Dependency Of C.w., Johnathan Weidenaar v. Dcyf ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of No. 80856-7-I
C.W.
DIVISION ONE
DEPARTMENT OF CHILDREN,
YOUTH, AND FAMILIES, UNPUBLISHED OPINION
Respondent,
v.
JOHNATHAN RAY WEIDENAAR,
Appellant.
SMITH, J. — Johnathan Weidenaar, C.W.’s father, appeals the trial court’s
order that found the child dependent pursuant to RCW 13.34.030(6)(c). He also
appeals a disposition order regarding the child’s out-of-home placement. The
child’s mother did not appeal either order. The father asserts that there is
insufficient evidence to support the finding of dependency. He contends the trial
court erred in allowing C.W.’s primary pediatrician to testify, over the parents’
hearsay objection, about the meconium test results, which indicated the presence
of methamphetamine and amphetamine in the baby’s first stool, as statements for
medical diagnosis or treatment under ER 803(a)(4). He further contends that there
is not clear, cogent, and convincing evidence of a manifest danger to support the
child’s out-of-home placement. Substantial evidence supports the finding that
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80856-7-I/2
C.W. had no parent capable of adequately caring for him such that he was in
circumstances constituting a danger of substantial damage to his psychological or
physical development. The father fails to show an abuse of discretion in the trial
court’s evidentiary and placement decisions. Therefore, we affirm.
FACTS
Melissa Creelman gave birth to C.W. on June 14, 2019. He was four
months old at the time of the dependency trial in October 2019. At issue is the
father’s ability to adequately care for the child and the child’s out-of-home
placement.
The family lived in a 30-foot fifth wheel trailer they had converted to a “tiny
home.” They lived there with the father’s 16-year-old daughter. The parents had
lived together for 10 years while both remained married to other people. The father
has a criminal history, including 10 convictions for driving with license suspended
in the third degree. Although he did not have a valid driver’s license, he continued
to drive. The mother had a conviction for driving under the influence from 2012.
At the time of the trial, she had an active arrest warrant for driving without an
ignition interlock and asserted her Fifth Amendment privilege against self-
incrimination.
On June 11, 2019, three days before C.W.’s birth, the mother went to
PeaceHealth St. Joseph Medical Center believing she was in labor. The mother
had not sought prenatal care. She explained that she did not know she was
pregnant until late in her pregnancy, had gone to one visit, and felt shamed by a
doctor, so she did not return. She denied drug use, but her urine test returned
2
No. 80856-7-I/3
positive for methamphetamine and amphetamine. The father testified he was not
concerned about the result because the mother had denied drug use, and he
believed her. C.W.’s urine was negative for all substances. The baby’s meconium
sample (first stool) was collected for a drug screen analysis to determine if he had
been exposed to any substances in utero or shortly after birth. The hospital placed
a hold on the baby’s discharge.
On the day of C.W.’s birth, the Department of Children, Youth, and Families
(Department) received a child protection intake from the hospital, and Kelly Adams
began an investigation. When visiting the parents at the hospital, Adams observed
the mother co-sleep with the baby multiple times, even after the mother had been
repeatedly advised not to do so. C.W.’s primary pediatrician, Dr. Peter Filuk,
testified that he would advise against co-sleeping, consistent with the American
Academy of Pediatrics, because co-sleeping poses a risk of suffocation. The
doctor explained that an infant could suffocate from slipping or sliding against a
pillow or an item of bedding or a parent or the infant rolling against each other.
The mother acknowledged she had been told not to co-sleep with C.W. and had
watched a video explaining the risks of co-sleeping. She testified she learned
“[t]hat it is dangerous if you sleep with your baby in the bed” because you “can fall
asleep and smother your baby.” But she did not agree with that opinion. The
father was also aware of the risks of co-sleeping including suffocation but testified
that “people are entitled to their opinion,” and “unfortunate things happen all the
time.”
Four days later, on June 18, 2019, Adams conducted a family team
3
No. 80856-7-I/4
decision-making meeting at the hospital with the parents, a social worker from the
hospital, and Adams’ supervisor. Adams explained to the parents that they were
still waiting for C.W.’s meconium test results. As part of the plan developed at the
meeting, the parents agreed to provide ongoing UAs (urinalyses) for four weeks
and not co-sleep with the baby. On June 19, 2019, after the parents provided one
clean UA, the hospital discharged C.W. to the parents.
After C.W.’s discharge, Adams used multiple ways to communicate with the
parents and inform them of services and UAs. Adams used text messages at the
numbers the parents provided, and she confirmed the accuracy of the numbers by
the parents’ responses to her messages. She also mailed letters at the address
the parents provided and went to the family home and left notices at the door. The
letters advised the parents that they would be considered to have a positive UA if
they failed to appear for a UA as scheduled or failed to provide a sufficient amount
of urine or if their urine was found diluted, adulterated, or outside of any normal
range. The parents never indicated they did not understand the process. But they
did not attend any further UAs until the shelter care hearing. The mother testified
at trial that she only agreed to do one UA before the discharge, and “[t]hat was it.”
