        IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


In the Matter of the Dependency of                                                         COC

M.C.D.P. (D.O.B. 07/07/2003),                     No. 68401-9-1
                                                                                           m
                                                                                             c
                                                                                           o-
                     Minor Child.
                                                                                      I
                                                  DIVISION ONE
                                                                                           3> -XIpT
HEATHER PHILLIPS and                                                                 3**
                                                                                           t/>p;(—,

COURT-APPOINTED SPECIAL                                                                    pf-
ADVOCATE,
                                                                                      CO
                                                                                      o
                     Appellants,

       v.                                         UNPUBLISHED OPINION


STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, and JUSTINO
DELGADO LOZANO,

                     Respondents.
                                                  FILED: April 1.2013


       Spearman, A.C.J. — When making a placement decision in a dependency

proceeding, a court must give effect to a child's right to conditions of basic nurture,

physical and mental health, and safety where such rights are in conflict with a

biological parent's legal rights to the care and custody of the child. In re the

Dependency of J.B.S.. 123 Wn.2d 1, 8-9, 863 P.2d 1344 (1993). Because we

determine that the superior court, on revision, applied an incorrect legal standard and

did not consider evidence relevant to the dependent child's best interests, we reverse

and remand. But we affirm the superior court's denial of a request for a continuance

and a motion for the appointment of independent counsel for the dependent child.
No. 68401-9-1/2



                                             FACTS

       This appeal arises from a dependency action regarding nine-year-old

M.C.D.P. (D.O.B.: 7/7/2003). In June 2007, when M.C.D.P. was four years old, she

was found dependent as to her mother, Heather Phillips, who suffers from severe

physical and mental impairments. Around that time, Justino Delgado Lozano

(hereinafter "Delgado") was identified as M.C.D.P.'s biological father. In October

2007, Delgado agreed to entry of dependency as to him due to concerns over his

drug and alcohol use and because he had no relationship with M.C.D.P. In

November 2008, M.C.D.P. was placed with Delgado and the dependency as to him

was dismissed in June 2009. In September 2009, the Department of Social and

Health Services (DSHS) filed a dependency petition and removed M.C.D.P. from
Delgado's custody after she accused him oftouching her inappropriately. After an
investigation, DSHS determined the allegations had no merit and that Phillips may
have coached M.C.D.P. into making them. The dependency was dismissed in

January 2010 and M.C.D.P. was returned to Delgado.1
       In October 2010, Delgado was detained by immigration authorities and

scheduled for deportation to Mexico. M.C.D.P. was unable to accompany him

because she did not have a passport and did not share his last name. Accordingly,
DSHS filed a dependency petition on October 26. M.C.D.P. was placed in foster care,
where she currently remains. Delgado was deported sometime thereafter.

         1M.C.D.P. stayed at Ruth Dykeman Children's Center for part ofthe time she was removed
from Delgado's care. There, she displayed violent and aggressive behaviors. After DSHS's
investigation, Delgado agreed to a brief voluntary placement agreement to allow M.C.D.P. to continue
in services at Ruth Dykeman and he also agreed to enroll M.C.D.P. in counseling and Parent-Child
Interaction Therapy (PCIT) upon her return to his care. He did not ultimately enroll M.C.D.P. in
counseling or PCIT, reporting that due to hisfull-time job he was unable to do so.
No. 68401-9-1/3



       On December 13, 2010, DSHS filed a motion requesting (1) a continuance of

the pre-trial conference and factfinding hearing; (2) concurrent jurisdiction with the

district court to allow a petition to add Delgado's last name to M.C.D.P.'s; (3)

authority to obtain a passport for M.C.D.P.; (4) authority to transport M.C.D.P. to

Mexico; and (5) authority to place M.C.D.P. with Delgado in Mexico.2 ADSHS social
worker's declaration accompanying the motion stated that Delgado was a capable

parent, M.C.D.P. had done well in his care, and a dependency was not necessary.

King County Juvenile Court Commissioner Richard Gallaher granted DSHS's first

three requests, denying the fourth and fifth.

        Phillips entered an agreed dependency order on April 20, 2011. Delgado

entered an agreed dependency and disposition order on May 18.3 The order notes,
"Father cannot return to United States. [M.C.D.P.] cannot travel to Mexico." Clerk's

Papers (CP) at 64. Among the facts establishing dependency is that"[c]oncerns have
been reported about the father leaving [M.C.D.P.] with babysitters longer than
arranged and his drinking alcohol, and that [M.C.D.P.] looked unkempt. The father
denies these allegations." CP at 63. The order requires Delgado to participate in
twice-weekly urinalysis (UA) testing, including for alcohol, for 60 days and to

         2Phillips opposed all but the first request. Theguardian ad litem (GAL), April Rivera, agreed
only to thefirst three. Rivera expressed concerns about Delgado's parenting. She reported that since
residing in foster care, M.C.D.P. had made statements indicating that she did not receive proper food
while in Delgado's care and had been left to sleep in Delgado's car at night while he was in a casino,
and that Delgado would drink alcohol in the morning. Rivera wrote that in May 2010, a Child Protective
Services referral was received from Federal Way Public Schools indicating that Delgado was
supposed to pick up M.C.D.P. from a babysitter on a particular Friday but did not do so until after the
weekend.

