                                                               FILED 

                                                           DECEMBER 3, 2013 

                                                        In the Office of the Clerk of Court 

                                                      W A State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DNISION THREE 


In re Guardianship of:                         )         No. 30981-9-III
                                               )
                                               )
D.S.                                           )         UNPUBLISHED OPINION
                                               )
                                               )

       KULI~   J. - Guardianship is a ~tatutory alternative to termination ofparental

rights. Guardianship is designed to establish permanency for children in foster care

through the appointment ofa guardian and dismissal of the dependency. RCW 13.36.010.

The Department ofFamily and Child Services (Department) filed a petition to appoint a

guardian for D.S. Prior to the petition, the Department's permanency plan for D.S. was

reunification with his father, H.S. However, once H.S. was deported to Mexico, the

Department's plan changed to guardianship. H.S., who remains in Mexico, contested the

petition. Ultimately, the trial court ordered guardianship on the basis that it was in the

best interests ofD.S. because conditions could not be remedied so that D.S. could be

returned to H.S. in the near future. H.S. appeals. He contends that the best interests of

the child standard is unconstitutionally vague. He also contends that substantial evidence
No. 30981-9-111
In re Guardianship ofD.S.


does not support the finding that "[t]here is little likelihood that conditions will be

remedied so that the child can be returned to the parent[]in the near future," as required

by RCW 13.36.040(2)(c)(v), because he no longer has parental conditions to be remedied

that would prohibit D.S. from being returned to his care.

       We conclude that because the father has remedied his parental deficiencies, D.S.

can be returned to his father's care in the near future. Accordingly, we vacate the

guardianship and remand for reinstatement of the dependency.

                                           FACTS

       C.B. gave birth to a son, D.S., in September 2005. D.S.'s father, H.S., was present

at the birth, but was deported to Mexico one year later. D.S. lived with his mother until

April 2009. At that time, the Department removed D.S. from her care. H.S. was given

custody ofD.S. in June 2009.

       H.S. 's custody lasted about one year. In June 2010, H.S. was hospitalized for

drug-related hallucinations. The Department removed D.S. from his care. H.S. agreed to

a dependency order, engaged in voluntary services, and visited D.S. regularly. In the

meantime, the Department placed D.S. with C.B.'s father, Randall Batchelor, and

stepmother, Karen Batchelor. D.S. was just under five years old when the Department

found him dependent as to both parents on August 12,2010.


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In re Guardianship ofD.S.


       The Department planned to reunify H.S. and D.S. in the early fall of201O.

However, H.S. was arrested for a driving while under the influence in October 2010 and

deported. The Batchelors began proceedings to obtain third party nonparental custody of

D.S. The Department supported the Batchelors' efforts, but did not consider terminating

H.S.'s parental rights because ofD.S.'s continued relationship with H.S.

       H.S. returned to the United States in February 2011. He wished to resume visits

with D.S. and continue with services. He completed drug treatment and gave clean

random urinalysis (UA) samples. H.S. never tested positive for drugs and never missed

an appointment. H.S. visited D.S. regularly, with approximately three supervised visits

per week. After six months of good progress, social worker John Plotz recommended

reunification. At a review hearing, the court found that "[p]arental deficiencies of father

have been eliminated and the legal presumption is that the child should be returned to the

father." Ex. 6. In September, the Department changed D.S.'s permanency plan from

third party custody to reunification with H.S.

       However, in late October, H.S. was detained by Homeland Security during a visit

with D.S. H.S. was deported again. H.S. could not lawfully return to the United States

for 20 years. He decided to make a home in Mexico rather than return to the United

States. Since the deportation, H.S. has remained in contact with his social worker at the


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In re Guardianship ofD.S.


Department, speaking to him about every two weeks. H.S. also has continued to contact

D.S. by telephone approximately twice per week.

       In February 2012, the Department filed a petition to appoint the Batchelors

guardians ofD.S. The guardian ad litem's report supported the guardianship, stating that

D.S. had been dependent for too long, and H.S. was unable to parent because he lived in

Mexico and had no plans to return to the United States.

