                                                                                               OO[J T   OFAPPEALS
                                                                                                   DIVISION II
                                                                                              2013 MAY -7   AM If:147
      IN THE COURT OF APPEALS OF THE STATE OF WASHI                                                              TO




In


X. .,
 T
     re   the Welfare of:
                                                  DIVISION II

                                                           I                                  7EPU ,
                                                                                No. 43507 1 II \
                                                                                          - =




                             A Minor Child.


                                                                      ORDER PUBLISHING OPINION




            Appellant, by and through his attorney, moves this court for publication of its

unpublished opinion         filed   on   March 5, 2013   After review the records and files herein, the court

grants the motion.

            It is ORDERED that the final paragraph that reads "A majority of the panel having

determined that this opinion will not be printed in the Washington Appellate Reports, but will be

filed for public record pursuant to RCW 2.6.it is so-ordered." deleted.
                                        040,
                                          0                  is

            It is further ORDERED that the opinion is now published.



            DATED: this _                                day   of ,                                     2011


            PANEL: Jj. Quinn -
                             Brintnall, Penoyar, Bjorgen

            FOR THE COURT:




                                                                        Pr si    ng Ju   ge
                                                                               FILED
                                                                         CCOURT OF APPEALS
                                                                             DIVISION


          IN THE COURT OF APPEALS OF THE                         5TA1'P VW&
                                                                          IAYON
                                                                         STATE OF VIASHINOTMI
                                               DIVISION II
                                                                         By
                                                                               MP0TY
In   re   the Welfare of:                                               No. 43507 1 II
                                                                                  - -


X. .
 T


                            A Minor Child.

                                                                   UNPUBLISHED OPINION




            PENOYAR, J. -      JT is the father of XT, born    April 8,2011. He appeals the juvenile

court's order finding XT to be a dependent child, arguing that the Department of Social and

Health Services (Department)failed to present sufficient evidence that XT is a dependent child
because the      Department's    evidence    was   primarily inadmissible hearsay. JT contends that the

juvenile court erred by considering hearsay evidence and, consequently, that substantial evidence
does not support its finding of dependency. We considered his appeal on an accelerated basis
under RAP 18. 3A, and reverse the juvenile court and remand for further proceedings.
            1
                                                     FACTS


            The Department filed a dependency petition as to XT on March 6,2012. The matter was

originally set. for fact -
                         finding on April 24, 2012, but no Indian expert was available, neither

parent was present, and the mother's counsel needed a continuance, so the hearing was continued

to May 4. On that day,the juvenile court held a fact -finding hearing on the dependency petition.
Stand in counsel for the mother requested a continuance because -her. attorney was unable to
       -

attend the proceedings. The court allowed testimony to be.taken, and*ruled that the mother's



1 A commissioner of this court initially considered this appeal and then transferred it to a panel
of judges.
43507 1 II
      - -



counsel could later make a motion'to undo"any resulting order. Report of Proceedings (RP)at
                                     "

6;
 2RPat6.

       JT    was.not     present   at the   dependency      fact -
                                                                 finding    hearing. The sole witness was Naz

Qureshi, the Department social worker assigned                   to the   case.   Shortly after the hearing began,

JT's counsel objected to Qureshi's use of her notes. The juvenile court overruled JT's objection,
                                             to the         of her notes     throughout     the   hearing.     RP at 12
but allowed      a   standing objection               use



                                                                     when
                                                 Qureshi's testimony "            she's   relying   on   the files "). The
granting    JT   a   standing objection     to



following testimony was based on Qureshi's review of the Department's file on XT.
       The Department received a referral about neglect of XT in November 2011. The referral
noted concern about drug use and excessive garbage in the house where XT lived. At the time,

XT was living in a home with ten people including his mother, his maternal grandmother, and
her family. JT was incarcerated during that time period. Once he was released, in mid-
                                                                                     February
2012,JT assumed care of XT..He did not live with XT's mother, and described their relationship
as "on- -off." at 15. He lived with his relatives after his release.
      and    RP

        The Department received a second referral regarding XT.on March 2, 2012, from Mary
Bridge Children's Hospital. XT had been diagnosed with a subdural hematoma, for which he
received surgery. The parents were unable to explain the injury to the Child Protective Services
investigator, Christina Murillo, and doctors concluded that the trauma was not accidental.
Doctors believed the hematoma was from an earlier injury that had gone untreated, which likely

had taken place at the time JT was incarcerated. XT was placed'in protective custody on March
 5.


