declared that "the family unit should remain intact unless a child's right to

conditions of basic nurture, health, or safety is jeopardized."

       Both the United States and Washington Constitutions recognize a parent's

fundamental liberty interest in care and custody of her children. U.S. CONST. amends. V,

XIV; WASH. CONST., art. I, § 3; Santosky v. Kramer, 455 U.S. 745,753,102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982); In re Custody ofSmith, 137 Wn.2d 1,27,969 P.2d 21 (1998).

The fundamental liberty interest of natural parents in the care, custody, and management

of their child does not evaporate simply because they have not been model parents.

Santosky v. Kramer, 455 U.S. at 753. The concept that all children are wards of the state

and that the state and its agencies have an unhampered right to determine what is best for

the child belongs to a repudiated political and moral philosophy foreign and repugnant to

American institutions. In re Welfare of Warren, 40 Wn.2d 342,343,243 P.2d 632

(1952). Courts undertake a grave responsibility when they deprive parents of the care,

custody and control of their natural children. In re Welfare ofSego, 82 Wn.2d 736, 738,

513 P.2d 831 (1973).

       In Dependency ofT.JB., this court agreed with the appellant that RCW

13.34.030(6)(c) (formerly RCW 13.34.030 (5)(c» requires a finding of current unfitness

as a prerequisite to a finding of dependency. 115 Wn. App. at 188. An existing ability or

capacity of parents to adequately and properly care for their children is inconsistent with

a status of dependency. 115 Wn. App. at 188. In re Dependency ofD.F.-M, 157 Wn.

                                                 15
No. 32765-5-III Cons. wi 32776-1-III; 32777-9-111
In re the Welfare 0/ Ca.R; CI.R and G.R.


App. 179, 236 P.3d 961 (2010) implies, but does not hold, that the child of a fit parent

cannot be declared a dependent of the State.

       The State emphasizes that a child may be declared dependent despite a fit parent.

The State relies on In re Welfare o/Key, 119 Wn.2d 600,836 P.2d 200 (1992), for this

proposition. Nevertheless, in Key, the Supreme Court held that the fit mother impliedly

consented to the dependency. Upon wishing to return Kirsten home, the mother could

revoke her consent. Moreover, the mother could veto any placement decision made by

the State. More importantly, the trial court denied a dependency on the ground ofRCW

13.34.030(6)(c) because the mother was fit. The trial court granted the dependency on a

unique statutory provision covering developmentally disabled children, the former RCW

13.34.030(2)(d) (1987). Kirsten Key suffered from spastic quadriplegia, cerebral palsy,

respiratory distress, and osteoporosis. Key supports a conclusion that Karen, Cathy and

Georgia are not dependents under RCW 13.34.030(6)(c), because T.T. has not been

declared unfit and that T.T., as mother, holds the right to determine the placement of her

daughters.

      The State also relies on In re Dependency o/Schermer, 161 Wn.2d 927, 169 P.3d

452 (2007). Schermer is a matchless decision because the State resisted a dependency,

while both the child and the parents sought the dependency. Henry Schermer suffered

severe mental health issues and engaged in deviant sexual activities. The parents could

not safely care for Henry at home and reasonably feared that Henry might kill them.

                                                16
No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare ofCa.R; Cl.R and G.R.


They could not pay for his placement outside the home without selling their home. The

State argued that a dependency requires a showing of deficiencies in a parent, but not

unfitness. The Supreme Court agreed and noted that unfitness is not an absolute

prerequisite to dependency. Schermer could be read as standing for the proposition that,

except in cases of severe disabilities of the child, unfitness is required. Its holding that

the State must show deficiencies supports T.T. since the trial testimony established no

current deficiency.

       Alas, this court need not decide whether the State must prove unfitness ofT.T. or

whether the evidence supports a parental deficiency. The trial court's failure to find

incapability creating a danger of substantial harm alone requires reversal.

