                                                                         FILED
                                                                     OCTOBER 19, 2017
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                             DIVISION THREE

In the Matter of the Dependency of            )
                                              )         No. 34883-1-Ili
W.A.                                          )
                                              )
                                              )         UNPUBLISHED OPINION
                                              )

       FEARING, C.J. -Kimberly Anderson appeals from the trial court's order declaring

her son to be a dependent of the State of Washington. She also appeals placement of the

boy with the Department of Social and Health Services (DSHS). Because substantial

evidence supports the trial court's findings and those findings support the trial court's

orders, we affirm.

                                          FACTS

       This child dependency action involves a mother and son, respectively Kimberly

Anderson and Wesley Anderson. Both names are fictitious. Both Andersons suffer from

disabilities.
No. 34883-1-III
In re the Dependency ofW.A.


       In 2005 and one year before Wesley's birth, Kimberly Anderson sustained injuries

from a car accident. As a result of the accident, she suffered a cervical spine injury and

spinal stenosis and still suffers from posttraumatic stress syndrome (PTSD), depression,

anxiety, and fibromyalgia. To cope with her depression and anxiety, Kimberly takes a

small dosage of antidepressants as needed.

       On November 15, 2006, Kimberly Anderson gave birth to Wesley, her fifth child.

We assume that no other children then lived with Kimberly. At age three, a physician

diagnosed Wesley with selective mutism. Selective mutism is an anxiety disorder

characterized by a child or adolescent's inability to speak in one or more social settings,

such as school, despite being able to speak comfortably in other settings, like home with

family. Wesley also bears a two-year developmental delay.

       DSHS records show findings for both physical abuse and neglect of all five of her

children by Kimberly Anderson, including three instances with Wesley. In 2007, when

Wesley reached one year of age, Kimberly failed to take Wesley for well-child exams,

and the infant dropped in the growth charts to the twenty-fifth percentile.

       Because of Wesley Anderson's developmental delay, Spokane School District

found Wesley Anderson eligible for special education prior to his entry into the district's

pre-kindergarten program. The district prepared an individualized education program

(IEP) for Wesley. Under the program, Wesley attended the district's pre-kindergarten

program during the 2012-2013 school year at Roosevelt Elementary.

                                             2
No. 34883-1-111
In re the Dependency of WA.


       On May 28, 2013, Wesley Anderson's school district IEP team met to develop an

IEP for school year 2013-2014. The IEP team invited Kimberly Anderson to attend, but

she did not participate. During the meeting, the IEP team decided that Wesley would

attend an integrated kindergarten class. Based on Wesley's pre-kindergarten teacher's

experiences, the school district determined to place a weighted vest on the boy if he could

not focus. A weighted vest assists a child in focusing during sensory overload and

comforts the child like a reassuring hug. Wesley began his 2013-2014 school year in an

integrated kindergarten class at Lincoln Heights Elementary.

       On September 4, 2013, Wesley Anderson's kindergarten teacher placed the

weighted vest on Wesley because he turned in circles during story time. When Wesley

told his teacher the vest felt hot, she instructed him to remove the vest. During a parent

and teacher meeting later that day, the teacher told Kimberly Anderson that she used the

vest on Wesley. Kimberly expressed displeasure. Kimberly removed Wesley from the

kindergarten class.

       Kimberly Anderson began home schooling Wesley. According to Kimberly, her

homeschooling curriculum included spelling, writing, reading, math, physical education,

and art. Kimberly, however, did not comply with the statutory requirement that Wesley

take yearly tests. According to Kimberly, she daily assisted Wesley in improving his

speech. Kimberly did not, however, engage any professionals to provide her son with




                                             3
No. 34883-1-III
In re the Dependency of WA.


speech and mental health therapy to address his developmental delays and selective

mutism.

       At unknown dates, two pediatricians respectively recommended that Wesley

Anderson undergo treatment at Spokane Mental Health and Frontier Behavioral Health.

According to Kimberly, she attempted to enroll Wesley in these services, but the Spokane

clinic refused to assist the boy because of his young age and because the facility did not

specialize in selective mutism. Kimberly also could not afford a professional speech

therapist. According to Kimberly, she met with the speech pathologist at Wilbur

Elementary School, and the pathologist complimented Kimberly for her speech therapy

with Wesley.