She testified she did not attend further UAs because she did not want to. The
father testified he understood to do one UA, and “there would be one more to
follow, I guess, later.”
Meanwhile, Dr. Filuk learned of the baby’s meconium test results, which
were positive for methamphetamine and amphetamine. At trial, Dr. Filuk was
allowed to testify, over the parents’ hearsay objection, about the test results as
4
No. 80856-7-I/5
statements for purposes of medical diagnosis or treatment pursuant to ER
803(a)(4).
Dr. Filuk was concerned about the positive meconium test results and
explained the “broad reaching” risks. The doctor explained that infants exposed
to methamphetamine or amphetamine could develop growth problems, cognitive
issues (including learning disabilities and memory problems), and issues
regulating their own body (including temperature instability, sleep, and sensory
issues). He testified that an infant born exposed to drugs in utero would require
additional screening or check-ups above and beyond routine well-child checks. He
testified that in light of the “long-term effects,” the parents needed to be diligent
and “on the lookout for anything else that could be out of the ordinary.” He testified
that parents’ drug use impairment would cause an additional risk to the infant. Dr.
Filuk testified that C.W. would need “some form of evaluation for learning
developmental assessment in the future.”
The Department learned of C.W.’s positive meconium test results. Adams
was concerned about the results and the parents’ lack of participation in UAs.
On July 3, 2019, the Department filed a dependency petition for C.W. and
obtained a court order to take the child into custody. The next day, July 4, a social
worker visited the family home to serve the dependency petition and pick up the
baby. But the mother and the baby were absent, and the father said they had gone
camping. The father said he did not know where they were. He later testified, “I
specifically asked not to be told where they were going.” He said, “[W]hat you don’t
know can’t hurt you.” The mother testified she was camping with her friends in
5
No. 80856-7-I/6
eastern Washington where cell phone services were “very, very poor.” The father
testified he was not concerned about C.W., just two and a half weeks old, being
on a camping trip in an area without cell phone service. He testified, “[T]hey have
a vehicle that got them there. I’m sure they can go get service somewhere.” He
testified he was not concerned about the mother’s ability to care for C.W. “because
she has two other children that aren’t dead.” He testified, “Melissa is competent.
She’s not a risk taking person.” The Department obtained a writ of habeas corpus
for law enforcement assistance to take C.W. into custody.
Whatcom County sheriff’s deputies went to the family home every day,
sometimes multiple times per day, over the course of 10 days to locate and take
C.W. into custody. The father testified that “the cops . . . showed up relentlessly
like a bunch of assholes, because that’s what they were.” There were several
buildings on the parents’ property along with their fifth wheel trailer. Adams
suspected that the family was hiding in one of the buildings.
The mother testified she had been camping for about eight to nine days and
called the father on July 12 to learn the sheriff was looking for the baby. She
testified she returned home with C.W. on July 13. The parents knew there was a
court order requiring them to turn C.W. over to law enforcement, but they planned
a dinner with their older daughters. The mother testified that sheriff’s deputies
arrived at their property prior to dinner.
Whatcom County Deputy Sheriff Mason Stafford testified about what
happened when he and other deputies took C.W. into custody on July 13. The
deputies knocked on the door of what appeared to be the main residence several
6
No. 80856-7-I/7
times and announced their presence but received no response. As allowed by the
writ, the deputies entered and searched the building but did not locate C.W. there.
The deputies continued to search the property, including an “open air building like
a covered storage area,” and located another building to the eastern end of the
property and saw some diapers outside. Through an open kitchen window, they
saw baby formula. They began knocking on the door of the building, announcing
their presence. They did so for about 20 minutes. It was about 8 p.m. The area
was cluttered with lots of garbage and items stacked outside the door. The parents
finally opened the door and came out. The deputies entered the building and found
C.W. inside.
The father testified that the building in which C.W. was found was about 60
to 80 yards from the fifth wheel in which they normally lived. He testified the family
was in that building because it was a hot evening with “a hundred degrees out”
and the building had air-conditioning. But the mother testified that outside
temperature was probably in the “upper 70s.” Deputy Stafford testified it was a
comfortable evening with temperature probably in the 60s. The father later
testified, “A hundred degrees, 80 degrees, I couldn’t specifically say.” He testified
he was asleep when the officers arrived and knocked on the door. The mother
testified she was taking a nap and “woke up to sheriffs screaming and pounding
on the doors.”
Deputy Stafford recorded a walk-through video of the property and the
interior of the building where C.W. was located. The deputy noted “quite a bit of
clutter” on the kitchen counters and floor and what appeared to be groceries on
7
No. 80856-7-I/8
the floor. The sink was full of dishes, some with mold, and did not appear to be “a
fresh mess.” The deputies took C.W. into custody and notified the Department.
Adams took C.W. to an emergency room for a check-up. C.W. was found in good
health.
