In Re The Dependency Of: M.l.-l., Makeba Licorish v. Dshs ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of )
M.L.-L., ) No. 73145-9-I
)
STATE OF WASHINGTON, ) DIVISION ONE
DEPARTMENT OF SOCIAL AND )
HEALTHSERVICES, ) UNPUBLISHEDOPINION~
~
) ~> ~
Respondent, )
r\) —
v ) —
MAKEBA LICORISH, )
Appellant. ) FILED: January25, 2016 ~
__________________________________________________________________________________________ )
APPELWICK — Licorish appeals a trial court order finding her son dependent.
Licorish contends that the juvenile court abused its discretion by admitting evidence of
her criminal history. She also challenges the testimony of one of the medical experts,
claiming that the court was not entitled to rely on the expert’s opinion and the evidence
does not support the court’s factual finding summarizing the expert’s testimony. Finally,
Licorish claims that a preponderance of the evidence does not support the court’s
finding of dependency. We affirm.
No. 73145-9-1/2
FACTS
Makeba Licorish and Devon LaFantasie are the parents of M.L.-L., a son born on
May 31, 2013. In April 2014, when M.L.-L was approximately 10 months old, the
Department of Health and Human Services (the Department) took him into protective
custody and filed a dependency petition. A fact-finding hearing took place over the
course of five days in January and February of 2015.
According to the testimony at the fact-finding hearing, Dr. Jinna Kim was M.L.-L’s
primary care physician between June 2013 and March 2014. During that period, Dr.
Kim saw M.L.-L on seven to eight occasions. Over the course of these visits, Dr. Kim
developed concerns about possible abuse. In December 2013, M.L.-L had a small
bruise on his cheek and Licorish told Dr. Kim that M.L.-L. recently had bruising between
his eyes that was no longer visible. A few months later, in March 2014, M.L.-L. had a
bruise on his forehead and other marks on his upper back. Licorish said she did not
know how the bruising occurred, but admitted she was concerned about whether her
partner, LaFantasie, had inflicted the injuries. Dr. Kim recommended that Licorish take
M.L.-L. to Seattle Children’s Hospital for a skeletal survey. The skeletal survey did not
reveal any prior skeletal injuries. Nevertheless, based on the bruising, both Dr. Kim and
a social worker at the hospital made referrals to Child Protective Services (CPS).
While the CPS investigation into these referrals was ongoing, M.L.-L. sustained
another injury. On April 2, a public health nurse observed M.L.-L. and reported to the
assigned social worker and to CPS that he had a “goose egg” injury on his forehead.1
1 In addition to the bruising, the public health nurse raised concerns including a
fight reported by the mother, sleep safety issues, and the mother’s marijuana use.
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Licorish reported that, according to LaFantasie, while he was in the car with M.L.-L., the
baby, who was sitting on the back seat, fell forward and hit his head on a cup holder.
The public health nurse recommended that Licorish take M.L.-L. to the doctor and
helped Licorish draw a diagram of the injury to document its appearance so the doctor
would know whether the swelling had increased or decreased. The next day, the social
worker spoke to Licorish and asked her to take M.L.-L. to the hospital for an
examination. Although Licorish had agreed to do so, she did not take him because she
had many other things to do that day and she did not feel that it was an “emergency
situation.” After learning that M.L.-L. had not been examined at the hospital, the social
worker asked the police to perform a welfare check, but the police were unable to locate
the family.
On the following day, April 4, Licorish took M.L.-L. to the social worker’s office.
The baby still had a “large bump” on his forehead and bruising on his face. The social
worker called law enforcement who took M.L.-L. into protective custody and the social
worker took him to the hospital.
At the hospital, pediatrician Douglas Diekema examined M.L.-L. He noted that in
addition to the swollen bruise on the baby’s forehead, M.L.-L. had marks that appeared
to be bruises on his cheek and on the back of his neck. Dr. Diekema concluded that
M.L.-L.’s forehead injury was not consistent with the reported account of how the injury
occurred. Dr. Diekema said that for the type of accident described, he would not expect
to see any mark 18 to 24 hours later, and he said that a child who is not yet ambulatory
would have to fall from a significant height to sustain the type of injury M.L.-L. had.
Based on (1) the reports of prior bruising, (2) the inconsistency between the appearance
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of M.L.-L.’s forehead injury and the explanation of the accident, and (3) the two other
marks, especially the mark on the back of M.L.-L.’s neck, which is not a site where a
baby is likely to sustain bruising, Dr. Diekema expressed concern that the injuries were
caused by nonaccidental trauma.
