                                                                                     '....,. c',




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of                DIVISION ONE
A.J., DOB: 10/30/06,
                                                  No. 72255-7-1
                      A Minor Child,

LEONA LEE,

                      Appellant,

                 v.                               PUBLISHED OPINION

STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL
AND HEALTH SERVICES

                       Respondent.                FILED: August 10, 2015


       Dwyer, J. — After a 14-dayfact-finding hearing, the trial courtfound that

the Department of Social and Health Services did not meet its burden of proof
with regard to its allegation that Leona Lee's daughter A.J. was a dependent
child as defined by statute and alleged in the Department's petition.

Notwithstanding this determination, and contrary to law, the trial court did not
enter an order dismissing the dependency petition. Instead, the court entered an
orderdeclaring its "intent" to dismiss the petition while requiring the parties to
develop a plan to transition A.J. back to Lee's care and custody.
       Overthe next half year, the trial court held repeated hearings to evaluate
Lee's progress in complying with the transition plan. When Lee experienced
No. 72255-7-1/2



some difficulty meeting the terms of the plan, the Department filed a motion to

establish A.J.'s dependency under RCW 13.34.030(6)(c) and, for the first time,

RCW 13.34.030(6)(a).1 Without convening a trial, hearing testimony, or allowing

Lee to examine witnesses, the trial court (after allowing each side to present five

minutes of legal argument) entered an order declaring A.J. dependent under both

provisions.

       Lee now appeals, contending that the trial court violated both due process

and statutory requirements by (1) entering a delayed dependency determination

without holding a further fact-finding hearing, and (2) by entering a finding based

on abandonment, which was never pleaded in the dependency petition. We

agree. Moreover, we conclude that the trial court erred in the first instance by

failing to dismiss the dependency petition as to A.J. upon its determination,
following the 14-day fact-finding hearing, that A.J. had not been proved to be a

dependent child. Accordingly, we reverse.

                                                I


       Leona Lee is the mother of eight children: M.W. (born August 10, 1996),

Q.S. (born October 27, 1998), D.S. (born February 22, 2002), K.W. (born

December 22, 2003), At.J. (born August 11, 2005),2 A.J. (born October 30,




       1 RCW 13.34.030(6) provides, in pertinent part:
               (6) "Dependent child" means any child who:
               (a) Has been abandoned;

                (c) Has no parent, guardian, or custodian capable of adequately caring
       for the child, such that the child is in circumstances which constitutea danger of
       substantial damage to the child's psychological or physical development.
       2The Department refers to this child as T.J.
No. 72255-7-1/3



2006), Ah.T. (born March 23, 2011),3 and AIT. (born July 9, 2012).4 A.J. is the

subject of this appeal.

       Before moving to Washington, Lee and her children lived in Texas, where

the family first came to the attention of child protection services. In December

2004, police in Texas responded to a 911 call at Lee's apartment and found her

four children unattended. The children reported Lee had gone to the store, and

Lee returned while police were speaking with the children. As a result of this

incident, M.W., Q.S., D.S., K.W., and At.J., once he was born, were placed in

foster care and then with Lee's maternal grandmother for a year. Eventually, the

legal petition filed in Texas was dismissed and the children were returned to

Lee's care.

       In January 2010, Lee left her children in the care of her friend, Christopher

Dixon.5 While she was away, Dixon hit Q.S. in the face, knocking out one tooth

and breaking another. Lee called the police when she returned. Lee did not take
Q.S. to the doctor until four or five days later. She later acknowledged that this

was a poor decision.

       Then-four-year-old A.J. was present during Dixon's assault of Q.S.

Moreover, this was not the first domestic violence incident that A.J. had

witnessed. In 2009, A.J. had also witnessed Lee's then-boyfriend, Charles

Beasley, hit Lee during an argument.




       3 The Department refers to this child as AT.
       4 The Department also refers to this child as AT.
       5The same person is also referred to as Curtis Dixon.


                                              3-
No. 72255-7-1/4



       In April 2010, Lee began a romantic relationship with Alex Taylor.6 Their

relationship was volatile, and Taylor was arrested twice in Texas for domestic

violence. During a domestic violence incident in 2010, Taylor hit Lee with his fist,

causing her head and lip to bleed. Lee was five months pregnant with Ah.T. at

the time.

       Lee, her children, and Taylor moved to Washington in February 2012

because Lee's mother was sick. They first lived with some of Lee's family

members for several weeks. They then moved to an Extended Stay America

motel in north Seattle, where Lee lived until April 2013. Wellspring Family

Services paid for Lee and her family to live at the motel.
       On September 8, 2012, Lee went to her mother's funeral and left her
children in Taylor's care at the motel. Lee gave Taylor permission to discipline
her children. Taylor used an electrical cord to whip Q.S. When K.W. ran to get
help for Q.S., Taylor assaulted K.W. as well. Taylor was arrested and pleaded
guilty to assaulting Q.S. and K.W. The court entered a no-contact order
prohibiting Taylor from coming within 500 feet of Q.S. and K.W., their residence,
and their school.