        3Delgado agreed to dependency under RCW 13.34.030(6)(c) "in that the child has no parent,
guardian or custodian capable ofadequately 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." CP at 64. By this time, CASA Carol Moore had replaced Rivera and signed off on
Delgado's order of dependency.
No. 68401-9-1/4



cooperate with a home study and follow recommendations. The order states the

permanent plan is to return M.C.D.P. to a parent, which could include Delgado's

home in Mexico.

       In Mexico, Delgado made efforts to prepare for M.C.D.P.'s arrival. Mexican

authorities reported in June 2011:

       Currently [Delgado] is employed full time, with a steady income and
       benefits, he has a suitable schedule that allows him to care for his
      daughter and in addition he lives with his mother, Mrs. Soledad,
      who is able and willing to help him in the raising of his daughter.

CP at 205. Home studies in Mexico were conducted in December 2010 and April

2011. The first, at Delgado's sister's home, was unfavorable, noting his unstable

situation. The second, at his mother's home, noted he was employed and the home

was suitable but raised concerns about the changes M.C.D.P. would experience and

the need for private bilingual education.

       Following the first dependency review hearing in August 2011, Commissioner

Gallaher found Delgado in compliance (though he noted Delgado needed to start

UAs), stated that return to a parent was still the permanent goal, and rejected

adoption as an alternative plan. On September 15, after a passport was obtained for

M.C.D.P. and a court order changed her name to include his, Delgado filed a motion

requesting that M.C.D.P. be placed with him in Mexico. DSHS supported placement

with him but requested preconditions, including a Family Team Decision Making

meeting and a courtesy social worker to be assigned in Mexico. It also requested that

placement be contingent on UA testing, counseling for M.C.D.P., regular contact
No. 68401-9-1/5



between Delgado and DSHS, and home visits. Phillips and the CASAs opposed

placement with Delgado.4
        After reviewing the CASAs' submissions to the court, DSHS told the court

more information was needed and it no longer supported placement with Delgado at

that time. DSHS was concerned with the opinion of M.C.D.P.'s therapist that she

suffers from anxiety disorder, has strong attachments to her maternal and foster

families, and should not be moved until an attachment therapist evaluated how

transition might affect her psychological well-being. DSHS asked the court to grant it

authority to place M.C.D.P. with Delgado once (1) an attachment assessment of

M.C.D.P. was conducted and any results were considered; (2) Delgado completed

the home study and followed recommendations; (3) the home study recommended

placement; and (4) DSHS's previous requests were met. In October 2011, Delgado

moved to strike his placement motion, agreeing to an attachment assessment of

M.C.D.P. but disputing that the April 2011 home study was incomplete. The court

granted his motion to strike.

        On December 1, 2011, in an "attempt to move this case forward," Delgado

filed the subject motion, noting DSHS had not completed M.C.D.P.'s assessment. He


       4Gloria Overgaard was assigned to be co-CASA with Moore in September2011. The CASAs'
main concerns with the proposed move, as detailed in their report, are summarized as follows: (1)
there had been no verification M.C.D.P. would receive educational and therapeutic services in Mexico;
(2) there had been no verification she would receive the recommended evaluations and testing; (3) a
move might undermine the behavioral progress M.C.D.P. had made in her current stable placement;
(4) Delgado's alcohol and drug issues had not been addressed; (5) M.C.D.P.'s rights as an American
citizen in Mexico had not been determined; (6) the CASAs needed to approve plans regarding safety,
transition, and reunification; (7) DSHS's request for a "courtesy social worker" in Mexicowas
insufficient because social workers in Mexico do not remove children from homes without a lengthy
process; (8) both home studies expressed concern for M.C.D.P. should she be relocated; (9) Delgado
had not shown he could pay for private bilingual education; and (10) there was no visitation plan to
ensure M.C.D.P. would remain in contact with her maternal family. The CASAs pointed out that
M.C.D.P.'s expressed wishes were to live with her foster parents and that she did not want to go to
Mexico, attaching a letter she wrote to that effect.
No. 68401-9-1/6



requested (1) a father-child attachment assessment (to be conducted in Mexico), (2)

a visit with M.C.D.P. in Mexico, and (3) that M.C.D.P. be placed with him. He claimed

he had re-engaged with counseling and complied with UAs for eight weeks,5 and
noted that a discussion with Mexican contacts who conducted the home study

determined that it had been completed but there were questions about whether

services were required. DSHS, Phillips, and the CASAs opposed Delgado's motion.6
DSHS argued placement with Delgado was premature given M.C.D.P.'s mental

health issues and noted Dr. JoAnne Solchany had begun the assessment. On

December 15, Commissioner Gallaher heard oral argument and denied Delgado's

motion, stating in a written ruling:

        The best interests of the child are the paramount concern of the
        court, and although they must be balanced with the fundamental
        rights of parents, the best interests of the child outweigh the rights
        of parents. It is not only contrary to [M.C.D.P.'s] best interest to be
        placed or have a visit with her father in Mexico, itwould be
        detrimental to [her] to grant these motions at this time.

CP at 1135-36.

