In Re Dep Of: V.k.f., Dob: 12/10/10 Galina Fraley, App. v. Dshs, Resp. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
V.K.F., No. 70700-1-1
D.O.B.: 12/10/10,
DIVISION ONE
A minor child.
UNPUBLISHED OPINION
GALINA FRALEY,
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143 Wn. App. 219,
223, 177 P.3d 186 (2008) (citing RCW 13.34.020). Thus, "[although parents
have a fundamental liberty and privacy interest in the care and custody of their
children, a trial court should not allow the rights of the biological parents to
override a child's best interests when determining placement under the
dependency statute." R.W.. 143 Wn. App. at 223-24 (citing RCW 13.34.020; jn
re Dependency of J.B.S., 123 Wn.2d 1, 8, 12, 863 P.2d 1344 (1993)).
After a court finds a child to be dependent, it must enter an order of
disposition. RCW 13.34.130. In this order, the court may order the child
removed from the home "if the court finds that reasonable efforts have been
made to . . . eliminate the need for removal . . . unless the health, safety, and
welfare of the child cannot be protected adequately in the home." RCW
13.34.130(3).
"The trial court has broad discretion and is allowed considerable flexibility
to receive and evaluate all relevant evidence to reach a decision recognizing
both the welfare of the child and the parents' rights." R.W.. 143 Wn. App. at 223
(citing In re the Welfare of B.D.F., 126 Wn. App. 562, 574, 109 P.3d 464 (2005)).
Accordingly, a trial court's placement decision in a dependency proceeding is
discretionary and will be overturned only upon a showing of an abuse of
discretion. In re Dependency of A.C.. 74 Wn. App. 271, 275, 873 P.2d 535(1994). A trial court abuses its discretion when its decision is manifestly
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No. 70700-1-1/9
unreasonable or based on untenable grounds. State v. Lormor, 172 Wn.2d 85,
94, 257 P.3d 624 (2011).
Galina asserts that the record does not support the trial court's findings
that "[i]t is currently contrary to the child's welfare to return home," and that "[t]he
health, safety, and welfare of the child cannot be adequately protected in the
home."49 But ample evidence established that V.K.F.'s welfare would not be
protected in Galina's care. Thus, the trial court's decision to order out-of-home
placement and supervised visitation was warranted.
In evaluating a claim of insufficiency of the evidence in a dependency
proceeding, we determine whether substantial evidence supports the trial court's
findings of fact and whether those findings of fact support the trial court's
conclusions of law. In re Dependency of CM., 118 Wn. App. 643, 649, 78 P.3d
191 (2003). Evidence is substantial if, 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. In re Dependency of E.L.F.. 117 Wn. App. 241, 245, 70 P.3d 163(2003). We do not reweigh the evidence or evaluate witness credibility. In re
Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006).
Here, the trial court's decision to order out-of-home placement and
supervised visitation was primarily based on V.K.F.'s exposure to domestic
violence and its resulting risks to her welfare.50 The court's undisputed findings
establish that domestic violence has been a recurring problem between Mark and
49 CP at 99, 100; 172-73.
50 See CP at 181-82; 4 RP at 47-52, 103.
No. 70700-1-1/10
Galina and that V.K.F. has been exposed to it.51 It is also undisputed that the
parents have denied the existence of a pattern of domestic violence.52 As a
result, if an incident of domestic violence were to occur prospectively, Galina may
not take action to protect V.K.F.53 Significantly, the court made the unchallenged
finding that "the risks to the child's health, safety, and welfare indicate that
comprehensive parenting education are [sic] needed in order for the mother and
father to parent safely."54 Thus, as the court found, the parents were not capable
of safely parenting V.K.F. without court supervision.55 These undisputed facts,
treated as verities on appeal, sufficiently establish that V.K.F.'s welfare would be
jeopardized ifV.K.F. were placed in Galina's care. See In re Interest of J.F., 109
Wn. App. 718, 722, 37 P.3d 1227 (2001).
Furthermore, testimony adduced at the hearing supported these
undisputed findings, as well as the trial court's finding that V.K.F.'s health, safety,
and welfare would not be protected if placed in Galina's care. First, abundant
evidence indicated a pattern of domestic violence. In addition to the physical
assault perpetrated by Mark in October 2012, Galina's voluntary statement
reported three months of increasing physical abuse occurring before the October
incident. Moreover, May testified that there was verbal violence, emotional
violence, intimidation, and actual physical abuse between Mark and Galina.56 He
51 CP at 181.
52 CP at 181.
53 CP at 181-82.
54 CP at 182.
55 CP at 181-82.
56 3 RP at 58.