       On October 15, 2012, a police officer found Taylor in the motel where the

children lived. K.W. was present at the time. As a result, Taylor was arrested for
violating the no-contact order.

        In September 2012, Heather Lofgren, a CPS investigator/social worker,
 investigated a report of physical abuse and neglect in Lee's home. Lofgren


        6Taylor is the alleged father of the two youngest children, ALT. and Ah.T.
No. 72255-7-1/5



attempted to work with Lee on a voluntary basis before filing a dependency

petition, but Lee told Lofgren that she would prefer to go to court.

      Thereafter, on November 1, 2012, Lofgren filed a petition alleging Lee's

eight children were dependent under RCW 13.34.030(6)(c) because they had no

parent capable of adequately caring for them. The same day, the court granted
the Department's motion to place the children in shelter care. A.J. has remained

in foster care ever since.

       Lofgren later explained that she filed the petition because ofTaylor's
presence at the motel after his release from jail. Lofgren believed Lee "was not
able to protect her children from unsafe caregivers or abide by court orders."
However, Lofgren noted that Lee's children appeared happy and healthy, they
were well-behaved and polite, and she had no concerns about their physical
condition. Lofgren also explained that she had no concerns about Lee directly
harming her children. Her only concern was with Lee's ability to protect the
children from Taylor.

       Lee participated in a court-ordered mental health intake assessment with
Gloria Hicks, a mental health clinician, on February 4, 2013. Hicks believed Lee
exercised impaired judgment in letting Taylor watch her children and in not
knowing the full extent of the no-contact order. Hicks thought Lee would benefit
from housing resources, vocational services, and grief counseling. However,
 Hicks concluded that Lee demonstrated no diagnosable mental illnesses or

 personality disorders, and had no substance abuse issues. Hicks reported that
No. 72255-7-1/6



Lee "has no more than everyday problems and her main concern is to get her

children back together."

       Beginning in May 2013, however, Lee struggled to attend visitation. With

no children in the household, Wellspring stopped funding Lee's housing at the

Extended Stay motel. As a result, Lee moved to Tacoma. From there, Lee

struggled to find housing, sometimes living in shelters, in her car, or with family

members. Lee was also diagnosed with arthritis in her knee, which made

walking very difficult, significantly decreasing her mobility. Lee visited her

children only once between May 3 and October 2013.

       In September and October2013, the trial court held a lengthy fact-finding

hearing to adjudicate the Department's dependency petition. After hearing from
23 witnesses and reviewing 48 exhibits overthe course of a 14-day trial, the trial
court entered extensive oral findings on November 21, 2013. The trial court

identified Lee's parental deficiencies as being a failure to protect her children
from violent partners, poor insight into choices she makes with partners, willful
abandonment of her children without insight into the emotional harm that it

causes, chronic homelessness, and poor oversight in terms of her children's

educational needs.

       The trial court reviewed the evidence for each child, and decided that all of

the children, except for A.J. and her sister Ah.T., were dependent. The trial court
intended to dismiss the petition as to A.J. and Ah.T. because it had not heard
evidence that Taylor had tried to discipline the girls, it believed the girls posed
less ofa threat to Taylor's authority, and it had not heard evidence of how the
No. 72255-7-1/7



"trauma had impacted them." The guardian ad litem (GAL), Joan Freeman, then

asked the court to consider an in-home dependency for the girls instead of

dismissal. The trial court stated, "I need to think this through," and asked the

parties to return after the midday recess.

       After the midday recess, the Department pointed out that Lee and Taylor

would be co-parenting together, and the girls would be exposed to the trauma of

witnessing domestic violence in the family home. The GAL also pointed out that

the standard for dependency was risk of substantial harm, not actual harm. The

trial court asked whether dismissing the petition against Ah.T. would mean the

court would lose authority to limit Taylor's access to her. Lee's counsel agreed

that Taylor would have free access to Ah.T. if the petition was dismissed. The

trial court reconsidered his decision as to Ah.T. and found her dependent,

expressing the intention of returning her home "very soon."

       As to A.J., the trial court found that A.J. had "only seen her Mom once

since August 13th" and that "she need[ed] counseling." The trial court found that
A.J. had witnessed Taylor assault her brother Q.S. The trial court found that A.J.
had witnessed Beasley assault her mother in Texas. The trial court also was

concerned about the mother's lack of stable housing.

       However, the trial court noted that A.J. was "happy, healthy, well-

developed and polite." The trial court further explained, "I can distinguish her
from the other children with respect to Ms. Lee being able to protect her from Mr.

Taylor. Idon't believe that she's in the same position as the older children." The
trial court also emphasized that the Department had offered no evidence that A.J.
No. 72255-7-1/8



suffered any trauma or emotional impact from witnessing the assaults: "I just

didn't see the particularized evidence as I did with the other children."

       Accordingly, the trial court found that the Department failed to meet its

burden of proving A.J. dependent by a preponderance of the evidence.

        I don't think the Department's carried the day with respect to the
        petition for [A.J.], and I don't believe that there's - that they have
       shown by a preponderance of the evidence that she is in danger as
       the other children are, and I'm going to dismiss the petition in
       respect to [A.J.].