       In 2014, Kimberly Anderson commenced undergoing seizures as a result of her

physician doubling her dosage of Wellbutrin, an antidepressant. She now ingests

Topamax to control her seizures. According to a 2016 physician's note, Kimberly

regularly attended scheduled appointments with the physician treating her epilepsy and

actively participated in her healthcare. Kimberly suffers from smaller seizures that do not

require hospitalization.

       In 2014, Kimberly Anderson tested positive for cocaine. Kimberly explained the

positive test as the result of smoking a bowl of marijuana, unaware that the owner of the

bowl placed other controlled substances in it. Kimberly acknowledges, however, that she

received treatment for cocaine use in 2000. In 2000, Kimberly tested positive for cocaine

                                             4
     No. 34883-1-111
     In re the Dependency of W.A.


     at the birth of another child. The department removed that child from her care upon the
.!
I
I'   child's birth. Kimberly insists that she has never knowingly ingested cocaine since her
I'
I    release from a treatment facility in 2000. She admits use of marijuana for medicinal
!
I    purposes.
I'
I           On September 3, 2015, Kimberly Anderson filed a due process complaint against

I    the school district with regards to the use of the weighted vest. She claimed the vest

     traumatized Wesley. During a hearing before an administrative law judge, Kimberly

     testified that she waited two years to bring the claim because she was collecting evidence.
I
     The administrative judge found that the kindergarten teacher inappropriately used the

I    weighted vest, but Kimberly presented no evidence of any harm to Wesley or his

     education. Accordingly, the judge declined to award any compensatory education and

     instead directed the school staff to receive training on the use of weighted vests and other

     positive behavioral interventions. Kimberly wanted to appeal the administrative law

     judge's decision, but did not possess the means to do so.

            In January 2016, Kimberly and Wesley Anderson's landlord evicted the two from

     their home. Kimberly suffered a seizure in January 2016 because she failed to take her

     medication during the move. She left her medication in a moving van. Kimberly has

     taken her medication since. Kimberly required hospital care for the January seizure, but

     the hospital released her the same day.




                                                  5
 No. 34883-1-III
 In re the Dependency of W.A.


        After the eviction, Kimberly and Wesley were homeless. They alternated living at

 Kimberly's older son's home, a hotel, and the Salvation Army. In 2016, DSHS received

. five notices of abuse and neglect of Wesley by Kimberly.

        In late June 2016, Kimberly Anderson learned she could not rent a prospective

 apartment, and the Salvation Army notified her that she must leave the organization's

 housing. Consequentially, mother and son returned to another motel. On June 30, 2016,

Kimberly Anderson suffered a seizure that rendered her unconscious in the motel room

 she shared with Wesley. Kimberly believes stress caused the seizure.

        Wesley Anderson witnessed his mother's seizure and attempted to revive her by

 sprinkling water on her hands, a method that worked on other occasions. Kimberly did

 not awaken on June 30. Fortunately, a housekeeper knocked on the door, and Wesley

 opened the door and asked for help. An ambulance transported Kimberly and her son to

 the hospital. At the emergency room, Kimberly experienced two more seizures. The

 emergency room doctors assumed that Kimberly failed to ingest her seizure medication

because hotel staff reported eyeing Wesley attempting to administer his mother the

medication. Physicians, however, did not test Kimberly's blood to determine if she took

her seizure medications. Hospital staff administered two different anti-epileptic drugs, to

which Kimberly reacted poorly. Consequently, Kimberly remained in the hospital for

 five days.




                                             6
No. 34883-1-III
In re the Dependency of WA.


       Hospital staff contacted the Spokane Police Department and Child Protective

Services (CPS) about Wesley's safety. Michelle Woodward, a Department of Social and

Health Services social worker, visited the hospital. An unidentified doctor and nurse told

Woodward that Kimberly lived in an unsafe condition due to a continued refusal to

follow medical advice or take medications. When police officers arrived at the hospital,

they removed Wesley from Kimberly's care and placed the boy in protective custody.

       Michelle Woodward offered Kimberly Anderson psychological and counseling

services, random urinalyses, a chemical dependency assessment, and drug treatment.

Kimberly declined all offered services.

                                       PROCEDURE

       On July 5, 2016, DSHS filed a petition seeking a dependency for Wesley

Anderson claiming abuse or neglect and that Wesley lacked a parent, guardian or

custodian capable of adequately caring for him to the detriment of his development. On

July 6, the trial court signed a shelter care order that placed Wesley in the care of his

brother, David Casilas. The court extended the order on July 29 and August 23.