       In re Dependency of CM, 118 Wn. App. at 651 (2003) illustrates a case in which

a dependency under RCW 13.34.030(6)(c) was supported by sufficient evidence and

findings of fact. The trial court entered a finding of fact that "the child is in

circumstances which constitute a danger of substantial damage to his physical and

psychological development because these special needs are not being addressed and

met." The child's pediatrician testified that the child showed language development

delays and the three-year-old child's memory did not correlate to the average child's

memory at that age. The pediatrician testified that the father provided insufficient

stimulation from activities like talking to the child, reading to him, and other

developmental activities. A therapist testified the father's cognitive problems interfered

                                                  17
No. 32765-5-II1 Cons. wi 32776-1-III; 32777-9-II1
In re the Welfare o/Ca.R; CI.R and G.R.


with his ability to implement proper parenting techniques. The therapist echoed the

pediatrician's testimony that the child encountered significant cognitive delays. This

court wrote:

                While the record shows that McCracken loves C.M. and does his
       best to care for him, there remains substantial evidence that C.M. has
       developmental delays that could result in significant psychological damage
       if they remain unaddressed. And there is substantial evidence that
       McCracken's own mental illness and poor judgment have affected his
       ability to address these delays, despite his best intentions and his best
       efforts.

In re Dependency o/CM, 118 Wn. App. at 654.

       CM highlights what is missing in the present appeaL In addition to the absence

of a finding of substantial harm to any of the Rees daughters, this appeal lacks evidence

to support such a finding. No physician, therapist, or counselor testified to any particular

needs of any of the sisters, let alone the inability ofT.T: to care for the needs. Amanda

Plumb, the State's only witness, without any health care qualifications, speculated that

Karen suffers from posttraumatic stress disorder, but no medical testimony supported

such a diagnosis. Plumb mentioned trauma experienced by the girls in the Nevada home

ofT.T., but provided no details of the trauma, let alone its impact on the girls. Assuming

the purported trauma included sexual abuse of Karen by Mark Gregory, authorities

concluded that the abuse did not occur. Plumb speculated that Gregory may have access

to T.T.'s home, but provided no direct evidence of such. Plumb provided no testimony

that the current care givers for each of the girls could better handle the needs of the girls

                                                 18
No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare ofCa.R; Cl.R and G.R.


than their mother T.T. Plumb provided no testimony that T.T. would thwart the

development of her three daughters.

       I recognize the need to defer to the trial court's factual decisions. To evaluate a

parent's claim of insufficient evidence of dependency, we determine whether substantial

evidence supports the court's findings of fact and whether the findings support the

conclusions oflaw. In re Dependency ofS.S., 61 Wn. App. 488,504, 814 P.2d 204

(1991). In a dependency proceeding, evidence is substantial if, when viewed in the light

most favorable to the party prevailing below, it is such that a rational trier of fact could

find the fact in question by a preponderance of the evidence. In re Dependency ofCB.,

61 Wn. App. 280,286,810 P.2d 518 (1991). This court is not to weigh the evidence or

the credibility of witnesses. In re Welfare ofSego, 82 Wn.2d 736, 739-40 (1973).

Nevertheless, the trial court below omitted a critical finding that any incapability ofT.T.

created circumstances constituting a danger of substantial damage to any child's mental

or physical development.

       I also recognize that this court can imply a finding by the lower court. The

termination of parental rights must be based, in part, on an explicit or implicit finding of

current parental unfitness. In re Welfare ofA.B., 168 Wn.2d 908,920,232 P.3d 1104

(2010). If the finding is not explicit, the court may imply the finding if the record clearly

shows that the trial court found the parent currently unfit to parent. Welfare ofA.B., at

921; In re Welfare ofA.G., 160 Wn. App. 841, 843,248 P.3d 611 (2011). In Welfare of

                                                 19
No. 32765-5-II1 Cons. wi 32776-1-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


A.G., this court reversed a termination of parental rights. We refused to imply a finding

of parental unfitness despite evidence of domestic violence impacting the health of the

children and the parent's chemical dependency.