       The trial court explained that it would delay signing the dismissal order for

"two weeks or so" to establish a plan to transition A.J. back into Lee's care.

Specifically, the trial court said, "I think that delay is warranted so that [A.J.] has

some ability for transition and some predictability of what that transition is going

to look like." Lee and her counsel agreed to this transition plan.

        That same day, the trial court signed a written order announcing its intent

to dismiss the dependency petition as to A.J.7 The court also "anticipatefd] that

[Ah.T.] [would] be placed with Ms. Lee upon entry of its dispositional order." As a
condition of A.J.'s and Ah.T.'s return, the court ordered Lee to refrain from any in-

person contact with Taylor, limiting her to telephone and e-mail contact only.

        On December 12, 2013, at a disposition hearing, the trial court and the

parties discussed Lee's housing situation and A.J.'s transition plan. Lee reported

that she had been admitted to a secure shelter in Snohomish County, where she

had her own room and access to an adjoining room for her children. However,

she could stay there for only 30 days. The Department acknowledged that Lee

        7The order began, "It is the Court's intention to dismiss the dependency petition
concerning [A.J.]."
No. 72255-7-1/9



had applied to several different housing agencies, but both transitional and

Section 8 housing were completely full. The trial court allowed Lee to have

several overnight visits with A.J. in December, including consecutive visits from

December 27 through 29. It instructed Lee not to leave the shelter while A.J.

was in her care. However, the trial court refused to dismiss the dependency

petition until the parties established a plan for A.J. to remain in counseling and

finish the year at her current school.8
       At a further disposition hearing on December 19, the parties discussed the

Department's recommended services for Lee regarding her dependent children.
Lee agreed to parentcoaching. She also agreed to participate in domestic
violence counseling. Lee further agreed to grief counseling, but refused to
undergo the neuropsychological evaluation recommended by the Department
because there was no evidence that she suffered from a mental illness or

personality disorder. Nevertheless, the trial court ultimately ordered the
evaluation. When Lee's counsel asked "for the Court to order a date for

dismissal as to [A.J.]," the court replied, "we're going to revisit that issue on the
third [of January]." Later, the court summarized, "I want to see how the visits go,
I'd like an update on the housing on [January 3], but... Ithink you should expect
that I'll sign the dismissal on the 3rd with respect to [A.J.]."


        8 The court explained its decision thusly:
        And Ithink it's everyone's expectation that I'm going to be dismissing the petition
        with respect to [A. J.] today. Iam not dismissing the petition with respect to [A. J.],
        and the reason Iam not-it's still myintention to do so - but Iwas clear that
        before Idid that, there needed to be a transition plan in place. And I understand
        that both sides are sort of shooting at each other across the tracks here, because
        the one side blames the other for it not happening, but it hasn't happened yet.
 (Emphasis added.)
No. 72255-7-1/10



       At the January 3, 2014 hearing, Lee reported that she could stay at the

Snohomish County shelter until January 10. Lee was in contact with several

organizations regarding rental assistance, including Wellspring and Catholic

Community Services. Lee noted that it was difficult to plan for A.J.'s schooling

because she did not have concrete housing plans. The trial court announced

that it would not sign the dismissal order until she had a clear plan in mind.9 The

trial court also acknowledged, "I don't think merely being homeless is a sufficient

basis for me to not sign the dismissal petition."10 Otherwise, the Department

reported that Lee's overnight visits with A.J. "have gone really well," including the

three-night visit. A.J. "[was] happy and seem[ed] to have enjoyed her time." Lee

had also complied with the court's order to remain at the shelter during the

overnights.

        On January 21, 2014, the trial court signed a formal order of dependency

and disposition as to A.J.'s seven siblings. It did not enter any order regarding

A.J.

        On January 31, 2014, Lee moved to dismiss the dependency petition as to

A.J. In an attached declaration, Lee explained the steps she had taken to

comply with the court's orderto establish a plan regarding A.J.'s schooling and


        9 It was in the context of this conversation that the trial court first acknowledged that A.J.
was in legal limbo. The trial court stated, "I really want to know [what is going to happen to A.J. for
herschooling] before I'm going to dismiss that petition. It is not fair to herto have her in limbo and
you not know what the plan is." (Emphasis added.)
        10 The statement was in response to a clarifying question by the Department's attorney:
        MR. MASCO: Is the Court contemplating that [A.J.]'s case be dismissed ifthe
        mother has not obtained housing?
        THE COURT: I am. I've said that [A.J.]'s going back with her mom, and, you
        know, I think it is in her interest, of course, that Ms. Lee have housing; but I don't
        think merely being homeless is a sufficient basis for me to notsign the dismissal
        petition.


                                                -10-
No. 72255-7-1/11



transportation to school. Lee and her attorney also called A.J.'s counselor

several times, but the counselor refused to speak with Lee until she had a

release authorizing her to do so. The GAL acknowledged that Lee "made

significant progress over the last few weeks in her efforts to obtain housing." The

trial court did not dismiss the petition.