      A guardianship hearing was held on May 30, 2012. H.S. appeared by telephone

and with the help of an interpreter. H.S. testified that he wanted to provide D.S. "all my

love and a good life" in Mexico. Report of Proceedings (RP) at 194. He said that the

home he shared with his mother, sister, and adult son was ready for D.S. 's arrival. H.S.

intended to enroll D.S. in school, sports, and counseling. He had also arranged for his

sister to provide childcare while he worked on the family farm. Additionally, H.S. had

been seeing a chemical dependency counselor and presented evidence of clean UAs.

      Mr. Plotz and D.S. 's mental health counselor, William Layman, also testified. Mr.

Layman explained that it was important for children to have a stable and consistent

environment. Mr. Plotz added that children whose attachments to adults are disrupted can

become withdrawn, angry, fearful, and developmentally stunted. He further explained

that those children often become dysfunctional adults.



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In re Guardianship ofD.S.


       Both men agreed that D.S. was doing well in the Batchelors' home. Mr. Layman

believed that D.S. had a stable environment and was thriving there. Mr. Layman also

observed that D.S. was reluctant to leave the Batchelors although he was attached to H.S.

Additionally, Mr. Layman noted that D.S. expressed sadness and grief when his father

was deported. Mr. Plotz said that D.S.'s resiliency was a testament to the stable

environment that the Batchelors had provided.

       Mr. Plotz and Mr. Layman also testified about how D.S. should be transitioned to

his father's care. Mr. Layman explained that a gradual process would be needed. He said

that D.S. should be introduced to his family in Mexico using Skype and social media. He

also recommended that D.S. be given a couple of months to say goodbye to his family and

life in the United States. Mr. Plotz explained that supervised visits in Mexico would be

necessary.

       They also testified about whether such a transition could occur within D.S.'s "near

future." When asked what D.S.'s near future was, Mr. Layman explained, "if something

was happening soon he would have a concept of what next week would be like, next

month would be like, or two months, or before the next school year. I think beyond that it

gets a little vague for a child's sense of time." RP at 27. Mr. Plotz testified that the

process would take longer than two months and longer than D.S.'s near future.



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In re Guardianship ofD.S.


       Both men opined that it was in D.S.'s best interests to remain with the Batchelors

and that transitioning to H.S.'s care would be "traumatic." RP at 21, 171. Mr. Layman

indicated that it was possible for D.S. to do well in Mexico, but it was also possible for

him to do poorly. He indicated that, because D.S. was doing well with the Batchelors,

placing him with H.S. was not worth the risk. Mr. Plotz recommended the guardianship

because it "is a permanent plan for [D.S.], while still recognizing the relationship with

[H.S]." RP at 156.

       DIF, Mexico's equivalent to the Department, performed a study of the home where

D.S. would live with his father. This study found that the home provided good hygiene,

adequate bathrooms, and that other family members lived there. DIF found no "red

flags." RP at 37. Mr. Plotz testified that the Department received a positive home study

from DIF. However, he also testified that the home study was inadequate because it did

not specify what resources were available in the community. Mr. Plotz wanted the

Department to have supervision ofD.S. in Mexico.

       As for H.S., Mr. Plotz testified that H.S. completed all services necessary to

correct his parenting deficiencies. At the time of trial, H.S. had been clean for almost two

years. H.S. continued submitting clean UAs after deportation, including the random

testing by DIF. Despite this clean record and graduation from substance abuse treatment,



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In re Guardianship ofD.S.


Mr. Plotz testified that he was still concerned about H.S.'s ability to stay sober because

there was always a risk for relapse. Ultimately, Mr. Plotz stated that the only thing that

changed regarding H.S. is that he was unavailable to parent because he is no longer in

Washington.

       The court ultimately granted the guardianship petition. It explained that it was

"more likely to produce a positive outcome for the child" and "better than terminating

parental rights ... because the child's relationship with his father is of benefit to the child

and should be maintained." Clerk's Papers (CP) at 17. The court gave the most weight to

the testimony of Mr. Layman and Mr. Plotz. The court noted that stability was extremely

important for D.S.'s development and that the Batchelors have provided him with a stable

home since July 2010. It also noted that D.S. had thrived in the Batchelors' care and had

bonded to their family.

