           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of
J.O. and J.O.,                                   No. 72097-0-1
                                                (Consolidated with No. 72098-8-1)
                     Minor Children.
                                                DIVISION ONE                        c*n

STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
                                                                                      1          ' T-=
HEALTH SERVICES,                                                                     ro      ;<-:•', *-]

                                                                                             f r, r- r
                                                                                     —,


                     Respondent,
                                                UNPUBLISHED OPINION
      v.
                                                                                      C-.



SONIA OROZCO-SALGADO,

                    Appellant.                  FILED: March 2, 2015


       Leach, J. — Sonia Orozco-Salgado appeals an order declaring her twin boys,

J.O. and J.O., dependent.        She contends the order violates her statutory and

constitutional rights because the court struck her answer to the dependency petition and

deemed the petition's allegations admitted after she failed to appear at trial as required

by a CR 43(f)(3) notice.    She also contends the court erred in striking her answer

without first addressing the discovery sanction factors discussed in Burnet v. Spokane

Ambulance.1 We affirm.

                                         FACTS


      The twins were born on October 17, 2013.        At that time, Sonia and the twins

tested positive for amphetamines. The twins spent two weeks in intensive care.



      1 131 Wn.2d 484, 933 P.2d 1036 (1997).
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       On October 23, 2013, social worker Debra Daniel spoke with Jose Avila, one of

the twins' potential fathers. Avila told Daniel he put methamphetamines in Sonia's food

several times during her pregnancy. Sonia admitted using methamphetamine when she

was two months pregnant but claimed she did not know she was pregnant until later.

       On October 24, 2013, Daniel imposed a safety plan.        Under the plan, Sonia's

housemates, Nidia and Juan Orellana, would monitor Sonia and the twins when they left

the hospital and ensure that Avila did not have access to them. Sonia agreed to submit

to random urinalysis.

       On October 29, 2013, Sonia and the twins left the hospital. The next day, the

Orellanas called Daniel and reported that Sonia and the twins had not stayed with them

after they left the hospital.

       On    November 4, 2013, the Department of Social and Health Services

(Department) filed a dependency petition.     In addition to the facts recited above, the

petition alleged that a friend of Sonia's called Daniel on October 30 and reported that

Sonia and the twins stayed with her after they left the hospital. The friend had tried,

unsuccessfully, to locate Sonia and was "really concerned about the babies."

       The petition alleged that Sonia agreed, but failed, to meet with Daniel on October

30, 2013, and refused to reveal her location. Sonia's oldest child, Edith Estrada, told

Daniel that Sonia submitted Estrada's urine for her urinalysis tests and sold drugs in the

form of white powder and rocks in bags. The Department recommended out-of-home

care for the twins due to Sonia's "negligent behaviors and inability to maintain her
No. 72097-0-1 (consol.
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sobriety," as well as her failure to engage "in any treatment or services that would

provide safety measure in the home."

       On November 5, 2013, the court placed the twins in shelter care.           The court

found that "services offered or provided to the parent(s) have been unable to remedy

the unsafe conditions in the home" and that out-of-home placement should continue.

       On December 23, 2013, Sonia filed an answer admitting many of the allegations

in the petition.

       On April 17, 2014, the Department filed an amended petition. It alleged the twins

had "no parent, guardian or custodian capable of adequately caring for [them], such that

[they are] in circumstances which constitute a danger of substantial damage to [their]

psychological or physical development."

       Trial began on April 24, 2014. Despite notice, Sonia did not appear. Citing CR

43(f),2 the Department moved to strike Sonia's answer, deem the allegations in the

petition admitted, and proceed to trial.     The court asked what it should consider in

deciding whether to strike Sonia's answer. The Department responded,

       [T]he mother has an obligation under the rules to appear and participate in
       these proceedings, and to enable the Department to examine her and to
       elicit information that's relevant to the proceedings. And she has failed to
       do so. And the rules provide that in the event that a party does not
       participate in the proceedings, that their answer may be stricken.


       2 CR 43(f)(3) provides in pertinent part:
          If a party . . . refuses to attend and testify before the officer designated
          to take his deposition or at the trial after notice served as prescribed in
          rule 30(b)(1), the complaint, answer, or reply of the party may be
          stricken and judgment taken against the party.
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      . . . [And] pursuant to RCW 13.34.020, it specifically says that where the rights of
      the children and the parent conflict, the rights of the child shall prevail. And the
      statute also provides that permanency shall be achieved at the earliest possible
      time. . . .


       . . . And ... the information that the Court has at this time is simply that the
       mother is not involved with these children, has not been involved with these
       children for many, many months, is, we think, out of state; we don't know exactly
       where. And so, the idea that she should be able to dabble with the fates of her
       children at her whim is . . . there's simply no equitable support for that. We have
       a proceeding. She was given notice of the proceeding. . .. She's not here.