       At the next scheduled hearing, on February 14, the trial court noted that

Lee had missed some combined family visits and some parent coaching

sessions. The trial court also expressed concern that Lee was still having in-

person contact with Taylor. However, the trial court praised Lee for working hard

to cooperate with the Department to obtain housing. The trial court also

commended Lee's overall increased visitation and her improved relationships

with her children. Again, the trial court refused to dismiss A.J.'s dependency

petition.11

        In a March 14 written report to the court, the Department noted that Lee

"has participated greatly through self advocacy and the advocacy through her

attorney on the development of what services would be beneficial to her." The

Department also acknowledged Lee's progress in seeking housing, as well as


        11 The court explained its decision as follows:
        [L]et me start with the request to dismiss for [A.J.]. I had said earlier, and I meant
        what I said, that there were some things I really wanted in place before I did that.
        One was a plan for counseling; the second was the plan for school; and the third
        was the plan for stable housing for Ms. Lee.

                And it sounds like Ms. Lee is on the cusp of additional funding from
        Wellspring so that she can be at the Extended Stay, and that would put into place
        a number of positive things. Ithink the school issue would be much clearer
        there. Ms. Freeman and Ms. Lee have worked on the transportation issue, which
        would be in place in making sure [A.J.] got to school. And the counseling issue,
        I'm not finding fault from Ms. Lee because she's made efforts there; and it's,
        again, it's an issue Ithink ofthat justthe stars not being quite properly aligned.

                                               -11 -
No. 72255-7-1/12



her consistency attending Saturday visits. Furthermore, the Department stated,

"Ms. Lee has made progress with maintaining her appointments with the social

workers. Ms. Lee is cooperative and engaging during these appointments."

        At a March 28 hearing, the trial court learned that Lee was continuing to

miss visits with her children. She also was continuing to have contact with

Taylor. However, the trial court again acknowledged that Lee was improving and

making progress with the parenting coaching. Again, the trial court refused to

dismiss the dependency petition as to A.J. because Lee did not have stable

housing.12

        On June 10, 2014, the Department filed a "Motion to Establish

Dependency" as to A.J. The Department renewed its original allegation that A.J.
was dependent under RCW 13.34.030(6)(c) because she had no parent capable
of adequately caring for her. For the first time, the Department also requested
that the trial court find A.J. dependent as an abandoned child under RCW

13.34.030(6)(a). The Department noted that A.J.'s case was in "legal limbo" and
that A.J. had been in shelter care for over 18 months.13 The Department claimed


12 In so ruling, the trial court stated:
         Mr. Daugherty [(Lee's attorney)], in his usual fashion, makes a very compelling
         request for you to have [A.J.], have you dismiss the petition with respect [A.J.]
         right now. You're almost there having a house, but you don't have it yet and I'm
         not going to dismiss it at this point. Iam going to have you come back. I'm
         keeping you coming back on a short period and I know I probably drive you crazy
         doing that....
         Notably, despite having acknowledged at an earlier date that homelessness alone would
not have been a sufficient basis for notsigning a dismissal order, the trial court's decision at this
hearing appears to have turned solely on Lee's housing situation. The trial court confirmed this
impression in a later exchange with the Department's attorney. In response to a comment by the
Department's attorney expressing disbelief that Lee's housing plans atthe time would materialize,
the trial court stated, "That's why I haven't dismissed the petition with respect to [A.J.]."
         13 The Department's motion stated, in pertinent part:
                 While the court's Order of November 21, 2013 may have been well
         meaning, thefact ofthe matter is that [A.J.] remains in the legal limbo ofshelter

                                                 -12-
No. 72255-7-1/13



that the trial court had the authority to declare A.J. dependent without holding a

new evidentiary hearing.

       In support of its motion, the Department included a short declaration from

social worker Sadie Bingham explaining Lee's difficulty finding suitable housing.

The Department also attached a reportfrom the GAL. The GAL wrote:

       Ms. Lee's inability to obtain stable housing for herself and her
       daughter and to provide a plan to meet [A.J.j's other needs is a
       substantial change in circumstances which supports modification of
       the November 21, 2013 Order and a finding that [A.J.] has no
       parent capable of adequately caring for her at this time.
The GAL focused on Lee's difficulties since the dependency trial. She noted

Lee's failure to secure stable housing. She pointed to Lee's difficulty following
through with A.J.'s counselor and her failure to appear for the neuropsychological
evaluation. The GAL also noted that the parenting coach had discontinued

parent coaching with Lee. Lastly, the parenting coach also filed a brief report
stating that Lee continued to have contact with Taylor.
       Lee opposed the Department's motion, pointing out that RCW 13.34.110
specifies that dependency may be established only through a fact-finding
 hearing.

        On June 24, 2014, more than seven months after the conclusion of the 14-
 day dependency fact-finding hearing, the trial court convened a brief hearing to
 consider the Department's motion. The trial court did not hear live testimony, or
 allow Lee to testify or call witnesses. Instead, the trial court allowed each
 attorney five minutes for legal argument. Lee's attorney contested many of the
        care, with no deadlines in sight for her mother to comply with any of the court's
        directives. Additionally, no permanency planning can be contemplated because
        [A.J.] has yet to be declared a dependent child as to her mother, Leona Lee.

