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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       DIVISION ONE


In the Matter of the Dependency of              No. 71300-1-1
P.H.V.S., dob 3/29/13,
                                                (Consolidated with No. 71301-9-1)
                         A minor child,

STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
                                                PUBLISHED IN PART OPINION
                         Respondent,

             v.



HEIDI GABHART and RICHARD
SMITH,

                         Appellants.            FILED: December 8, 2014

      Schindler, J. — Richard Smith and Heidi Gabhart are the parents of P.H.V.S.

Smith and Gabhart seek reversal of the order of dependency and disposition order. The

court found P.H.V.S. dependent because neither parent was capable of adequately

caring for the child such that the circumstances constituted a substantial danger to the

child's psychological or physical development under RCW 13.34.030(6)(c). Smith

contends the absence of his guardian ad litem (GAL) during a portion of the

dependency fact-finding hearing violated the mandatory statutory and GALR

requirements and his right to due process. Smith also asserts insufficient evidence
No. 71300-1-1 (Consol. with No.71301-9-l)/2


supports finding that he was not capable of adequately caring for P.H.V.S. or that the

child was in circumstances constituting a danger of substantial harm. Gabhart contends

insufficient evidence supports finding the Washington State Department of Social and

Health Services made reasonable efforts to eliminate the need to remove P.H.V.S.

Gabhart also asserts her attorney provided ineffective assistance of counsel and

violation of her right to due process. We hold the absence of Smith's GAL during a

morning session of the four-day dependency fact-finding hearing violated the mandatory

statutory and GALR requirements. However, because the record shows there was little

or no risk of error, we hold there was no violation of his right to due process. We also

hold that substantial evidence supports the finding of dependency under RCW

13.34.030(6)(c), and Gabhart cannot establish either ineffective assistance of counsel

or violation of due process. Accordingly, we affirm.

                                         FACTS


       Heidi Gabhart and Richard Smith have lived together since 2010. Gabhart and

Smith are the parents of P.H.V.S., born on March 29, 2013.

       Gabhart is the mother of three other children: 20-year-old F.O., 7-year-old J.S.,

and 4-year-old A.G. F.O. has lived with his father since the age of 13. In May 2007, the

Washington State Department of Social and Health Services (Department) removed six-

month-old J.S. from Gabhart because of concerns about her "deteriorating mental

health." The court found J.S. dependent and ordered Gabhart to participate in a

psychological evaluation, mental health counseling, and medication management.

Gabhart did not participate in services. The Department placed J.S. with her father.
No. 71300-1-1 (Consol. with No. 71301-9-l)/3

       A.G. was born in Nevada on September 7, 2008. While in the hospital, Nevada

child protective services removed A.G. from Gabhart's care. Gabhart was diagnosed

with paranoid schizophrenia. The court found A.G. dependent. Gabhart did not

participate in mental health services or follow through with referrals for housing. In

2009, the court terminated Gabhart's parental rights to A.G.

       In February 2013, Gabhart went to Dr. Nicole Ingrisano for prenatal care.

Gabhart told Dr. Ingrisano that she had not engaged in mental health services for "well

over a year" and had "no desire to be on medications." When Dr. Ingrisano tried to talk

to Gabhart about her mental health, Gabhart became "very easily agitated" and "angry."

Gabhart made comments to Dr. Ingrisano about the father of the child, suggesting he

was "temperamental and that she was looking at moving out from him because he could

be violent." Concerned about Gabhart's ability to care for an infant, Dr. Ingrisano

instructed the hospital to put a "hold" on the baby.

      After P.H.V.S. was born on March 29, 2013, Dr. Ingrisano asked clinical social

worker Jennifer Cruze to assess Gabhart. Cruze met with Gabhart on March 30.

Gabhart told Cruze she had a diagnosis of "psychosis NOS"1 and reported "hearing

voices in her head sometimes." Gabhart said she was not engaged in mental health

treatment and was not currently on any medication to treat her illness. Gabhart told

Cruze that she received Social Security disability income "for her mental health

diagnosis." Cruze made a referral to Washington State Department of Social and

Health Services Child Protective Services (CPS)

       CPS social worker Molly Rice met with Gabhart and Richard Smith at the hospital

that same day. Beforehand, hospital staff told Rice that Gabhart reported having

       1 Not otherwise specified.
No. 71300-1-1 (Consol. with No. 71301-9-l)/4


hallucinations and hearing voices. During the meeting, Rice had to repeat questions

multiple times "due to [Gabhart] just not answering them." Rice said Smith's breath

smelled of alcohol and he was "not able to answer questions directly."

       CPS social worker Kyla Madsen met with Smith on April 1. Smith told Madsen

that he had been "' "taking care of [Gabhart]" for the last 2-3 years.'" Smith said that

Gabhart had been " 'passing out, falling over, and losing consciousness for "years."'"

Madsen testified that Smith " 'appeared to have some cognitive delays or difficulty

communicating in a clearway,'" and while he was " 'obviously concerned about both

Mom and child,'" he " 'appeared unable to understand [the] severity of [the]

circumstances.'"

       On April 2, Madsen, a CPS supervisor, Gabhart, Smith, and Smith's niece

Amanda Twiggs-Johns attended a "Family Team Decision Making" meeting. During the

meeting, Gabhart "almost passed out or fell asleep. Her eyes became groggy, her

mouth was slightly agape, [and] her head bobbed." After approximately five to seven

minutes, Gabhart "returned to a normal state and continued with the conversation."