Another pediatrician with a specialty in child protection, Dr. James Metz,
examined medical records and photographs taken of M.L.-L. during the April 4, 2014
examination by Dr. Diekema. According to Dr. Metz, the photographs showed bruising
covering a large percentage of the forehead, and discrete bruises on the left cheek,
upper and lower back. Dr. Metz concluded that the photographs showed “several
marks on the child [that] were not consistent with the story given by the parents.” He
opined that the “constellation of previous injuries and these current injuries were very
concerning or highly concerning for abuse.” Dr. Metz explained that falling on a cup
holder would not cause a “confluent bruise,” but only a bruise at the point of contact.
Dr. Metz also said that bruising on the back is unusual and that the pattern of bruising
on M.L.-L.’s upper back was consistent with “grip marks.”
After M.L.-L. was taken into protective custody, the court initially placed him with
Licorish on the conditions that she live at her parents’ residence and that LaFantasie
have no contact with M.L.-L. unless such contact was supervised by someone other
than Licorish. A few weeks later, the public health nurse observed the mother, father,
and M.L.-L. in a car with no one else present. The court then placed M.L.-L. in the
home of the maternal grandparents and did not allow the mother to live there.
The Guardian Ad Litem (GAL) assigned to the case investigated and
recommended dependency. The GAL’s primary concern was the April 2014 injury and
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the fact that two medical experts agreed that the explanation of how the injury occurred
was not plausible. The GAL believed that the parents’ “minimization” of the injury and
refusal to take the child to the doctor when urged to do so, reflected that ego and
stubbornness were preventing them from making decisions in the best interest of the
child. The GAL also had concerns about the current mental health status of the parents
and about the dynamics of the relationship and potential domestic violence. The GAL
noted that the father presented as dominating and discouraged the mother from
cooperating with CPS. The GAL feared that in the absence of a dependency, the
parents would isolate the child because they felt betrayed by the system and that the
absence of court monitoring would present a risk to M.L.-L’s safety.
At the conclusion of the fact finding hearing, the court found M.L.-L. dependent
as to both parents. Licorish appeals. LaFantasie is not a party to this proceeding.
DISCUSSION
Licorish claims that the juvenile court improperly considered evidence of her
criminal history under ER 404(b). Licorish also challenges the court’s reliance on Dr.
Metz’s testimony and the court’s finding of fact describing his testimony. Finally, she
claims that substantial evidence does not support the court’s finding that she would be
unable to adequately protect M.L.-L. from future abuse without services in place.
Parents have a fundamental liberty interest in the care and welfare of their
children. In re Dependency of Schermer, 161 Wash. 2d 927, 941, 169 P.3d 452 (2007).
The State has a corresponding interest in protecting the physical, mental, and emotional
health of children. ki. Unlike a parental termination proceeding, a dependency hearing
is “a preliminary, remedial, nonadversary proceeding’ that does not permanently
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deprive a parent of any rights.” In re Welfare of Key, 119 Wash. 2d 600, 609, 836 P.2d
200 (1992) (quoting In re Dependency of A.W., 53 Wash. App. 22, 30, 765 P.2d 307
(1988)). The primary purpose of a dependency hearing “is to allow courts to order
remedial measures to preserve and mend family ties.” In re Dependency of T.L.G., 126
Wash. App. 181, 203, 108 P.3d 156 (2005). In balancing the legal rights of parents
against the rights of the child, the legislature has determined that the rights and safety
of the child is the paramount concern. RCW 13.34.020; Schermer, 161 Wash. 2d at 942.
Relevant here, Washington defines a “dependent child” as a child who “[h]as no
parent . . . 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.” RCW 13.34.030(6)(c). Dependencies based
on RCW 13.34.030(6)(c) do not require a finding of parental unfitness; instead, they
“allow[] 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.” Schermer,
161 Wash. 2d at 944. The trial court’s determination of dependency is necessarily highly
fact specific; there are no specific factors that a court must consider when determining
whether the child is dependent under RCW 13.34.030(6)(c). See Schermer, 161 Wash. 2d
at 952. The trial court has broad discretion in evaluating all of the evidence. j~
We will affirm an order of dependency so long as substantial evidence supports
the juvenile court’s findings of fact and the findings support the conclusions of law. In re
Dependency of M.S.D., 144 Wn. App 468, 478, 182 P.3d 978 (2008). Evidence is
substantial if, when viewed in the light most favorable to the prevailing party, a rational
trier of fact could find the fact by a preponderance of the evidence. j~ In making this
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determination, this court does not weigh the evidence or the credibility of witnesses.
re Dependency of M.P., 76 Wash. App. 87, 91, 882 P.2d 1180 (1994). Unchallenged
findings are verities on appeal. In re Interest of J.F., 109 Wash. App. 718, 722, 37 P.3d
1227 (2001).
