a preponderance of evidence exists where the premise is more likely than not true
How later courts described this case
- a preponderance of evidence exists where the premise is more likely than not true
Written by the judges who cited it.
The opinion
FILED
MAY 16, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Dependency of ) No. 39817-0-III
) (consolidated with
) No. 39818-8-III)
)
L.S.† ) UNPUBLISHED OPINION
)
LAWRENCE-BERREY, C.J. — In 2023, an Adams County trial court entered a
dependency order and out-of-home placement for L.S., a five-year-old autistic child.
Prior to the order, the State had removed L.S. from his parents’ home over concerns of
neglect, domestic violence between the parents, drug use, and other deficiencies. L.S.
had repeatedly arrived at school wearing badly soiled clothes. L.S.’s mother, with L.S. in
her care, had twice been kicked out of a shelter for drug use. The State’s concerns
regarding violence in L.S.’s home were confirmed when L.S.’s father, on the day of
removal, initiated a seven-hour standoff with law enforcement during which he verbally
threatened officers. On other occasions, L.S.’s father had thwarted the State’s attempts to
conduct home walk-throughs and administer drug tests.
The parents appealed the trial court’s dependency and dispositional orders, and
this court consolidated those appeals. Because substantial evidence supports findings
†
To protect the privacy interests of the minor child, we use their initials
throughout this opinion. Gen. Order for Court of Appeals, In re Changes to Case Title
(Wash. Ct. App. Aug. 22, 2018) (effective September 1, 2018), http://www.courts.
wa.gov/appellate_trial_courts.
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
sufficient to sustain the trial court’s orders, we generally affirm. We remand for the trial
court to consider placement with a relative.
FACTS
In 2023, the Washington Department of Children, Youth, and Families (the
Department) filed a dependency petition for L.S., a high-needs, autistic five-year-old
living in Ritzville. L.S. had come to the Department’s attention when B.S.—L.S.’s
father—had removed L.S. from school and left him at the Vanessa Behan Crisis Nursery
in Spokane. As B.S. eventually explained to the Department, he had brought the child to
Vanessa Behan because he believed V.M., L.S.’s mother, was cheating on B.S. and
associating with gang members who had harmed their child.
When Vanessa Behan informed the Department of L.S.’s situation, social worker
Kimberly Stacy contacted V.M. in Ritzville, where she was living at a motel after B.S.
had locked her out of the family home. At their first meeting, V.M. disclosed to Ms.
Stacy that B.S. physically abused her and that lately the abuse had gotten worse. V.M.
showed Ms. Stacy where B.S. had (1) knocked teeth out of her mouth, and (2) hit her ribs
with a baseball bat, resulting in visible swelling. On this or another occasion, V.M.
further reported that B.S. abused her in front of L.S., who would cover his ears and cry
while the abuse occurred.
2
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
Pursuant to these reports, Ms. Stacy eventually provided V.M. with instructions
for how to enlist the help of a domestic violence advocate. V.M. failed to contact the
advocate, however, because—according to Ms. Stacy—V.M. was “confused with
multiple phone calls of one step at a time of what to do.” Clerk’s Papers (CP) at 218.
V.M.’s failure to contact the advocate corroborated V.M.’s disclosure to Ms. Stacy that
she—V.M.—suffered from cognitive limitations. V.M. admitted that these limitations
prevented her from managing L.S.’s appointments and coordinating with L.S.’s school.
As a result, B.S. had assumed exclusive responsibility for those tasks. V.M.’s own
assessment of her limitations comported with the eventual testimony of social worker
Patricia Rodriguez, who stated that V.M. “does have a hard time understanding—simple,
like, commands and—the cognitive—there’s some cognitive delays.” Rep. of Proc. (RP)
at 42.