Gabhart said she had "a neurological condition." Twiggs-Johns told Madsen and the

CPS supervisor that "the family has seen several instances where Mom has passed out

during busy family functions." Twiggs-Johns said she did not think Smith "fully

processed or understood the seriousness of Mom's condition." Twiggs-Johns did not

know if Smith had a mental illness but said he "has behaviors that are concerning

including his inability to clearly process information, communicate with others, and

recognize the signs of Mom's condition."
No. 71300-1-1 (Consol. with No. 71301-9-l)/5


       On April 3, the Department filed a dependency petition alleging the child was

abused or neglected, or had no parent, guardian, or custodian capable of adequately

caring for the child such that circumstances constituted a danger of substantial damage

to the child's psychological or physical development under RCW 13.34.030(6)(b) and

(c).

       The Department recommended P.H.V.S. remain in out-of-home care, asserting

Gabhart's untreated mental health issues constituted a danger to the child.

       The mother cannot control her behavior due to her significant mental
       health issues and this threatens child's well-being and safety. She is
       exhibiting psychotic like features in her behavior and has minimal insight
       into how her mental health impacts her parenting despite the assistance of
       multiple providers to facilitate her understanding. The mother's mental
       health issues prevent her from meeting child's cognitive, emotional, and
       developmental needs.

The Department alleged Smith's mental health status was unknown and he exhibited an

"inability to recognize signs of concerns in Mom's behavior."

       At the shelter care hearing on April 8, the court placed P.H.V.S. in foster care.

The court entered an order requiring Gabhart and Smith to each obtain a psychological

evaluation and follow treatment recommendations. The court authorized weekly

supervised visits with P.H.V.S. and set a dependency fact-finding hearing for June 7.

       In May, Smith's attorney Lorraine Roberts filed a motion to investigate Smith's

competency and determine whether to appoint a guardian ad litem (GAL). The court

appointed Shawn Crowley as the investigative GAL for Smith. In early June, Gabhart's

attorney Matthew Pang asked the court to appoint a GAL to investigate Gabhart's

competency. The court appointed Craig McDonald as the investigative GAL for

Gabhart. The court continued the dependency fact-finding hearing to August 23.
No. 71300-1-1 (Consol. with No. 71301-9-l)/6

       Crowley recommended the court appoint a GAL for Smith. Crowley stated that

Smith had "difficulty in comprehending abstractions," and because he was not "capable

of weighing the merits of the various legal options involved in this case[,] I'm doubtful he

can meaningfully assist his attorney beyond stating his goal of having the child returned

home."


       McDonald recommended the court appoint a GAL for Gabhart. McDonald stated

Gabhart's "understanding of the legal process is, at best, minimal," and "she did not

seem to retain information, veered off track and ultimately became unresponsive."

       After holding separate competency hearings, the court ruled Smith and Gabhart

were "not competent." The court found that neither Smith nor Gabhart could understand

or intelligently "comprehend the significance of the legal proceedings and their effect on

[his/her] best interests." The court appointed Crowley as the GAL for Smith and

McDonald as the GAL for Gabhart "to assist" each parent "in these dependency

proceedings." The court continued the dependency fact-finding hearing to September

10.


       The dependency fact-finding hearing began on October 22. Gabhart, her GAL

McDonald, her attorney Pang, Smith, his GAL Crowley, his attorney Roberts, the court

appointed special advocate (CASA) for P.H.V.S., the attorney representing the CASA,

the Department, and social worker Noemi Peredo appeared for the dependency fact

finding hearing. At the beginning of the hearing, Gabhart's attorney made a motion to

continue the hearing until Gabhart was found competent. The court denied the motion

to continue.
No. 71300-1-1 (Consol. with No. 71301-9-l)/7


        Fifteen witnesses testified during the four-day dependency fact-finding hearing,

including Dr. Ingrisano, Cruze, Rice, Madsen, and Twiggs-Johns.

        Cruze and Madsen testified the first day. Madsen testified that when she spoke

with Smith at the hospital, "[h]is conversation just was very sporadic and all over the

place." For instance, when Madsen asked Smith if he had any Native American

ancestry, Smith told her that he was "100 percent White and that he had learned that he

was full Irish. And then in the next breath he told me that he was 100 percent Aztec

Indian and started talking about how Aztec Indians had all been . . . obliterated."

Madsen stated that when she talked to Smith about his failure to recognize the severity

of Gabhart's mental illness, Smith "got really upset with me and told me that I was

twisting his words."

        Five witnesses testified the second day, including Dr. Steven Haney, CPS social

worker Rice, the CASA for P.H.V.S., a visitation supervisor, and a mental health crisis

and intake specialist.

        Dr. Haney conducted a mental health evaluation of Gabhart in April 2013. Dr.

Haney testified that Gabhart reported hearing voices and "seemed somewhat

depressed and anxious." Dr. Haney diagnosed Gabhart with schizoaffective disorder.

Dr. Haney said Gabhart told him she was hospitalized for mental health concerns in

2000 and again in 2007. Gabhart told Dr. Haney she was "put on a whole range of

medications" after her first hospitalization, but did not think the medications were helpful

and stopped taking the medications altogether. Dr. Haney testified that Gabhart "did not

have any insight into her mental illness and thus did not see herself as having mental

illness."
No. 71300-1-1 (Consol. with No. 71301-9-l)/8


      The CASA for P.H.V.S., Jennifer Franklin, recommended P.H.V.S. remain in

foster care. Franklin testified that after observing Gabhart and Smith interact with

P.H.V.S., she did not believe they could "meet the basic needs of the baby." Franklin

said the parents did not "respond to [the baby's] cues or seem to know what to do when

she's upset." Franklin recommended Gabhart and Smith each obtain a psychological

evaluation and parenting coaching.