                                              -13-
No. 72255-7-1/14



Department's factual allegations, pointing out that Lee actively participated in

visits and met regularly with the people from the Department working on her

case. He also asserted that declarations were inadmissible for dependency

determinations. Moreover, Lee's attorney insisted that it was "ludicrous" to

establish dependency by a motion.

       The trial court granted the Department's motion and found A.J. dependent

under both RCW 13.34.030(6)(a) and RCW 13.34.030(6)(c). The court

discussed its ruling, in pertinent part, as follows:

       What happened at the conclusion of that trial is you could look at
       one or two ways.
                The first way is that she's been essentially] in limbo, legal
       limbo, short of a definitive order with respect to dependency or
       dismissal. No order has been signed to either of those. So that's
       one way to view this is essentially a continuance for the benefit of
       her mother to take certain steps to satisfy what I articulated in my
       oral ruling back last year. And those things included eliminating
       contact with Mr. Taylor, obtaining housing, attending visits, making
       sure that [A.J.] had a counseling plan and the like.
               The second posture with -- through which or lens through
       which to view what happened last November is that the oral ruling I
       made was, in fact, dismissal of the petition for dependency. And as
       such, if that was the case then presumably [A.J.] would be back
       with her mom but she wasn't, because before I was going to allow
       that I needed to see that there was a transition plan. So I will give
       you my ruling looking through both lenses. Through the lens of her
       being in legal limbo and me - or the Court not issuing a definitive
       order.
              Idisagree with counsel that -- they've said nothing changed.
       Well, actually things have changed since the time of the trial, the
       dependency trial. And those changes include continued contact
       with Mr. Taylor, no housing, failure to attend visits, and no concrete
       counseling plan. And the additional time afforded Ms. Lee, while
       there has been marginal progress, it has not been progress that I
       had predicted would occur. And my prediction was in error.
              To the extent that this, in fact, was a final ruling on
        dependency.
                There is relief afforded here and frankly, Mr. Daugherty
        [(Lee's attorney)], has cited the proper procedural rule which is CR

                                            14
No. 72255-7-1/15



      60, and I think - this Court in terms of relief of judgment CR
      60(b)(11) as well as CR 60(c) both would afford appropriate relief in
      these circumstances. The fact of the matter is [A.J.] hasn't - the
      ball has not been moved forward for [A.J.] and I would say just the
      opposite has happened because of the delay of time and these
      other shortcomings: the continued contact with Mr. Taylor, no
      housing, failure to attend visits, no counseling plan, the failed
      coaching aspects lead me to conclude that not only has [A.J.] been
      effectively abandoned, but Ms. Lee is not in a position to provide
       appropriate parenting. So I'm granting the motion. I'm going to find
       her dependent.

       The trial court entered a written dependency order on July 10. It identified

Lee's parental deficiencies as follows: failure to protect her children from violent

partners, chronic homelessness, poor oversight in ensuring her children were

enrolled in and attending school, and minimal attendance to their health needs.

The trial court also found that Lee "willfully abandoned" A.J. by failing to attend

visits during the summer of 2013 and that the "effect of this abandonment on

[A.J.] is profound." The trial court concluded that Lee'sfailure to comply with the
transition plan constituted a "change in circumstances" that warranted the finding

of dependency.

       Ms. Lee has continued to have contact with Mr. Taylor despite court
       order, has not obtained safe and stable housing for [A.J.] and
       herself despite significant housing assistance from the Department,
       has continued to be inconsistent in her visits with her children, and
       has not followed through with a counseling plan for [A.J.], and has
       been discharged from parenting counseling with Esther Patrick.

The trial court then concluded, "The Department has shown that currently the

child has been effectively abandoned by Ms. Lee, and has no parent capable of
adequately caring for her and, consequently, that she is in circumstances which
constitute danger ofsubstantial damage to her psychological or physical

development."


                                          15
No. 72255-7-1/16



      Lee appeals.



      We first address whether the trial court erred by not dismissing the

dependency petition upon determining at the conclusion of the 14-day fact

finding hearing that the Department had failed to meet its burden of proof with

regard to its allegation that A.J. was a dependent child. Having determined that

A.J. was not proved to be dependent, the trial court did so err.

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

minor children. In re Welfare of Sumev. 94 Wn.2d 757, 762, 621 P.2d 108

(1980) (citing Stanley v. Illinois. 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d
551 (1972)). However, the State has an interest in protecting the physical,
mental, and emotional health of children. In re Welfare of Becker, 87 Wn.2d 470,

476-77, 553 P.2d 1339 (1976). It is well established that when a child's physical
or mental health is seriously jeopardized by parental deficiencies, "the State has
a parens patriae right and responsibility to intervene to protect the child." Sumey,
94 Wn.2d at 762 (citing Parham v. J.R.. 442 U.S. 584, 603, 99 S. Ct. 2493, 61 L.
Ed. 2d 101 (1979)). The legislature recognized these competing interests in
RCW 13.34.020, in which it declared that "the family unit should remain intact

unless a child's right to conditions of basic nurture, health, or safety is

jeopardized."

