|
(Cite
as: 148 Wash.App. 781, 201 P.3d
354) |
Court
of Appeals of Washington,
Division
2.
In
re The WELFARE OF MG, Minor Child.
No.
36975-3-II.
Feb.
10, 2009.
**356
Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for
Appellant.
Janet
Cattano, Port Angeles Office of the Atty. General, Port Angeles, WA, for
Respondent.
PENOYAR,
J.
*784
? 1 Born several weeks early, underweight, and suffering from drug withdrawals,
MG was placed in State care. MG's mother, KS, agreed to a dependency order that
allowed MG to be placed with her while she underwent inpatient drug treatment,
subject to approval from MG's medical care specialists. Subsequently, MG's care
specialists determined that MG was too weak to immediately join KS in treatment
and KS petitioned the juvenile court to revoke her agreed dependency order. The
trial court denied her motion.
?
2 On appeal, KS argues that the dependency order should be invalidated because
the juvenile court failed to follow several provisions of the Indian Child
Welfare Act (ICWA), 25 U.S.C. ? 1901, et seq. and failed to follow several RCW
13.34.110(3) provisions. Further, KS claims the order is invalid because the
juvenile court lacked authority to enter a dependency order as to only one
parent. Lastly, KS argues that the juvenile court abused its discretion in
*785
denying her motion to revoke the agreed order. None of KS's claims has merit and
we affirm.
FACTS
?
3 On September 10, 2007, an Olympic Medical Center (OMC) employee referred MG to
the Washington State Division of Children and Family Services (DCFS). MG, an
Indian child, born premature 2 days earlier, weighed 4 pounds and was
?definitely withdrawing from [some drug]....? Clerk's Papers (CP) at 33. MG's
pediatrician believed MG was suffering withdrawal from opiates and placed her on
morphine and antibiotics to treat the symptoms.
?
4 MG's mother, KS (a member of the Lower Elwah Tribe), admitted in an interview
with a DCFS intake worker on September 11, 2007, that she had, in the past,
abused methamphetamines, cocaine, opiates, and alcohol.FN1
During the interview, KS denied using any illegal drug during her pregnancy but
during an interaction with an OMC practitioner immediately following MG's birth,
KS reported that she last abused drugs four months earlier. To explain how drugs
may have entered her system during pregnancy, KS admitted that she may have
?accidentally ingested a street-purchased cocktail drug? and that, around August
8, 2007, a female friend may have spiked her milk with Oxycodone. CP at 33. When
the DCFS worker showed KS the OMC papers **357
documenting her attempt to obtain Oxycodone from that facility on May 14, 2007,
KS adamantly denied that she had done so.FN2
FN1.
As detailed in the dependency petition, KS's past drug use is extensive. KS has
been in and out of several rehabilitation facilities without successfully
completing any of them.
FN2.
DCFS subsequently learned of four other occasions when KS requested Oxycodone
from OMC emergency room personnel: December 17, 2006, December 26, 2006,
February 26, 2007, and May 20, 2007. Most of these visits occurred after KS
became pregnant. Each time, KS was given Oxycodone or a prescription for a
similar pain reliever. During at least one visit, on May 14, 2007, OMC records
?clearly indicate? that KS did not tell the physician that she was pregnant. CP
at 33.
*786
? 5 The State prepared a dependency petition on September 13, 2007. The State
subsequently obtained an order placing MG in DCFS custody. Because she required
serious medical monitoring, DCFS placed MG in Pediatric Interim Care Center for
continued treatment. On September 18, in accordance with 25 U.S.C. ? 1912, a
certification of an Indian expert was filed with the court, supporting
out-of-home placement.
?
6 On October 11, KS signed an agreed dependency order, thus forgoing a fact
finding hearing. In return, the DCFS agreed that MG could stay with KS at
Perinatal Treatment Services (Perinatal) while KS underwent treatment for drug
addiction. This plan depended on MG's health care provider's approval and
Perinatal's willingness to follow MG's health care provider's
recommendations.
?
7 MG's health care provider, Pediatric Interim Care Center, did not approve the
move due to MG's weakened immune system and, at the October 25 disposition
hearing, KS moved to withdraw her consent to the agreed order of dependency and
sought a fact finding hearing. KS argued that she only agreed to the order on
the condition that MG be able to join her in treatment. Further, KS argued that
a social worker improperly selected the ?yes? boxes on a screening test, without
her consent, thereby causing the drug evaluation center to conclude that she was
an addict. Report of Proceedings (RP) (Oct. 25, 2007) at 8-9. The juvenile court
denied her motion to withdraw consent; KG now appeals.FN3
FN3.
A commissioner of this court affirmed the juvenile court's order on June 13,
2008. We granted KS's subsequent motion to modify; hence, the current
appeal.