On July 17, 2019, the trial court conducted a shelter care hearing. At the
hearing, both parents agreed and were ordered to participate in services, including
random UAs. The court placed C.W. in licensed foster care pending trial but
allowed the baby to be placed with the parents if they submitted to a UA that day
and another UA within a week and both were clean. C.W. did not return home and
remained in out-of-home placement.
Shortly after the shelter care hearing, Adams conducted a case conference
and advised the parents they needed to attend UAs in order to get C.W. back, and
they indicated they understood. But concerns arose that the parents might be
tampering with the UAs. On July 31, 2019, the parents admitted having used fake
urine. They admitted they bought “fake pee” (synthetic urine) at a store and used
it as their urine. The mother testified she falsified her UA only once and did so
because she understood her UAs “needed to be 100 percent clean of any
substance.” She testified she was using marijuana topically on her skin and
worried her UA would show marijuana. The father testified he used fake urine
twice because he was “worried about cannabis.” He testified he smoked
marijuana occasionally and “came up with the idea of being able to medicinally use
it in the form of a topical situation.” He asserted he had a prescription from a
naturopath.
8
No. 80856-7-I/9
From the date of the shelter care hearing until the trial in October 2019, the
Department referred the parents for seven UAs, but the mother completed only
one, and the father none. The mother admitted missing two UAs during the two
weeks before trial but denied failing to appear for a number of UAs. The father
admitted missing some UAs after the shelter care hearing.
C.W. reportedly choked when eating, and Dr. Filuk sought specialist
consultations to evaluate his feeding. Three specialists evaluated C.W. and
determined that he had swallowing issues that would require his caregivers to “be
alert and aware” of the pace of the baby’s feeding to prevent him from choking,
coughing, or potentially aspirating. The issues required care above and beyond
the needs of a normal newborn. Dr. Filuk referred C.W. to occupational, physical,
and speech therapies. At the time of the trial, C.W. was engaged in those
therapies. Dr. Filuk testified that C.W. has “higher than normal needs.” The mother
acknowledged that C.W. still had swallowing issues. But she testified C.W had no
special needs that concerned her. The father likewise testified C.W. had no
feeding problem or special needs.
In addition to the concerns about C.W.’s exposure to methamphetamine
and amphetamine, co-sleeping, and swallowing issues, Dr. Filuk identified other
risk factors, including the mother’s late prenatal care and C.W.’s loss of birth weight
during the time he was in the parents’ care from June 19 to July 13, 2019. The
mother acknowledged that the baby had three medical appointments after his
discharge from the hospital and that his weight dropped three times. The father
testified that the weight loss was normal. Dr. Filuk explained that although every
9
No. 80856-7-I/10
newborn loses a certain amount of weight after birth, the loss of more than 10
percent within a specified period may be concerning. If an infant is doing well, it
should have gained back any weight lost by two weeks of age. By June 27, 2019,
two weeks after his birth, C.W.’s weight loss was 10 percent of his birth weight,
raising concerns. On July 2, the baby’s weight remained down. He had gained
weight by the time he was taken into custody and placed in foster care on July 16.
Social worker Jacob Rodenberg testified that the parents still had not
completed many of their UAs. The mother admitted she used marijuana the day
before trial but denied any other drug use. The father denied the mother’s drug
use. He testified he used medicinal marijuana on occasions. Rodenberg testified
that the parents were not currently capable of caring for C.W. He explained that
there was a heightened concern for the safety of C.W. as an infant because infants
are more vulnerable and need more supervision than older children. Adams
likewise testified that C.W. had no parent capable of adequately caring for him at
this time based on the parents’ lack of participation in UAs to prove their sobriety.
C.W.’s guardian ad litem (GAL), Martha Moore, also supported the child’s
dependency and testified that it was important for the parents to show consistent
sobriety given the baby’s positive meconium test for methamphetamine and
amphetamine.
After a four-day trial, the trial court gave its oral ruling on October 25, 2019,
finding that C.W. was dependent because he had no parent capable of adequately
caring for him such that he was in circumstances constituting a danger of
substantial damage to his psychological or physical development under
10
No. 80856-7-I/11
RCW 13.34.030(6)(c). The court found that the mother did use methamphetamine
and/or amphetamine in the late stages of her pregnancy based on her positive
urine test, which was corroborated by the baby’s positive meconium test for the
same drugs. Noting the mother’s “decision to use methamphetamine so late in a
pregnancy,” the court concluded there was “a strong likelihood that the mother has
a substance use problem that may interfere with her ability to adequately parent
an infant.” The court also found that both parents engaged in “continuing efforts
to avoid supervision by the state, particularly with respect to the U.A. tests that
they were requested to give.” The court found the circumstances of the mother’s
“suspicious camping trip shortly after [C.W.’s] birth . . . compelling . . . that [the
parents] were attempting to hide the child from the authorities at a time when the
state was trying to supervise and make sure that he was safe.” The court found
“sufficient evidence . . . that both parents attempted to hide the child during that
time when they knew the state was attempting to supervise them,” which raised
concerns “about their ability to adequately parent this child given his young age.”