       At some unknown date, David Casilas relinquished care of Wesley Anderson

because of the care's strain on his family and threatening communication from Kimberly.

DSHS could not later identify any other relatives willing to assume custody of Wesley.

       At some unknown date, DSHS substituted Danelle Stone as the social worker to

assist Kimberly Anderson. Stone referred Anderson to providers for various services,

                                              7
No. 34883-1-III
In re the Dependency of WA.


including a parenting assessment, random drug and alcohol testing, a chemical

dependency evaluation, and mental health treatment and counseling. Anderson visited a

mental health clinic but received no treatment. During the visit, Anderson limited her

comments to complaints about CPS. Anderson engaged in no services recommended by

Stone.

         The trial court permitted visitation of Kimberly Anderson with Wesley during the

dependency pendency. When Kimberly visited Wesley at the first visitation facility, she

stared at her son for long periods of time. Wesley repeatedly asked: "[W]hy are you

looking at me like that?" "[W]hat's going on?" Kimberly did not respond. Clerk's

Papers (CP) at 213. Kimberly accused her son of lying to her when he described a

reward system used at his daycare facility. The first facility ceased visitation services,

and Kimberly continued her visits at another facility.

         The trial court conducted a contested dependency fact-finding hearing on

September 13 and 14, 2016. Trial witnesses included Kimberly Anderson, social worker

Michelle Woodward, social worker Danelle Stone, and the court appointed special

advocate Kathy Bushnell.

         Kimberly Anderson testified that she was capable of meeting her son's physical

and emotional needs. Kimberly expressed, however, a willingness, in the event the court

did not dismiss the dependency petition, to engage in services recommended by CPS, if

the court would return Wesley to her care. Testimony suggested, nevertheless, that this

                                              8
     No. 34883-1-III
     In re the Dependency of WA.


     willingness was limited to those services Kimberly agreed she needed. Kimberly

     expressed frustration because social worker Danelle Stone acted mean, rude and short

     with her. She further complained that Stone did not offer those services Kimberly

     deemed helpful in reuniting with her son. Kimberly confirmed her mental health

     disorders, and on occasion, during trial, refused to answer certain questions "[d]ue to the

     stress of her disorder." CP at 114.

            During the dependency trial, Michelle Woodward expressed her concern for

     Wesley Anderson's safety. Woodward worried not only about Kimberly's seizures, but

     also Kimberly's history with CPS. She fretted about the lack of a caregiver nearby when

     Kimberly suffered from a seizure. Wesley had reported to Woodward of the frequency of

     Kimberly's seizures and his attempts to care for his mother. Woodward recognized,
I·
     nonetheless, that Kimberly then complied with her medication plan. Michelle Woodward

     also detailed, for the trial court, Kimberly Anderson's history with DSHS.

            Social worker Danelle Stone similarly voiced concern for Wesley Anderson's

     safety, and she recommended that Wesley remain in foster care. Stone identified the

     following parental deficiencies with regards to Kimberly: (1) a substance abuse history,

     (2) unaddressed mental health concerns, (3) neglect of her own personal health care, and

     (4) failure to meet Wesley's health and educational needs as recommended by

     professionals. Stone explained that Kimberly's unaddressed mental health problems




                                                  9
No. 34883-1-III
In re the Dependency of W.A.


compromised the safety of Wesley. Stone opined, based on Kimberly's positive cocaine

test in 2014 and earlier substance abuse, that Kimberly was chemically dependent.

       During trial, Danelle Stone described Wesley as a happy child who enjoyed

drawing, My Little Pony, and Marvel Superheroes. He performed well in school and

interacted well with other children. Stone testified that school staff reported that Wesley

encountered "boundary issues," but Stone failed to explicate the purported issues. CP at

215. Danelle Stone testified that Wesley Anderson receives counseling at Frontier

Behavioral Health and underwent a wellness check.