With Ms. Stacy’s assistance, V.M. retrieved L.S. from Vanessa Behan and moved
with him into a different Spokane shelter. Within 24 hours, that shelter evicted V.M. and
L.S. because V.M. had smoked cannabis in the shelter’s bathroom. Ms. Stacy intervened,
securing a second opportunity for V.M. at the shelter. That opportunity lasted “a couple
days” before the shelter again evicted V.M. and L.S. owing to V.M. smoking cannabis in
their room. CP at 216. V.M. moved into a hotel with L.S. Around this time, a swab test
administered to V.M. indicated methamphetamine use.
3
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
While still living in Spokane, V.M. sought a protection order against B.S. in
Adams County. B.S. attended the protection order hearing, and the record does not
indicate that the trial court imposed any order. Although Ms. Stacy had expressed to
V.M. the Department’s concern about her reuniting with B.S., V.M. and L.S. resumed
their life with B.S. in Ritzville after the protection order hearing.
Beyond (1) V.M.’s drug use and cognitive limitations, and (2) B.S.’s violent and
erratic disposition, the Department also grew concerned over reports from L.S.’s school
about the state of the child’s hygiene. According to Camille Nelson, L.S.’s special
education teacher, L.S. had begun arriving at school in soiled clothing and dirty diapers
from the previous night. Once, L.S. showed up to school for days on end wearing the
same vomit-stained sweatpants. Ms. Nelson informed L.S.’s parents of these hygiene
issues, but the parents failed to address them. Ms. Nelson testified that she saw no
improvement in L.S.’s hygiene during the time she worked with him.
Still another concern for the Department was B.S.’s refusal to allow the
Department to (1) conduct walk-throughs of his and V.M.’s home, or (2) administer
urinalysis or additional swab tests to V.M. According to Ms. Stacy, B.S. would only
consent to these measures if they occurred at a date and time of his choosing. Ms. Stacy
explained to B.S. that walk-throughs and drug tests only were meaningful when
administered randomly. Nevertheless, B.S. did not alter his position on the matter. Ms.
4
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
Stacy reported that B.S. in multiple conversations with her had yelled and made her feel
unsafe. Several other individuals lodged similar complaints about B.S. As one example,
multiple staff members at a hospital accused B.S. of threatening to kill them if they did
not promptly refill his prescription. The Department eventually offered B.S. anger
management classes.
In February 2023, the Department filed its dependency petition and coordinated
with law enforcement to remove L.S. from B.S.’s and V.M.’s home. When law
enforcement attempted to take L.S. into custody, however, B.S. initiated a standoff that
lasted seven hours. Although B.S. did not engage in physical violence, he threatened
such violence when he asked an officer whether that officer was “‘willing to fight to [his]
last breath’” to execute the removal order. RP at 28. Eventually, B.S. surrendered L.S.
to the officers.
Ahead of the dependency hearing, the Department placed L.S. at a foster home in
Pasco that was qualified to meet the child’s elevated needs. Although the Department
coordinated regular parental visits, and facilitated those visits by offering transportation,
B.S. and V.M. consistently failed to attend the visits.
As of the dependency hearing, the Department had offered or provided to B.S. and
V.M. the following services: urinalysis testing, oral swabbing, family preservation
services, domestic violence services, anger management classes, and emergency housing.
5
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
According to Ms. Rodriguez, the Department also had offered V.M. a neuropsychological
evaluation and B.S. a mental health evaluation. Coordinated special education services
also were available through L.S.’s school.
The trial court entered (1) a dependency order and (2) a dispositional order
authorizing L.S.’s continued placement in foster care. Although the Department ahead of
the dependency hearing had informed the trial court that L.S.’s maternal grandmother
was interested in caring for L.S., the court failed to complete the section of its boilerplate
order related to relative placement. Moreover, the trial court at the fact-finding hearing
did not address the possibility of relative placement.
Finally, the trial court when announcing its ruling noted that “during this trial there
were three, sometimes four, deputy sheriff’s [sic] present because of the perceived
dangerousness of [B.S.].” RP at 71.