Pending disposition, the court ordered random UAs for the parents and
allowed C.W. to return home as soon as the parents were able to show clean UAs.
The court decided to enter a dependency order immediately, without waiting for
proposed written findings, so the parents could show clean UAs and have C.W.
back as soon as possible. The court stated, “My hope is that he goes home with
you. You comply with these rules, and this child has some stability and starts to
bond with you again at home. That’s my hope.”
On November 4, 2019, the court conducted a disposition hearing, which
11
No. 80856-7-I/12
was continued to November 8, 2019. The Department requested continued out-
of-home placement for C.W., while the parents requested in-home dependency.
At the November 4 hearing, social worker Rodenberg reported that the mother’s
UA had returned invalid for its high pH level. The father’s UA was clean of all
substances. Rodenberg understood that pH affects the validity of the test. For her
next UA, the mother was unable to produce a sample. Both parents later provided
UA samples, which had not been back at the time of the November 8 hearing. GAL
Moore recommended out-of-home placement for C.W. because the parents had
not established a pattern of sobriety. The court ordered C.W. remain in out-of-
home care. The court ordered both parents to continue to participate in random
UAs and a substance abuse evaluation. The court required that UAs “be free of
all non-prescribed drugs, alcohol, including marijuana, and other illegal substances
as well.” The court’s expectation was “no marijuana use, and that may change
down the road once the substance abuse evaluation has been done.” The father
reported that two or three UAs were “on their way,” and the court stated “if those
come back clean, then the child should go home immediately.” The court also
ordered no co-sleeping.
Toward the end of the November 8 hearing, the mother disclosed that the
family just had a fire, and “every other structure aside from the main house and
our fifth wheel has burnt to the ground.” The fire, which destroyed the buildings on
the parents’ property, occurred on November 1. The court stated that the
Department could conduct a home visit before returning the child home. The
parties were to work on a proposed disposition order for presentation to the court.
12
No. 80856-7-I/13
On November 21, 2019, the parties returned to court for presentation of the
disposition order. The Department reported that the mother’s UA from November
6 came back positive for methamphetamine and amphetamine. The Department
also reported that the father had refused to allow a social worker to conduct a walk-
through of the family’s home on November 19. The father testified that he had
locked the door and had lost his key when the social worker arrived for a walk-
through, and the mother “wouldn’t answer the door because she sleeps like a
freaking rock.” Asked whether the mother was sleeping so hard that knocking on
the door or window would not wake her up, he testified, “[y]ou could knock on her
head, and it wouldn’t wake her up.” The father testified he did not believe he or
the mother had any substance abuse problem. GAL Moore reported that the
parents did not disclose the November 1 fire in their communications with her on
November 6, 2019. The GAL pointed out pictures of the damage to the property,
with debris, propane tanks, and heavy metal equipment scattered over the ground.
The GAL expressed concerns about the safety of the property as a viable living
environment for C.W. as well as the parents’ evasive answers regarding their
housing situation and the mother’s recent positive UA for methamphetamine.
The trial court reminded the parties that its concern was not just the
evidence of drug use but “subterfuge . . . removing the child from anyplace where
he could be supervised at such a young age, and, and falsifying U.A.s,” which
“indicated an inability to demonstrate sobriety.” The court also noted a history of
the parents’ avoiding supervision and the father’s inability to recognize what the
mother was doing or decision to cover for her drug use. Because the court did not
13
No. 80856-7-I/14
include written findings in the dependency order, the court entered the following
findings in the disposition order:
The mother has used methamphetamine or amphetamine during the
late stages of her pregnancy, admitted to marijuana use, and made
continuing efforts to avoid providing accurate UA testing, including
by providing false UAs, therefore the court concludes she may have
[a] substance abuse problem, impacting her ability to safely parent.
The father has made continuing efforts to avoid providing
accurate UA testing, including by providing false UAs, and admitted
to marijuana use, therefore the court concludes he may have [a]
substance abuse problem impacting his ability to safely parent.
The evidence has shown that both parents made efforts to
hide the child from the supervision and health and safety
assessments of the State, despite a lawful court order to produce the
child, impacting their ability to safely parent.
ANALYSIS
Dependency allows state intervention to remedy family problems and
provide needed services. In re Dependency of Schermer, 161 Wash. 2d 927, 942,
169 P.3d 452 (2007). Unlike a proceeding to terminate parental rights,
dependency is a preliminary and remedial process that does not permanently
deprive a parent of any rights. Schermer, 161 Wash. 2d at 943.