ANALYSIS
I.
Background on the ICWA
?
8 Recognizing that ?there is no resource more vital to the continued existence
and integrity of Indian tribes than their children? and ?that an alarmingly high
percentage*787
of Indian families are broken up by the removal, often unwarranted, of their
children,? Congress enacted the ICWA establishing ?minimum Federal Standards for
the removal of Indian children.? 25 U.S.C. ? 1901-1902. The ICWA applies
whenever an ?Indian child? is the subject of a ?child custody proceeding.?
FN4
25 U.S.C. ? 1903(1) and (4).
FN4.
All parties agree that the ICWA applies. There is no dispute that MG is an
Indian child and that the dependency proceeding constituted a child custody
proceeding.
?
9 Different requirements apply for the voluntary placement as opposed to
involuntary removal of an Indian child. Special care is taken to ensure that
Indian parents voluntarily releasing their children to the care of others fully
understand the terms of that release. 25 U.S.C. ? 1913(a). Further, in a
voluntary proceeding, if an Indian parent desires to withdraw his/
?
10 Procedural and substantive requirements for an involuntary removal are found
in 25 U.S.C. ? 1912 of the ICWA. This section requires notification of the
Tribe, appointment of counsel for the parents, an offer of remedial or
rehabilitative services, and a showing that continued custody by the parents is
likely to result in ?serious emotional or physical damage to the child.? 25
U.S.C. ? 1912(e).
II.
25 U.S.C. ? 1913(a) and ? 1912
[1]
? 11 KS argues that in entering the agreed order of dependency, the juvenile
court violated 25 U.S.C ? 1913(a) of the ICWA when it did not discuss the terms
and consequences of consent with her or complete**358
the required certificate recording her understanding.
?
12 25 U.S.C. ? 1913(a) provides in part:
Where
any parent or Indian custodian voluntarily consents to a foster care placement,
or to termination of parental rights, such consent shall not be valid unless
executed in writing and recorded before a judge of a court of competent
jurisdiction and *788
accompanied by the presiding judge's certificate that the terms and consequences
of the consent were fully explained in detail and were fully understood by the
parent or Indian custodian.
?
13 The ICWA defines ?foster care placement? as:
[A]ny
action removing an Indian child from its parents or Indian custodian for
temporary placement in a foster home or institution or the home of a guardian or
conservator where the parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been terminated.
25
U.S.C. ? 1903(1)(i).
?
14 KS reasons that, because she consented to the dependency, and thus foster
placement of MG, the juvenile court should have followed 25 U.S.C. ? 1913(a)
guidelines. To prevail, KS must show that MG was placed in ?foster care? and
that the placement was ?voluntary.? MG's placement in foster care is undisputed.
The initial foster care placement in this case however, was made without KS's
consent based on factors other than her agreement. On appeal, KS characterizes
the dependency as a ?voluntary? act but, in fact, KS maintained throughout the
proceedings in juvenile court that MG should be placed with her and not in
foster care. Furthermore, KS formally objected to the foster care placement on
the record.FN5
FN5.
On the side of the dependency order, section 4.6, where it states that ?[t]he
child is placed in the custody, control, and care of DSHS/
?
15 KG's later consent to the dependency did not change the initial involuntary
placement to a voluntary one, within the meaning of 25 U.S.C. ? 1913. Clearly,
the intent of 25 U.S.C. ? 1913 is to encourage parents to make appropriate
placement of their children when they are not confident of their own ability to
parent. These placements may arise in a number of contexts where the parents are
without counsel. In these situations, 25 U.S.C. ? 1913 informs parents that they
may later withdraw their consent to placement *789
unless a court has thoroughly explained their rights to them. This intent would
not be furthered by applying it to involuntary placements where the parents are
represented by counsel.
?
16 25 U.S.C ? 1912 governs involuntary removal proceedings and the juvenile
court properly applied this section, requiring notification to the Tribe,
appointment of counsel for the parents, an offer of remedial or rehabilitative
services, and a showing that continued custody by the parents is likely to
result in ?serious emotional or physical damage to the child.? 25 U.S.C. ?
1912(e).
?
17 The juvenile court was not required to discuss the terms and consequences of
consenting to a dependency with KS. KS had appointed counsel to represent her
interests. Counsel explains the court procedures and advises parents on the
consequences of any action.
?
18 In this case, the juvenile court acted properly under the guidelines of 25
U.S.C. ? 1912 and we deny KS's appeal on this ground.
III.
Substantial Compliance With RCW 13.34.110(3)
[2]
? 19 KS also challenges the validity of the agreed dependency order under RCW
13.34.110(3)(b) and (c).
A.
RCW 13.34.110(3)(b)
?