       The court also explained that denying the petition was risky. On one hand, it was

possible that transitioning to H.S.'s care would be successful. The court acknowledged

that D.S. was bonded to H.S., H.S. spoke regularly and lovingly to D.S. over the

telephone, H.S.'s home was suitable, H.S. was clean and sober, and H.S. had

employment. But on the other hand, D.S.'s ability to form attachments to a new family

and adjust to a new language and environment was unknown. Moreover, H.S. had not


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In re Guardianship ofD.S.


been consistent in the past, left an older son in Mexico to work in the United States, and

H.S. had been deported so many times that he might go to prison if deported again. The

court further found that the near future for D.S. was two to three months and D.S. could

not be transitioned to H.S. within that time frame.

       H.S. appeals the trial court's order granting guardianship. H.S. contends that the

"child's best interests" standard in RCW 13.36.040(2)(a) is unconstitutional under the

void-for-vagueness doctrine. He also contends that the trial court erred by finding that

there was little likelihood that conditions will be remedied so that D.S. can return to H.S.

in the near future, as contained in RCW 13.36.040(2)(c)(v).

                                        ANALYSIS

       In 2010, the legislature created a separate guardianship statute as an alternative

route to permanency for dependent children. LAWS OF 2010, ch. 272, § 1. Chapter 13.34

RCW established permanency through the appointment of a guardian and dismissal of the

dependency. RCW 13.36.010. Under RCW 13.36.040(2), a guardianship shall be

established if:

              (a) The courtjinds by a preponderance ofthe evidence that it is in
       the child's best interests to establish a guardianship, rather than to
       terminate the parent-child relationship and proceed with adoption, or to
       continue efforts to return custody of the child to the parent; and




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In re Guardianship ofD.S.


               (c )(i) The child has been found to be a dependent child under RCW
        13.34.030;
               (ii) A dispositional order has been entered pursuant to RCW
       13.34.130;
               (iii) At the time of the hearing on the guardianship petition, the child
       has or will have been removed from the custody of the parent for at least six
       consecutive months following a finding of dependency under RCW
       13.34.030;
              (iv) The services ordered under RCW 13.34.130 and 13.34.136 have
       been offered or provided and all necessary services, reasonably available,
       capable of correcting the parental deficiencies within the foreseeable future
       have been offered or provided;
              (v) There is little likelihood that conditions will be remedied so that
       the child can be returned to the parent in the near future; and
              (vi) The proposed guardian has signed a statement acknowledging
       the guardian's rights and responsibilities toward the child and affirming the
       guardian's understanding and acceptance that the guardianship is a
       commitment to provide care for the child until the child reaches age
       eighteen.

(Emphasis added.)

       A guardian maintains physical and legal custody of a child. RCW 13.36.050(2).

Also, a guardian has the right to give consent for the child in health care and educational

matters, as well as the duty to protect, feed, clothe, nurture, discipline, and educate the

child. RCW 13.36.050(2)(a)-(d). The parent retains a right of contact with the child as

determined by the court. RCW 13.36.050(l)(d).




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In re Guardianship ofD.S.


       The legislature found that guardianship was an appropriate plan for a dependent

child who cannot safely be reunited with his or her parents. RCW 13.36.010. However,

the legislature also expressed its concern "that parents not be pressured by the department

into agreeing to the entry of a guardianship when further services would increase the

chances that the child could be reunified with his or her parents." RCW 13.36.010.

       H.S. contends that substantial evidence does not support the trial court's finding

there is little likelihood that conditions will be remedied so that the child can be returned

to the parent in the near future. He maintains that without any conditions to be remedied,

the court cannot enter such a finding as required by RCW 13.36.040(2)(c)(v). H.S. is

correct.

       To grant a guardianship petition, the court must find that "[t]here is little

likelihood that conditions will be remedied so that the child can be returned to the

parent in the near future." RCW 13.36.040(2)(c)(v). The "little likelihood" finding in

RCW 13.36.040(2)(c)(v) parallels the same required finding in termination proceedings.

Compare RCW 13.36.040(2)(c)(v) with RCW 13.34.lS0(l)(e). In termination

proceedings, the little likelihood finding is based on whether the outstanding parental

deficiencies can be remedied in the near future. In re Dependency ofT.R., lOS Wn. App.

149, 165,29 P.3d 1275 (2001).


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No. 30981-9-III
In re Guardianship ofD.S.


