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                                                                                2013 ,JUN   1   A-    39
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                                                                                              J



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
                                                                    No. 43922 1 II
                                                                              - -
IN RE GUARDIANSHIP OF K. .
                      F.
                       B



                                                                PUBLISHED OPINION




           HUNT, J.   —   KBF's father appeals the juvenile court's conversion of KBF's dependency
to   a   guardianship   under RCW 13. 6.
                                  040.
                                    3             He argues the Department of Social and Health

Services failed to prove that (1) had offered him reasonably available court-
                                 it                                         ordered necessary

services capable of correcting his parenting deficiencies in the foreseeable future; and (2)
                                                                                           there is

little likelihood that conditions will be remedied so that KBF can be returned to him in the near


future. RCW 13. 6. (v). hold that the Department failed to identify the
            c)(
            040(
               iv)
               2)(We
               3 and

court-
     ordered services it had offered KBF's father, a legislatively-
                                                                  mandated prerequisite for

converting KBF's dependency into a guardianship under RCW 13. 6.and the State also
                                                          040;
                                                            3

failed to show that it had continued to order services until " permanency planning goal [was]
                                                             a

achieved or dependency [was] dismissed"as RCW 13. 4. required. Therefore, we vacate
                                              136(
                                                 l
                                                 3 2     )
the juvenile court's guardianship order and remand for further proceedings.


1 To provide some confidentiality, we order that initials be used in the case caption and in the
body of the opinion to identify the parties and other juveniles involved.
2
      legislature recently amended RCW 13. 4.LAWS of 2013, ch. 173, § 2, ch. 254, § 2,
     The                                 136,  3
ch. 316, §2 (                        none of these amendments are relevant to our analysis.
             effective July 28, 2013);
No. 43922 1 II
          - -



                                                       FACTS


         In late 2009, Washington State Department of Social and Health Services social worker

Tara Benson received a referral involving allegations that KBF's,
                                                                father was using drugs and that

both KBF's father and mother were depressed; Benson visited the family home, saw tobacco on

the floor and knives and lighters accessible to 15-
                                                  month old KBF, and asked the parents to
                                                        -

complete drug testing ( UAs) and             to clean up the home.       Benson found the home "much


improved" when she visited the next week. Verbatim Report of Proceedings (VRP)at 8. But

later that week, after both parents' UAs had tested positive for methamphetamine use, Benson

returned to the home to find its condition had deteriorated; and she removed KBF. A week later,

the family met with Benson to establish a family reunification plan; KBF went to stay with her

maternal     grandparents. Based on KBF's enrollment as a Siletz Indian child, the Department

contacted the Siletz Tribe in Oregon.

                                                   1. DEPENDENCY


         The Department filed a dependency petition for KBF, which the juvenile court granted.

KBF remained with her maternal grandparents. In January 2010, Indian child welfare specialist

Pat   Lynn   took   over   as   the   family's   social worker.   Lynn's first concern was KBF's parents'

mental health and whether they were capable of supervising KBF. KBF's parents were offered




3
    This dependency petition was based on' concerns about the condition of the home, the parental
substance use, and the parents' inability to get along with the [maternal grandparents] who had
      her
KBF] "; father's significant
                  "                       criminal   history "; concerns about mental health issues"of both
                                                                "
parents; her father's 2009 diagnosis of a depressive disorder, agoraphobia, and "borderline
intellectualfunctioning "; his February and April 2009 referral for mental health services in
which he " was not     participating "; and KBF's developmental delays both mentally and
physically. VRP at 10, 11.

                                                          2
No. 43922 1 II
          - -



chemical dependency, mental health evaluation and services[, and] were going to set up

parenting classes."VRP at 22.

       After KBF's parents lost their home in February 2010, however, they were not in contact

with the Department from August to December 2010. In the middle of 2012, they began living

in the warehouse of an embroidery shop where KBF's father worked as an unpaid apprentice,

receiving room and board in exchange for job training. While living in Portland, both of KBF's

parents completed the following services offered through their tribe: mental health evaluations,

positive Indian parenting courses, and a nine -
                                              month chemical dependency treatment program.

KBF's parents visited Lynn, who observed that (1)their parenting skills were "getting better ";

  the visits during the past year and
2) "                                    a   half ha[ ]improved
                                                   d             significantly " and ( )
                                                                                     3 although the

parents' ability to recognize the cues ha[ ]improved....was] still not where it should be."
         "                               d           it [

VRP at 28.


