No. 20309-3-III, 20310-7-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: December 5, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Benton County, No. 007003728, Hon. Craig J. Matheson, June 1, 2001, Judgment or order under review.
Counsel for Appellant(s), Sharon M. Brown, Attorney At Law, P.O. Box 4056, Tri-Cities, WA 99302.
Counsel for Respondent(s), Pamela E. Peterson, Off Aty Gen, 500 N Morain, Kennewick, WA 99336.
Counsel for Other Parties, Bonnita R. Zipperer, 6725 W Clearwater Ave Ste, Suite F, Richland, WA 99336-1788.
KURTZ, J.
Marcy N. challenges a court order finding her minor children dependent. She contends the court erred by (1) failing to hold the contested fact-finding hearing within 75 days of the filing of the dependency petition as required by RCW 13.34.070 and JuCR 3.4; (2) considering evidence beyond the scope of the dependency petition, including evidence of events occurring post- petition; (3) finding there was sufficient evidence to support the dependency petition; and (4) holding the disposition hearing beyond the 21 days agreed to by the parties and without adequate notice to her. We affirm the judgment of the trial court.
FACTS
J.N. (d/o/b 06/04/99) and E.N. (d/o/b 07/30/00) are the natural-born children of Marcy N. On August 22, 2000, the State filed separate dependency petitions as to both children. The petitions allege that the children’s mother is homeless and heavily involved with drugs. Similar allegations are made regarding the children’s reputed fathers.
A shelter care hearing was held on August 23, 2000, and the parties stipulated to a shelter care order with Ms. N. reserving the right to request in-home placement pending a fact-finding hearing. A hearing on that request was held on September 8. Because the parties were unable to complete the necessary testimony on that date, the hearing was continued until the morning of October 9. Ms. N. was over an hour late for the October 9 hearing and claimed that she had received a note from the Department of Social and Health Services (DSHS) indicating that she was to attend visitation with her children at a time which conflicted with the hearing. The trial court refused to reopen the testimony finding that Ms. N. had received proper and adequate notice of the hearing. The court ordered that the children remain in out-of-home care pending fact finding. The shelter care order further required Ms. N. to participate in a substance abuse assessment, which results would be considered at the fact-finding hearing scheduled for October 24.
The October 24 fact-finding hearing was continued on the request of Ms. N. until October 31 due to an illness. Then, at the October 31 hearing, Ms. N. declared her intent to contest the dependencies and the parties indicated that a hearing would last approximately two days. The first date available to accommodate the hearing was December 27 through December 29. Counsel for Mr. N., the presumed father, was unavailable on those dates. The clerk then informed the parties that the next available date was March 22 and March 23 and the hearing was rescheduled for those dates. No objections to the fact-finding setting were made on the record at that time, although the setting placed the fact-finding hearing outside the 75-day limit prescribed by statute. In fact, the trial court noted on the order that the 75-day time limit was waived for good cause and the order was approved as to form by Ms. N.’s counsel.
On March 7, 2001, the State moved for a continuance of the fact-finding hearing to allow time to receive the results of the paternity tests. A hearing on the continuance motion was held on March 20. The State argued that the continuance was necessary for judicial economy, in the event one or more of the alleged fathers decided to contest the dependencies, once paternity was established.
Ms. N. disagreed. She noted that the current hearing was already set five months outside the 75-day limit set by the Legislature. Because the children remained outside the home, she argued that she was prejudiced by the continuance. Moreover, she asserted the allegations of dependency regarding her did not relate to the issues of paternity and it was possible that the alleged fathers would not even contest the dependencies.
After weighing the considerations expressed by counsel, the court granted the continuance motion and the fact-finding hearing was set for May 23 and May 24. The order once again indicated that the 75-day requirement was waived for good cause shown.
On the second day of the fact-finding hearing, counsel for Ms. N. moved to dismiss the petitions on the basis that the 75-day timeline had not been followed. The trial court questioned the timeliness of the motion but indicated that the parties could make their arguments post-trial. The motion was briefed and argued before the court on June 1, prior to the conclusion of testimony. The trial court denied the motion to dismiss finding that good cause existed for the continuances.
At the fact-finding hearing, testimony was elicited as to Ms. N.’s relationships with Mieles Saunders and Kevin Lango.
Ms. N. testified that she has been in an on again/off again relationship with Mieles Saunders, she loves him, and she considers him to be her friend. However, he left her when she was five months pregnant with E.N. Shortly thereafter, she filed a complaint with the police department alleging that Mr. Saunders had stolen her rent money. Yet, she still continued to have a relationship with him. If she were to have her children returned to her care, she indicated that she would still allow Mr. Saunders to have contact with them.