B.S. and V.M. timely appeal. Our court has consolidated the parents’ appeals.
ANALYSIS
SUBSTANTIAL EVIDENCE AND RESULTING ORDERS
B.S. argues the trial court erred where its findings supporting dependency and out-
of-home placement did not derive from substantial evidence. We agree that finding of
fact D (finding 2) was in error. However, substantial evidence supports the remaining
findings such that we affirm the trial court’s orders.
6
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
Standard of review
Our court will affirm a dependency order where the findings supporting that order
derive from substantial evidence, and where the trial court applies sound law to those
findings. In re Dependency of M.P., 76 Wn. App. 87, 90, 882 P.2d 1180 (1994).
Substantial evidence is that quantum of evidence necessary to persuade a fair-minded
person of the truth of the premise. In re Dependency of J.D.P., 17 Wn. App. 2d 744, 755,
487 P.3d 960 (2021).
Finding of fact D (finding 2)
The trial court found, under finding of fact D (finding 2), that “clear, cogent, and
convincing evidence” indicates a “manifest danger . . . that [L.S.] will suffer serious
abuse or neglect” if not removed from B.S.’s and V.M.’s home. CP at 147. Evidence is
clear, cogent, and convincing where it renders the truth of the premise “‘highly
probable.’” In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973) (quoting
Supove v. Densmoor, 225 Or. 365, 372, 358 P.2d 510 (1961)).
Here, considerable evidence supports the notion that B.S. exhibited violent
tendencies. When law enforcement attempted to remove L.S. from the family home, B.S.
began a seven-hour standoff and, with L.S. present, asked one officer if he was willing to
die to remove L.S. Social worker Kimberly Stacy stated that B.S. exhibited verbal
aggression toward her. Other parties—including hospital staff—made similar
7
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
allegations. Additionally, V.M. accused B.S. of domestic violence and complained that
B.S. had knocked some of her teeth out.
Although there is no evidence that B.S. acted violently toward L.S., this is not
necessary to sustain the trial court’s finding. A child hearing or seeing a parent acting in
an abusive manner is a victim of abuse. Rodriguez v. Zavala, 188 Wn.2d 586, 595-98,
398 P.3d 1071 (2017) (a child who hears or sees domestic violence is a victim of
domestic violence). The degree of psychological abuse that L.S. would suffer and the
probability it would continue are substantial, given B.S.’s tendency to escalate conflicts.
As to neglect, evidence supports the notion that B.S. and V.M. neglected L.S. by
failing to maintain the child’s hygiene. However, and as conceded by the Department,
little evidence supports the finding that L.S. faced manifest danger of serious neglect.
We remand for the trial court to vacate this finding.
Remaining findings
Substantial evidence also supports the remaining findings B.S. challenges on
appeal.
i. Finding of fact C; finding of fact D (finding 1)
Substantial evidence supports the trial court’s findings, under finding of fact C and
finding of fact D (finding 1), that no parent or guardian is available to care for L.S.
Specifically, (1) the state of L.S.’s hygiene, (2) B.S.’s and V.M.’s parental deficiencies,
8
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
and (3) B.S.’s and V.M.’s lack of parental engagement coalesces to support the
challenged findings.
(a) L.S.’s hygiene
Special education teacher Camille Nelson, who worked with L.S. daily, testified
that the child’s hygiene began to deteriorate after her first month of working with him.
During that time, L.S. began to arrive at school in dirty clothes or in his nighttime diaper
from the previous night. At one point, L.S. arrived at school wearing sweatpants with his
own vomit on them and then arrived at school wearing the same vomit-stained
sweatpants for several days thereafter. When Ms. Nelson contacted B.S. and V.M. about
these issues, the parents did not remedy the problems. Ms. Nelson testified that she saw
no improvement in L.S.’s hygiene during the time she worked with him.