      After hearing testimony, the trial court concluded that the State proved by a

preponderance of the evidence that Kimberly Anderson, as a result of a culmination of

events, neglected Wesley's basic needs. Thus, the court ruled Wesley Anderson to be a

dependent of the State and ordered foster home placement. The court stated:

              But that's not the only thing that caused the Department concern.
      And that for me is like the very tip of the iceberg. And I think that's where
      we need to step back, and I want to make sure you're understanding that
      this isn't about your seizure, [Kimberly]. When law enforcement had your
      child in their custody and contacted CPS, what happened was that Ms.
      Woodward stepped in and was able to uncover larger concerns about
      [Wesley's] well-being and it wasn't simply that, [Kimberly], that you have
      a condition with your seizures or that you were not maintaining your health.
              What was discovered is that because of several issues going on in
      your life, the seizure is just one issue. But because of several things going
      on in your life, there are very serious concerns about [Wesley's] health and
      well-being that have been neglected. And when I read the statute, that is
      what I'm focused on.
              And when I say that, what I'm talking about is, first and foremost,
      the educational needs of your son have been being neglected. And I

                                            10
I
I
!

!   No. 34883-1-III
    In re the Dependency of W.A.
I
I         understand the reasoning from your standpoint and your rationale for why
          you haven't had him in school. That you had a concern about a weighted
          vest being used on him, that you filed a Complaint against the school, but
I         you haven't been acting with your due diligence to ensure that his
          educational needs were met.

                 On top of that then, that lead[ s] to when your child was in school, he
I         had additional needs that were being met through the Sch,ool District.
          Those additional needs were his therapies. He had speech therapy that was
          being met through the School District. He had mental health and emotional
          health care needs that needed to be met, and had he been going to public
          school, those needs could have and would have been met free of charge in a
          public school setting.

                 Additionally, what I have observed through your testimony is that
          you have been resistant to reasonable attempts to give you help and
          assistance. And that coupled with the history of your previous involvement
          with CPS, and your previous mental health self-related, self-disclosed
          mental issues, your anxiety, your PTSD, leaves me to have concerns about
          your mental health condition and how that affects your decisions .

                  . . . [T]here was reference in a couple of different places to a self-
          reported use of marijuana, which while it is legal, if marijuana or if alcohol
          interferes to the level that you are taking such amounts that it interferes
          with your parenting or your decision making, even legal substances can
          become problematic with parenting.

    CP at 270-73.

          The trial court entered the following findings of fact:

                 B. The Department most recently became involved with this family
          because of the mother's seizure in June. The seizure occurred despite the
          mother regularly taking her seizure medication for her seizure disorder.
          When the mother began seizing, the child became scared. A housekeeper
          found them, and called emergency authorities. The mother's inability to
          take care of [Wesley] while she is suffering from a seizure is not the only
          concern. The court has serious concern about the child's health and well-
          being in the mother's care. His educational needs were being neglected.

                                                11
No. 34883-1-111
In re the Dependency of WA.


      The court understands why the mother removed [Wesley] from District 81
      public schooling, but it does not excuse her from providing for and meeting
      all the child's needs, including speech therapy, which is available through
      public school at no cost to her. The mother was not complying with the law
      regarding home schooling, such as having an appropriate person/agency
      supervising her home schooling and yearly testing. She chose not to enroll
      [Wesley] in public school, even though she states she could not find anyone
      that she could afford willing to provide the services recommended for the
      child by the child's doctor. The school offered to mediate the concerns the
      mother had about letting the child return to public school, but the mother
      refused to participate. The court is concerned that the mother's mental
      health is affecting her ability to make good decisions for [Wesley]. The
      mother admits to using marijuana. It is necessary to determine whether her
      use is impacting her parenting.
              C. Dependency is established pursuant to RCW 13.34.030(6)(b)
      (abuse or neglect) and (c).
              D. It is contrary to the child's welfare to return home. The child
      should be placed or remain in the custody, control, and care of DSHS/
      DCFS because:
              [X] A manifest danger exists that the child will suffer serious abuse
      or neglect if the child is not removed from the home and an order under
      RCW 26.44.063 would not protect the child from danger.
              E. Reasonable efforts have been made by DSHS/DCFS to prevent
      or eliminate the need for removal of the child from the child's home and
      have been unsuccessful because:
              [X] The health, safety, and welfare of the child cannot be adequately
      protected in the home.
              [X] Specific services have been offered or provided to the parent(s),
      guardian or legal custodian and have failed to prevent the need for out-of-
      home placement and make it possible for the child to return home. The
      specific services offered or provided are outlined in the Dependency
      Petition and subsequent documents filed herein and are incorporated by
      reference.

      CP at 317-18. The trial court entered the following conclusion of law:

             The child is found dependent pursuant to RCW 13.34.030(6)(b) and
      (c).