        Delgado moved for revision, arguing that a parent must be found unfit by clear
and convincing evidence before a court could considerthe child's best interests.
DSHS, Phillips, and the CASAs opposed the motion, arguing that the overriding
consideration in placement decisions is the best interests of the child. The superior



        5 The submissions show clean results for drugs but do not address alcohol.

       6DSHS argued an attachment assessment was necessary under the dependency order
because the order required M.C.D.P. to participate in counseling and recommendations, and the
assessment was recommended by her therapist. DSHS noted M.C.D.P. had become more anxious,
stopped talking to Delgado on the phone, and would not let caregivers out ofhersight. DSHS would
not support placement in Mexico until it was clearthe move would not negatively impact herand
placement there would be final. The CASAs emphasized the same issues noted in their previous
submissions to the court and stated that M.C.D.P. had been determined to have a learning disability
and social skills deficits.
No. 68401-9-1/7



court granted Delgado's motion and ordered DSHS to place M.C.D.P. with Delgado

in Mexico. Its January 23, 2012 order stated:

       The court's analysis must [begin] with whether or not there is a
       parent available and capable of safely parenting this child. If the
       answer to that question is yes, we do not reach the "best interest of
       the child" test. The legislature and case law is clear that parents!']
       right to parent their children must be protected that these decisions
       must not turn on which family can provide the "most or the best" for
       the child. Here the father's only deficiency was his inability to
       immediately take his child with him when he was deported. In fact
       the Department was in favor of moving the child to Mexico and the
       only barrier was the passport/immigration issue.171 He has corrected
       that "deficiency" and wants his child returned. Neither the
       Department nor CASA cite any credible evidence that the father's
       ability to parent this child changed once he was in Mexico.

CP at 1230-31.


       Phillips filed a motion for stay and reconsideration, supported by the CASAs.

At the February 13, 2012 hearing, the CASAs informed the superior court that

Solchany's assessment had been completed and requested a continuance of the

motion for reconsideration if the court would not consider the report. The court denied

the request for a continuance and the motion for reconsideration, but stayed its

January 23 order to allow an appeal.8 On February 17, Phillips filed a motion
requesting appointment of independent counsel for M.C.D.P. The Children and Youth

Advocacy Clinic (CAYAC) at the University of Washington School of Law made a




        7 The court cited the DSHS social worker's December 2010 declaration.

        8The superior court's order on revision is also being stayed by order of this court until this
appeal is decided.
No. 68401-9-1/8



limited appearance in support, while Delgado opposed the motion. The superior court

denied the motion on March 2.9

       Phillips and the CASA10 appeal from the superior court's orders on revision
and denying reconsideration.11 Phillips also appeals from the court's denials ofthe
request for a continuance and the motion to appoint counsel for M.C.D.P.

                                            DISCUSSION

                                         Order on Revision


       We review the superior court's ruling, not the commissioner's. State v. Ramer,

151 Wn.2d 106, 113, 86 P.3d 132 (2004): State v. Hoffman, 115 Wn. App. 91, 101,

60 P.3d 1261 (2003). Commissioner rulings are subject to revision by the superior

court. RCW 2.24.050. On revision, the superior court reviews the commissioner's

findings offact and conclusions of law de novo based upon the evidence and issues
presented to the commissioner. In re Marriage of Moody, 137 Wn.2d 979, 992-93,
976 P.2d 1240 (1999). A superior court's placement decision in a dependency

proceeding is reviewed for abuse ofdiscretion. In re Dependency ofA.C., 74 Wn.
App. 271, 275, 873 P.2d 535 (1994). Acourt abuses its discretion when it "applies
the wrong legal standard, or bases its ruling on an erroneous view ofthe law." Gildon
v.Simon Prop. Group. Inc.. 158 Wn.2d 483, 494, 145 P.3d 1196 (2006).




        9The court stated, "[A]fter consideration of the Mathews v. Eldridqe. 424 U.S. 319, 96 S. Ct.
893, 47 L.Ed.2d 18 (1976) factors, the courtdetermined that the child's rights were protected with the
current representation and there was no need... ." CP at 1522.
        10
             Only CASA Carol Moore filed the notice of appeal.

        11 Phillips and the CASA filed notices of appeal as well as notices of discretionary review
regarding the challenged orders. Because this court has determined that discretionary review is
warranted in any event, we need not decide whether the orders are appealable as of right.

                                                    8
No. 68401-9-1/9



       The main issue is what standard applies to a motion for change of

placement.12 M.C.D.P.13, Phillips, and the CASA contend the applicable standard is
the "best interests of the child" standard set forth in In re the Dependency of J.B.S.,

123 Wn.2d 1, 863 P.2d 1344 (1993). DSHS agrees with them on this issue. These

parties contend the superior court erred as a matter of law by expressly refusing to

consider M.C.D.P.'s best interests. Delgado contends that if there is an available and

capable parent, the child's best interests are not considered. He relies primarily on

the permanency plan, the goal of the dependency statute to reunite children with fit

parents, and cases such as In re Welfare ofA.B., 168 Wn.2d 908, 232 P.3d 1104

(2010).