20 KS argues that the agreed dependency order should be invalidated because the
juvenile court did not first review a social study, as RCW 13.34.110(3)(b)
requires. It is unclear in this case when the juvenile court **359
reviewed the individual service and safety plan (ISSP) the State
prepared.FN6
FN6.
The juvenile court refers to the plan in its December 20, 2007 ?Dependency
Review Hearing Order,? but not before. CP at 57. The ISSP is not included in
materials on appeal but is improperly attached to the State's
brief.
[3][4]
? 21 The ISSPs main purpose is to identify the basis of the dependency
proceedings and the services the parent needs. In
re Welfare of Ferguson,
41 Wash.App. 1, 5, *790
701 P.2d 513 (1985). In this case, the dependency order detailed the reasons for
the dependency and identified the services KS needed; namely, drug
rehabilitation.FN7
Where there is substantial compliance with RCW 13.34.110 and no resulting
prejudice, the failure to prepare an ISSP does not invalidate the agreed order.
In
re Dependency of J.L.T.,
56 Wash.App. 682, 691, 785 P.2d 829 (1990). There is substantial discussion in
the record about the reasons for the dependency and the disposition order
provided for the services indicated in the ISSP. To prevail, KS must show that
the absence of an ISSP prejudiced her in some way. She fails to do
this.
FN7.
The dependency order incorporated the dependency petition ?by reference as
Findings of Fact.? CP at 24. The dependency petition detailed an extensive
history of drug use by both parents. CP at 33-35.
?
22 KS claims that prejudice arose from the social worker's completion of a drug
screening form where all of the ?yes? boxes were checked without KS's
authorization. KS argues that because all ?yes? boxes were checked, the State
?basically [told] Oak Creek Center to find her to be an addict.? RP (Oct. 25,
2007) at 9. KS reasons that, had an ISSP been prepared and read by the juvenile
court, the court would have made KS aware of this form and she never would have
agreed to the dependency.
?
23 Contrary to her argument, there is no reason to suppose that the court's
review of an ISSP would have brought the social worker's alleged actions to KS's
attention.FN8
In any case, the social worker testified that KS refused to participate in the
screening procedure and so he filled out the form only for internal review. The
form was ?not sent to Oak Street because [KS] did not approve it.? RP (Oct. 25,
2007) at 11. KS cannot show that Oak Street relied on the form to determine KS's
drug dependency and, thus, she cannot show prejudice.
FN8.
In any case, the court had before it ample evidence of KS's admitted past drug
use. KS had access to all documents (including the Dependency Petition) and
still agreed to the Dependency Order.
*791
? 24 Because KS fails to demonstrate how any alleged violation of RCW
13.34.110(3)(b) prejudiced her, and because the juvenile court substantially
complied with the statute, her claim fails and the agreed dependency is
enforceable.
B.
RCW 13.34.110(3)(c)
[5]
? 25 KS argues that the agreed order should be invalidated because the juvenile
court failed to follow RCW 13.34.110(3)(c) before entering the order. The State
properly notes that because KS cannot show prejudice from this failure, her
claim fails.
[6]
? 26 RCW 13.34.110(3)(c) requires that, before entering a stipulated or agreed
dependency order, the court must, ?within available resources,? make inquiry and
establish on the record that the parent understands the consequences of signing
such an order. KS makes no substantive argument on this point except to note
that the day the agreed dependency order was signed and filed, the juvenile
court did not enter into a colloquy with her regarding her understanding of the
order. She argues without citation to authority that, because the court did not
have this colloquy with her, the agreed order should be invalidated. Error
without prejudice, however, is not grounds for reversal. In
re Ferguson,
41 Wash.App. at 5, 701 P.2d 513; See
also Ford
v. Chaplin,
61 Wash.App. 896, 899, 812 P.2d 532 (1991) (The person claiming error must show
that her case was materially prejudiced by any such error. Absent such proof,
the error is harmless).
?
27 KS does not explain what prejudice she suffered, instead she argues that the
court's failure to engage in colloquy is a ?fatal? error that ?requires that the
order be **360
set aside.? Appellant's Br. at 9. KS had counsel, appeared before the juvenile
court and, by our reading of the record, appeared to be aware and engaged in the
dependency process. We will not set aside the agreed order without some showing
of actual prejudice.
*792
IV. Court Properly Denied CR 60 Motion
[7]
? 28 KS contends that the denial of her motion to withdraw her consent to the
dependency order was an abuse of discretion by the juvenile court. FN9
There was no such abuse of discretion in this case.
FN9.
In denying the motion, the juvenile court said:
I
think the law regarding stipulations made in open court is pretty clear, absent
some coercion, absent some fraud, [ ] people are bound by their stipulations.