                                           12
No. 34883-1-III
In re the Dependency of W.A.


CP at 319.
                                 LAW AND ANALYSIS

       On appeal, Kimberly Anderson asks for reversal of the order of dependency

because DSHS failed to prove that she either abused or neglected Wesley or that her

parenting of Wesley exposed him to a substantial risk of harm. She assigns error to the

trial court's (1) reliance on her epilepsy to order a dependency, (2) assumption that her

mental health diagnoses affected her ability to parent, (3) finding that her violation of

Washington's homeschooling requirements warranted a dependency, and (4) conclusion

that her consumption of marijuana interfered with her ability to parent. In the alternative,

Kimberly argues that DSHS failed to demonstrate the need for out-of-home placement.

       Declaring a child "'dependent'" transfers legal custody to the State. In re

Dependency of Schermer, 161 Wn.2d 927, 942, 169 P.3d 452 (2007). After filing a

dependency petition, a fact-finding hearing is held to decide if the allegations are true. In

re Dependency of Schermer, 161 Wn.2d at 942. The State must prove by a

preponderance of the evidence that the child meets one of the statutory definitions of

dependency under RCW 13.34.130. In re Welfare ofKey, 119 Wn.2d 600,612, 836 P.2d

200 (1992). In this case, the trial court found Wesley dependent under RCW

13.34.030(6)(b) and (c).

       In challenging the dependency, Kimberly Anderson assigns error to findings of

fact B, C, D and E. She also contends that these findings do not support the conclusion


                                             13
No. 34883-1-III
In re the Dependency of W.A.


oflaw that Wesley is a dependent child pursuant to RCW 13.34.030(6)(b) and (c).

       Appellate review is limited to whether substantial evidence supports the trial

court's findings and whether the findings support its conclusions oflaw. In re

Dependency of Schermer, 161 Wn.2d at 940. Substantial evidence exists if, when

viewing the evidence in the light most favorable to the prevailing party, a rational trier of

fact could find the fact more likely than not to be true. In re Welfare ofX T., 17 4 Wn.

App. 733, 737, 300 P.3d 824 (2013). Appellate courts do not reweigh evidence or

reassess witness credibility. In re Welfare ofXT., 174 Wn. App. at 737.

       Kimberly Anderson contests finding of fact B. We repeat the portions of the

finding as challenged:

              The Department most recently became involved with this family
       because of the mother's seizure in June. The seizure occurred despite the
       mother regularly taking her seizure medication for her seizure disorder.
       When the mother began seizing, the child became scared. A housekeeper
       found them, and called emergency authorities. The mother's inability to
       take care of [Wesley] while she is suffering from a seizure is not the only
       concern.

CP at 317.

       Kimberly Anderson contends that the trial court impermissibly relied on her

epilepsy to order a dependency. She asserts that her disability should not deprive her of

the fundamental right to care, custody and companionship of her child. We agree that a

mother's epilepsy by itself should not be grounds for dependency. The trial court,

however, did not base the dependency solely on her disability. In the court's oral

                                             14
I
!
     No. 34883-1-III
l    In re the Dependency of WA.
!'


     comments, it remarked: "that for me is like the tip of the iceberg ... , I want[ed] to make


II   sure you're understanding that this isn't about your seizure ... , it wasn't simply

     [because] you have a condition with your seizures or that you were not maintaining your
I
II   health." CP at 270.


I           Substantial evidence supported the trial court's finding that her inability to care for

     Wesley during a seizure presented a danger to Wesley's safety. Social workers Michelle

     Woodward and Danelle Stone expressed concern for Wesley's safety in the event

     Kimberly And~rson experiences a seizure. On one occasion, the seizure led to Wesley

     being unsupervised. Wesley reported that his mother often suffered from seizures, when

     he was alone to care for her.

            Kimberly Anderson next challenges that portion of finding of fact B that reads:

     "[t]he court is concerned that the mother's mental health is affecting her ability to make

     good decisions for [Wesley]." CP at 318. Anderson claims no evidence demonstrated a

     correlation between her mental health status and her ability to parent.

            We conclude that substantial evidence supports the court's finding that Kimberly

     Anderson's mental health affects her ability to render good decisions regarding Wesley's

     health, safety and welfare. Anderson testified that she suffered from posttraumatic stress

     disorder, depression, and anxiety. Her testimony reflected resistance to offers of

     assistance and programs to address her mental health issues. She refused to answer some




                                                  15
No. 34883-1-III
In re the Dependency of WA.


questions on the basis of "stress of [her] disorder." CP at 114. DSHS offered Anderson

psychological and counseling services, but she refused the services.