        In re J.B.S. involved an appeal from a superior court's refusal to reconsider a

commissioner's order changing placement of a dependent child from his foster family

to the custody of his father in Mexico. In re J.B.S., 123 Wn.2d at 3. The facts of ln_re
J.B.S. are similar to those in this case. J.B.S. was a citizen of the United States born

to an American mother and a Mexican father. Ia\ Initially, the father was not involved

with J.B.S. and the child lived with his mother. When the mother was unable to care

for J.B.S., he was found dependent under RCW 13.34.030 and placed with a foster

family. Id. at 3-4. DSHS sought a relative as an alternative placement and located the


          12 It appears, based on the superior court's oral and written rulings, that the court may have
viewed the matter before it as a motion to dismiss the dependency. For example, on reconsideration
the court stated, u[T]his father has no further deficits, there is no reason for us to continue to have a
dependency." Verbatim Report of Proceedings (VRP) 2/13/12 at 18. To the extentthe superior court
intended to dismiss the dependency, iterred. The motion before the commissioner was to change
M.C.D.P.'s placement, not to dismiss the dependency. The dependency, which was established by
agreement in May 2011, would have continued for at least six months following placement with
Delgado. See RCW 13.34.138(2), RCW 13.34.145(7).

          13 M.C.D.P. is not officially an appellant, as she did not file a notice of appeal, but she is
represented on appeal by Columbia Legal Services and the Children and Youth Advocacy Clinic at the
University of Washington School of Law.
No. 68401-9-1/10



father, who agreed to the placement. Id at 4-5. The father was deported but returned

to Washington, completing classes, programs, and evaluations and visiting with

J.B.S. regularly. He was again deported to Mexico. Id at 5. DSHS filed a motion to

change placement from the foster family to the father in Mexico. Id at 5. At a hearing,

the guardian ad litem (GAL) reported the foster parents were providing an

exceptional home and J.B.S. was attached to his mother. The GAL expressed "grave

concern about placing J.B.S. in a country whose language he did not speak, to live

among virtual strangers." Jd. at 5-6. The commissioner granted the motion. Jd, at 6.
The superior court upheld the decision on a motion to revise, finding that J.B.S.
would suffer separation anxiety or trauma if placed in Mexico but concluding it could
not make the placement determination according to the child's best interests. \± at 6,

8.

       The Washington Supreme Court reversed, finding that the superior court had
erroneously failed to give J.B.S.'s interests "paramount consideration" and that its
decision was "based on a fundamental misapprehension of its obligations under the

[dependency] statute." Id at 8. The court wrote:

       There is no support in the legislative scheme for the notion that a
       biological parent's rights must override a child's best interests in
       determining placement under the dependency statute. To the contrary,
       the pertinent statute, RCW 13.34.020, was amended in 1987 to
       expressly reflect the Legislature's concern to assure the child's
       interests be given due consideration, and prevail in case of conflict
       with the parents':
          [T]he legislature declares that the family unit should remain intact
          unless a child's right to conditions of basic nurture, health, or safety
          is jeopardized. When the rights of basic nature, physical and
          mental health, and safety of the child and the legal rights of the
          parents are in conflict, the rights and safety of the child should
          prevail. The right of a child to basic nurturing includes the right to a
          safe, stable, and permanent home and a speedy resolution of any
           proceeding under this chapter.

                                            10
No. 68401-9-1/11



Id at 8-9. The court, finding RCW 13.34.020 consistent with case law, noted it had

"repeatedly held that the child's 'best interests' is the primary consideration in

deciding a petition for modification of an order regarding custody of a dependent

child." Id at 10 (citations omitted). It observed, "The fact the child's interests should

prevail does not mean the rights and interests of the natural parents have no weight,

only that these rights are not paramount." Jd at 12. The court reversed and remanded
for a review hearing pursuant to RCW 13.34.130(5). Jd at 8-10. This court, afterJnre
J.B.S., has consistently cited and applied that case and the "best interests of the

child" standard when considering matters of placement in dependency proceedings.14
       Notwithstanding that In re J.B.S. specifically applies to a motion for change of
placement, Delgado contends the superior court properly determined that where
there is a capable and available parent, the best interests ofthe child are not
considered. The standard on which he relies is the standard applicable to termination

of parental rights decisions orto custody/visitation disputes between parents and
nonparents. Under the termination cases he cites, an order terminating parental
rights requires clear, cogent, and convincing evidence of the six elements under
RCW 13.34.180(i)(a)-(f) and a finding of parental unfitness, and only once that is
established does the court determine, by a preponderance of the evidence, whether




         14 See, e.g.. Dep't ofSoc. &Health Services v. Paulos, 166 Wn. App. 504, 517, 270 P.3d 607
(2012) (in determining placement in dependency proceeding, court's paramount duty isto protect best
interests ofchild); In re Dependency ofD.F.-M.. 157 Wn. App. 179, 192-93, 236 P.3d 961 (2010), rev.
denied, 170 Wn.2d 1026, 249 P.3d 181 (20111 (same): In re Dependency of R.W.. 143 Wn. App. 219,
223-25, 177 P.3d 186 (2008) (parents' fundamental liberty and privacy interest in care and custody of
children do not override children's best interests when determining placement during dependency); In
re Dependency of J.S„ 111 Wn. App. 796, 46 P.3d 273 (2002) (same); In re Dependency of A.C., 74
Wn. App. 271, 275-77, 873 P.2d 535 (1994) (error to construe RCW 13.34.130 as a matter of law to
require placement with father without consideration ofchild's best interests).