       .... It was her responsibility to maintain contact so that she could pursue her
       rights because she had filed an answer denying some of the allegations in the
       dependency petition. But, she has failed to pursue her rights. She has failed to
       remain in contact with her counsel, and that is why it [i]s an appropriate remedy
       to strike the answer and deem the allegations in the petition admitted.

       The twins' counsel agreed with the Department.          Sonia's counsel opposed

striking the answer and asked the court to start the trial and then recess until Sonia

could appear and testify.

       Agreeing with the Department, the court noted, "there's no reason that's been

given for her non-appearance here today" and "the only way the Court can look at it is

that she chose not to appear." The court struck Sonia's answer, deemed the allegations

in the petition admitted, and started the trial.

       The Department called two witnesses. Social worker Megan Hall testified that

she first met with Sonia on November 22, 2013.        Sonia told her she "uses a lot of

drugs." Hall noted that the Department had "numerous allegations of drug use by

[Sonia], including positive drug screens at the children's birth." Hall offered Sonia twice

weekly urinalysis and a full drug and alcohol evaluation. She offered these services
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"two or three times," both in person and in service letters.         When asked if Sonia

engaged in any of those services, Hall said she engaged in one urinalysis test.

         Hall testified that she arranged for visitation, but Sonia only visited the children

four or five times throughout the case and only once in the nine weeks prior to trial. Hall

testified that Sonia "lost multiple visitation contracts" and was incarcerated multiple

times after the twins were removed from her care. Sonia called Hall three weeks before


trial and said she was out of state.   Hall had not heard from Sonia since.     Hall believed


Sonia was not capable of adequately caring for "infants who are at the mercy of the . . .

parent caring for them" and that they would be in danger if left in her care.

         The twins' guardian ad litem, Pauline Duke, testified that a dependency should

be established.     She noted Sonia's "lack of engagement in the proffered services,"

failure to establish or maintain a bond with the children, "very concerning" history of

drug use, lack of treatment, and pending criminal matters.

         The court admitted several exhibits, including a November 2013 shelter care

order.    That order included the statement that Sonia "testified and has previously

represented that she agrees to substance abuse treatment." Other exhibits included a

January 2014 arrest warrant for Sonia's alleged possession of a stolen vehicle and a

May 2013 judgment and sentence for fourth degree assault that required her to enroll in

a domestic violence program.

         Sonia's counsel presented no witnesses.         The court and counsel agreed,

however, that Sonia could move to reopen when court reconvened in May 2014.
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       On May 9, 2014, court reconvened, and Sonia again did not appear.                Her

counsel told the court that she had agreed to participate by phone, but she had not

called. The court asked counsel to present "any other information you wanted to give

me" prior to closing argument. Sonia's counsel presented no additional information.

       Following closing arguments, the court granted the dependency petition. The

court noted the services offered by the Department and Sonia's failure to meaningfully

participate in any of them. Sonia attended only 4 of a possible 100 visits with the twins.

She also recently tested positive for methamphetamine in conjunction with a pending

criminal matter. The court stated that its "factual findings are based upon the testimony

of these witnesses combined with the Department's admitted exhibits, its petition, and

any other evidence that was presented at trial." The court concluded that the statutory

prerequisites for a dependency were satisfied and repeated its findings and conclusions

in a memorandum order.


      Sonia appeals.

                                       DECISION


      For the first time on appeal, Sonia contends the court's decision to strike her

answer and deem the petition's allegations admitted violated her statutory and

constitutional rights.3 Generally, an appellate court will not consider issues raised for

the first time on appeal.4 However, "[a] party may raise for the first time on appeal a


      3 Sonia's bare recitation of boilerplate due process principles in her trial brief did
not preserve the error she now asserts on appeal.
      4 State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).
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manifest error affecting a constitutional right."5 "A manifest error requires a showing of

actual prejudice."6 Actual prejudice requires a "'plausible showing by the [appellant] that

the asserted error had practical and identifiable consequences in the trial of the case.'"7

The appellant has the burden to demonstrate the basis for reviewing an issue raised for

the first time on appeal.8

       Sonia fails to address RAP 2.5(a) or the relevant case law. She offers no basis

for reviewing her statutory or constitutional claims for the first time on appeal. She has

thus failed to carry her burden.

       Even if Sonia had offered a basis for review, she could not establish manifest

constitutional error on this record. Primarily, she contends that the court's decision to

strike her answer and deem the petition's allegations admitted "resulted in a

dependency . . . based on unproven facts" and thus violated due process. While Sonia

and the twins were entitled to due process during the dependency proceeding,9 the

process she received was adequate.