       Implying a finding is particularly improper when the evidence does not support the

finding. The trial court omitted the finding for good reason. The trial testimony included

no evidence that T.T. 's care for Karen, Cathy and Georgia would lead to substantial

damage to their respective psychological or physical developments.

       The trial evidence possesses other problems. When testifying about T.T., Amanda

Plumb based most testimony on Nevada CPS records. In short, the testimony was

hearsay and could have included multiple levels of hearsay. The rules of evidence apply

to a dependency hearing. RCW 13.34.110(1); ER 1101(c)(3); In re Dependency of

K.NJ, 171 Wn.2d 568, 579, 257 P.3d 522 (2011). The Nevada records are not even

available for this court's review to determine if Plumb accurately portrayed their

contents.

       In In re Welfare ofXT., 174 Wn. App. 733, 300 P.3d 824 (2013), this court

reversed a finding of dependency on the ground that the Department of Social and Health

Services social worker's testimony was based on her review of the department's file.

This court observed that the trial court's discretion does not permit juvenile courts to

disregard evidence rules, especially when the deprivation of parental rights is involved.

The court held that parents should not be deprived of parental rights on hearsay, a form of

                                                20




                                                                                              ;
No. 32765-5-II1 Cons. wI 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


unsworn testimony. A social worker may refer to a written report to show the basis of the

worker's opinion, but written reports are not substantive evidence.

       T.T. objected to only details of alleged abuse when Amanda Plumb testified based

on hearsay. The trial court allowed the testimony and could allow all hearsay testimony

but only for the limited purpose of supporting Amanda Plumb's opinion. Nevertheless,

the testimony could not be used as substantive evidence and be the basis for the

dependency ruling. Stale hearsay is an unfortunate foundation to base a finding of

dependency.

       The trial court is the judge of the credibility of witnesses. Nevertheless, the lower

court never discounted Melissa Blodgett as a witness, who, unlike Amanda Plumb, saw

T.T. and directly observed her parenting skills. Blodgett's unimpeached testimony

conclusively established the ability ofT.T. to capably parent Karen, Cathy and Georgia.

This court's majority pretends that Melissa Blodgett never testified.

       The State emphasizes that Karen, Cathy and Georgia have special needs that T.T.

is not yet trained to meet. Nevertheless, the evidence only supports Karen holding

special needs and such evidence relies on hearsay. Amanda Plumb testified that Karen

"may" suffer from posttraumatic stress disorder. Plumb further opined that Karen "may"

have reactive attachment disorder in that she attaches quickly to others. Even if Plumb

was an expert who could diagnose a disorder, the testimony is worthless because the

opinion is based on a possibility not a probability. Once a court is satisfied with a

                                                21
No. 32765-5-111 Cons. wi 32776-1-111; 32777-9-111
In re the Welfare ofCa.R; CI.R and G.R.


witness' expertise, the test for admissibility is whether the expert can express an opinion

based on reasonable probability rather than mere conjecture or speculation. Davidson v.

Mun. ofMetro. Seattle, 43 Wn. App. 569, 571,719 P.2d 569 (1986).

       Trial evidence also fails to identify how a parent should treat Karen's needs, why

T.T. is deficient in meeting the needs, what training T.T. needs to meet the needs and the

length of the training, and whether someone else meets those needs now. Many parents

are initially unfit to meet the needs of special children, but those parents learn with

experience. The State does not remove children born with special needs from parents

until the parents have the opportunity, but fail, to learn to meet the needs.

       The State mentions Cathy's and Georgia's fear of the outdoors, trees, and bugs.

The testimony comes from a statement made by a caretaker to Amanda Plumb. Thus the

testimony is also hearsay. Counsel and the trier of fact were unable to explore the precise

fears of the girls. Many children are frightened of bugs and swaying trees in the dark of

night. No evidence suggests that such a fear creates special needs.

       Amanda Plumb expressed concern about the size ofT.T.'s Las Vegas home. In In

re Dependency ofD.F.-M, 157 Wn. App. at 193 (2010), a social worker complained that

the father's house had too few bedrooms. This court emphasized that courts, not

administrative agencies or individual social workers, are the ultimate evaluators of a

parent's ability to care for his child. The court noted that many children have been

happily raised without bedrooms of their own.