A. Finding of Dependency
The father asserts that insufficient evidence supports the finding of
dependency. To establish C.W.’s dependency, the Department had to prove by a
preponderance of the evidence that the child meets one of the statutory definitions
of dependent child as set forth in RCW 13.34.030(6). RCW 13.34.110(1). The
trial court found C.W. dependent under RCW 13.34.030(6)(c), which defines
dependent child as “any child who . . . [h]as no parent, guardian, or custodian
capable of adequately caring for the child, such that the child is in circumstances
14
No. 80856-7-I/15
which constitute a danger of substantial damage to the child’s psychological or
physical development.” The father challenges the sufficiency of evidence to
support this finding. This court will uphold the trial court’s factual findings if
supported by substantial evidence. In re Dependency of M.P., 76 Wash. App. 87,
90, 882 P.2d 1180 (1994). Substantial evidence exists if, when viewing the
evidence in the light most favorable to the prevailing party below (here, the
Department), a rational trier of fact could find the fact more likely than not to be
true. M.P., 76 Wash. App. at 90-91. This court may not reweigh evidence or disturb
the trial court’s credibility determinations. M.P., 76 Wash. App. at 91.
The father assigns error to, but does not make any argument challenging,
the following findings of fact related to the mother’s substance abuse concerns:
The mother has used methamphetamine or amphetamine during the
late stages of her pregnancy, admitted to marijuana use, and made
continuing efforts to avoid providing accurate UA testing, including
by providing false UAs, therefore the court concludes she may have
[a] substance abuse problem, impacting her ability to safely parent.
These findings are verities. See In re Welfare of L.N.B.-L., 157 Wash. App. 215, 243-
44, 237 P.3d 944 (2010) (“An appellant waives an assignment of error when she
presents no argument in support of the assigned error.”).1
The father argues that substantial evidence does not support the trial court’s
finding that he may have a substance abuse problem. The trial court made the
following findings related to the father’s substance abuse concerns:
The father has made continuing efforts to avoid providing
accurate UA testing, including by providing false UAs, and admitted
to marijuana use, therefore the court concludes he may have [a]
1 In any event, substantial evidence supports these findings.
15
No. 80856-7-I/16
substance abuse problem impacting his ability to safely parent.
The father argues that his admitted use of marijuana and use of fake urine for two
UAs are insufficient to show a substance abuse problem when the Department did
not show his use of marijuana or any other controlled substance in excessive
amounts or for purposes other than medical treatment. He points out his testimony
that he used marijuana medicinally with a card and used fake urine due to his
concern that his medical marijuana use would result in a dirty UA. He also points
out his clean UA shortly before C.W.’s discharge from the hospital and two
additional clean UAs after the entry of the dependency order but shortly before the
entry of the disposition order. But his argument is largely based on a view of the
evidence in his favor, contrary to the substantial evidence standard of review,
which requires this court to view all the evidence and draw all reasonable
inferences from the evidence in the light most favorable to the Department. See
M.P., 76 Wash. App. at 90-91. The evidence so viewed supports the trial court’s
finding that the father may have a substance abuse problem.
Before C.W.’s discharge from the hospital, the father agreed to attend
ongoing UAs for four weeks but, after the discharge, refused to attend any of the
UAs requested by the Department before the child’s removal. Even after the
shelter care hearing when he was ordered to attend random UAs, he missed some
UAs. When confronted with suspected tampering with UAs, both parents admitted
they bought and used “fake pee.” Although the father asserted he had “a card”
prescribed by a naturopath for medicinal marijuana use, the trial court was not
required to accept his claim as true. A reasonable inference from the father’s
16
No. 80856-7-I/17
admitted use of fake urine on multiple occasions and continued efforts to avoid
providing accurate UAs, as shown by the evidence, is that he may have a
substance abuse problem.
Citing In re Personal Restraint of Meippen, 193 Wash. 2d 310, 316, 440 P.3d
978 (2019), the father argues that the finding that he “may have” a substance
abuse problem is insufficient to prove dependency under the preponderance of the
evidence standard, which requires proof “more likely than not.” Meippen
addressed a personal restraint petition asserting a constitutional error, and the
court held the petitioner had prima facie burden of showing by a preponderance of
the evidence that he was actually and substantially prejudiced by the error, not a
“‘possibility of prejudice.’” Meippen, 193 Wash. 2d at 315-16 (internal quotation marks
omitted) (quoting In re Pers. Restraint of Hagler, 97 Wash. 2d 818, 825, 650 P.2d
1103 (1982)). Meippen did not address dependency under RCW 13.34.030(6)(c)
and is inapposite. Further, the trial court’s finding of dependency was not based
solely on the evidence of the father’s drug use but also on the parents’ efforts to
hide the child from supervision and safety assessments despite a court order
requiring them to produce the child:
The evidence has shown that both parents made efforts to
hide the child from the supervision and health and safety
assessments of the State, despite a lawful court order to produce the
child, impacting their ability to safely parent.
In its oral ruling, the court elaborated on the parents’ history of avoiding
supervision, raising concerns about their ability to safely care for C.W.:
The father indicates that he doesn’t believe she’s using
methamphetamine, which indicates to me that either he doesn’t, he
17
No. 80856-7-I/18
doesn’t know what she’s doing, or he’s covering for her, and so I
don’t know which of those things it is, but either way, I’m concerned
about his ability to adequately care for the child when, when he’s
unaware of the mother’s activities, and that worries me.