       The trial court did not impose the dependency solely on the basis of mental health

disorders. Nevertheless, evidence showed that the disorders impeded Kimberly Anderson

from meeting Wesley's needs. Wesley also suffers from disabilities that require special

attention.

       Kimberly Anderson next complains that the trial court incorrectly found that she

neglected Wesley's education needs because she did not fully comply with home

schooling requirements. Nevertheless, substantial evidence supported a finding that

Anderson neglected her son's educational and developmental needs. She failed to send

him to a speech professional. She probably failed to school him at home and certainly

failed to show her education's proficiency by testing. At trial, Anderson still failed to

recognize her failures with regard to Wesley's education.

       RCW 28A.200.010 outlines the requirements for a parent whose child receives

home-based instruction. RCW 28A.200.010( 1)( c) requires the administration of an

annual standardized achievement test by a qualified individual or that an annual

assessment of the student's academic progress is written by a certified person who is

currently working in the field of education. The law considers the failure of parent to

comply with any of the terms set forth in RCW 28A.200.010 as a failure of such parent's

child to attend school without justification.

                                                16
No. 34883-1-111
In re the Dependency of W.A.


       In finding of fact B, the trial court wrote: Kimberly Anderson "was not complying

with the law regarding home schooling, such as having an appropriate person/agency

supervising her home schooling and yearly testing." CP at 317. Anderson correctly

observes the trial court's error in assuming that some person or entity must supervise the

home schooling. This error is irrelevant. The court correctly noted the lack of testing

and other evidence established the lack of schooling for Wesley.

       Next, Kimberly Anderson challenges that portion of finding of fact B, in which the

trial court found that "[t]he mother admits to using marijuana. It is necessary to

determine whether her use is impacting her parenting." CP at Jl 8. She contends that her

consumption of marijuana does not support a finding of dependency because DSHS

failed to present any evidence that her consumption interfered with her ability to parent.

In its brief, DSHS omits a response to this contention.

       We agree with Kimberly Anderson that her smoking marijuana by itself is not

grounds for a child dependency. Nevertheless, the trial court did not base the dependency

only on the marijuana use, if at all. The court in its oral ruling expressed concern as to

the extent of the cannabis use. The court ordered an assessment of that use. Other

significant reasons supported the dependency.

       Kimberly Anderson assigns error to finding of fact C and the conclusion of law,

wherein the trial court found and concluded that DSHS established dependency pursuant

to RCW 13.34.030(6)(b) and (c). We disagree. We have already confirmed that the trial

                                             17
No. 34883-1-III
In re the Dependency of WA.


court committed only harmless error in the findings of fact. The sustained findings

support the conclusion that Anderson neglected Wesley as the law defines the term.

       RCW 13.34.030(6)(b) provides that a child is dependent when a person legally

responsible for the care of the child abuses or neglects him, as defined by RCW

26.44.020(16). The statute identifies "[n]egligent treatment or maltreatment" as

              an act or a failure to act, or the cumulative effects of a pattern of
       conduct, behavior, or inaction, that evidences a serious disregard of
       consequences of such magnitude as to constitute a clear and present danger
       to a child's health, welfare, or safety, including but not limited to conduct
       prohibited under RCW 9A.42.100.

The statute further provides that "[ w ]hen considering whether a clear and present danger

exists, evidence of a parent's substance abuse as a contributing factor to negligent

treatment or maltreatment shall be given great weight." RCW 26.44.020(16). Poverty or

homelessness does not constitute negligent treatment or maltreatment in and of itself

under RCW 26.44.020(16).

      RCW 13.34.030(6)(c) states that a child is dependent when the child

              [h]as no parent, guardian, or 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.

The trial court need not consider any specific factors when determining whether a parent

is capable of parenting under RCW 13.34.030(6)(c). Instead, the inquiry is highly fact-

specific. In re Dependency ofSchermer, 161 Wn.2d at 951-52.


                                            18
No. 34883-1-III
In re the Dependency of WA.


       The State need not prove that a parent is unfit to prove a dependency.

              A dependency based on RCW 13.34.030[(6)](c) does not tum on
       parental "'unfitness'" in the usual sense. Rather, it allows consideration of
       both a child's special needs and any limitations or other circumstances
       which affect a parent's ability to respond to those needs. Under RCW
       13.34.030[(6)](c), it is unnecessary to find parental misconduct in order to
       find a child dependent.