                                                 22
No. 32765-5-III Cons. wI 32776-1-III; 32777-9-III
In re the Welfare oICa.R,· CI.R and G.R.


       Amanda Plumb registered alarm about Karen, Cathy and Georgia encountering

Mark Gregory at T.T.'s home. On appeal, the State characterizes the potential for the

girls seeing Gregory as the most alarming aspect to returning Karen, Cathy and Georgia

to their mother. The State even falsely claims that Gregory subjected all three girls to

sexual abuse. This testimony is based solely on hearsay. Only Karen alleged sexual

abuse and authorities concluded the allegation was false.

       Plumb declared: "from what I've gathered, [Andrew] has visits with him [Mark.]"

CP at 165. Thus, this evidence of any encounter between Mark Gregory and Karen,

Cathy and Georgia is based on more hearsay. The testimony does not even establish the

possibility ofa visit between Andrew and his father at the T.T.'s home. Assuming any

visits, the visits could be at Gregory's home.

       Even assuming an encounter between Mark Gregory and one or more of the Rees

daughters, such is not grounds for creating a dependency. In In re Dependency 01

MS.D., 144 Wn. App. 468, 182 P.3d 978 (2008), the trial court ordered a dependency

based on the State's concern that the mother failed to protect her daughter from her

boyfriend, Seth Poirer. Poirer had a ten-year-old conviction for assault and criminal

mistreatment of his two-month-old baby. The mother's brother also reported to police

that Poirer sexually abused M.S.D. Nevertheless, a physician, who examined M.S.D.,

ruled out sexual abuse. This court reversed the dependency, even after recognizing the

appellate principle that this court must affirm the trial court if substantial evidence

                                                 23
No. 32765-5-III Cons. wi 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


supports the findings of fact. This court observed that a poor choice of a partner is not a

reason for the State to interfere in the life of a family. In this appeal, authorities

concluded that Mark Gregory did not abuse Karen.

       In short, Amanda Plumb frets about an immediate return of Karen, Cathy and

Georgia to T.T., but her testimony lacked evidence ofTT. being an incapable parent or

that placement with T.T would cause substantial damage to any of the three daughters.

A social worker's worries should not control dependency law. Plumb declared that she

wants "to make absolute sure with an ICPC [study] that these children are gonna be

moving back to a safe environment." CP at 213. Other parents are not subjected to an

exacting standard of absolute certainty that the home is a safe environment. T.T. does not

deserve this standard applied to her.

       The court commissioner and superior court judge failed to analyze the dependency

of the other daughters, Cathy and Georgia, separate from the dependency of Karen.

Scant, if any, evidence supported a conclusion that TT. is incapable of caring for her

daughter, Karen. Even less evidence supports a conclusion that T.T is incapable of

caring for the two younger girls, let alone care by T.T. would substantially damage the

girls' development.

                       Interstate Compact on Placement of Children

       To excuse the denial ofT.T.'s rights to her children, the State, pursuant to the

Interstate Compact on Placement of Children, sought an order directing Nevada to

                                                  24
No. 32765-5-III Cons. wi 32776-1-III; 32777-9-II1
In re the Welfare ofCa.R,· CI.R and G.R.


investigate the home ofT.T. for later placement of Karen, Cathy and Georgia in the

home. Such an order violates the law because the order directs an investigation of a

parent's home contrary to the terms of the ICPC.

       In In re Dependency ofD.F.-M, 157 Wn. App. at 190-91 (2010), this court

addressed whether the ICPC applies to parental placements. We held in the negative.

Alyce Fabian-Miller bore D.F.-M. Six months later a Washington court entered an order

declaring Rico Verner as D.F.-M.'s father. Three years later, the State took D.F.-M. into

protective custody because of neglect, domestic violence, and drug use by Fabian-Miller.