       Because "'[a] parent's right to control and to have the custody of his

children is a fundamental civil right,'" "[p]rocedures used to terminate the

relationship between parent and child must meet the requisites ofthe due


                                          16
No. 72255-7-1/17



process clause of the Fourteenth Amendment to the United States Constitution."

In re Dependency of K.N.J., 171 Wn.2d 568, 574, 257 P.3d 522 (2011) (quoting

Halsted v. Sallee, 31 Wn. App. 193, 195, 639 P.2d 877 (1982)): accord Lassiter

v. Dep't of Soc. Servs. of Durham County. N.C.. 452 U.S. 18, 24-33, 101 S. Ct.

2153, 68 L. Ed. 2d 640 (1981). In Washington, the legislature has provided a

procedure by which a child may be declared "dependent," thereby transferring

legal custody to the State, which takes account of the rights of both the parent

and the child. In re Dependency of Schermer, 161 Wn.2d 927, 942, 169 P.3d

452 (2007). This procedure is designed to comply with the requirements of due
process. Halsted, 31 Wn. App. at 195 ("The applicable statutory provisions for
termination of a parent and child relationship under RCW 13.34 set out an

elaborate scheme for providing all parties with notice and an opportunity to be

heard.").

       The procedure is generally as follows: "Any person" may file a petition with
the juvenile court showing that there is a dependent child and requesting that the
court deal with the child as provided by the dependency statutes. RCW

13.34.040. Within 75 days after the petition is filed, the court must hold a fact
finding hearing to determine whether the allegations in the petition are true.
RCW 13.34.070. Under certain circumstances, the child may be placed in

shelter care (out-of-home care) while the adjudication ofthe dependency is
pending. RCW 13.34.050, .065.

       At the fact-finding hearing, the petitioner has the burden ofestablishing by
a preponderance ofthe evidence that the child meets one ofthe statutory


                                         17
No. 72255-7-1/18



definitions of dependency.14 RCW 13.34.110(1). The rules of evidence apply at

the hearing. RCW 13.34.110(1). Moreover, the parent has the right to be

represented by an attorney, to introduce evidence, to be heard in his or her own

behalf, to examine witnesses, to receive a decision based solely on the evidence

adduced at the hearing, and to an unbiased fact finder. RCW 13.34.090(1),

.110(1). After the fact-finding hearing, unless it dismisses the dependency
petition, the court must "make written findings offact, stating the reasons [for its
decision]." RCW 13.34.110(1).

        If the court finds that the child is dependent, it then holds a disposition

hearing to determine placement of the child and the services to be provided to
the family. RCW 13.34.110(4), .130. Following this hearing, the court must
either "[o]rder a disposition that maintains the child in his or her home," or "[o]rder
the child to be removed from his or her home and into the custody, control, and

care of a relative or other suitable person, the department, or a supervising

agency." RCW 13.34.130(1).

        The court may proceed to the disposition stage only if the child is found
dependent at the fact-finding stage. See RCW 13.34.130 ("If, after a fact-finding
hearing ... it has been proven by a preponderance of the evidence that the child
is dependent... the court shall enter an order of disposition pursuant to this
section."). This limitation on the court's authority to interfere in the parent-child
 relationship is fundamental. "[Our Supreme C]ourt has long recognized that a
court may not concern itself with a child's welfare without first determining the
         14 By definition, a "[dependent child" is one who has been abandoned, abused or
 neglected, or has no parent, guardian, or custodian capable of providing the child adequate care.
 RCW 13.34.030(6).


                                              -18-
No. 72255-7-1/19



child is dependent." K.N.J., 171 Wn.2d at 577 (emphasis added): accord In re

Frank, 41 Wn.2d 294, 295, 248 P.2d 553 (1952) ("Of course, the court below can

concern itself with the welfare of this child only after finding it to be a dependent

child as defined by the statute.").1516

        The trial court herein transgressed this limitation on its authority. Even

though it concluded that the Department had not met its burden of proving A.J. to

be a dependent child, the court nevertheless continued to "concern itselfwith

[A.J.'s] welfare," thereby improperly interfering with Lee and A.J.'s parent-child

relationship.