       Monet Frazier supervised visitation with P.H.V.S. Frazier said Smith and

Gabhart "consistently come to all visits," but Gabhart would "nod off' during

approximately half of the visits. Frazier testified that there was an ongoing problem with

the parents preparing and feeding P.H.V.S., and she had to remind Smith "several times

that he needed to support the baby's neck." Frazier said that after Gabhart and Smith

began working with a parent coach, they were better able to respond to P.H.V.S. and

seemed "more comfortable" around the baby. Frazier testified Gabhart typically did "the

majority [of] all child care" during the visits, such as feeding and changing diapers, but

Smith had "taken on a little bit more of that role in the last few weeks." Cross-

examination of Frazier was not complete at the end of the second day of the fact-finding

hearing.

       Before the beginning of the third day of the dependency fact-finding hearing,

Smith's court-appointed GAL sent an e-mail stating he did not plan to attend the

morning session but wanted the court to proceed without him. The attorneys

representing Smith and Gabhart did not object.

             THE COURT:      ... I notice that Mr. Crowley's not here, but I
       understand he wants us to proceed without his - without him.
              MR. McDONALD:          Correct.




                                                8
No. 71300-1-1 (Consol. with No. 71301-9-l)/9


              MR. PANG:       That's what he indicated by e-mail.
              MR. McDONALD:         Correct.

       During the morning session of the third day, the parties completed cross-

examination of Frazier, Nevada social worker Natalie Miller testified, and the

Department began the direct examination of social worker Noemi Peredo.

       Miller testified that she was involved in the Nevada dependency and termination

proceedings concerning A.G. Miller said that Gabhart appeared "erratic" and

"delusional" but denied having any mental health issues.

       Peredo testified that she met with Gabhart and Smith at least three times a

month for the past six months. Peredo said that Smith and Gabhart were "very

responsive to the feedback that the parent coach gives them" but continued to ask "the

same question again." Peredo testified that during the visits she supervised, Gabhart

"tended to the baby." Smith "would be watching the mother and the baby" and "would

only hold the baby, like, once or twice, and it wouldn't last for a very long time."

       Crowley was present when the dependency fact-finding hearing reconvened for

the afternoon session. During the afternoon session, Dr. Ingrisano and a mental health

case manager who worked with Gabhart testified.

       On the fourth and final day of the dependency fact-finding hearing, the

Department recalled Peredo to complete direct examination and four other witnesses

testified, including Twiggs-Johns and Dr. Maria Flores.

       Peredo testified that Gabhart was no longer engaging in mental health treatment

and that Gabhart told her she stopped taking the medications "a few months" before

September. Peredo testified that Smith gave "conflicting information" about whether he

had ever sought mental health services or taken medication for a mental illness.
No. 71300-1-1 (Consol. with No. 71301-9-l)/10

Peredo reiterated that during the visits with P.H.V.S., Gabhart did the majority of the

basic childcare like changing diapers, and that in the beginning, Smith was "really not

engaged in holding the baby" and there was a "lack of interaction between the father

and the baby." Peredo also repeated her concerns about Smith's "ability to process

information" because he asked the same questions multiple times. Peredo testified that

P.H.V.S. would "be at risk of neglect" if she were placed in her parents' care. Peredo

stated that in her opinion, Gabhart and Smith were "not able to care for the child at this

time."


         The mother has mental health issues that -- and she has not seek [sic]
         consistent treatment for that. The father has confidence in the mother's
         ability to care for the child. And the father does not seem to have
         understanding of the mother's limited capacity to take care of herself and
         an infant.'21

         Dr. Flores had been Gabhart's primary care doctor since 2002. Dr. Flores

testified that Gabhart had paranoid schizophrenia and was bipolar.      Dr. Flores testified

that Gabhart's symptoms had become worse over the last two years. Dr. Flores stated

that she was concerned when Gabhart became pregnant with P.H.V.S. because she did

not believe Gabhart would be able to care for a child. Dr. Flores said she never met

Smith, but her impression from Gabhart was that it "wasn't a stable relationship."

         Gabhart frequently interrupted the hearing with inappropriate comments. On at

least two occasions, Gabhart appeared to be "nodding off' and "her eyes rolled back in

her head so that the whites showed." Gabhart requested medical attention after one of

the episodes.

         The court found P.H.V.S. dependent under RCW 13.34.030(6)(c) because

neither parent was "capable of adequately parenting the child and there's danger of

         2 Alteration in original.

                                              10
No. 71300-1-1 (Consol. with No. 71301-9-l)/11


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

Smith was in denial about the seriousness of Gabhart's condition, the court found he

was not able to assume responsibility as the primary care giver.3

      The court entered an order of dependency ordering P.H.V.S. to remain in out-of-

home care. The order of disposition requires Gabhart to obtain mental health

counseling and follow through with treatment recommendations, including taking

medications as prescribed. The court ordered Smith to obtain a psychological

evaluation "with parenting component and a cognitive component and follow through

with any treatment recommendations."4 Smith and Gabhart appeal the order of

dependency and disposition order.