She further indicated that she was aware that Mr. Saunders had used drugs in the past and admitted that she had used marijuana with him occasionally.
Ms. N. also testified that she has had a relationship with Mr. Lango for approximately two and one-half years and she was in love with him as well. She stated that, during that two and one-half year period, Mr. Lango has had almost daily contact with the children and that she has left them alone with him on occasion.
Most disturbing was the testimony about the character of Mr. Lango.
The testimony indicated that Mr. Lango (1) was considered dangerous by the police; (2) had a history of drug convictions and reportedly was still involved with drugs; (3) was nicknamed “Tarzan”[1] because of his propensity to coat himself in baby oil while wearing nothing but a loin cloth; (4) had been arrested for assaulting Ms. N. since the institution of the dependency proceedings; and (5) had violated several court orders prohibiting his presence on the premises during visitation and prohibiting his contact with Ms. N. after the alleged assault. Ms. N. even admitted telling police that Mr. Lango was using methamphetamines and informing DSHS that he had prevented her from contacting her children the weekend Child Protective Services became involved. Despite this information, Ms. N. testified that she would still allow her children to have contact with him.
The trial court further heard testimony regarding Ms. N.’s erratic and paranoid behavior. The State attributed her condition to either methamphetamine use or a psychiatric problem. Detective Darrin Pitt testified that Ms. N. had admitted using methamphetamines; but at trial, Ms. N. indicated that her statements to the police were just a ploy to see if they would write her a favorable recommendation in exchange for information. Ms. N., on the other hand, attributed her behavior to post- traumatic stress disorder as a result of a rape which occurred in adolescence and presented the testimony of her therapist on that issue. Unfortunately, Ms. N. had not followed through with requests for a urinalysis or a psychiatric evaluation thereby making it difficult for the State to prove what services were necessary in this regard.
As to visitation, Holly Sturgis testified that Ms. N. had only attended roughly half of her scheduled visitations with her children.
After hearing the testimony and arguments of counsel, the trial court found the children to be dependent. The trial judge was scheduled to be out of town for two weeks, so the parties agreed to waive the 14-day requirement and hold the disposition hearing within 21 days. The hearing, however, was not held until June 29, 2001 — approximately 7 days outside the agreed-upon time frame. At that time, Ms. N. objected to DSHS’s change in disposition from one of reunification to one of adoption. Ms. N. appealed and moved for accelerated review.
ANALYSIS
Did the court err by failing to hold the contested fact-finding hearing within 75 days of the filing of the dependency petitions as required by RCW 13.34.070 and JuCR 3.4?
Ms. N. contends that the trial court erred in denying her motion to dismiss the dependency petitions on the basis that the fact finding was held almost six months outside the 75-day time limit set by the Legislature. More specifically, she claims that neither the trial court’s congested docket nor the need for paternity testing amounted to exceptional reasons for waiver of the 75-day limitation and that she was prejudiced by the delay in fact finding. In making these arguments, Ms. N. analogizes the 75-day deadline to the speedy trial time limitations in the criminal arena. She further argues that she did not waive her right to a hearing within the 75-day time frame.
The granting of a continuance is within the discretion of the trial court and the trial court’s actions in this regard will not be reversed on appeal except upon a showing of an abuse of discretion and prejudice resulting to the complaining party. In re Welfare of Ott, 37 Wn. App. 234, 240, 679 P.2d 372 (1984) (citing Estes v. Hopp, 73 Wn.2d 263, 270, 438 P.2d 205 (1968)).
Under RCW 13.34.070(1), a fact-finding hearing shall be held no later than 75 days after the filing of the dependency petition unless “exceptional reasons for a continuance are found.” The party requesting the continuance has the burden of demonstrating exceptional circumstances by a preponderance of the evidence. Under JuCR 3.4(c) “{t}he court may, for good cause shown, continue the hearing to a later time at the request of a party.” The first continuance was granted, without objection, because the hearing was to be contested and counsel was unavailable on the first date open for a two-day hearing. Ms. N. waived her right to have the hearing within 75 days by failing to timely object to the date of that hearing. In fact, the speedy trial rules to which Ms. N. analogizes her situation provide that the failure to object within 10 days after receiving notice that the trial was set outside the speedy trial time limitations results in a waiver. CrR 3.3(f)(1). Here, Ms. N. did not object to the setting of the hearing on these specific grounds until May 24, 2001, the second day of the twice-continued hearing. This objection was not timely. If Ms. N. had objected to the timeliness of the hearing, the trial court might have been able to resolve this issue to Ms. N.’s satisfaction. However, Ms. N. did object to the second continuance arguing that the allegations of dependency did not involve the issues of paternity. The reason for the second continuance requested by the State was the unavailability of the paternity test results and the need for judicial economy. These are probably not the types of `exceptional reasons’ contemplated by the Legislature. The paternity of the children would have no direct bearing on whether or not the children were dependent as to Ms.