I’m also worried about behavior in the past that there was
testimony, too, at trial that he was clearly covering for the mother
when she took the newborn child on a suspicious sort of camping trip
where he didn’t know where they were, and clearly, didn’t want to
know where they were so he wouldn’t have to tell anyone where they
were, and that was pretty much his testimony that if he didn’t know,
if couldn’t hurt them. So I think that there’s a history here of avoiding
supervision and perhaps covering for the mother’s drug use in order
to try to get the child home, and that’s on the part of the father.
The father does not argue that the evidence does not support the findings
related to the parents’ efforts to hide C.W. from the Department’s supervision and
safety assessments despite a lawful court order to produce the child. Rather, he
argues the evidence does not show “a nexus between any alleged deficiency and
parenting ability.” He argues the evidence does not show C.W. was harmed by
the parents’ failure to turn him over to the Department because he was found
healthy and drug-free when he was taken into custody.
But dependency under RCW 13.34.030(6)(c) “does not require proof of
actual harm, only a ‘danger’ of harm.” Schermer, 161 Wash. 2d at 951. Nor does it
turn on parental “unfitness” in the usual sense or misconduct. Schermer, 161
Wash. 2d at 944. “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.” Schermer, 161 Wash. 2d at 944. The trial court “has broad discretion
in evaluating all of the evidence before it” and “‘considerable flexibility to receive
and evaluate all relevant evidence in reaching a decision that recognizes both the
welfare of the child and parental rights.’” Schermer, 161 Wash. 2d at 952 (quoting In
18
No. 80856-7-I/19
re Welfare of Becker, 87 Wash. 2d 470, 477-78, 553 P.2d 1339 (1976)). On review,
this court may look at “the constellation of facts presented in this case as a whole”
to determine whether the father was capable of meeting C.W.’s needs and, if not,
whether his inability posed a danger of harm to the child. Schermer, 161 Wash. 2d
at 952. The constellation of facts presented in this case viewed as a whole in the
light most favorable to the Department supports the trial court’s finding that the
father was not capable of adequately caring for C.W. and that his inability posed a
danger of substantial damage to the child’s psychological or physical development.
The constellation of facts before the court was substantial. The mother did
not seek prenatal care except for once. She continued to co-sleep with C.W. after
having been repeatedly told not to do so, with knowledge of the risks of suffocation.
The father, also being aware of the risks, minimized them, testifying that “people
are entitled to their opinion” and “unfortunate things happen all the time.” He was
not concerned about the mother’s positive urine test for methamphetamine and
amphetamine because she told him she had not done any drugs. As discussed
earlier, after the child’s discharge from the hospital, the father refused to attend
any UAs despite his agreement to do so. When a social worker went to the
parents’ home to serve the dependency petition and pick up the child, the father
claimed the mother and C.W. had gone camping and that he did not know where
they were. He claimed he “specifically asked to not be told where they were going.”
He said, “[W]hat you don’t know can’t hurt you.” This was when C.W. was only
two and a half weeks old, and his meconium test results had just returned positive
for methamphetamine and amphetamine, consistent with the mother’s positive
19
No. 80856-7-I/20
urine test for the same drugs. This was also when C.W.’s weight had dropped
significantly, causing concerns.
The father testified he had no concern about C.W. being on a camping trip
with the mother where no cell phone service was available. He claimed no concern
about the mother’s ability to care for C.W. “because she has two other children
that aren’t dead.” When deputies finally found C.W. after nine days of the issuance
of the writ of habeas corpus, the family were in a building 60 to 80 yards from the
fifth wheel where they lived. The parents did not respond to the officers’
“screaming and pounding on the doors” for 20 minutes at approximately 8 p.m.
Despite their knowledge of the court order requiring them to produce C.W. to law
enforcement, they planned a dinner with their older daughters and later claimed
they were asleep when the officers arrived. After the child’s removal, the parents
were ordered to participate in random UAs but provided fake urine and failed to
produce accurate UAs to show their sobriety.
Dr. Filuk identified the risks of harm to C.W., including the mother’s late
prenatal care, co-sleeping, C.W.’s loss of birth weight, and his exposure to
methamphetamine or amphetamine. Among other things, Dr. Filuk explained the
“broad reaching” risks and “long-term effects” from infants’ exposure to
methamphetamine or amphetamine, including growth issues, cognitive issues
(e.g., learning disabilities and memory issues), and problems regulating their own
body. Dr. Filuk testified that an infant born exposed to drugs would require
additional screening or checkups above and beyond routine well-child checks and
that the parents needed to be diligent and “on the lookout for anything else that
20
No. 80856-7-I/21
could be out of the ordinary.” C.W. developed swallowing issues and was engaged
in occupational, physical, and speech therapies. Dr. Filuk testified that the child’s
swallowing issues required his caregivers to “be alert and aware” of the pace of
his feeding to prevent choking, coughing, or aspirating. Dr. Filuk testified that C.W.
had “higher than normal needs.” But both parents minimized the issues and
claimed C.W. had no special needs that concerned them.