Viewed as a whole, Ms. Nelson’s testimony supports the finding that neither B.S.
nor V.M. was sufficiently engaged with L.S. to care for the child’s needs. The parents
attribute L.S.’s poor hygiene to his developmental challenges. However, no
developmental challenge excuses a parent sending their child to school wearing a dirty
diaper from the night before, or sending their child to school for days on end wearing the
same vomit-stained sweatpants.
9
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
(b) Parental deficiencies: B.S.
The record establishes that B.S.’s regular interpersonal conflict caused him to
fixate on his needs at the expense of L.S.’s well-being.
As one example, B.S. initiated a standoff with law enforcement when officers
attempted to remove L.S. from B.S.’s home. Rather than cooperate with law enforcement
or ask productive questions, B.S. escalated the conflict by asking an officer if he was
“‘willing to fight to [his] last breath’” to remove L.S. RP at 28. The standoff lasted
seven hours, for the full duration of which L.S. remained within B.S.’s home witnessing
his father’s erratic behavior. Where a high-needs child is captive to a high-tension
environment, and where his father rather than ameliorating the tension needlessly
exacerbates and prolongs it, that father has shown himself numb to his child’s needs.
On another occasion, B.S. failed to subordinate his distrust of V.M. to his child’s
well-being. Having decided that V.M. was cheating on him, B.S. took L.S. out of school,
drove to Spokane, and left the high-needs child at the Vanessa Behan Crisis Nursery.
When explaining his decision, B.S. did not express reservations about disrupting L.S.’s
routines or schooling. He did not express any concern about the trauma L.S. would
necessarily sustain as a result of being left for days in the care of strangers in an
unfamiliar city. Instead, B.S. justified absconding with L.S. on the grounds that the men
V.M. was involved with had harmed his child. However, B.S. did not explain how he
10
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
had reached that conclusion, given that L.S. is nonverbal and could not have relayed any
such information.
On other occasions, B.S. became violent with V.M. V.M. claimed this violence
had worsened in the years preceding L.S.’s removal, and that B.S. on one occasion had
knocked her teeth out. On another occasion, B.S. had struck V.M.’s ribs with a baseball
bat. Clearly, abuse of this sort evinces innumerable serious problems. Specific to this
analysis, however, it evinces B.S.’s inability to prioritize the tranquility of L.S.’s
homelife over his own need to actualize violent tendencies.
Taken together, the above episodes suggest a propensity on B.S.’s part to focus so
myopically on his own quarrels, vendettas, and impulses as to overlook L.S.’s needs.
Such behavior would be problematic in any parental context. It is particularly
problematic where the child involved has heightened needs requiring acute parental
vigilance.
(c) Parental deficiencies: V.M.
The record establishes that V.M.’s substance abuse issues and cognitive delays
prevented her from caring for L.S. Additionally, V.M. demonstrated a wavering
commitment to removing L.S. from a home where domestic violence was chronic.
After B.S. left L.S. at Vanessa Behan, the Department assisted V.M. in collecting
L.S. from the shelter and establishing them both at a separate shelter. This represented an
11
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
opportunity for V.M. to care for L.S. in a safe environment fully removed from the threat
B.S. posed. However, within 24 hours, V.M. forfeited their room at the shelter by
smoking cannabis on the premises. The Department successfully intervened, securing
V.M. a second chance at the shelter. However, only days later, the shelter removed V.M.
permanently after catching her smoking cannabis a second time. In short, V.M. in the
span of just a few days received two opportunities to house L.S. in an abuse-free
environment, and in the span of just a few days her substance abuse issues thwarted both
opportunities. Also, V.M. tested positive for methamphetamine use.