       3 The court ruled, in pertinent part:
                I think these parents want the child. They are trying. They're consistently going
       to the supervised visit. They're making as much effort as they can, but they have issues,
       psychological issues that are -- it's making itvery difficult for them to follow directions,
       comprehend, change behavior....
              But the concern of this Court is truly and profoundly the issue of the mother
       having some untreated mental health issue, Father appears to also, and the mother
       having some untreated medical issues.. . .
                ... I think it's undisputed that at the time the baby was born, at least, [Gabhart]
       wasn't taking her meds and she wasn't in any treatment. Her behavior in Court, both her
       mental behavior where she's not able to control herself and has some frequent outbursts
       - I'm saying "outburst" in the mildest manner. I mean, I don't -- she's not, you know, loud
       and angry, but she is expressing her opinions inappropriately during court.
                So my observation is that she's not able to manage her behavior. Plus she's had
       two, at least, medical incidents, one where 911 was called at her request because she
       was nodding offor passing out or something. . .. [I]f Mom is nodding off, there's a risk to
       the child's physical safety if she can't watch her.
               There's argument that perhaps the father can pick up the slack. But the father
       has expressed to multiple witnesses that either she doesn't nod - the mother doesn't
       nods [sic] offor the mother is just tired from working. There's some denial going on ... .
                ... So there's concern that the father is not going to be able to pick up the slack
       in this case. That's myfear in this case about the baby. I hope both parents can have an
       evaluation done to determine what needs to be addressed in terms of their mental health
       issues, the mother can figure out what it is, is wrong medically.
              I feel that the Department has proved by a preponderance that the child is
       dependent. And, frankly, if - I don't think the child is safe without some services.
       4 Emphasis omitted.

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No. 71300-1-1 (Consol. with No. 71301-9-l)/12


                                               ANALYSIS

Absence of GAL


        Smith seeks reversal of the order of dependency on the grounds that the

absence of his GAL during the morning session of the third day of the dependency fact

finding hearing violated RCW 4.08.060, the Guardian ad Litem Rules, and due process.

        Under RCW 4.08.060, if an incapacitated person is a party to an action, he "shall

appear by guardian."5 RCW 4.08.060 provides, in pertinent part:

        When an incapacitated person is a party to an action in the superior courts
        he or she shall appear by guardian, or if he or she has no guardian, or in
        the opinion of the court the guardian is an improper person, the court shall
        appoint one to act as guardian ad litem.'61

        In In re Welfare of Dill, 60 Wn.2d 148, 372 P.2d 541 (1962), the Washington

Supreme Court held that the requirements of RCW 4.08.060 are "mandatory" and an

incapacitated person "can appear in court only by a guardian ad litem or by a regularly

appointed guardian." DMI, 60 Wn.2d at 150.

        In Dill, the Department filed a dependency petition alleging the mother was

mentally ill and the father could not care for the children. Dill, 60 Wn.2d at 149.

Approximately six months after the mother was "adjudicated as mentally ill" and

committed to Western State Hospital, she was "granted a terminal leave." Din, 60

Wn.2d at 149-50. The Department filed a petition to terminate the parents' rights to the

children. The mother and father appeared "with their attorney" at the termination

hearing. Dill, 60 Wn.2d at 149. The court entered an order terminating the parents'


         5 Emphasis added.
         6 It is well established that use of the word "shall" indicates a mandatory obligation. See Amren v.
City of Kalama. 131 Wn.2d 25, 35, 929 P.2d 389 (1997); Wash. State Coalition for the Homeless v. Dep't
of Soc. & Health Servs.. 133 Wn.2d 894, 907-08, 949 P.2d 1291 (1997); Strenae v. Clarke. 89 Wn.2d 23,
29, 569P.2d60(1977).

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No. 71300-1-1 (Consol. with No. 71301-9-l)/13


rights to their children. Din, 60 Wn.2d at 149.

      The Supreme Court reversed. The court rejected the argument that because the

mother was represented by counsel, the statutory requirements were met. Dill, 60

Wn.2d at 150-51. "The statutory mandate is not satisfied when the person under legal

disability is represented by an attorney." Dill, 60 Wn.2d at 150. The court held RCW

4.08.060 was mandatory and the mother could only appear and participate through a

GAL Dill, 60Wn.2dat150.

      A person under such legal disability can appear in court only by a
      guardian ad litem or by a regularly appointed guardian. A guardian ad
      litem has complete statutory power to represent the interests of the ward.
      Rupe v. Robison. 139 Wash. 592, 595, 247 Pac. 954 .. . (1926). See,
      also, In re Miller. 26 Wn. (2d) 202, 173 P. (2d) 538 (1946).

DHI, 60 Wn.2d at 150.

      The GALR also impose a mandatory obligation on the GAL to be present at the

fact-finding hearing. The purpose of the GALR is to "establish a minimum set of

standards applicable to all superior court cases where the court appoints a guardian ad

litem ... to represent... an adjudicated incapacitated person pursuant to Title 11,13

or 26 RCW." GALR 1(a). GALR 2(l) expressly states the GAL "shall appear at any

hearing for which the duties of a guardian ad litem or any issues substantially within the

guardian ad litem's duties and scope of appointment are to be addressed."

       Because the GAL had a mandatory obligation under RCW 4.08.060 and the

GALR to attend and participate in the entire dependency fact-finding hearing, the court

erred in proceeding without the presence of Smith's GAL. However, because the

absence of the GAL during the morning session of the third day of the hearing created

little or no risk of error, we conclude there is no due process violation.



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       The due process clause of the Fourteenth Amendment protects the rights of

parents to the custody, care, and companionship of their children. In re Welfare of Key,

119 Wn.2d 600, 609, 836 P.2d 200 (1992); U.S. Const, amend. XIV. Parents have a

fundamental liberty interest in the care and welfare of their minor children. In re

Dependency of Schermer. 161 Wn.2d 927, 941, 169 P.3d 452 (2007). But this interest

is not absolute. The State has a constitutionally protected parens patriae interest in

protecting the best interests of the child and "the physical, mental, and emotional health

of children." In re Welfare of Sumev, 94 Wn.2d 757, 762-63, 621 P.2d 108 (1980);

Schermer, 161 Wn.2dat941.