        At the end of the fact-finding hearing, the trial court orally ruled that the

Department had not proved A.J. to be a dependent child. Furthermore, that

        15 Both parties cite In re Dependency ofT.R.. 108 Wn. App. 149, 29 P.3d 1275 (2001),
and In re Welfare of ShantavC.J.. 121 Wn. App. 926, 91 P.3d 909 (2004), in which the trial court
made a preliminary determination following a fact-finding hearing but declined to enter a final
order until a later date. The Department asserts that these cases support the procedure engaged
in herein. They do not. Those cases involved a fact-finding pertaining tothe termination of
parental rights, not a finding of dependency. The children in those cases had already been
declared to be dependent. Thus, the courts in those cases retained authority over the children at
issue therein even in the event that the Department failed to prove that the parents' rights should
be terminated.
        The Department also cites In re Pawling. 101 Wn.2d 392, 679 P.2d 916 (1984). In that
case, the trial court provided an oral opinion after the fact-finding hearing expressing its belief that
the petitioner had met its burden regarding each of the findings required for a termination of
parental rights, except the child's best interest—an issue that had not been raised in the
pleadings. The trial court granted the petitioner leave to amend the complaint to raise the issue of
best interest and continued the matterfor additional testimony on that issue. Several months
later, the trial court held an additional fact-finding hearing to address the issue ofbestinterest.
Following that hearing, the court concluded that termination was in the child's bestinterest.
Pawling is distinguishable from the caseat hand because it involved a continuance of the fact
finding hearing for a proper purpose—to provide the parent whose rights were at risk of being
terminated with adequate notice ofthe amended pleadings and an opportunity to prepare to
respond.
        16 At oral argument, the Department hypothesized that the trial court might still have been
acting pursuant to its shelter care authority at the time that it ordered the transition plan.
However, the Department later conceded that, if the trial court had decided that A.J. had not been
proved to be dependent after the fact-finding hearing, the shelter care order would not have
survived thatdecision. The Department's concession is well-taken. Shelter care is intended to
be a temporary placement for a child "while the adjudication of the dependency is pending."
RCW 13.34.065(4)(b). The shelter care order does not survive an unsuccessful effort to establish
dependency at the fact-finding adjudication.


                                                 -19-
No. 72255-7-1/20



same day, the trial court entered an order expressing its "intention to dismiss the

dependency petition concerning" A.J. Consistent with its expressed intention, the

trial court did not enter findings of fact regarding A.J. Moreover, when the trial

court signed a formal order of dependency and disposition as to A.J.'s seven

siblings it did not do the same for A.J. It is clear that the trial court determined

that the Department did not prove its case. This was a decision on the merits of

the evidence.

       Despite ruling that A.J. had not been proved to be a dependent child, the

trial court did not dismiss the dependency petition. Instead, it ordered the parties

to develop a plan to transition A.J. back into her mother's care and, for the seven

months that followed, the trial court continued to dictate the parent-child

relationship between Lee and A.J. in the guise of monitoring compliance with the

"transition plan."

       In the trial court's own words, during the seven months following the fact

finding hearing, A.J. was in "legal limbo." The trial court exceeded its statutory
and constitutional authority when it placed her in that state. The trial court was

obliged to dismiss the dependency petition. It erred by not so doing.
Accordingly, its subsequent orders must be reversed and the case remanded for
the entry of an order of dismissal.

                                           Ill


        Our discussion of the previous issue fully resolves this dispute.

Nevertheless, given the unusual procedural history ofthis case, we deem it
necessary to address two additional claims of error raised by Lee.


                                           20
No. 72255-7-1/21



       First, Lee asserts that the trial court erred by entering an order granting

the Department's motion to deem A.J. to be a dependent child, rather than

requiring that such an allegation be determined only after a fact-finding hearing.

Lee is correct.

       The motion-hearing procedure engaged in herein is in no way

contemplated by the statutory scheme. The Department asserts that this is

fine—asserting that the motion it brought was simply a continuation of the

evidentiary hearing conducted seven months previously. We disagree with the

Department's characterization of events—it is clear that a trial was previously

held and concluded and that, in the words of the trial judge, the Department had

"failed to carry the day." However, even if the Department was correct (and, we

repeat, it is not) in its contention that this was a continuation of the seven-
months-before-conducted bench trial, the procedures employed in resolving its

motion were contrary to law.

       As described above, the statutory scheme governing dependencies

requires that the court hold a fact-finding hearing on the dependency petition. At
that hearing, the rules of evidence apply and the parent is guaranteed certain
rights, including the right to introduce evidence, to be heard in his or her own
behalf, to examine witnesses, and to receive a decision based solely on the

evidence presented at the hearing. RCW 13.34.090(1), .110(1). In sum,
dependency can be ordered only after the statutory requirements are proved at a
fact-finding hearing in which the parent has a meaningful opportunity to

participate.



                                          21
No. 72255-7-1/22



       In this case, after holding a fact-finding hearing that complied with the

statutory requirements, the trial court determined that the Department had failed

to meet its burden of proving A.J. to be dependent. The trial court did not

dismiss the dependency petition but, instead, declared its intent to dismiss the

petition and required the parties to develop a plan to transition A.J. back to Lee's

care and custody. In the months that followed, the trial court convened several

hearings to review the case. In advance of these hearings, the trial court

received written reports from the Department. At the hearings, the trial court

heard argument from the parties regarding Lee's progress relative to the

transition plan and whether the dependency petition should be dismissed. The

trial court repeatedly refused to dismiss the petition.