I. Evidence of Criminal History
Licorish contends that the juvenile court improperly admitted evidence of her
adult and juvenile criminal history and relied upon that evidence to establish character
and propensity. A juvenile court “has broad discretion in dependency and termination
proceedings to receive and evaluate evidence in light of a child’s best interest.” ~at
728. Courts are particularly reluctant in dependency proceedings involving children’s
welfare to withhold relevant information from the trier of fact. Id. Accordingly, we will
not disturb the court’s ruling regarding the admissibility of evidence in a dependency
proceeding absent an abuse of discretion. j~
Licorish claims that the evidence of her criminal history was inadmissible under
ER 404(b) which prohibits the admission of evidence of other crimes, wrongs, or acts to
prove character or an action in conformity therewith. Licorish cites only a criminal case,
however, and provides no authority or analysis regarding the applicability of ER 404(b)
in the context of dependency proceedings. With regard to child placement decisions
and termination proceedings, courts have concluded that criminal history is relevant and
ER 404(b) is inapplicable. See In re Dependency of J.B.S., 123 Wash. 2d 1, 11-12, 863
P.2d 1344 (1994) (criminal history is a relevant consideration with respect to placement
of dependent child); In re Dependency of P.D., 58 Wash. App. 18, 792 P.2d 159 (1990)
(“the circumstances that ER 404(b) seeks to prevent are not applicable in a termination
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hearing”); In re Welfare of Gillispie, 14 Wash. App. 512, 517-18, 543 P.2d 249 (1975)
(criminal history relevant in termination case to the issues of parental fitness, stability,
and the child’s welfare).
Moreover, contrary to Licorish’s argument, there is nothing in the court’s findings
to suggest that the court relied on the criminal history evidence to find propensity to
commit crimes or make a finding regarding her character. The court noted that
involvement in the criminal justice system diverts time, focus, and resources away from
parenting. Therefore, the court determined the criminal history was relevant to the
overall stability and availability of the parents. The court merely found, accurately, that
the parents’ involvement in criminal matters had not ceased after the birth of their child,
indicating that they had not “completely learned whatever it is they can learn to avoid
those sort of interactions.”2 This is nothing more than a finding that the parents’
involvement in the criminal justice system is a continuing pattern.
And, finally, the court’s determination of dependency is not based on its finding
that the parents have experience and continuing involvement in the criminal justice
system. The critical findings supporting the determination of dependency are the
findings that (1) M.L.-L.’s injuries caused several medical professionals to be concerned
about abuse, (2) Licorish aligned herself with LaFantasie, and (3) despite the concerns
and a court order, she allowed LaFantasie to have unsupervised contact with the child.
Because we can uphold the determination of dependency without reference to the
challenged evidence and factual finding, any error in the admission of the criminal
2Licorish had at least two convictions stemming from conduct that occurred after
M.L.-L. was born.
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history evidence was harmless in this case. See In re Welfare of X.T., 174 Wash. App.
733, 739, 300 P.3d 824 (2013) (erroneous admission of evidence in dependency
proceeding not prejudicial unless, within reasonable probabilities, the outcome of the
trial would have been materially affected had the error not occurred).
II. Reliance on Dr. Metz’s Opinion
Licorish argues that the court should not have relied upon Dr. Metz’s opinion
because (1) he did not personally examine M.L.-L., (2) some of his findings differed
from those of other medical personnel who physically examined the child, and (3) his
opinion that the injury was not consistent with the reported accident was based on
inaccurate and incomplete information.