       A dependency proceeding "is 'a preliminary, remedial, nonadversary proceeding'

that does not permanently deprive a parent of any rights." Key, 119 Wn.2d at 609

(quoting In re A.W.. 53 Wn. App. 22, 30, 765 P.2d 307 (1988)). Dependency

proceedings are designed to protect children from harm, help parents alleviate the

problems that led to intervention, and reunite families. In re Interest of J.F., 109 Wn.

App. 718, 728, 37 P.3d 1227 (2001). In the context of a dependency proceeding, the

essential requirements of due process are notice, an opportunity to be heard, and the

right to be represented by counsel. Key, 119 Wn.2d at 611. "[D]ue process is flexible

and calls for such procedural protections as the particular situation demands."

Morrissev v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). In

determining whether a procedure violates due process, we must consider three factors:

(1) the parents' interests, (2) the risk of error created by the procedures used, and (3)

the countervailing governmental interest supporting use of the challenged procedure.

Key, 119 Wn.2d at 610-11; see Matthews v. Eldridqe, 424 U.S. 319, 334-35, 96 S. Ct.



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No. 71300-1-1 (Consol. with No. 71301-9-l)/15


893, 47 L. Ed. 2d 18 (1976)); Santoskv v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388,

71 L Ed. 2d 599 (1982).

       Here, the record establishes little or no risk of error related to the absence of

Smith's GAL at the morning session of the third day of the dependency fact-finding

hearing. Nevada social worker Miller testified only about her involvement with Gabhart

in the dependency and termination proceedings related to A.G.

       Frazier's testimony concerning Smith's ability to parent P.H.V.S. repeated what

she had testified to the day before. The day before, Frazier testified at length about her

observations of Smith during the supervised visits with P.H.V.S. On cross-examination

during the morning of the third day, Frazier repeated her earlier testimony that Gabhart

was the primary caregiver during visits, and that Gabhart and Smith asked "numerous"

"[b]asic, necessary child care questions."

       Peredo also testified during direct examination about Smith's ability to care for

the child. Although Peredo's testimony during the morning session on the third day was

critical of Smith's ability to care for P.H.V.S., Peredo repeated those same concerns

when the Department continued direct examination and Smith and his GAL were

present. Peredo reiterated that it was "strictly the motherthat would be caring for the

child" during visits, and that she had to "make repeated statements" when "advis[ing]

the father" because "he seems to forget information."7




        7The record also shows the court disregarded testimony that Smith asserts was prejudicial by
crossing out a number of proposed findings. Specifically, the court crossed out proposed findings based
on Peredo's testimony that Smith smelled ofcigarette smoke and P.H.V.S. would cry because ofthe
smell, that Smith did not follow the properfeeding schedule and repeatedly gave P.H.V.S. an empty bottle
to suck on, and that there were "control issues between the parents." The courtalso refused to order the
drug and alcohol evaluation Peredo recommended, ruling there was insufficient evidence to warrant doing
so.


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No. 71300-1-1 (Consol. with No. 71301-9-IJ/16


        We hold the absence of Smith's GAL during the morning session of the third day

violated the mandatory statutory requirements and GALR, and the court erred in

proceeding without the presence of Smith's GAL. But because the absence of the GAL

resulted in little or no risk of error, there is no due process violation.8

        Because the remainder of this opinion has no precedential value, the panel has

determined it should not be published in accordance with RCW 2.06.040.

Sufficiency of the Evidence

        In the alternative, Smith contends insufficient evidence supports finding P.H.V.S.

dependent under RCW 13.34.030(6)(c).9

        We review a trial court's decision in a dependency for abuse of discretion. In re

Dependency of T.L.G., 139 Wn. App. 1, 15, 156 P.3d 222 (2007). A court abuses its

discretion if the decision is manifestly unreasonable or based on untenable grounds or

untenable reasons. T.L.G., 139 Wn. App. at 15.

        To find a child dependent, the State must prove by a preponderance of the

evidence that the child meets one of the statutory definitions of dependency under RCW

13.34.030(6). Key, 119 Wn.2d at 612. In this case, the trial court found P.H.V.S.

dependent under RCW 13.34.030(6)(c). RCW 13.34.030(6)(c) provides that a child is

dependent where the child "[h]as no parent. .. capable of adequately caring for the


        8 For the first time in his reply brief, Smith contends his counsel was ineffective for failing to object
to the GAL's absence. We do not consider an argument made for the first time in a reply brief. Cowiche
Canvon Conservancy v. Boslev. 118Wn.2d801, 809, 828 P.2d 549 (1992) (issue raised for the first time
in a reply brief is too late to warrant consideration). Nonetheless, Smith cannot establish prejudice.
         9Smith also assigns error to finding of fact 2.5 that states the Department made reasonable
efforts to prevent or eliminate the need for removal but those effortswere unsuccessful because
P.H.V.S.'s health, safety, and welfare could not be adequately protected in the home. However, Smith
does not support the assignment of errorwith any argument. Where a party assigns errorto a finding but
presents no argument in their opening brief on any claimed assignment, that assignment of error is
waived. Boslev, 118 Wn.2d at 809.