N. Her relationships with those men and their suitability as companions remained constant regardless of their biological relationship with the children. Nor did the State prove that separate hearings would necessarily result in duplicating testimony or the wasting of judicial resources. The trial court abused its discretion by granting the second continuance.
Ms. N. argues that dismissal of the dependencies is the appropriate remedy for the court’s abuse of discretion. However, Ms. N. has failed to show she was prejudiced by the continuance. She argues that the long separation from her children was prejudicial, but there is no evidence that had the hearing been held earlier she would have been granted custody of the children. In fact, the evidence indicates otherwise. Nothing had changed with Ms. N.’s situation from the time the children were removed from her until the time the fact-finding hearing was held. Ms. N. did not engage in services, she did not do drug testing, she still did not have a stable home, and she only participated in about one-half of the scheduled visits with the children. Ms. N. argues that she was not obligated to participate in services until ordered to do so as part of the disposition order. However, throughout the time before the fact-finding hearing, she was repeatedly urged to participate in services because DSHS was required to file a termination of parental rights petition after the children had been out of her care for 12 months. The services were offered at State expense, but Ms. N. refused to make any effort to engage in services. As of the June 18, 2002 review hearing, Ms. N. had not fully complied with the court-ordered services. The dependencies continue. And, Ms. N.’s parental rights have not been terminated.
In addition, “{w}hen the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail.” RCW 13.34.020. It would not be appropriate to dismiss the dependencies when Ms. N. has not been prejudiced and dismissal would mean sending the children home to an unsafe environment. The court did not err by denying Ms. N.’s motion to dismiss.
Did the court err by considering evidence beyond the scope of the dependency petitions, including evidence of events occurring post-petition?
Ms. N. contends that the court erred by considering evidence regarding her failure to submit to voluntary drug screening prior to a finding of dependency as a basis for the dependencies. “Questions concerning the admissibility of evidence in a dependency proceeding will not be disturbed on appeal absent an abuse of discretion.” In re Interest of J.F., 109 Wn. App. 718, 728, 37 P.3d 1227 (2001) (citing In re Dependency of P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990)).
Parents have a fundamental liberty interest in the care and custody of their minor children. In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995). However, the State has an equally compelling interest in protecting the physical, mental, and emotional health of children. In re Dependency of H.W., 70 Wn. App. 552, 555, 854 P.2d 1100
(1993). “Accordingly, dependency proceedings under chapter 13.34 RCW are designed to protect children from abuse and neglect, help parents alleviate problems, and reunite families if appropriate.” Interest of J.F., 109 Wn. App. at 728 (citing In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992)). In cases involving child abuse or neglect, courts are particularly reluctant to keep relevant information from the trier of fact.
In re Welfare of Coverdell, 39 Wn. App. 887, 892, 696 P.2d 1241
(1984). A trial court has broad discretion in dependency and termination proceedings to receive and evaluate evidence in light of a child’s best interest. In re Dependency of C.B., 61 Wn. App. 280, 287, 810 P.2d 518
(1991) (citing In re Siegfried, 42 Wn. App. 21, 27, 708 P.2d 402
(1985)). Nothing in the statutory scheme limits the trial court’s consideration of evidence to those matters occurring pre-petition and, in fact, the court would not be acting in the child’s best interest if information came to light post-petition which would impact, either positively or negatively, a determination regarding the parent’s ability to adequately parent the child.
Ms. N. did receive notice that her possible drug use would be addressed at the fact-finding hearing. There was an allegation in the dependency petitions that it had been reported that Ms. N. had a drug abuse problem, although she denied any drug involvement. One way to discredit such an allegation would have been to participate in the drug screening evaluation. Ms. N. did not do so and her failure to do so could be interpreted as an attempt to hide her involvement with illegal drugs. The children’s best interests are served by a determination of whether or not Ms. N. has problems with illegal drugs. The trial court did not abuse its discretion by admitting all the evidence concerning Ms. N.’s drug use.