The evidence sufficiently supports the finding that C.W. had no parent
capable of adequately caring for him such that he was in circumstances
constituting a danger of substantial damage to his psychological or physical
development. Substantial evidence supports the finding of dependency.
The father argues that he is a capable, loving, and skilled parent. But his
argument largely relies on a view of the evidence in his favor and fails under the
substantial evidence standard of review. See M.P., 76 Wash. App. at 90-91.
B. Meconium Test Results
The father argues that the trial court erred in admitting, over the parents’
hearsay objection, the results of C.W.’s meconium test results through the
testimony Dr. Filuk. The trial court initially sustained the parents’ hearsay objection
and allowed the testimony only for purposes of Dr. Filuk’s opinion, not as
substantive evidence. But the court later reviewed the parties’ briefs and ruled that
the test results as testified to by Dr. Filuk are admissible as statements made for
purposes of medical diagnosis or treatment under ER 803(a)(4). The father
challenges this ruling. The admission of relevant evidence is within the sound
discretion of the trial court and will not be disturbed on appeal absent a manifest
21
No. 80856-7-I/22
abuse of discretion. State v. Swan, 114 Wash. 2d 613, 658, 790 P.2d 610 (1990). A
trial court abuses its discretion if its ruling is manifestly unreasonable or is
exercised on untenable grounds or for untenable reasons. In re Dependency of
T.L.G., 139 Wash. App. 1, 15, 156 P.3d 222 (2007).
ER 803(a)(4) creates a hearsay exception for “statements for purposes of
medical diagnosis or treatment.” ER 803(a)(4) (formatting omitted); In re
Dependency of Penelope B., 104 Wash. 2d 643, 656, 709 P.2d 1185 (1985). The
rule provides as follows:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
....
(4) . . . Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character
of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
ER 803(a)(4) (emphasis added). The father argues that ER 803(a)(4) does not
apply to the meconium test results because the Department failed to show that the
test results were “reasonably pertinent to diagnosis or treatment” under the rule.
“Generally, to establish reasonable pertinence (1) the declarant’s motive in
making the statement must be to promote treatment, and (2) the medical
professional must have reasonably relied on the statement for purposes of
treatment.” In re Pers. Restraint of Grasso, 151 Wash. 2d 1, 20, 84 P.3d 859 (2004).
The father concedes that the Department “arguably established the second
[reasonable reliance] prong” but argues that the Department “never addressed the
first [motive] prong.” But the Department did address the two-part test and argued
22
No. 80856-7-I/23
that C.W.’s meconium test results met the test. The father argues that Dr. Filuk
“simply could not, and did not, establish the declarant’s motive.” We disagree.
This court has held that ER 803(a)(4) allowed a treating doctor, who ordered
a computerized tomography scan for a patient’s suspected fracture in the nose
and possible other injuries, to testify about a radiologist’s findings on the scan over
a hearsay objection. State v. Doerflinger, 170 Wash. App. 650, 664-65, 285 P.3d
217 (2012). The court held the radiologist’s findings were “without question . . .
made for purposes of diagnosis and treatment; this was the precise purpose for
which [the doctor] ordered the scan.” Doerflinger, 170 Wash. App. at 664-65.
Citing In re Welfare of J.M., 130 Wash. App. 912, 125 P.3d 245 (2005), the
father argues that an expert may not testify to another expert’s opinions. His
reliance on J.M. is misplaced. There, Division Three of this court held that the
caseworker and the guardian ad litem should not have been allowed to testify
about nontestifying psychological and mental health experts’ hearsay opinions,
including assessments, progress notes, and recommendations as substantive
evidence. See J.M., 130 Wash. App. at 922-25. The court explained that ER 705
allows an expert’s use of written reports of absent witnesses solely to show the
grounds upon which the testifying expert’s opinion is based and is not a
mechanism to admit otherwise inadmissible evidence. J.M., 130 Wash. App. at 924-
25. J.M. did not address ER 803(a)(4) and is factually distinguishable. This court’s
opinion in Doerflinger addressed ER 803(a)(4) and supports the trial court’s
decision here.
The record sufficiently shows that the declarant’s motive in making the
23
No. 80856-7-I/24
statement (meconium test results) was to promote treatment. Although Dr. Filuk
did not order the test, the record sufficiently shows it was ordered as part of C.W.’s
newborn care for diagnosis and treatment. Dr. Filuk worked in a group of 15 to 18
pediatricians at PeaceHealth hospital, where C.W. was born and had his
meconium test, and the doctors cross covered each other to ensure continuity of
care. Dr. Filuk considered his colleagues in his group as his “partners . . . with
cross-coverage.” Although Dr. Filuk no longer provided inpatient care, other
pediatricians in his group did so. When a newborn entered Dr. Filuk’s care, he
reviewed as much documentation as possible about the delivery and hospital stay,
met and talked with the family, examined the child, and developed plans
addressing any immediate problems and created a plan for well-child checks. The
process helped inform Dr. Filuk’s ongoing care and medical prognosis and was
customary practice for all physicians in his group. The hospital’s electronic records
system connected inpatient and outpatient care, and Dr. Filuk, as C.W.’s primary
treating pediatrician, was notified of the lab results of C.W.’s meconium test and
was expected to act on the results.