       Based on a referral from his drug and alcohol counselor, KBF's father also sought mental

health services at the Native American Rehabilitation Association.         According to Lynn, the

tribe's mental health provider referred KBF's father to counseling for an adjustment disorder and

offered a psychotropic medication evaluation for a sleep disorder; according to KBF's father,

however, he was not aware of an " djustment disorder"or any services in which he was required
                                a

to participate. VRP at 62. Ultimately, KBF's father did not participate in any mental health

counseling, and he rejected the psychotropic medication evaluation in favor of his tribal doctor's

recommendation that he take over -
                                 the -counter medication.




4 VRP at27.



                                                   3
No. 43 922 1 II
           - -



       While KBF's parents were living in the Aberdeen area, the Department provided them

with a parenting coach. But after they moved from the Aberdeen area in 2010, closer to the
Siletz tribe,the Department did not provide another parenting coach. In 2012, Lynn attempted to

schedule a psychological parenting assessment in the Vancouver area; but when KBF's

permanent plan changed from reuniting the family to placing KBF in a guardianship, Lynn

abandoned this parenting assessment process.

                      II. CONVERSION OF DEPENDENCY TO GUARDIANSHIP


       In March 2012, KBF's maternal grandparents filed a guardianship petition, seeking

designation as KBF's guardians. At this point, KBF had been out of her parents' care for over

two years. KBF's parents contested this guardianship petition.

       At the July 26 guardianship hearing, Lynn testified that (1)he had ongoing concerns

about KBF's parents' mental health; ( )he did not believe conditions would be remedied to
                                    2

allow KBF to return to her parents in the near future because they had been unable to secure

employment or to maintain a stable living environment; 3)
                                                       ( although the Department could have

referred KBF's parents to a non -
                                tribal psychologist fora current parenting assessment, it did not

do so; 4)the Department did not request a home study through either Catholic Community
       (

Services or the tribe; and (5)he (Lynn) had no knowledge about the conditions of KBF's

parents' residence. Significantly, although Lynn also testified that a dispositional order was on

file with the court, he did not testify that any of the specific services that the Department had



5
  With the help of specialized educational services sought by KBF's grandparents, KBF's
development. improved substantially to average childhood development levels. But KBF's
parents were not provided an opportunity to meet with the specialized education providers during
their monthly visits with their daughter.


                                                El
No. 43922 1 II
          - -




offered or provided to KBF's parents or that any of the services they had completed had also

been court " rdered"under RCW 13. 4. r 136.'
           o                  130 o" .
                                3

          During KBF's father's guardianship hearing testimony, he (1)acknowledged that he had

suffered from debilitating depression when the Department removed KBF from the family home,

close in time to the deaths of his grandfather and brother in law; 2)
                                                            - -    ( asserted that his depression

was no longer debilitating; and (3)claimed that his living situation was not "
                                                                             unstable" and was

progressing a lot"because he was no longer homeless. VRP at 69. The juvenile court entered

findings of fact and conclusions of law, and it granted KBF's maternal grandparents'

guardianship petition. KBF remained with her grandparents. Her father appeals.
                                                   ANALYSIS


          KBF's father contends that the juvenile court erred in granting the guardianship petition

because the Department failed to prove the allegations in subsections (2)(and (v) RCW
                                                                       iv)
                                                                        c)( of

040,
13. 6.a relatively new statute that our legislature enacted in 2010 to allow any party to a
  3

dependency petition to request establishment of a guardianship. More specifically, KBF's father

argues that ( the Department failed to prove that it had offered the necessary services required
            1)



6
      legislature recently amended RCW 13. 4:LAWS of 2013, ch. 254, § 1 ( effective July
    The                                  130, 3
28, 2013); none of these amendments are relevant to our analysis.
7
    The record before us on appeal does not include a copy of this dispositional order or any other
juvenile court order that specifies which offered services had been court-
                                                                         ordered under RCW
130 or
13. 4. .136.
  3


8 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to a panel ofjudges.
      1
9
    KBF's father   challenges   the   Findings   of Fact, subsections   2. ( (
                                                                         8 and
                                                                        d) e).
No. 43922 1 II
          - -



under the dependency and guardianship statutes; and ( ) Department failed to establish "what
                                                    2 the

services were court-
                   ordered"by the dependency court under RCW 13. 4.and .136." of
                           "                                 130
                                                               3            Br.

Appellant at 12. We agree.