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child, such that the child is in circumstances which constitute a danger of substantial

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

       The legislature has determined that in balancing the legal rights of parents

against the rights of the child, the rights and safety of the child shall be the paramount

concern. RCW 13.34.020; Schermer. 161 Wn.2d at 942. There are no specific factors

a court must consider when determining whether a parent is capable of parenting under

RCW 13.34.030(6)(c); rather, the inquiry is highly fact-specific. Schermer, 161 Wn.2d at

951-52. The State need not prove that 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
       "unfitness" in the usual sense. Rather, it 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. Under RCW
       13.34.030[(6)](c), it is unnecessary to find parental misconduct in order to
       find a child dependent.

Schermer, 161 Wn.2d at 944.

       In evaluating a claim of sufficiency of the evidence in a dependency proceeding,

we determine whether substantial evidence supports the trial court's findings of fact and

whether the findings support the conclusions of law. In re Dependency of E.L.F., 117

Wn. App. 241, 245, 70 P.3d 163 (2003). Evidence is substantial if, when viewed in the

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

preponderance of the evidence. E.L.F., 117 Wn. App. at 245. In making this

determination, this court does not weigh the evidence or the credibility of witnesses. In

re Welfare of Seqo, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). Unchallenged

findings are verities on appeal. JTv, 109 Wn. App. at 722.

       Smith assigns error to findings of fact 2.2(dd) and 2.2(hh). Findings of fact

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No. 71300-1-1 (Consol. with No. 71301-9-l)/18


2.2(dd) and 2.2(hh) state, in pertinent part:

       dd         The mother mostly attended to the baby at visits, while the
             father watched. The father needed a lot of guidance from Ms.
             Peredo on how to hold the baby. At some visits, Ms. Peredo would
             have to remind the father how to hold the baby properly. After
             holding the baby for 2-3 minutes, the father would give the baby back
             to the mother.


       hh.   The mother performs the majority of child care tasks at visits,
             including feeding the baby, and changing her diaper. The father only
             began changing diapers recently. The father usually only holds the
             baby for a few minutes at a time, and then gives the baby back to the
             mother.

       Substantial evidence supports the challenged findings. Frazier and Peredo

testified that while Smith had recently become more involved in childcare

responsibilities during visits, Gabhart still did "the majority [of] all child care," such as

feeding and changing diapers, and that Smith typically would only hold P.H.V.S. for a

few minutes before giving her back to Gabhart.

       Smith challenges the portions of findings of fact 2.2(w) and 2.2(oo)10 that state he

is "in denial" about the significance of Gabhart's medical episodes and P.H.V.S. needs

to remain in out-of-home placement because of "the risk that the father would allow the

mother to care for the child alone." Smith argues the findings are contrary to the record.

       10 Findings of fact 2.2(w) and 2.2(oo) state:
       w.     The mother's episodes of passing out or nodding off are very concerning. The
              mother could drop the baby if she were holding the child when she experienced
              one of these episodes. These episodes also prevent the mother from being able
              to provide appropriate supervision for the child, which presents a risk to the child's
              physical safety. The father is in denial regarding the significance of the mother
              having these episodes.

       oo.   The child needs to remain in out-of-home placement because of the mother's
             untreated mental health needs; the mother's untreated medical or neurological
             condition and physical health; the father's unknown mental health status; the
             father's inability to recognize signs of concern in the mother's behavior; the risk
              that the father would allow the mother to care for the child alone; and the risk that
              both parents together present to the child because of their inability to consistently
              meet the child's needs and provide safe care during their supervised visits. The
              father is unable to pick up the slack, if the mother is unable to care for the child.

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No. 71300-1-1 (Consol. with No. 71301-9-l)/19


Smith cites Peredo's testimony that Smith told her he would "do whatever it takes" to

care for P.H.V.S., including putting her in daycare. The unchallenged findings establish

Smith also told Peredo that "the mother would care for the baby" and that he would

"take the baby to work with him" even though Smith works outside doing landscaping.

       The evidence showed Smith did not appreciate the seriousness of Gabhart's

illness or understand Gabhart could not care for P.H.V.S. alone. Smith's niece Twiggs-

Johns testified that she did not think Smith "understood the seriousness of [Gabhart's]

condition." CPS social worker Madsen testified that Smith was unable to recognize "the

severity of the situation" regarding Gabhart's physical and mental health issues. Peredo

testified that Smith did not "seem to have understanding of the mother's limited capacity

to take care of herself and an infant," and that P.H.V.S. would be at risk of neglect if

placed in her parents' care. Madsen, Peredo, and hospital social worker Rice

expressed concerns about Smith's ability to care for the child alone.11

       Viewed in the light most favorable to the Department, substantial evidence

supports the court's finding that Smith was not capable of adequately caring for

P.H.V.S. such that she is in circumstances which constitute a danger of substantial

damage to her psychological or physical development.

Reasonable Efforts to Eliminate Need for Removal

       Gabhart contends insufficient evidence supports the finding that the Department

"made reasonable efforts to prevent or eliminate the need for removal of the child from

the child's home" and there was a "manifest danger" that P.H.V.S. "will suffer serious

       11 Finding of fact 2.2(aa) states:
       On October 9, 2013, the father told Ms. Peredo that he had never been involved with
       mentally ill people or institutions and that he had never had a psychological evaluation.
       In the same conversation, the father then said that he had had a psychological evaluation
       and was put on medication, but he did not like it so he stopped taking the medication.
                                                   19
No. 71300-1-1 (Consol. with No. 71301-9-l)/20


abuse or neglect if the child is not removed."