In re Dependency of Schermer, 161 Wn.2d at 944. When evaluating evidence to

determine whether a child is dependent, trial courts have broad discretion and

considerable flexibility to reach a decision that recognizes both the welfare of the child

and parental rights. In re Dependency of Schermer, 161 Wn.2d at 952.

       Under RCW 13.34.030(6)(c), a child is dependent when the child "[h]as no parent,

guardian, or 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." The sustained findings and substantial evidence

also supports the conclusion that Anderson is not capable of adequately caring for

Wesley and the incapability exposes Wesley to a substantial damage to his psychological

and physical development. Anderson did not assist Wesley with his two year

developmental delay. She took him to no medical or dental appointments.

      Kimberly Anderson challenges the trial court's placement of Wesley with foster

parents. She contends that, even if Wesley is a dependent of the State, Wesley could

reside with her with the assistance of DSHS.


                                             19
     No. 34883-1-111
I    In re the Dependency of WA.


            RCW 13.34.130(5) allows the trial court to order placement of the dependent child

II   outside the home. The statute declares, in relevant part:

                   ... An order for out-of-home placement may be made only if the
I          court finds that reasonable efforts have been made to prevent or eliminate
           the need for removal of the child from the child's home and to make it
           possible for the child to return home, specifying the services, including
I          housing assistance, that have been provided to the child and the child's
I          parent, guardian, or legal custodian, and that preventive services have been
           offered or provided and have failed to prevent the need for out-of-home
I          placement, unless the health safety, and welfare of the child cannot be
           protected adequately in the home, and that:
                  (a) There is no parent or guardian available to care for such child;

                  (c) The court finds, by clear, cogent, and convincing evidence, a
           manifest danger exists that the child will suffer serious abuse or neglect if
           the child is not removed from the home and an order under RCW 26.44.063
           would not protect the child from danger.

     RCW 13.34.130(5). In dependency proceedings, discretionary placements are reviewed

     for abuse of discretion. In re Dependency of Ca.R., 191 Wn. App. 601, 610, 365 P.3d

     186 (2015). A trial court abuses its discretion when its decision is manifestly

     unreasonable or based on untenable grounds. In re Marriage of Kovacs, 121 Wn.2d 795,

     801, 854 P.2d 629 (1993); In re Dependency ofCa.R., 191 Wn. App. at 610 .

          . We conclude that the trial court did not abuse its discretion when it found that

     Wesley should be placed or remain in the custody, control and care ofDSHS. Testimony

     explained the many services offered to and refused by Kimberly Anderson. Anderson

     engaged in no services. The trial court could reasonably conclude that Anderson will




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No. 34883-1-III
In re the Dependency of WA.


resist DSHS's provision of services with Wesley in her home. Testimony also

established that Kimberly bullied Wesley during visitations.

       Finally, Kimberly Anderson challenges the constitutionality of the order of

dependency and the placement with DSHS. She cursorily argues that a parent's epilepsy

should never deprive a parent of the care and companionship of their child. She cites

only to two older California cases, In re WO., 88 Cal. App. 3d 906, 152 Cal. Rptr. 130

(1979) and In re Marriage a/Carney, 24 Cal. App. 3d 725,598 P.2d 36, 157 Cal. Rptr.

383 (1979). Nevertheless, each decision contains facts vastly different from the facts

here. We also observe that the trial court did not order the dependency solely on the basis

of Anderson's epilepsy.

       Kimberly Anderson summarily argues that the trial court's finding that failing to

comply with homeschool testing requirements constitutes an unreasonable interference in

her right to direct the upbringing of her son in violation of the Fourteenth Amendment to

the United States Constitution. Other than stating the general rule that parents possess

the liberty to direct the education of their children, Anderson cites only to statutory

authority regarding the right of parent to homeschool in Washington. Anderson does not

undergo any constitutional analysis or cite to any cases with similar facts to her situation.

She does not discuss the requirement of home school testing. Naked castings into the

constitutional seas are not sufficient to command judicial consideration and discussion.

State v. Johnson, 179 Wn.2d 534,558,315 P.3d 1090 (2014).

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No. 34883-1-111
In re the Dependency of W.A.


                                     CONCLUSION

       We affirm the trial court's order of dependency for Wesley Anderson and the trial

court's placement of Wesley with DSHS.

       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.




WE CONCUR:



Lawrence-Berrey, J.



~-d=
Pennell, J.




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