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also determined that there was a high likelihood that Mark would be abusive in
the future without intervention.57 Further, CPS had concluded that a previous
allegation of assault was founded in 2011. Finally, a staff member at a domestic
violence clinic testified that Galina sought her assistance on October 23, 2012 to
file a protection order.58
Second, ample evidence demonstrated Galina's refusal to acknowledge
the severity of abuse by Mark. Although Galina signed the voluntary statement
that described previous physical assaults by Mark, at the hearing, she repeatedly
denied the statements contained therein. She also denied that any acts of
domestic violence took place before the October 2012 incident and denied
ongoing domestic violence. Further, Galina testified that she had never been
fearful of Mark, but she also testified that she had invited her siblings to her
house before Mark returned home on October 25 because she was concerned
for her safety.59
The CPS social workers assigned to the case also provided testimony
regarding Galina's denial of domestic violence and the danger this posed on
V.K.F. Judy Gischer testified that in 2012, prior to the October incident, she met
with Mark and Galina after she received a domestic violence referral.60 She
testified that she offered them domestic violence services but they refused to
57 3 RP at 58.
58 4 RP at 16, 22.
591 RP at 42, 57.
60 2 RP at 57.
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No. 70700-1-1/12
participate in these services.61 Julie Turner testified that Galina did not perceive
Mark as a threat to her children despite the domestic violence.62 Turner
expressed concern that the continuing incidents of domestic violence posed a
threat to Galina's children and that Galina was not protective of them.63
Angela Paull also testified that when she initially interviewed Galina about
the domestic violence issue, Galina denied any history of it but later admitted that
Mark was abusive.64 Paull testified that she was concerned that Galina was
putting herself in danger by continuing her relationship with Mark.65 Paull
believed that Galina's failure to recognize the danger posed by Mark placed
V.K.F. in danger.66
Finally, at the hearing, May and Paull explained the negative effects that
exposure to domestic violence has on a child. May opined that a child who
witnesses abuse is likely to become an abuser or a victim when he or she grows
up.67 Paull testified that exposure to domestic violence poses substantial risks to
children.68 According to her testimony, domestic violence negatively impacts all
aspects of a child's development: physical, emotional, psychological, behavioral,
and social.69 Further, children affected by domestic violence have more health
61 2 RP at 58-59.
621 RP at 145.
631 RPat145.
64 3 RP 113.
65 3 RP at 117.
66 3 RP at 117
67 3 RP at 57.
68 3 RP at 86, 111.
69 3 RP at 111.
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No. 70700-1-1/13
and behavioral issues than the average child.70 Paull believed that V.K.F. was at
risk of these problems as a result of the domestic violence that occurs between
her parents.71 This was particularly true in light of the fact that V.K.F. had been
present for at least two incidents of domestic violence.72 Finally, because of
these risks, Paull believed that it was contrary to V.K.F.'s health, safety, and
welfare to return home to either parent at that time.73
In sum, the record demonstrates that there is a pattern of domestic
violence, that Galina and Mark fail to acknowledge its severity, and exposure to
the domestic violence poses a risk to Galina's welfare. Thus, the court's findings
that placement with Galina was contrary to V.K.F.'s welfare was more than
adequately reflected in the record. These findings also supported the court's
decision to order supervised visitation to protect V.K.F.'s health, safety, and
welfare.
Nevertheless, Galina contends that no evidence supported the trial court's
finding that "[t]he mother has mental health diagnoses that negatively impact her
ability to parent, especially her ability to be alert to the child's needs and to be
physically protective of the child."74 We disagree.
The court's uncontroverted findings, amply supported by the evidence,
established that Galina's long-standing suffering of domestic violence and her
70 3 RP at 111.
71 3 RP at 111.
72 3 RP at 111.
73 3 RP at 125.
74 CP at 181.
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denial of such abuse hindered her ability to adequately parent V.K.F.75 Because
of the emotional and physical abuse she suffered during her childhood and in her
marital relationships, Dr. Uhl diagnosed Galina with post-traumatic stress
disorder.76 Dr. Uhl also diagnosed Galina with major depressive disorder with
catatonic features as well as dissociative fugue.77 As Dr. Uhl explained in his
testimony, "dissociative fugue" is where "a person who has blackouts for specific
periods of time where they may function for a certain period of time but not recall
functioning at all."78 Given this evidence and the findings previously discussed,
the court properly found that Galina's mental illness would negatively impact her
ability to parent.
Galina argues that the trial court could have imposed less restrictive
measures to protect V.K.F. from domestic violence. But Galina was residing at
V.K.F.'s grandparents at the time of the hearing and the court imposed no
temporal restrictions on her contact with her daughter. Furthermore, Galina's
visitations were to be "liberal[ly] supervised."79 These limitations were generous
considering the court's finding that Galina was not capable of safely parenting
V.K.F.
In light of the evidence concerning the significant risks V.K.F. would face
through continued exposure to domestic violence, the trial court's placement
decision was in V.K.F.'s best interest. The trial court did not err.
75 CP at 181; 1 RP at 31, 90.
76 2 RP at 96-97.
77 2 RP at 97.
78 2 RP at 98.
79 CP at 105.
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Affirmed.
WE CONCUR:
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