                                                   11
No. 68401-9-1/12



termination is in the best interests ofthe child.15 The cited custody cases support the
proposition that a nonparent may interfere with a parent's rights to the care and

custody of a child only after a showing that the parent is unfit or if custody with the

parent would result in actual detriment to the child.16 In such cases, the "best
interests of the child" is a constitutionally insufficient basis for seeking visitation or

custody. But none of these termination or custody cases involves placement

decisions in a dependency, and none purports to overrule or modify J.B.S.

Termination proceedings and custody (or visitation) disputes between parents and

non-parents—neither of which was involved here—present different issues and have

different ramifications from a placement decision in a case where dependency has

been established.



          15 See In re Dependency of K.N.J.. 171 Wn.2d 568, 257 P.3d 522 (2011) (only if parental
unfitness shown by satisfying six statutory requirements may court determine if termination is in best
interest ofchild); In re Welfare ofA.B.. 168 Wn.2d 908, 918, 232 P.3d 1104 (2010) (parent has due
process right not to have parental rights terminated in absence of finding that he orshe is currently
unfit, and only once court has found unfitness may it consider child's best interests); In re H.W., 92
Wn. App. 420, 425, 961 P.2d 963 (1998) (parental rights can be terminated only if six statutory factors
are established and termination is in the best interests of child).

          16 See In re Custody of Smith. 137 Wn.2d 1, 9, 969 P.2d 21 (1998) (striking down, in cases
involving efforts by non-parents toseek visitation over parents' objections, statutes authorizing
visitation rights "for any person when visitation may serve the best interest ofthe child"; State may
interfere with family autonomy only where parent is unfit, a child has been harmed, or there is a threat
ofharm), affd sub nom Troxel v. Granville. 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); [n_re
Parentage of C.A.M.A.. 154 Wn.2d 52, 109 P.3d 405 (2005) (striking down, in case where
grandparents petitioned for visitation over father's objection, statute providing that visitation with
grandparent is presumed in child's best interests; statute "directly contravenes the constitutionally
required presumption that the fit parent acts in the child's best interests" and employed a "best
interests" standard, which could not apply when interfering with a non-deficient parent); and In re
Custody of Shields, 157Wn.2d126, 128, 136 P.3d 117 (2006) (holding court may award custody of
child to nonparent in proceeding against parent only if parent is unfit or if placement with parent would
result in actual detriment to child; trial court thus erred in applying "best interests of the child"
standard); In re Custody of E.A.T.W.. 168 Wn.2d 335, 338, 227 P.3d 1284 (2010) (holding that under
RCW 26.10.032, court must deny hearing on motion for third party custody unless nonparent sets forth
facts showing adequate cause that parent is unfit or that placing child with parentwould result in
arhial Hpfrim^nt tn rhilri's growth and developments In re Custody of C.C.M.. 149 Wn. App. 184, 191,
202 P.3d 971 (2009) (holding, in action by nonparent for foster care placement under Indian Child
Welfare Act, that party seeking to remove child from parentmustshow by clear and convincing
evidence that parent's continued custody is likely to result in serious physical or emotional harm to
child).

                                                      12
No. 68401-9-1/13



       Delgado also cites certain provisions in chapter 13.34 RCW.17 While these
statutes support reunification with him generally, given that the permanency planning

goal was to return M.C.D.P. to a parent, they do not mandate placement with him if it
would be contrary to M.C.D.P.'s best interests.

       Having determined that In re J.B.S. sets forth the standard applicable to
placement motions, the next question is whetherthe superior courtapplied the wrong
legal standard. We conclude it did. The court found thatthere was a capable and
available parent and expressly declined, as in In re J.B.S., to consider M.C.D.P.'s
best interests. It focused on the triggering event for the dependency (Delgado's
inability to take M.C.D.P. upon deportation due to passport and name issues), found
those issues had been remedied, and appears to have dismissed the dependency.

        Application of the wrong legal standard can be harmless error only where it
can be said "with confidence" that "the trial court's erroneous view of the law did not

affect its view of the evidence." Backlund v. Univ. of Wash, 137 Wn.2d 651, 671, 975

P.2d 950 (1999). In InreA.C this court held that while the trial court erred in
construing RCW 13.34.130 as a matter of law to require placement with an available
parent without consideration of the child's best interests, reversal of the disposition
order placing the child with the father was not required because (1) the trial court did
not, unlike in In re J.B.S., expressly state that it could not consider the child's best
interests but instead acknowledged that the child's best interests were a factor; (2)
there was no evidence, as in J.B.S., that the change of placement would be harmful


        17 See RCW 13.34.145(1)(c) ("Permanency planning goals should be achieved at the earliest
possible date, preferably before the child has been in out-of-home care for fifteen months."), RCW
13.34.136(1) ("The permanency planning process shall include reasonable efforts to return the child to
the parent's home"), RCW 13.34.136(3) ("Permanency planning goals should beachieved at the
earliest possible date.").

                                                  13
No. 68401-9-1/14



to the child; (3) the decision did not involve, as in In re J.B.S., a drastic change that

would effectively sever the child from contacts with his mother and foster family; and

(4) the passage of time prevented any meaningful attempt to restore the

circumstances existing prior to the placement decision. In re A.C., 74 Wn. App. at

279-80.