       Following a fact-finding hearing, the court may enter a disposition placing the

child in out-of-home care if it finds that (1) reasonable efforts have been made to

prevent the need for removal, and preventative services have been offered or provided

and have failed to prevent the need for removal; and (2) the Department proved by

clear, cogent, and convincing evidence that a manifest danger exists that the child will

suffer serious abuse or neglect if the child is not removed from the home. RCW

13.34.130(5).12 In determining placement of a child in a dependency proceeding, the

court's paramount duty is to protect the best interests of the child. RCW 13.34.020; in

re Dependency of J.B.S., 123 Wn.2d 1,10, 863 P.2d 1344 (1993). This court reviews

child placement decisions for abuse of discretion. In re Dependency of A.C., 74 Wn.

App. 271, 275, 873 P.2d 535 (1994).

       Here, the court found the Department "made reasonable efforts to prevent or

eliminate the need for removal of the child from the child's home; but those efforts were

unsuccessful because . . . [t]he health, safety, and welfare of the child cannot be

adequately protected in the home." The court found "by clear, cogent and convincing

evidence that a manifest danger exists that the child will suffer serious abuse or neglect

       12 RCW 13.34.130(5) states, in pertinent part:
       An order for out-of-home placement may be made only if the court finds that reasonable
       efforts have been made to preventor eliminate the need for removal of the child from the
       child's home and to make it possible for the child to return home, specifying the services,
       including housing assistance, that have been provided to the child and the child's parent,
       guardian, or legal custodian, and that preventive services have been offered or provided
       and have failed to prevent the need for out-of-home placement, unless the health, safety,
       and welfare of the child cannot be protected adequately in the home, and that:
              (a) There is no parent or guardian available to care for such child;
                   (b) The parent, guardian, or legal custodian is not willing to take custody ofthe
       child; or
              (c) The court finds, by clear, cogent, and convincing evidence, a manifest
       danger exists that the child will suffer serious abuse or neglect if the child is not removed
       from the home and an order under RCW 26.44.063 would not protect the child from
       danger.

                                                       20
No. 71300-1-1 (Consol. with No. 71301-9-l)/21


if the child is not removed."

       Substantial evidence supports the court's findings. The evidence established

Gabhart has a history of mental illness that prevents her from meeting the needs of the

child. Gabhart also had multiple documented episodes where she appeared to

suddenly lose consciousness, posing a safety risk to P.H.V.S. The Department

provided Gabhart with medical care, mental health counseling, and medication

management. Although Gabhart briefly reengaged in mental health services after

P.H.V.S. was born, she discontinued treatment and stopped taking medication before

the dependency fact-finding hearing.

       The Department also provided Gabhart and Smith with a parent coach. While

both parents improved their ability to feed and soothe P.H.V.S., Peredo and Frazier

expressed serious concerns about the parents' ability to care for an infant.

       Gabhart also argues that she and Smith could co-parent P.H.V.S. Gabhart's

argument ignores the evidence that Smith was in denial about the seriousness of her

mental and physical issues and he was "unable to pick up the slack" if she could not

care for the baby.

Ineffective Assistance of Counsel

       Gabhart contends her attorney provided ineffective assistance of counsel by

conceding that she was not competent to testify and objecting to calling her as a

witness at the dependency fact-finding hearing.

       Parents have a statutory right to representation by counsel at all stages of a

dependency proceeding. RCW 13.34.090(2); In re Dependency of V.R.R., 134 Wn.
App. 573, 581, 141 P.3d 85 (2006). This right includes the right to effective legal


                                            21
No. 71300-1-1 (Consol. with No. 71301-9-l)/22


representation. V.R.R., 134 Wn. App. at 580.

      To prevail on her claim of ineffective assistance of counsel, Gabhart must show

(1) deficient performance by counsel and (2) resulting prejudice. In re Dependency of

S.M.H.. 128 Wn. App. 45, 61, 115 P.3d 990; Strickland v. Washington. 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

      There is a strong presumption of effective representation of counsel, and

Gabhart has the burden to show that based on the record, there are no legitimate

strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d

322, 335-36, 899 P.2d 1251 (1995).

             Judicial scrutiny of counsel's performance must be highly
      deferential. It is all too tempting for a defendant to second-guess
       counsel's assistance after conviction or adverse sentence, and it is all too
      easy for a court, examining counsel's defense after it has proved
      unsuccessful, to conclude that a particular act or omission of counsel was
      unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134[, 102 S. Ct.
      1558, 71 L. Ed. 2d 783] (1982). A fair assessment of attorney
      performance requires that every effort be made to eliminate the distorting
      effects of hindsight, to reconstruct the circumstances of counsel's
      challenged conduct, and to evaluate the conduct from counsel's
      perspective at the time. Because of the difficulties inherent in making the
      evaluation, a court must indulge a strong presumption that counsel's
      conduct falls within the wide range of reasonable professional assistance;
      that is, the defendant must overcome the presumption that, under the
      circumstances, the challenged action "might be considered sound trial
       strategy." See Michel v. Louisianaf, 350 U.S. 91, 101, 76 S. Ct. 158, 100
       L.Ed. 83(1955)].

Strickland, 466 U.S. at 689. If counsel's conduct can be characterized as legitimate trial

strategy, it cannot provide the basis for a claim of ineffective assistance of counsel.

State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999).

       The Department identified Gabhart and Smith as potential witnesses to testify at

the dependency fact-finding hearing. On the first day of the hearing, the attorneys


                                             22
No. 71300-1-1 (Consol. with No. 71301-9-l)/23


representing Gabhart and Smith moved to exclude the parents from testifying because

the court had entered an order finding Gabhart and Smith were not competent and

appointed a GAL to represent each parent. The court granted the motion and ruled that

neither Smith nor Gabhart could testify.