Did the court err by finding there was sufficient evidence to support the dependency petitions?
Ms. N. contends that there was insufficient evidence to support the court’s finding that she neglected her children because leaving the children with their biological father for two days, with sufficient supplies and food, does not constitute neglect. To evaluate her insufficiency claim, the court must determine whether substantial evidence supports the court’s findings of fact and whether the findings support the conclusions of law.
In re Dependency of M.P., 76 Wn. App. 87, 90, 882 P.2d 1180
(1994). In a dependency proceeding, evidence is substantial if, when viewed in the light most favorable to the prevailing party, a jury could find the fact in question by a preponderance of the evidence. Id. at 90-91; see also Dependency of C.B., 61 Wn. App. at 285-86. In doing so, the appellate court is not to weigh the evidence or the credibility of the witnesses. In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831
(1973).
The court’s findings are supported by the evidence that showed that Ms. N. left the children with their alleged father, Mieles Saunders, who is a convicted felon and drug user. She was going to drive her estranged husband, Mr. N., to the hospital, go to the store, and then return. After a day, Mr. N. came home from the hospital to recover from pneumonia and Mr. Saunders left him alone with the children. Ms. N. still had not returned or called. Mr. N. was unable to care for two infants and called the police. This is clearly evidence that Ms. N. left her children with inappropriate caregivers. The evidence also showed that Ms. N.’s other partner, Kevin Lango, was dangerous and abusive, that Ms. N. was unstable and a possible drug user, that Ms. N. had moved or been homeless numerous times while the children were babies, and that Ms. N. planned to continue a similar lifestyle.
These facts support the court’s conclusions. Ms. N. has an unstable history and a significantly unstable and unhealthy relationship with men.
Even after being advised of these deficiencies, Ms. N. failed to do anything to remedy her condition and has affirmatively stated that she would continue to allow her children to have contact with the undesirable men in her life. The trial court’s conclusions are not in error. The children would be at a danger, both physically and psychologically, if returned to their mother’s care at this time.
Citing Washington State Coalition for the Homeless v. Department of Social Health Services, 133 Wn.2d 894, 949 P.2d 1291 (1997), Ms. N. also argues that the court’s reliance on her homelessness as a factor in its dependency conclusion was error as DSHS must provide housing assistance to avoid separation of a parent and child. However, the court did not make its determination solely on the fact that Ms. N. was homeless. Rather, the trial court noted that Ms. N.’s overall instability was the factor most critical to its decision. One of the factors evidencing that instability, among other things, was the fact that she has been unable to maintain a stable residence or employment. The court did not err by finding that sufficient evidence supported the dependency petitions.
Did the court err by holding the disposition hearing beyond the 21 days agreed to by the parties and without adequate notice to Ms. N.?
Ms. N. contends that the trial court erred in holding the disposition hearing outside the statutory timeframe, without giving her adequate notice and without her presence.
The time for a dependency disposition hearing is set by statute as follows:
Immediately after the entry of the findings of fact, the court shall hold a disposition hearing, unless there is good cause for continuing the matter for up to fourteen days. If good cause is shown, the case may be continued for longer than the fourteen days. Notice of the time and place of the continued hearing may be given in open court. If notice in open court is not given to a party, that party shall be notified by certified mail of the time and place of any continued hearing.
Former RCW 13.34.110 (2000).[2]
It is undisputed that Ms. N. waived the 14-day requirement for holding the disposition hearing. While she expressly stated that she wanted the hearing to be held within 21 days, she has shown no prejudice by the trial court’s failure to do so. Nor has she proved that she is prejudiced by her failure to receive notice by certified mail as required by statute. Counsel for Ms. N. stated for the record that she advised Ms. N. of the hearing and was advised by Mr. Lango, the morning of the hearing, that Ms.
N. could not attend. Therefore, Ms. N. was on actual notice of the hearing
date. Counsel even attempted to assist her by sending a car for her, but the effort was unsuccessful. There is no absolute right to personally attend judicial proceedings. In re Dependency of J.W., 90 Wn. App. 417, 429, 953 P.2d 104 (1998) (citing State ex rel. Taylor v. Dorsey, 81 Wn. App. 414, 421, 914 P.2d 773 (1996)). Ms. N. has not established prejudice, and the court did not err by holding the disposition hearing without her presence.
We affirm the judgment of the trial court.
The 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.
BROWN and SCHULTHEIS, JJ., concur.