       Here, we cannot say the superior court's error was harmless. In re J.B.S.

holds that the best interests of the child prevail over the rights of the parent when

there is a conflict between a child's rights to basic nurture, health, or safety and the

parent's rights to the care and custody ofa child. In re J.B.S., 123 Wn.2d at 9-11. The
question is whether there was evidence that M.C.D.P.'s rights may have conflicted
with Delgado's and evidence that placement with him was not in her best interests.
We observe there was such evidence before the commissioner, who found that it

would be "detrimental" to grant the placement motion at that time, and then before
the superior court. The CASAs and DSHS submitted evidence that M.C.D.P. was
suffering from mental health issues, anxiety, and learning disabilities and could not
speak Spanish. They argued Delgado had not shown he could meet her needs in
these areas. They also submitted evidence that M.C.D.P. was strongly attached to
her maternal and foster families, and argued an attachment assessment was

necessary to assess the effects ofa move on her psychological well-being. Delgado
does not argue that the superior court made the correct decision under the "best
interests of the child" standard. And, assuming for purposes of argument that




                                             14
No. 68401-9-1/15



Delgado's parental fitness was established, he cites no authority for the proposition

that placement with a capable parent is necessarily in the best interests of the child.18
       We reverse the superior court's order on revision and remand.19
                                        Request for Continuance

       The denial of a continuance is reviewed for abuse of discretion. In re

Dependency of V.R.R. and H.R.. 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006).

The appellant must make a clear showing that the court's exercise of discretion was

manifestly unreasonable, exercised on untenable grounds, or made for untenable

reasons. State v. Downing. 151 Wn.2d 265, 273-74, 87 P.3d 1169 (2004).

        The superior court did not abuse its discretion. The CASAs requested a

continuance at the February 13, 2012 hearing so that Solchany's report could be

considered as evidence on reconsideration. But RCW 2.24.050 limits the superior


        18 The parties dispute whether Delgado suffers from parental deficiencies and contend the
record supports their respective positions. M.C.D.P., Phillips, and the CASA contend he suffers from
unaddressed alcohol-abuse and psychological issues, among other things, while Delgado contends
his only deficiency was his inability to take M.C.D.P. with him upon deportation. We note that at the
hearing on reconsideration ofthe revision order DSHS conceded it "cannot say thatthis father is not a
capable parent." VRP 2/13/12 at 13. Neither the commissioner nor the superior court made any
specific findings as to alcohol issues orother issues identified in the dependency order (for example,
disputed findings regarding M.C.D.P. being left with babysitters or looking unkempt). The superior
court did state that"[n]either the Department nor CASA cite any credible evidence thatthe father's
ability to parent this child changed once he was in Mexico." CPat 1231. But it is unclear whether it
intended this finding to resolve the concerns about alcohol use and other issues. In any event, the
dispute over whether Delgado's parental fitness has been established is largely irrelevant to the issue
on appeal. Even assuming it has, the superior court was required to consider evidence relevant to
M.C.D.P.'s rights and best interests.

        19 The J.B.S. court provided a non-exclusive list of considerations for the trial court in that case
to evaluate should DSHS file a new motion for a change of placement: (1) the psychological and
emotional bonds between the child and the child's (a) parent not being considered for placement, (b)
siblings, and (c) foster family; (2) the potential harm from effectively severing contact with these
individuals; (3) the effectof placement in a foreign country on the court'sability to oversee placement;
(4) the nature ofthe child's attachment to the parent being considered for placement; (5) the history
and present circumstances ofthe parent being considered for placement; (6) the home available in the
foreign country; and (7) the potential effect on the child ofan abrupt change in environment. Moreover,
the court identified concerns by the GAL or CASAand a parent's immigration status as proper
considerations. In re J.B.S., 123 Wn.2d at 11-12. On remand, some or all of these considerations may
be relevant in M.C.D.P.'s case.



                                                    15
No. 68401-9-1/16



court's review to the record of the case and the findings of fact and conclusions of

law entered by the court commissioner. See also In re Moody, 137 Wn.2d at 992-93

("Generally, a superior court judge's review of a court commissioner's ruling,

pursuant to a motion for revision, is limited to the evidence and issues presented to

the commissioner."). Solchany's report, dated February 3, 2012, was not before the

commissioner. It was not an abuse of discretion to deny the continuance given the

reason it was sought by the CASAs.20
                            Motion to Appoint Independent Counsel

        M.C.D.P. and Phillips contend the superior court erred in denying Phillips'

request for independent counsel for M.C.D.P. under RCW 13.34.100 and the 14th
Amendment to the United States Constitution.21 In support, various amici curiae

argue that providing children a constitutional right to counsel in dependency matters
is consistent with national trends and best practices, and is supported by state and

federal constitutional law. DSHS and Delgado contend the court did not err, and the

CASA takes no position.




        20 Similarly, the superior court did not err in refusing to consider Solchany's report as part of
the motion for reconsideration, as M.C.D.P. contends.