      [Tjhey've been found incompetent such that they need a guardian ad
      litem. . . . [I]f the parties can't understand the significance of the legal
      proceedings, I don't see how they can possibly testify
      competently. . . . [T]hey've been found incompetent. They can't assist
      their lawyers. That's why they have a GAL.

       Gabhart contends there was no strategic reason to disclose that she was not

competent or to object to her testifying at the hearing. We disagree.

       First, the stipulation that Gabhart was not competent to testify merely reflected

the order previously entered by the court. There is no dispute that before the

dependency fact-finding, the court held a competency hearing, entered an orderfinding

Gabhart not competent, and appointed a GAL.

       Second, the record supports a legitimate strategic reason to prevent the

Department from calling Gabhart as a witness. The Department's attorney told the
court that without the parents' testimony, "I don't know how the Courtcould make a

ruling on the parents' abilities to care for the child and their --1 think it would also inform
their needs in terms of disposition." The attorney was also "concerned to lose the
opportunity for the Court to observe the parents at all, which is what Ifeel I'm being
denied."

       In In re Welfare of Houts. 7 Wn. App. 476, 499 P.2d 1276 (1972), is

distinguishable. In Houts, the attorney stipulated that the parents should not be present
during the termination trial. Houts, 7 Wn. App. at 479. During an in-chambers


                                               23
No. 71300-1-1 (Consol. with No. 71301-9-l)/24


conference, the attorney also stipulated that the father was mentally ill. Houts. 7 Wn.

App. at 480. A number of witnesses testified during the termination trial, including a

psychiatrist who testified the mother suffered from chronic schizophrenia. Houts. 7 Wn.

App. at 477-79. The court held that by not insisting on a competency hearing, the

attorney "impliedly admitted that both his clients were either mentally incompetent or so

far incompetent that they needed the protection of a guardian ad litem." Houts, 7 Wn.

App. at 483.

           This implied admission became an express admission with respect to Mr.
           Houts .... The breadth of the stipulation was such as to substantially
           impair whatever chances Mr. and Mrs. Houts might otherwise have had to
           prevent entry of an order of permanent deprivation against the parents.
           Furthermore, their attorney's . . . stipulation that neither Mr. nor Mrs. Houts
           be present during the hearing of the state's case ... did not conform to
           due process requirements.

Houts, 7 Wn. App. at 483-84.

           Here, unlike in Houts. the court held a hearing on competency and appointed a

GAL to represent Gabhart at the dependency fact-finding hearing. There is no dispute

Gabhart and her GAL were present throughout the dependency fact-finding

proceedings.

           For the first time on appeal, Gabhart claims the court violated her right to due

process by ruling that she could not testify. The right to be heard does not necessarily

mean the right to give testimony. In re Dependency of R.L., 123 Wn. App. 215, 223, 98

P.3d 75 (2004). Gabhart does "not challeng[e] the competency determination by the

trial court." A witness who is not competent to testify has no right to testify. RCW

5.60.050. The court did not violate Gabhart's due process right by ruling she could not

testify.



                                                 24
No. 71300-1-1 (Consol. with No. 71301-9-l)/25

       Gabhart also contends the court erred in ruling that her GAL could not

"participate in trial" by questioning or cross-examining witnesses. Gabhart

misrepresents the record.

       Before the dependency fact-finding hearing began, the Department asked the

court to clarify that the GAL would not be acting as Gabhart's attorney during the

hearing and would not be permitted to question or cross-examine witnesses. Gabhart's

GAL agreed. The GAL states it is his understanding that he was "simply here for

purposes of assisting and providing such assistance as is necessary, but I would not be

cross-examining." The court advised Gabhart's counsel to treat Gabhart's GAL "as if

you're talking to your client."

Motion to Continue

       Gabhart next argues the court erred in denying her motion to continue the

dependency fact-finding hearing until she was found competent.

       We review a trial court's decision to deny a continuance for manifest abuse of

discretion. V.R.R., 134 Wn. App. at 580. A trial court abuses its discretion when it

exercises that discretion based on untenable grounds or reasons. State ex rel Carroll v.

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). In deciding a motion to continue, the

trial court takes into account a number of factors, including due diligence, due process,

the need for an orderly procedure, the possible effect on the fact-finding hearing, and

whether prior continuances were granted. V.R.R.. 134 Wn. App. at 581. To show that

the denial of a continuance violated the right to due process, an appellant must show

that either she was prejudiced by the denial, or that the outcome would have been

different ifthe continuance had been granted. V.R.R., 134 Wn. App. at 581.


                                            25
No. 71300-1-1 (Consol. with No. 71301-9-l)/26


      At the beginning of the fact-finding hearing, Gabhart's attorney requested an

indefinite continuance until Gabhart was found competent. The attorney proposed "set

hearings" where "we would check in and determine whether or not Ms. Gabhart is

competent." The Department opposed a continuance, arguing that RCW 13.34.020

guarantees a child the right to "speedy resolution" of a dependency proceeding. The

court denied the request.

       RCW 13.34.070(1) requires a court to hold a fact-finding hearing on a

dependency petition "no later than seventy-five days afterthe filing of the petition,
unless exceptional reasons for a continuance are found." Here, the dependency fact
finding hearing had already been continued twice. And as the court noted, "Even if
there was a date you could come up with that you think your client might become

competent, as you said . . . , people go in and out ofcompetency." The court did not
abuse its discretion in denying Gabhart's request to continue.

       We affirm.




                                                  ^rQ^flk t
WE CONCUR:




                                                           &*J


                                             26