       A prerequisite to the little likelihood finding is an outstanding parental deficiency

to be corrected. Without a parental deficiency, there is no condition to be remedied. In

H.S. 's situation, in the September 20 II review hearing, the trial court specifically found

that H.S.'s parental deficiencies had been remedied, and that the legal presumption was

that D.S. should be returned to his father. Also, in the guardianship proceeding, the trial

court found that H.S. complied with all services recommended for him in the dependency

action. DSHS did not challenge this finding of fact. Accordingly, it is a verity on appeal.

Robel v. Roundup Corp., 148 Wn.2d 35, 42,59 P.3d 611 (2002).

       The Department concedes that H.S. complied with all required services and that

H.S. was clean and sober. However, the Department argues that this finding does not end

the inquiry by the trial court. The Department's position focuses on the second part of the

required finding that D.S. could be returned in the near future. It contends that H.S.'s

compliance with services was too late to allow a reunification with D.S. in Mexico

because reunification could not be accomplished in the near future. The trial court found

that the near future for D.S. was two to three months and that it would take longer than

that to effectuate a transition into H.S.'s home.




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In re Guardianship oID.S.


       The Department misreads the required "little likelihood" factor in

RCW 13.36.040(2)(c)(v). This section states in full, "There is little likelihood that

conditions will be remedied so that the child can be returned to the parent in the near

future." RCW 13.36.040(2)(c)(v) (emphasis added). As explained in In re Dependency

olT.R., the "little likelihood" factor concerns whether the parental deficiencies can be

remedied in the near future. 108 Wn. App. at 165 (quoting RCW 13.34.180(l)(e)).

Absent a parental deficiency that is in need of correction, the factor does not inquire into

logistical steps that would need to be taken to relocate the child. In other words, the fact

that the child cannot be returned in the near future is irrelevant unless the parent has an

outstanding deficiency that is preventing the return.

       The use of the conditional conjunction "so" in the "little likelihood" factor

indicates that the timeliness of the return of the child is dependent on the correction of

parental deficiencies. Had the legislature intended to divorce the two issues, it could have

done so. For instance, the statute could have read, "There is little likelihood that

conditions will be remedied and that the child can be returned to the parent in the near

future." The use of "so" instead of "and" is crucial to the reading of the factor.




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In re Guardianship ofD.S.


       Here, evidence does not support the trial court's finding that "[t]here is little

likelihood that conditions will be remedied so that the child can be returned to the

parent[] in the near future." CP at 17. Instead, a prior review hearing established that

H.S. corrected all of his parental deficiencies. The court found that H.S. complied with

all services recommended for him in the dependency action and was clean and sober.

Thus, parental deficiencies are not preventing D.S. from being returned to H.S. in the near

future. 1 The order granting guardianship is vacated.

       The court erred by finding that there was little likelihood that conditions will be

remedied so that D.S. could return to H.S. in the near future.


        I This case is not controlled by the outcome of In re the Dependency ofJB.S., 123
Wn.2d 1, 863 P.2d 1344 (1993). In J.B.S., the Department sought to place lB.S. with his
father in Mexico after the Department believed the mother had abandoned the child. Id.
at 3. However, expert testimony established that lB.S. would be seriously harmed ifhe
was severed from contact with his foster parents, mother, and siblings. Id. at 9. The
Supreme Court reversed the superior court, concluding that the best interests of the child
was paramount and had not been established by the evidence. Here, D.S.'s situation is
different because it involves a guardianship and not a dependency. The goal of a
dependency hearing is to determine the welfare of the child and his or her best interests.
In re Welfare ofBecker, 87 Wn.2d 470,476,553 P.2d 1339 (1976). However, to
establish guardianship, the best interests of the child is not the only requirement that
needs to be established. The court must find the remaining requirements in
RCW 13.36.040(2)(c). While D.S.'s guardianship petition satisfied the best interests of
the child requirement in RCW 13.36.040(2)(a), it did not establish the requirement in
RCW 13.36.040(2)(c)(v). Therefore, unlike JB.S's dependency determination, the trial
court's finding of the best interests of the child requirement does not control the outcome
of the guardianship petition.

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      Given our disposition of this issue, we need not address H.S.'s other contentions.

We vacate the guardianship and remand for reinstatement of the dependency.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Kulik, J.

WE CONCUR: 





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