              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of           )
                                                    No. 78572-9-I
G.J.M,                                       )
                                             )      (Consolidated with No. 78573-7-I)
                A Minor Child.               )
                                             )      DIVISION ONE
 STATE OF WASHINGTON,                        )
 DEPARTMENT OF SOCIAL AND                    )
 HEALTH SERVICES,                            )      UNPUBLISHED OPINION

                Respondent,                  )
                                             )
         v.

SARA MACRI,                                  )
                         Appellant.          )      FILED: February 3, 2020


         LEACH, J.   —   Sara Macri appeals the trial court’s order terminating her parental

rights to G.M. and dismissing her guardianship petition for G.M. She claims that the trial

court should not have denied discovery of or excluded evidence of G.M.’s caregivers’

immigration status. She claims that excluding this evidence denied her due process

right to present relevant evidence. If the trial court erred, any error was harmless. So

we affirm.

                                            FACTS

       G.M. was born on January 31, 2013. The biological mother, Sara Macri, tested

positive for methamphetamines when this child was born. The State removed G.M.

from her care and placed G.M. with foster care parents, Debra and, Michael Jansen,
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when G.M. was 10 days old. After one of the Jansens’ foster children raised concerns

about her care, the State conducted a licensing investigation into the home. During the

investigation, separate concerns developed about G.M.’s sleeping arrangements, and

this child was removed from the home at 22 months old. The dependency court placed

G.M. with paternal relatives, where G.M. currently lives.

       On August II, 2017, the Department of Social and Health Services filed a

petition to terminate Sara Macri’s parental rights. Sara Macri then filed a petition to

appoint the Jansens as G.M.’s guardians. Sara Macri admitted most of the allegations

in the State’s termination petition but denied that the continuation of her relationship

with G.M. diminished this child’s prospects for early integration into a stable and

permanent home. She also denied that the termination was in G.M.’s best interests.

      Sara Macri asked the court to consolidate the guardianship and termination of

parental rights proceedings. The proposed guardians, Debra and Michael Jansen, filed

a motion to intervene in the guardianship case. The court consolidated the proceedings

and allowed the Jansens to intervene.

      During pretrial discovery, Sara Macri requested information about G.M.’s

caregivers’ immigration status. She requested:

             1) Any and all documents that prove your current immigration
             status in the United States of America.

             2) Any and all documents regarding your attempt(s) to acquire legal
             immigration status in the United States of America.

             3) Any and all documents from any United States governmental
             office regarding your immigration status.




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       Sara Macri also filed a witness list that identified Dr. Luis Zayas as an expert

witness.     Zayas’s summary indicated that he would testify about the “trauma

experienced by citizen children of unauthorized immigrants” and the “best interests

issue and adoption or guardianship by unauthorized immigrants of a citizen child.” Sara

Macri filed a motion to compel depositions of the relative caregivers and discovery of

documents bearing on their immigration status.

       The court denied Sara Macri’s motion to compel and issued a protective order for

the relative caregivers. In the order, the trial court found:

              1.    Immigration status is not relevant to termination                or
       guardianship proceedings, and the current placement has no bearing.

               2.     The trial court will determine the guardians and guardianship
       versus termination, and for that determination and for that inquiry, which is
       not before this court, the case law provides that immigration status is not a
       reliable indication of risk of deportation.

              3.     In addition, there is significant public policy that supports
       non-disclosure of the status. Even where there is no ill motive in raising
       the issue of immigration status, the effect of the inquiry is invasive,
       harmful, and it has a widespread chilling effect to the detriment of children
       in need. The inquiry is unnecessary and it is irrelevant.
       Sara Macri renewed her request to present evidence about the caregivers’

immigration status before the trial. The judge again denied the request.

       After a trial, the trial court denied the guardianship petition and granted the

termination petition. In addition to its written findings, the court stated in its oral ruling

that G.M. has lived in a loving, stable, culturally appropriate home with the same

paternal relatives for the majority of G.M.’s life, and G.M.’s right to safety, nurture, well




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No. 78572-9-I /4


being, and permanence outweighs Sara Macri’s relationship with G.M.             Sara Macri

appeals.

                                        ANALYSIS

           Sara Macri challenges the trial court’s decision to exclude evidence of the

caregivers’ immigration status and expert testimony about the psychological effects

living with illegal immigrant parents has on children.       She claims this evidence is

relevant to the trial court’s determination of whether the continued parent-child

relationship impedes the child’s permanency and the court’s determination of which

placement decision most serves the child’s best interest.          If we assume, without

deciding, that the trial court erred, any error was harmless beyond a reasonable doubt.