              I. CONVERSION OF DEPENDENCY TO GUARDIANSHIP UNDER RCW 13. 6.
                                                                    040
                                                                      3

           The instant   appeal presents   an   issue of first   impression: review of the legislature's

relatively    new,   more   flexible alternative to   parental   termination —guardianship   under RCW

040.
13. 6.
  3              This 2010 statute requires the juvenile court to convert a dependency into a

guardianship when it

           finds by a preponderance of the evidence that it is in the child's best interests to
           establish a guardianship, rather than to terminate the parent child relationship and
                                                                         -
           proceed with adoption, or to continue efforts to return custody of the child to the
           parent.

RCW 13. 6.
    a).
    040(
       2)(
       3

           In order to establish a guardianship under this statute, however, the legislature has

expressly prescribed that the juvenile court find that the following requirements have been met:

           c)( The child has been found to be a dependent child under RCW 13. 4.
            i)                                                            030
                                                                            3
           ii) dispositional order has been entered pursuant to RCW 13. 4.
              A                                                     130;
                                                                      3

10
   The Department's burden for establishing a guardianship is similar to that necessary to
terminate parental rights. See RCW 13. 4. 13. 4.
                                     180(  l and 190(
                                           3 ) 3 ),         2 respectively. We look to the
law relevant to parental terminations for guidance in applying this new guardianship statute; in
so doing, however, we note the higher burden of proof for a parental termination, where the
Department must prove the allegations by clear, cogent, and convincing evidence, rather than by
a mere preponderance of the evidence. In re the Welfare ofSego, 82 Wn. d 736, 739, 513 P. d
                                                                     2                  2
831 ( 1973). In      dependency matters, we defer to the juvenile court's decision and uphold its
findings of fact when supported by substantial evidence. In re Dependency ofK. .137 Wn. d
                                                                            C., 2
                                                                             S
918, 925, 976 P. d 113 (1999).
               2
11
     The   legislature recently   amended RCW 13. 4.LAWS
                                              030,
                                                3                     OF                          332, § 2
                                                                           2013, ch. 182, § 2, ch..
effective July 28,2013);
                       none of these amendments are relevant to our analysis.


                                                       Ce
No. 43922 1 II
          - -




       iii)At the time of the hearing on the guardianship petition, the child has or will
       have been removed from the custody of the parent for at least six consecutive
       months following a finding of dependency under RCW 13. 4.
                                                          030; 3
       iv) The services ordered under RCW 13. 4. 12] and 13. 4. have been
                                          13 0[
                                            3            136
                                                           3
       offered or provided and all necessary services, reasonably available, capable of
       correcting the parental deficiencies within the foreseeable future have been
       offered or provided;
       v)There is little likelihood that conditions will be remedied so that the child can
       be returned to the parent in the near future; and
       vi)The proposed guardian has signed a statement acknowledging the guardian's
       rights and responsibilities toward the child and affirming the guardian's
       understanding and acceptance that the guardianship is a commitment to provide
       care for the child until the child reaches age eighteen.

RCW 13. 6. ( )(
    a) vi) -( added).See also RCW 13. 6.
    040(
       2)(
       3 and ci) emphasis
                   (              030.
                                    3
                                                             14
                                 II. NECESSARY SERVICES"
                                     "


       The legislature has expressly required that, before the juvenile court can establish a

guardianship under .RCW 13. 6.the Department must show by a preponderance of the
                        040,
                          3

evidence that it has offered or provided the dependent child's parents (1) services "ordered"
                                                                          the

under RCW 13. 4.order of disposition) and RCW 13. 4.permanency plan); (2)
          130 (
            2                                 136 (
                                                3                   and

all necessary services, reasonably available, capable of correcting the parental deficiencies




12
   RCW 13. 4.provides that the court shall order disposition for a dependent child after a
          130 3
fact -
     finding hearing under RCW 13. 4.to prove that a child is dependent within the meaning
                               110
                                 3
of RCW 13. 4.
       030.
         3

13
   RCW 13. 4.provides that the supervising agency shall develop a permanency plan, which
        136  3
process will continue until a permanency planning goal*is achieved or the dependency is
dismissed; the plan shall "specify what services the parents will be offered to enable them to
resume custody, what requirements the parents must meet to resume custody, and a time limit for
each service plan and parental requirement."RCW 13. 4.
                                                b)(
                                                136(
                                                   i).
                                                   2)(
                                                   3
14 RCW 13. 4.and RCW 13. 4.
       130
         3           136.
                       3



                                                7
No. 4



within the foreseeable future. "   RCW 13. 6. also In re Dependency of T. .,
                                       c)(
                                       040(
                                          iv);
                                          2)(
                                          3 see                         R

108 Wn. App. 149, 164 65, 29 P. d 1275 (2001).Here,.
                      -       3                   although the Department offered and

provided many services to KBF's father, it failed to meet these statutory requirements.