       More than six months after the conclusion of the fact-finding hearing, the

Department filed a "Motion to Establish Dependency" as to A.J. In support
thereof, the Department submitted a declaration from a social worker, the GAL,
and the parenting coach. The trial court addressed the Department's motion at
the next scheduled hearing. After permitting each party five minutes of legal

argument, the trial court ruled that the Department had proved A.J. to be
dependent. The trial court then entered an order of dependency. Some of the
facts found to support the orderwere based on information presented to the trial
court after the conclusion of the fact-finding hearing.17


       17 For example, finding of fact "z." states, in pertinent part:
       Ms. Lee has continued to have contact with Mr. Taylor despite court order, has
       not obtained safe and stable housing for [A.J.] and herself despite significant
       housing assistance from the Department, has continued to be inconsistent in her
       visits with her children, and has not followed through with a counseling plan for
       [A.J.], and has been discharged from parenting counseling with Esther Patrick.

                                             -22
No. 72255-7-1/23



       The procedure engaged in herein denied Lee many of the rights

guaranteed to her by applicable statutes. Indeed, the information presented to

the trial court in the months following the fact-finding hearing, including the

declaration and reports submitted in support of the Department's motion, was not

subject to the rules of evidence. Moreover, at the motion hearing, Lee was not

given an opportunity to present evidence, testify in her own behalf, or examine

witnesses. Furthermore, because some of the facts found to support the order of

dependency were based on information presented to the trial court after the
conclusion of the fact-finding hearing, Lee was also denied the right to receive a

decision based solely on the evidence presented at that hearing.18
       The trial court erred by entering the dependency order as the result of a

motion hearing, in violation of Lee's right to have all evidence properly vetted
through the statutory fact-finding adjudication process.

                                                IV


       The remaining claim oferror thatwe must address is Lee's assertion that
the trial court erred by finding A.J. dependent based, in part, on the Department's
allegation that she was abandoned, which was not pleaded in the petition and
was raised for the first time in its "Motion to Establish Dependency." Lee is again

correct.

        The person who files a dependency petition must allege that the child
therein at issue meets one of the statutory definitions of a dependent child. RCW

        18 In addition to the panoply ofstatutory violations, the procedure engaged in herein
violated Lee's right to due process. See Shantav. 121 Wn. App. 926 (holding that the trial court
violated the parent's right to due process by failing to reconvene the fact-finding hearing before
entering an order terminating the parent's rights where the trial court had concluded after the
initial fact-finding hearing that the Department had not met its burden of proof for termination).

                                               -23-
No. 72255-7-1/24



13.34.040(1). After a petition is filed, the court must convene a fact-finding

hearing. That hearing is held "on the petition"—that is, based on the allegations

made in the petition. RCW 13.34.110(1). Moreover, the parent is guaranteed

essential rights at the fact-finding hearing, including the right to introduce

evidence, testify in one's own behalf, and examine witnesses. RCW

13.34.090(1), .110(1).

       In its dependency petition, the Department alleged that A.J. had no parent

capable of adequately caring for her and, thus, was dependent pursuant to RCW

13.34.030(6)(c). The 14-day fact-finding hearing proceeded based on that

allegation alone.19 More than six months later, in its "Motion to Establish

Dependency," the Department alleged for the first time that A.J. had been

abandoned and, thus, should also be found to be dependent pursuant to RCW

13.34.030(6)(a). At the hearing on the Department's motion, the trial court gave

Lee's counsel just five minutes of legal argument to rebut the allegations against
her, including the new allegation of abandonment. After hearing from both
parties, the trial court determined A.J. to be dependent under both RCW
13.34.030(6)(a) and RCW 13.34.030(6)(c).

       Once again, the procedure used by the trial court herein denied Lee

important statutory rights. The abandonment allegation was not pleaded in the
dependency petition. Nor was the petition amended to include this allegation
before or during the fact-finding hearing. Thus, Lee had no notice of the
abandonment allegation at the fact-finding stage. The petition also was not

       19 Indeed, at the fact-finding hearing, when the Department appeared to argue neglect
under RCW 13.34.030(6)(b), the trial court emphasized that"[t]his is not a neglect petition."

                                             -24-
No. 72255-7-1/25



amended to include the abandonment allegation after the allegation was first

made in the Department's motion. But even if the petition had been so amended,

a second fact-finding hearing was never convened. Accordingly, the

abandonment allegation was never subject to Lee's statutorily guaranteed right to

introduce evidence, testify in her own behalf, or examine witnesses. Thus, Lee

was deprived of her right to contest the Department's new allegation at a full

adversarial proceeding.20

       The trial court erred by entering the dependency order based on the

unpleaded and untested abandonment allegation.

                                                 V


       Reversed and remanded for the entry of an order of dismissal.




We concur:




%$U2h&L<%r                                                          6rt,J.


        20 Here, too, the trial court's statutory violations also denied Lee the right to due process.
"Notice, open testimony, time to prepare and respond to charges, and a meaningful hearing
before a competent tribunal in an orderly proceeding are all elements of civil due process," which
binds the court in proceedings to curtail parental rights. In re Moselev, 34 Wn. App. 179, 184,
660 P.2d 315 (1983). The procedure used by the trial court herein deprived Lee of each of these
elements of due process.


                                                -25-