      5 In re Adoption of M.S.M.-P., 181 Wn. App. 301, 312, 325 P.3d 392 (2014),
review granted. No. 90467-7 (Wash. Feb. 4, 2015); RAP 2.5(a)(3).
       6 M.S.M.-P., 181 Wn. App. at 312.
       7 Kirkman. 159 Wn.2d at 935 (internal quotation marks omitted) (quoting State v.
WWJ Corp.. 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)).
      8 State v. Grimes. 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011).
      9 Dependency proceedings involve the liberty interests and constitutional rights of
parents and children. In re Dependency of M.S.R.. 174 Wn.2d 1, 15-18, 271 P.3d 234
(2012): see In re Dependency of K.N.J., 171 Wn.2d 568, 579-80, 257 P.3d 522 (2011).
These rights are protected by due process, which includes notice, an opportunity to be
heard, and the right to be represented by counsel. In re Welfare of Key, 119 Wn.2d
600, 611, 836 P.2d 200 (1992).
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       The adequacy of a particular process depends on a balancing of three factors:

(1) the private interest at stake, (2) the risk that the procedure used will result in error,

and (3) the State's interest.10 Here, Sonia, the twins, and the State all had strong

interests at stake in the dependency proceedings.11 Those interests, however, were not

as strong as the interests at stake in termination proceedings.12 This is due in part to

the fact that, unlike decisions terminating parental rights, dependency decisions are

followed by review hearings and are reversible.13

       The remaining Matthews factor—the risk that the procedure used will result in

error—favors a conclusion that Sonia received constitutionally adequate process. While

the court's decision to deem the allegations in the petition admitted was unnecessary,

the court did not simply rely on those allegations.        Rather, the court heard sworn

testimony supporting those allegations, allowed cross-examination of the witnesses,

and afforded Sonia the opportunity to testify or call witnesses. This greatly minimized

the risk of an erroneous determination of dependency and satisfied due process.14

Taken together, the Matthews factors indicate there was no violation of due process.

   10 Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L Ed. 2d 18 (1976); in
re Dependency of J.W.. 90 Wn. App. 417, 429, 953 P.2d 104 (1998).
   11 See M.S.R., 174 Wn.2d at 15-18.
   12 In re Welfare of R.H., 176 Wn. App. 419, 425, 309 P.3d 620 (2013) (because of
the interests at stake in a termination proceeding, parents are afforded greater due
process rights in a termination proceeding than in a dependency proceeding).
   13 See In re A.W., 53 Wn. App. 22, 27-28, 765 P.2d 307 (1988 (noting that a
dependency determination is reversible through periodic review hearings at which a
new finding of dependency must be made and that a party's participation in such review
hearings may render any due process violations at the initial hearing harmless).
   14 See In re Welfare of S.I..  Wn. App.    , 337 P.3d 1114, 1119 (2014) (holding
that risk of erroneous deprivation of parental rights from default termination was

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       Even if Sonia could establish a due process violation, she could not establish

actual prejudice.   As noted above, the court's decision did not rest on unproven

allegations in the petition. The court's oral and written ruling expressly state that "[t]he

Court's factual findings are based upon the testimony of these witnesses combined with

the Department's admitted exhibits" and the allegations in the petition. As noted above,

the court heard testimony about Sonia's admitted drug use and need for treatment, her

lack of visitation, her unavailability to the caseworkers and the court, and her failure to

follow through with services. Sonia also admitted that she and the twins tested positive

for amphetamines when they were born, that she was incarcerated throughout her

pregnancy, and that she used methamphetamine during her pregnancy. There was no

manifest constitutional error.


       Sonia's arguments relating to Burnet are also raised for the first time on appeal

and fail for essentially the same reasons.        Burnet held that a court imposing harsh

discovery sanctions must first expressly consider whether the discovery violation was

willful, whether it substantially prejudiced the opponent, and whether lesser sanctions

would suffice.15 Assuming, without deciding, that Burnet's requirements for discovery

sanctions apply in this setting, Sonia fails to demonstrate any constitutional error, let


minimized by court's use of "sworn testimony of one familiar with the case and an
opportunity for a court to independently question such person"), petition for review filed,
No. 91261-1 (Wash. Feb. 6, 2015); In re Dependency of A.G., 93 Wn. App. 268, 278-80,
968 P.2d 424 (1998) (although mother was not present or represented by counsel, no
due process violation occurred because court heard testimony and made findings on
substantive issues).
   15 Burnet. 131 Wn.2d at 494-97.

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alone manifest constitutional error. And for the reasons set forth above, we decline to

consider any error under Burnet.

      Affirmed.




WE CONCUR:




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