        21 M.C.D.P. and Phillips also contend the state due process clause, article I, section 3,
provides greater protection than the 14th Amendment for the right to independent counsel for ail
children in dependency proceedings. In other words, they contend RCW 13.34.100 violates Article I,
section 3. See Bellevue Sch. Dist. v. E.S.. 171 Wn.2d 695, 702-04, 257 P.3d 570 (2011) (where
statute made counsel for juvenile at initial truancy hearing discretionary, juvenile's claim that article I,
section 3 offered broader protection than federal counterpart and required appointment ofcounsel
would require court to hold statute is unconstitutional). We decline to review this claim because it was
not raised below. RAP 2.5(a). M.C.D.P. asserts the argument was raised by the attorney from CAYAC,
noting counsel's request in briefing "that the court appoint counsel pursuant to RCW 13.34.100 and
the constitutions of the United States and the State of Washington" and statement at oral argument
that "appointment ofcounsel in this case is required as a matter of procedural due process under the
14th Amendment of the U.S. Constitution and under the Washington State Constitution." CP at 1372;
VRP 3/2/12 at 7. These arguments made no distinction between state and federal due process and
did not address Gunwall.


                                                     16
No. 68401-9-1/17



       In actions under chapter 13.34 RCW, a trial court may, but is not required to,

appoint counsel for children twelve years or older if they request counsel. RCW

13.34.100(6)(f).22 The court may appoint counsel for younger children if the GAL or
the court determines that the child needs to be independently represented by

counsel. Jd. Where RCW 13.34.100 makes appointment of counsel for children in

dependency proceedings discretionary, we will review the superior court's decision

for abuse of discretion.

       RCW 13.34.100 does not specify any criteria in determining whether to

appoint counsel. The Washington Supreme Court recently held that the decision to

appoint counsel for a child in a termination of parental rights proceeding should be

examined on a case-by-case basis using the factors set forth in Mathews v. Eldridge,

424 U.S. 319, 96 S.Ct. 893, 47 LEd.2d 18 (1976). In re Dependency of M.S.R., 174

Wn.2d 1, 21-22, 271 P.3d 234 (2012), reconsideration denied (May 9, 2012). The

court explained:

       [T]he due process right of children who are subjects of dependency
       or termination proceedings to counsel is not universal. The
       constitutional protections, RCW 13.34.100(6), and our court rules
       give trial judges the discretion to decide whether to appoint counsel
       to children who are subjects of dependency or termination
       proceedings.

Id at 22. The court later amended its opinion to state, "We recognize that this is an

appeal of a termination order. Nothing in this opinion should be read to foreclose

argument that a different analysis would be appropriate during the dependency

stages." Ja\ at 22 n.13, as corrected (May 8, 2012).




       22 A GAL shalt be appointed for all children unless there is good cause. RCW 13.34.100(1).
                                                17
No. 68401-9-1/18



       In re M.S.R. was decided one day before the March 2, 2012 hearing on the

request for independent counsel for M.C.D.P. The superior court was alerted to the

decision at the hearing and cited Mathews in its ruling. The amendment to In re

M.S.R. was not added until May 8, 2012. At the time of the superior court's decision,

therefore, it reasonably believed In re M.S.R./Mathews applied. The parties do not

dispute that the court acted appropriately in applying Mathews.23 Therefore, we
assume without deciding that Mathews applies in reviewing the superior court's

ruling.24
        Mathews requires the weighing of (1) the private interest at stake; (2) the risk

of error involved under the current procedures and the probable benefits of additional

or substitute procedural protections; and (3) the government's interest in the
proceeding, including fiscal and administrative burdens.25 Mathews, 424 U.S. at 335.


        23 Nor do M.C.D.P. and Phillips argue that the federal due process clause provides greater
protection ofthe right to counsel than what is required under RCW 13.34.100.
        24 We decline to announce, for the first time, a more lenienttest for appointing counsel for
children in dependencies than for those in termination proceedings. Phillips and M.C.D.P. suggest that
because In re M.S.R. noted that its decision did not foreclose argument that a different standard might
apply to counsel for children in dependency proceedings, a different standard should apply. But they
do not suggest what the test might beor provide adequate briefing on why a more lenient test is
merited other than to argue that all dependent children should receive counsel. Furthermore, ln_re
M.S.R.'s statement that a different standard might apply in dependencies could mean that a more
stringent standard might apply.
        As to the argument that the 14th Amendment/Mathews require the appointment ofcounsel for
all dependent children, M.C.D.P. and Phillips do not explain how this court could make such a holding
consistent with In re M.S.R. Termination proceedings begin as dependency proceedings. What they
seek would lead to the result that, in cases where termination is initiated, courts would have to
determine whether to permit mandated dependency counsel to continue to represent the child (thus, a
child's attorney might be taken away). This is impractical and problematic.
        25 M.C.D.P. contends the lack of specific findings by the superior court as to the Mathews
factors is alone a basis for reversal, citing Hardee v. State. Dep't of Soc. and Health Serv's.. 172
Wn.2d 1, 15-17, 256 P.3d 339 (2011). In Hardee, the court overruled Onaom v. Deo't of Health, 159
Wn.2d 132, 148 P.3d 1029 (2006) because thatcourt misapplied the first and third Mathews factors
and failed to apply the second. Hardee does not stand for the proposition that a trial court must be
reversed where it does not develop each factor on the record. Onoom was reversed after the court
was determined to have misapplied two of the factors.