And the stipulation in this case was that we were actually going to do a
disposition order today and that certainly disposition at Perinatal is one of
the things the Court could order. But there's nothing that's binding the Court
at all in a disposition order as to whether or not those things would be
ordered. The issue is whether or not [KS] stipulated that either she-this is a
C, that she was either unable or unwilling to care for the child at this point
in time.
I
don't see anything that changes my mind that [the agreed dependency order]
should be honored. Your motion is denied.
RP
(Oct. 25, 2007) at 17.
[8][9]
? 29 KS apparently brought the motion under CR 60(b)(1), (4), and
(11).FN10
We review a juvenile court's decision to deny a motion under CR 60(b) for an
abuse of discretion. In
re Welfare of J.N.,
123 Wash.App. 564, 570, 95 P.3d 414 (2004). A juvenile court abuses its
discretion if its decision is manifestly unreasonable or based on untenable
grounds. See
In
re Marriage of Kovacs,
121 Wash.2d 795, 801, 854 P.2d 629 (1993).
FN10.
The record KS provides does not include the written motion to
withdraw.
?
30 CR 60(b) authorizes a court to provide relief from an order on the basis
of:
(1)
Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining
a judgment or order;
....
(4)
Fraud ..., misrepresentation, or other misconduct of an adverse
party;
....
[or]
(11)
Any other reason justifying relief from the operation of the
judgment.
?
31 KS established none of these grounds. Before the juvenile court, KS argued
that the agreed order *793
should be vacated (and the court should proceed to fact finding) on the basis
that the parties were ?mistaken? about Perinatal's suitability for MG. The
juvenile court properly pointed out that the parties made no mistake: the
quality of the treatment facility was not the problem; rather, it was the
inadequacy of MG's immune system that prevented her placement there.FN11
The parties were aware of the possibility that Pediatric Interim Care Center
would not approve MG's placement with her mother at a treatment
facility.FN12
KS's underestimation of this probability does not constitute a ?mistake? and it
is not grounds for withdrawal of her agreement. Further, as the juvenile court
noted, regardless of the agreement between the parties, the agreed dependency
order had no binding effect on the juvenile court's placement decision at
disposition.
FN11.
The court noted, ?... the child can be placed in a [treatment facility with KS]
once the child is medically ready.? RP (Oct. 25, 2007) at 16.
FN12.
The October 11, 2007 Order of Dependency, which KS signed, stated:
If
the mother enters inpatient treatment, the baby may be placed with her
if
1)
The child's medical provider recommends it &
2)
It is permitted by the inpatient treatment provider.
If
the mother leaves treatment against recommendations, the baby shall be returned
to relative or licensed care
CP
at 26.
[10]
? 32 As to CR 60(b)(4), KS's lawyer stated on the record that she was not
?intentionally misled? by the State before signing the agreed dependency order;
thus, the juvenile court did not abuse its discretion in denying KS's revocation
motion on this ground. RP (Oct. 25, 2007) at 15. Further, CR 60(b)(11) applies
only to extraordinary circumstances not covered by any other section of the
rule. In
re Marriage of Knutson,
114 Wash.App. 866, 872, 60 P.3d 681 (2003). Since KS has identified no
circumstances except those already discussed and rejected, the juvenile court
did not abuse its discretion and her appeal on this ground fails.
**361
V. Juvenile Court Authority
[11]
? 33 Finally, KS argues that the juvenile court did not have authority to enter
a dependency order ?as to? the *794
mother only. Under RCW 13.34.030(5), a dependent child is any child
who:
(a)
Has been abandoned;
(b)
Is abused or neglected as defined in chapter 26.44 RCW by a person legally
responsible for the care of the child; or
(c)
Has no parent, guardian, or custodian capable of adequately caring for the
child, such that the child is in circumstances which constitute a danger of
substantial damage to the child's psychological or physical
development.
?
34 KS's agreement to the dependency provided the court authority, whether or not
there was ever to be a dependency as to the father. See
Smyth
Worldwide Movers, Inc. v. Whitney,
6 Wash.App. 176, 179, 491 P.2d 1356 (1971) (it is well settled that judgment may
be entered by consent). The record also indicates that dependency as to the
father was clearly contemplated. The dependency petition named both parents. The
juvenile court considered orders pertaining to each parent, but it postponed a
decision as to the father for two weeks because he had not had a chance to
discuss the matter with his attorney. The court gave KS the option of postponing
entry of the agreed order until the father's hearing. Her attorney suggested
entering the order and striking the disposition clause. DG, the father, agreed
to the dependency at the November 11, 2007, hearing. The order DG signed did not
vary from KS's order. The brief interim between entry of the two orders was a
minor procedural matter that did not affect the court's authority. Relief on
this basis is denied. We affirm.
We
concur: BRIDGEWATER and QUINN-BRINTNALL, JJ.