       This court reviews questions about the admissibility of evidence for abuse of

discretion.1

       [A] reviewing court will find error only when the trial court’s decision (1)
       adopts a view that no reasonable person would take and is thus
       “manifestly unreasonable,” (2) rests on facts unsupported in the record
       and is thus based on “untenable grounds,” or (3) was reached by applying
       the wrong legal standard and is thus made “for untenable reasons.”t2J
       Nonconstitutional error “is harmless unless there is a reasonable probability, in

light of the entire record, that the error materially affected the outcome of the trial.”3 A




       I In re Interest of J.F., 109 Wn. App. 718, 728, 37 P.3d 1227 (2001) (citing In re
Dependency of P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990)).
       2 State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012) (internal
quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638
(2003))
       ~ State v. Webb, 64 Wn. App. 480, 488, 824 P.2d 1257 (1992); accord, State v.
Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

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No. 78572-9-I I 5


“‘reasonable probability’ is a probability sufficient to undermine the confidence in the

outcome.”4

       Sara Macri’s briefing offers no reason why this evidence is relevant to the issue

of termination. At oral argument, her counsel agreed that the evidence would probably

not be relevant on this issue. So we will only analyze whether excluding the evidence

was harmless in the guardianship context.          To approve a guardianship petition, the

court must find by a preponderance of the evidence that establishing a guardianship is

in the child’s best interests, rather than to terminate the parent-child relationship, and

               (c)(i) The child has been found to be a dependent child under RCW
        13.34.030;
               (ii) A dispositional order has been entered pursuant to RCW
        13.34.130;
               (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
        13.34.030;
               (iv) The services ordered under RCW 13.34.130 and 13.34.136
       have been 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.[51
       In her guardianship petition, Sara Macri alleged that guardianship would

be in G.M.’s best interests and admitted statutory elements (c)(i)-(vi).



       ~ State v. Chavez, 76 Wn. App. 293, 297, 884 P.2d 624 (1994) (quoting United
States v. Baciley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
       ~ RCW 13.36.040.


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No. 78572-9-I I 6


        During trial, the court heard testimony from Holly Battersby, a child and

family welfare services social service specialist, and from Dr. Steve Tutty, a child

forensic and neuropsychologist.      According to the court, Battersby presented

unchallenged evidence that G.M. had bonded with the paternal relatives and it

would be detrimental to G.M.’s sense of permanence to move G.M. from their

home. And, according to the court, Tutty provided unchallenged testimony that

moving G.M. from a home where G.M. has bonded presents a risk for this child’s

future ability to form attachments and trust others and could result in depression,

anxiety, trust issues, and resentment.

       The trial court noted that the State removed G.M. from the Jansens’ home

more than three years ago, and G.M. has lived with the caregivers for the

majority of G.M.’s life. It found that G.M. “is thriving” and is supported by a loving

and culturally appropriate family. The court noted how testimony “established the

strength of the bond and the healthy connection that [G.M.] has with the paternal

relatives.”   Finally, the court concluded how it was not persuaded by a

preponderance of the evidence that preserving Sara Macri’s parental rights by

“ordering a guardianship in a home from which [G.M.] was removed more than

three years ago outweighs the detrimental effect of removing [G.M.] from the

relative placement where [G.M.] is part of the family and to which [G.M.] is

bonded.” So it denied the guardianship petition.

       Even if the trial court should have admitted the expert testimony, excluding

it did not materially affect the outcome of the trial, given the evidence presented


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No. 78572-9-I / 7


to the court. Sara Macri presented no evidence showing the caregivers’ home

was anything but a stable and loving home for G.M. Immigration status cannot

be the only grounds for removing a child.6 Because Sara Macri did not provide

evidence that it was in G.M.’s best interest to change this child’s current home to

the Jansens’, the trial court would have dismissed the guardianship petition even

if the court had allowed Sara Macri to discover and present the immigration

status evidence. So any error denying discovery and excluding the evidence

was harmless.

                                     CONCLUSION

      We affirm. If the trial court had admitted the immigration status evidence, that

evidence would not have changed the outcome of the trial. So any error was harmless.




WE CONCUR:



                                                                     4~




      6   In re Dependency of M.R., 166 Wn. App. 504, 519, 270 P.3d 607 (2012).


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