        Qureshi further explained that the file on XT also showed that he was seen by a doctor in
 October 2011 about a possible head injury. JT reported to the doctor that XT had been shaking
                                                             2
43507 1 H
      - -



for approximately 25 seconds, and then his body went limp. JT attempted to resuscitate XT.
This incident was suspected to have resulted from physical abuse.

         According to Qureshi's review of the files, JT has a lengthy criminal history, including

convictions for driving without a license, malicious mischief, obstructing justice, possession of

marijuana, vehicle prowling, driving under the influence, driving while license suspended, and
controlled substances violations.       No exhibits proving these convictions were admitted at the

hearing.

           From her own knowledge, Qureshi testified that after filing the dependency petition, the

Department requested that JT complete urinalyses. While optional, JT has not undergone any
testing. JT had not visited XT since April 9, despite the Department offering him visits. When -
he                     in   visitation, JT         often late, sometimes   by up   to an hour.   Qureshi
     was    engaging                         was



acknowledged never having visited JT's home, where he lived with XT after his release from

jail.

           Qureshi opined that there was imminent risk to XT at the time the dependency petition
was filed.      She testified that JT is not currently fit to parent XT because he has not been

consistent with visitation, has not complied with the Department's request to undergo urinalyses,

and has not provided,XT a safe and stable living environment: The juvenile court found that XT

was dependent under RCW 13. 4. appeals.
                        c).
                        030(
                           5 JT
                           3 )(




2
    When the proceedings resumed the following week, the mother's attorney and JT were present.
The State offered to take testimony on the fact-
                                               finding hearing again to allow the mother's
attorney to participate, although it argued that the May 4 dependency finding was still valid. The
fact -finding proceeded as to the mother, but JT's attorney objected, and the court continued the
disposition as to him.
                                                        3
43507 1 II
      - -



                                           ANALYSIS


          JT argues that the Department presented insufficient evidence to support the juvenile
court's   finding of   a   dependency   under RCW      13. 4. We review an order of
                                                       c).
                                                       030(
                                                          5)(
                                                          3

dependency to determine whether substantial evidence supports the juvenile court's findings of
fact and the findings support the conclusions of law. In re Dependency ofM. ., Wn.App. 87,
                                                                          P 76

90, 882 P. d 1180 (1994).Substantial evidence exists if,when viewing the evidence in the.ight
         2                                                                              l
most favorable to the prevailing party, a rational trier of fact could find the fact more likely than
not to be true. M. ., Wn.App. at 90 91;In re Dependency ofC. ., Wn.App.280, 285 86,
                 P 76               -                      B 61                 -
810 P. d 518 (1991). We do not weigh the evidence or witness credibility. In re Welfare of
     2
Sego, 82 Wn. d 736, 739 40,513 P. d 831 (1973).
           2            -       2
          A child is dependent under RCW 13. 4. she "[ as no parent guardian, or
                                         c) ]
                                         030(
                                            5 if
                                            3 )(     h
custodian capable of adequately caring for the child, such that the child is in circumstances
which constitute a danger of substantial damage . to the child's psychological or physical
development." Under RCW 13. 4. is unnecessary to find abuse or neglect in order
                        c),
                        030(
                           5 it
                           3 )(
to find a child dependent. In re Dependency of Schermer, 161 Wn. d 927, 944, 169 P. d 452
                                                               2                  3
 2007).A dependency finding need not be based on proof of actual harm, but can rely instead on
 a   danger of harm. - Schermer,   161 Wn: d at 951. `A juvenile court has broad discretion in
                                         2