Licorish’s arguments all involve reweighing the evidence, which is not within the
scope of our review. See In re M.P., 76 Wash. App. at 91 (“This court is not to weigh the
evidence or the credibility of the witnesses.”). In any event, in an unchallenged finding
of fact, the court found that Dr. Metz and Dr. Diekema reached the same conclusion that
the injury M.L.-L. sustained in April 2014 was not consistent with the report that he fell
forward and hit his forehead on a cup holder. The court’s finding that both medical
professionals who saw M.L.-L.’s forehead injury in person were concerned about abuse
is also unchallenged. It is true that Dr. Diekema and the public health nurse noted only
raised bruising on the left side of the forehead. However, the GAL, who viewed the
same photos as Dr. Metz, agreed that they showed bruising on both sides. The court
was aware that Dr. Metz did not perform a physical examination, that neither physician
received a report of the injury directly from the parents, and that both physicians based
their opinions on a broad outline of facts provided by Licorish to the social worker.
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Licorish also contends that finding of fact 10, regarding the substance of Dr.
Metz’s testimony, is unsupported by substantial evidence and misstates the testimony.
Licorish argues that Dr. Metz’s testimony that the injuries depicted in the photographs
were “highly concerning for abuse” does not support the court’s finding that Dr. Metz
concluded that the markings were “consistent with purposeful trauma.” We disagree. A
reasonable inference from Dr. Metz’s testimony is that the injuries were concerning for
abuse precisely because they were consistent with nonaccidental trauma. Although the
court rephrased Dr. Metz’s language, the testimony supports the court’s finding of fact.
Ill. Finding of Dependency
Licorish contends that substantial evidence in the record does not support the
court’s finding that “[w]ithout services in place, the Court is concerned that the mother is
not capable of protecting the child from future abuse.” To the contrary, Licorish claims
there is “ample and credible” evidence in the record of her fitness as a parent and ability
to advocate for herself and her child. For instance, she points to evidence that she
voluntarily sought supportive services by working with a public health nurse, evidence
that she brought M.L.-L.’s bruising to the attention of his doctor, and evidence that M.L.
L. was bonded to her and was achieving appropriate developmental milestones while in
her care. Licorish suggests that the court unfairly emphasized her reluctance to
cooperate with CPS and the Department after the referrals to CPS and discounted her
strengths to find a basis for dependency.
But, again, the Department did not need to prove that Licorish was unfit.
Schermer, 161 Wash. 2d at 944 (dependency does not turn on parental unfitness). The
court’s findings reflect its consideration of all the evidence, including the evidence of
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Licorish’s strengths as a parent. The court recognized that M.L.-L. was
“developmentally on target,” and that before the Department filed the dependency
petition, Licorish had been “very good at seeking out help and support as a new
mother.” The court also found that Licorish loves her child and has “many strengths.”
Nevertheless, the court also found that while there was no evidence that Licorish
herself had abused M.L.-L., she had “aligned herself with the father, and despite the
Court order, allowed the father to have unsupervised contact with the child, violating the
Court’s order.” This finding is unchallenged. The evidence also showed that M.L.-L.
had sustained bruising, on more than one occasion, that caused several health care
providers to be concerned about potential abuse. Licorish was well aware of the
concern. She admitted to Dr. Kim that she had considered whether LaFantasie had
inflicted the injuries and discussed the matter with him. Then, after M.L.-L. sustained
the forehead injury on April 1, Licorish failed to seek prompt medical attention for him,
despite being strongly advised to do so by both the public health nurse and the social
worker. Instead, she took him to the social worker’s office three days later.
A dependency determination does not require proof of actual harm, only a
danger of harm. Schermer, 161 Wash. 2d at 951. “‘Nothing in the statute suggests that
[the State] must stay its hand until actual damage to the endangered child has
resulted.’ “ ki. (alteration in original) (quoting In re Welfare of Frederiksen, 25 Wash. App.
726, 733, 610 P.2d 371 (1979)). The juvenile court properly exercised its broad
discretion here in assessing the risk of harm. The record supports the court’s finding
that Licorish ultimately chose to align herself with LaFantasie and compromised her
ability to make decisions in the best interest of M.L.-L. The record also supports the
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court’s finding that there are legitimate reasons to question Licorish’s ability to protect
M.L.-L from future abuse in the absence of appropriate services and monitoring. These
findings support the court’s conclusion that Licorish is unable to adequately care for
M.L.-L. such that there is a risk of substantial damage to his physical or psychological
development, without any consideration of the ER 404(b) evidence.
In sum, Licorish fails to establish that the court abused its discretion by
considering evidence of her criminal history. Substantial evidence in the record
supports the challenged factual findings. The findings support the juvenile court’s
determination of dependency under RCW 13.34.030(6)(c).
Affirmed.
WE CONCUR:
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