Dr. Filuk sufficiently explained that the meconium test results were
communicated to him for C.W.’s diagnosis and treatment. The trial court properly
admitted the test results under ER 803(a)(4) through the doctor’s testimony. The
father fails to show an abuse of discretion.
C. Out-of-Home Placement
The father challenges the trial court’s dispositional ruling that placed C.W.
in out-of-home care. A trial court’s placement decision is discretionary and will not
24
No. 80856-7-I/25
be overturned on appeal absent an abuse of discretion. In re Dependency of A.C.,
74 Wash. App. 271, 275, 873 P.2d 535 (1994). The “child’s best interest is the
paramount concern in placement decisions.” A.C., 74 Wash. App. at 277 (citing In
re Dependency of J.B.S., 123 Wash. 2d 1, 8, 863 P.2d 1344 (1993)). A placement
decision involves a “highly fact-specific inquiry that cannot be reduced to a
mathematical equation.” J.B.S., 123 Wash. 2d at 11. “Because a juvenile court must
evaluate a considerable amount of information and weigh the credibility of
numerous witnesses in order to balance the best interests of a child against a
parent’s rights, we place ‘very strong reliance’ upon a trial court’s determination of
what course of action will be for the best interest of the child.” T.L.G., 139 Wn.
App. at 15 (quoting In re Dependency of K.R., 128 Wash. 2d 129, 147, 904 P.2d 1132
(1995)).
At disposition hearings, the rules of evidence need not apply, ER 1101, and
the court “shall consider” the social file, social study, a GAL report, if any, and any
reports filed by a party, in addition to evidence produced at the dependency trial,
RCW 13.34.120(1). The trial court may order an out-of-home placement if it 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 housing assistance, that have been provided to the child
and the child’s parent, guardian, or legal custodian, and that
prevention services have been offered or provided and have failed
to prevent the need for out-of-home 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;
(b) The parent, guardian, or legal custodian is not willing to
take custody of the child; or
25
No. 80856-7-I/26
(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.
RCW 13.34.130(6) (emphasis added).
Here, the trial court found that it was currently contrary to C.W.’s welfare to
return home and that the Department made reasonable efforts to prevent or
eliminate the need for the child’s removal, but those efforts were unsuccessful
because his health, safety, and welfare could not be adequately protected in the
home. The father does not challenge these findings. The court further found “by
clear, cogent and convincing evidence that a manifest danger exists that the child
will suffer serious abuse or neglect if the child is not removed from the home.” The
father challenges the sufficiency of the evidence to support this finding. “Clear,
cogent and convincing evidence exists when the ultimate fact in issue is shown to
be ‘highly probable.’” In re Dependency of T.L.G., 126 Wash. App. 181, 197, 108
P.3d 156 (2005) (quoting In re Dependency of H.W., 92 Wash. App. 420, 425, 961
P.2d 963, 969 P.2d 1082 (1998)).
The father argues that there is not clear, cogent, and convincing evidence
of a manifest danger. He argues he does not have a recent criminal history
involving controlled substance, admitted to medical marijuana use, provided a
clean UA when C.W. was discharged from the hospital, used fake urine for two
UAs only to hide his medical marijuana use, and provided two clean UAs shortly
before the disposition order. He argues he was successfully raising his older
daughter and was actively engaged in C.W.’s medical and daily care before the
baby’s removal from the parents’ care. He argues C.W. was a healthy and drug-
26
No. 80856-7-I/27
free infant when he was removed. But the father relies on a view of the evidence
in his favor, contrary to the abuse of discretion standard of review.
The evidence presented at the dependency trial and the disposition hearing
supports the finding of a manifest danger. In addition to the evidence supporting
the finding of dependency discussed above, the mother provided a positive UA for
methamphetamine and amphetamine shortly before the entry of the disposition
order. This was her second positive UA for the same drugs and is consistent with
C.W.’s meconium test results. Concerns also arose about the safety of the
parents’ home when the buildings on their property, except for their fifth wheel,
“has burnt to the ground.” When a social worker attempted a walk-through, the
father refused to let the social worker in, claiming he had locked the door and had
lost the key, and the mother “wouldn’t answer the door because she sleeps like a
freaking rock.” He testified, “You could knock on her head, and it wouldn’t wake
her up.”
In entering the disposition order, the trial court stated that the father was
either ignorant of the mother’s drug use or covering for it. Either way, the court
was concerned about his ability to care for C.W., an infant with special needs. The
evidence in the record sufficiently shows it was “highly probable” that C.W. would
suffer serious abuse or neglect if he were returned home. The father fails to show
an abuse of discretion in the child’s out-of-home placement. For the reasons
discussed, we find no basis for reversal.
27
No. 80856-7-I/28
We affirm the orders of dependency and dependency disposition.
WE CONCUR:
28