                                                   18
No. 68401-9-1/19



As to the first factor, M.C.D.P.'s physical liberty and fundamental liberty interests in

the dependency proceedings generally were significant.26 However, at the time
Phillips brought the motion for appointment of counsel, the superior court had already

made its placement ruling, ordered that M.C.D.P. be placed with Delgado, and

denied the motion for reconsideration.27 Therefore, M.C.D.P.'s private interest at

stake at that time did not include the placement decision. Furthermore, a placement

decision can be changed. To the extent separate counsel for M.C.D.P. might be

beneficial in the future if problems arose with placement and with overseeing the

remainder of the dependency, a request for counsel could be made atthat time.28
         Tne second factor is the risk of erroneous deprivation and the value of the

additional procedural protections sought. In re M.S.R., 174Wn.2d at 18. Relevant
considerations include the legal and factual complexity of the case and whether there

is already someone who can adequately represent the child's interests or whose
interests are aligned with the child's. Id M.C.D.P. and Phillips contend this factor
weighs in favor of appointment of counsel given (1) the complexity ofthe international
law and citizenship issues; (2) the heightened risk of error under the subjective "best
interests of the child" standard and the "preponderance of the evidence" burden of


        26 M.C.D.P. cites, among other things, the court's discussion in In re M.S.R., 174 Wn.2d at 15-
17, ofthe substantial risks faced by children in dependency and termination proceedings; the
possibility of being removed to another country; being denied the liberty to associate with her family in
the United States; her rights in her own safety; and the possibility thata dependency court could make
decisions about her life for years.

        27 We reject the assertion by Phillips and M.C.D.P. thatthe superior court was required to
appoint counsel sua sponte at an earlier time. They make no persuasive argument in this regard and
do not explain how appointment ofcounsel would have altered the result reached by the superior
court.

        28 By the time the superior court made its decision on appointing counsel, Phillips had filed a
notice ofappeal as to its order on revision. Enforcement ofthe placement decision was stayed
pending the appeal. It is unclear whether there were other decisions before the superior court that
could be affected by M.C.D.P.'s having counsel.

                                                   19
No. 68401-9-1/20



proof; (3) that GALs and CASAs cannot fulfill the function of an attorney29; and (4)
that no other party could adequately represent M.C.D.P's interests. DSHS responds

that there has been no shortage of advocacy for M.C.D.P.'s position regarding being

placed with Delgado in Mexico, noting that the CASAs, Phillips, and DSHS—all

represented by attorneys—provided case law and materials as to why she should not

be placed in Mexico at that time. It notes the superior court rejected their arguments

and contends there was no reason to think an additional attorney would have

changed its ruling. We agree with DSHS. Again, we note the motion was not brought
until after the superior court made its decision on revision and reconsideration, and

thus the risk of erroneous deprivation related to that decision was not at issue at the

time. Timing aside, we conclude the superior court did not abuse its discretion in
finding that, in the case before it, M.C.D.P.'s interests were being adequately
represented by the CASAs and their attorney. The CASAs, through an attorney at all
times,30 had been advocating strenuously for M.C.D.P.'s desire to stay in the United
States with her foster family. M.C.D.P. and Phillips note that the CASAs and

M.C.D.P. might not agree on visitation matters or regarding an ongoing relationship
with Delgado, but at the time ofthe motion it was not clear these issues were ripe to
be dealt with or that there was in fact a difference in M.C.D.P.'s position and that of

the CASAs.




         29 Theappellants note GALs and CASAs are not trained to protect a child's legal rights and
are obligated to representwhatthey consider the child's best interests, whereas an attorney can
represent the child's expressed desires. They note that here, the CASA and M.C.D.P. do not
necessarily agree on the amount, location, or timing ofvisitation or the nature ofan ongoing
relationship. They also note that lawyers maintain confidentiality with their clients and explain to the
child the proceedings and the child's rights.

        30 The CASAs have been represented by an attorney throughout the proceedings. The initial
guardian ad litem, April Rivera, is an attorney.
                                                    20
No. 68401-9-1/21



       The third factor is the government's interest in the proceeding, including fiscal

and administrative burdens. The State "has a compelling interest in both the welfare

of the child and in 'an accurate and just decision' in the dependency and termination

proceedings." In re M.S.R., 174 Wn.2d at 18. Here, DSHS did not oppose the motion

to appoint counsel for M.C.D.P. On appeal, DSHS notes that it has an economic
interest in preventing separate expenditures for an attorney when the attorneywill

primarily be duplicating work done by the CASA and the CASA's attorney. M.C.D.P.
points to a study indicating that providing counsel to children in dependencies
generally might reduce the long-term financial burden on the state. This factor does
not weigh more heavily in either direction. In sum, the superior court did not abuse its
discretion in deciding that counsel was not necessary at that time.31
        Reverse and remand superior court's order on revision. Otherwise affirm.




WE CONCUR:                                                 i\




^(u^^fY                                                          Con J.




        31 M.C.D.P. sought appointment of counsel on appeal, which she received. We express no
opinion as to whether, on remand, the appointment ofcounsel for M.C.D.P. may be appropriate or
 necessary.

                                               21