                                   A. Ordered"by the Court
                                      "

         At KBF's guardianship hearing, Lynn testified that (1) juvenile court had entered a
                                                               the

dispositional order, and (2) Department had offered KBF's parents "chemical dependency,
                            the

mental health evaluation and services [ and] were   going   to set up   parenting   classes. "   VRP at


22.    But Lynn -
                did not testify about content of this dispositional order or about any specific

services that the court had " rdered"for KBF's parents under RCW 13. 4.or .136. Nor does
                            o                                    130
                                                                   3

the record before us on appeal show which services the court ordered for KBF's parents. But the

legislature expressly requires a showing . of court "ordered" services, not merely "offered"

services, in order for the juvenile court to establish a guardianship under RCW 13. 4. See
                                                                                140.
                                                                                  3

RCW 13. 6.
    c)(
    040(
       iv).
       2)(
       3

         This lack of a record demonstrating that the juvenile court had ordered services for

KBF's father under RCW 13. 4. and RCW 13. 4. leads us to conclude that the
                       130
                         3            136
                                        3


Department did not prove by a preponderance of the evidence what services, if any, the juvenile



15
      This requirement encompasses " all reasonable services that are available within the
department or supervising agency, or within the community, or those services which the
department has existing contracts to purchase" and which it "
                                                            shall report to the court if it is
unable to provide such services."RCW 13. 4. also In re Dependency of T. .G.
                                     b)(
                                     136(  vi);
                                           2)(
                                           3       see                L
and CL.G., Wn. App. 181, 198, 108 P. d 156 (2005).
             126                      3
16
  Although the record also alludes to a permanency plan, this plan is not included in the record
on appeal. Thus, we have no information before us about the permanency plan's provisions and
requirements, whether this plan was submitted to the court as required by RCW 13. 4.
                                                                                  136(    2
                                                                                          3 ),
and what services this plan may have ordered KBF's father to engage in.
No. 43922 1 II
          - -



                                                                                  17
      ordered" KBF's father to engage in under the
court "                                                      applicable   statutes.    We hold, therefore,

that the juvenile court lacked*authority to convert KBF's dependency into a guardianship under

RCW 13. 6.
    040.
      3


                             B. Offered and Provided"by the Department
                                "

       Because the issue may arise again on remand, we address KBF's father's second

argument that the Department also. failed to show that it had .offered or provided" him with
          —                                                    "

all necessary services 181
                       [       available, capable of correcting the parental deficiencies within the

foreseeable future."RCW 13. 6.
                        c)(
                        040(
                           iv).13.
                           2)( 34.1)
                           3  RCW 136 ( provides:

       Whenever a child is ordered removed from the home, a permanency plan shall be
       developed no later than sixty days from the time the supervising agency assumes
       responsibility for providing services, including placing the child, or at the time of
       a hearing under RCW 13. 4. whichever occurs first.
                                  130,3                                  The permanency
       planning process continues until a permanency planning goal is achieved or
       dependency is dismissed. The planning process shall include reasonable efforts
       to return the child to the parent's home.

Emphasis added). The record before us on appeal, however, shows that after deciding to

convert KBF's dependency into a guardianship, the Department stopped offering services to her

father, before   the   guardianship   was   established. This discontinuation of services was contrary


17 We acknowledge that the record shows that the Department offered and provided KBF's father
many services to correct his parenting deficiencies and that our vacating KBF's guardianship
and, thus, remanding for further proceedings may appear unnecessary. But our duty is to
implement the legislature's statutory requirements. If we have misconstrued its intent for this
new guardianship procedure, then it will be for the legislature to clarify.
18
     Services " court-
                     ordered           under    RCW        13. 4. and
                                                           130
                                                             3               RCW       13. 4. RCW
                                                                                       136,"
                                                                                         3
c)(
040(
13. 6.
   iv).
   2)(
   3
19
  See, e. ., s testimony that, when the permanent plan changed from reuniting the family
         g Lynn'
to placing KBF in a guardianship, Lynn abandoned the parenting assessment process and,
apparently, also stopped offering services to KBF's father.

                                                       9
No. 43922 1 II
          - -



to the legislature's express requirements in RCW 13. 4. the Department continue the
                                                 136(
                                                    1 that
                                                    3 )

permanency planning process, including "reasonable efforts to return the child to the parent's

home," " a permanency planning goal is achieved."Thus, the record does not show that the
     until

Department met this statutory requirement either..

       Accordingly, we vacate the juvenile court's guardianship order and remand for further

proceedings consistent with this opinion.




                                               10