 determining when there exists a risk of harm. Schermer, 161 Wn.2d at 951.
           JT contends that the Department failed to ' prove that he suffered from any parenting
 deficiency justifying the dependency.: argues that the facts Qureshi testified to were only
                                      He
 admissible as her expert opinion,not as proof of the assertions themselves.
           A juvenile court "has broad discretion in dependency and termination proceedings to
 receive and evaluate evidence in light of a child's best interest.' In re Interest ofJ. ., Wn.
                                                                                       F 109
                                                   4
43507 1 II .
      - -



App. 718, 728, 37 P. d 1227 (2001) citing In re Dependency of C. ., Wn. App. 280, 287,
                   3               (                           B 61
810 P. d 518 (1991)). such discretion does not permit juvenile courts to disregard evidence
     2             But
rules, especially where the deprivation of parental rights is involved. In re Welfare ofRoss, 45
Wn. d 654, 655 56,227 P. d 335 (1954); re Welfare ofBaum, 8 Wn. App. 337, 339 40,506
  2            -       2             In                                       -

P. d 323 (1973).RCW 13. 4. JuCR 1. (
 2                  110(
                       1 and
                       3 )      c) juvenile courts to observe the rules
                                 4 require
of evidence in dependency and termination proceedings.

       Fathers and mothers should not be deprived of their parental rights on hearsay, which is

but another form of unsworn testimony."Ross, 45 Wn. d at 655 56. Social workers may offer
                                                  2          -

hearsay testimony to show how they arrived at their, opinions. ER 703, 705; In re Welfare of
J. ., Wn.App. 912, 924 25,125 P. d 245 (2005).But a social worker's use of the written
 M 130                 -       3                                     "
reports of absent witnesses is not substantive evidence;"
                                                        rather, such reports are only admissible
to show the basis for the worker's opinion. J. , App. at 924.
                                            130 Wn.
                                              M

        The juvenile court, in ruling that Qureshi's testimony was admissible, did not limit
consideration of the testimony to demonstrate how Qureshi arrived at her opinions. Rather, the

juvenile court considered the hearsay in Qureshi's testimony as offered for the truth ofthe matter
asserted because it adopted all of the allegations in the dependency petition, finding that they
were supported. The portion of Qureshi's testimony that was based on her own knowledge of
 events did not   support those findings of fact. The court therefore abused its discretion in

 admitting the hearsay in Qureshi's testimony. See Baum, 8 Wn.App. at 339.
        We next address whether the error was prejudicial or harmless. An erroneous admission

 of evidence is "not prejudicial unless, within reasonable probabilities, the outcome of the trial
 would have been materially affected had the error not occurred."State v. Bourgeois, 133 Wn.2d
 389, 403, 945 P. d 1120 (1997) quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P. d 961
                2               (                                               2
                                                 5
43507 1 1I
      - -



1981)). remaining evidence was that JT had missed several recent visits with XT and had
      The
been late to others and that JT had declined to submit to the urinalyses the Department had

requested of him, which were not mandatory. It is not reasonably probable that on this scant
evidence the juvenile court based its conclusion that XT is a dependent child. No evidence was

put forth as to how a couple weeks' worth of missed visits and the father's failure to submit to
urinalyses constituted a risk of "substantial damage to the child's psychological or physical
development." RCW 13. 4.In the absence of the testimony based on inadmissible
                  c).
                  030(
                     5
                     3 )(
hearsay, substantial evidence did not support the juvenile court's findings of fact.
       Accordingly, we reverse the juvenile court's order finding XT dependent as to JT and
remand.


        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6. is so ordered.
 0 it




We concur:




        Quinn-
             Brintnall, J.




      Ai gen, J.




                                                  0