Thereafter, Verner learned of the dependency and demanded dismissal of the dependency

and placement of the child with him at his home in Oklahoma. The State conceded it

lacked evidence that Verner was an unfit parent. Nevertheless, the State did not wish to

allow placement ofD.F.-M. with Verner until Verner's home state agreed to placement

under the ICPC. The trial court ordered D.F.-M. placed with Verner and Fabian-Miller

appealed. The State joined with Fabian-Miller in arguing the provisions of the ICPC

should be fulfilled before placement with Verner. This court affirmed immediate

placement with Verner in part on the ground that the ICPC did not apply to investigating

the capability of a parent.

       A group of state social service administrators drafted the Interstate Compact on

Placement of Children in the 1950s to address the problem of providing services to

children placed across state lines. The compact seeks to foster cooperation and

                                               25
No. 32765-5-II1 Cons. wi 32776-I-III; 32777-9-II1
In re the Welfare ofCa.R; CI.R and G.R.


infonnation sharing among member states so as to ensure that children requiring

placement receive the maximum opportunity to be placed in a suitable environment with

a desirable degree and type of care. All fifty states, the District of Columbia, and the

United States Virgin Islands have adopted the ICPC. Washington enacted the compact in

1971. RCW 26.34.010.

       Under article III of the ICPC, the scope of the compact is limited to placements in

foster care or preliminary to an adoption. Article III also sets out the requirements for a

valid placement. No sending agency shall send to another state any child for placement

in foster care or as a preliminary to a possible adoption unless the sending agency

complies with the ICPC, which requires the sending agency to notifY the receiving state

of the intended placement and to provide such documents as may be necessary to carry

out the ICPC's purposes. The placement may not occur until the receiving state notifies

the sending agency in writing that the proposed placement does not appear to be contrary

to the interests of the child.

       The ICPC does not define "foster care." In D.F.-M, we noted that the plain,

ordinary meaning of the term is the placement of a child in a substitute home, one other

than that of the child's parents. Under article II(d) of the ICPC, "placement" means "the

arrangement for the care of a child in a family free or boarding home or in a child-caring

agency or institution ... and any hospital or other medical facility." In D.F.-M, we

further observed that, although "family free" or "boarding" homes are not defined in the

                                                26
No. 32765-5-III Cons. wi 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.


compact, these terms refer to nonparental residential arrangements that provide children

with the care usually received from parents. Unlike a boarding home, the care provided

by a family free home is free of charge. Based on these observations, we held that the

provisions of the ICPC could not be employed to investigate a parent's home before

placement of a child with a parent. The compact applies only to foster care or placements

preliminary to possible adoption, neither of which is a parental placement. Because this

court ruled based on construction of the compact, we did not address Rico Verner's

alternative argument that application of the ICPC to parental placements violates the due

process clause.

       The State seeks to distinguish D.F.-M on the ground that the Oklahoma father

actually saw the children, whereas T.T. has not seen her daughters for three years. No

reading of D.F.-M supports such a distinction being valid. We did not leave any door

open to permitting the use of the ICPC in parental placement under other circumstances.

The terms of the ICPC admit no exception to its limitation against applying to a parental

placement.

      The majority writes that it lacks a record as to the State of Nevada's ICPC

involvement so T.T.'s objection to the application of the compact is premature. The

majority's comment fails to recognize that D.F.-M holds that Nevada is to have no ICPC

involvement. The extent or record of this involvement is immaterial. The trial court

ordered involvement contrary to the ICPC that does not apply to parental placements.

                                               27
No. 32765-5-III Cons. wi 32776-I-III; 32777-9-III
In re the Welfare ofCa.R; CI.R and G.R.

       The majority also writes that any prohibition of employing ICPC for a parental

placement does not eliminate cooperation between the two states as the parties work

toward reunification. The majority does not explain what cooperation is needed or

permissible and why two states would cooperate outside their authority to act. Again, the

trial court ordered an ICPC placement review in Nevada contrary to the interstate

compact, state statute, and this court's decision. A court's sanctioning of extralegal and

unauthorized conduct by a state agency against the will of the legislature creates a

dangerous precedence. Therefore, I respectfully dissent.




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