In addition to substance abuse, V.M.’s cognitive challenges frustrated her ability
to care for L.S. For example, when Ms. Stacy gave V.M. instructions for how to enlist
the services of a domestic violence advocate, V.M. was confused and could not follow
those instructions. Ms. Stacy’s account of V.M.’s cognitive limitations comports with
Ms. Rodriguez’s testimony. According to Ms. Rodriguez, V.M. “does have a hard time
understanding—simple, like, commands and—the cognitive—there’s some cognitive
delays.” RP at 42. Indeed, V.M. herself corroborated Ms. Stacy’s and Ms. Rodriquez’s
assessments when she admitted to Ms. Stacy that her own cognitive delays prevented her
from managing L.S.’s appointments and coordinating with L.S.’s school.
Finally, V.M. also demonstrated deficient parenting skills when she abandoned her
efforts to extract L.S. from a home where domestic violence was chronic. As mentioned
12
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
already, V.M. did initially take steps toward achieving this extraction. She moved with
L.S. to a shelter in Spokane and, when the shelter no longer was available, she checked
into a hotel with her child. Moreover, she sought a protection order against B.S.
However, rather than pursuing that order, V.M. abruptly changed course and reunited
with B.S.
For the foregoing reasons, the record supports the finding that V.M.’s substance
abuse issues, cognitive delays, and wavering commitment to removing L.S. from a
violent home prevented her from caring for her child.
(d) Lack of engagement with services
The record shows that B.S. and V.M. repeatedly declined opportunities to cultivate
a better homelife for L.S. Specifically, B.S. and V.M. (1) refused to allow the
Department to administer a urinalysis test to V.M., except at a date and time of B.S.’s
choosing, (2) refused to permit a home walk-through, (3) failed to implement the hygiene
instructions L.S.’s school provided, and (4) failed to visit L.S. in foster care despite the
Department facilitating those visits by providing transportation.
(e) Conclusion
The record supports the finding that B.S. and V.M. each exhibited deficiencies that
prevented them from caring for L.S. The record also supports the finding that B.S. and
13
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
V.M. did not engage in services to remedy those deficiencies. The trial court
appropriately entered finding of fact C and finding of fact D (finding 1).
ii. Finding of fact 2
Substantial evidence supports the trial court’s finding, under finding of fact 2, that
B.S.’s and V.M.’s home is “volatile and unstable, characterized by domestic violence and
drug use.” CP at 152. The home is manifestly volatile and unstable, as B.S. and V.M.
compelled L.S. to move four times in 11 days—from his own home to Vanessa Behan,
from Vanessa Behan to a second shelter, from the second shelter to a hotel, and from the
hotel back to his own home. During this time, L.S. was unable to attend school and
benefit from the education and services he received there.1
The home also was characterized by domestic violence and drug use, as V.M.
herself reported domestic violence to Ms. Stacy. V.M. also tested positive for
methamphetamine use and twice in one week forfeited stable housing owing to her
cannabis habit.
The trial court properly entered finding of fact 2. Moreover, this finding derived
from substantial evidence—as described supra—even if the court erred where it stated on
1
We infer that L.S., while living in Spokane, was unable to attend school in
Ritzville, which is an hour’s drive.
14
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
the record that law enforcement officers had regularly attended court proceedings to
monitor B.S. To the extent that statement was error, it was harmless.
iii. Finding of fact 5
Substantial evidence likewise supports the trial court’s finding, under finding of
fact 5, that “[L.S.]’s hygiene had become deplorable and unacceptable by the time [of
removal].” CP at 152. As stated above, L.S. had begun arriving at school wearing used
diapers from the preceding night. Once, he had arrived at school for several consecutive
days wearing the same vomit-stained sweatpants. When the school informed B.S. and
V.M. of these hygiene issues, B.S. and V.M. failed to remedy them. Moreover, these
issues did not derive from L.S.’s autism, as autism does not prevent a parent from
replacing vomit-stained sweatpants with clean ones. The trial court properly entered
finding of fact 5.
iv. Finding of fact E
Finally, substantial evidence supports the trial court’s finding, under finding of
fact E, that reasonable efforts to avoid removal failed because (1) L.S.’s “health, safety,
and welfare . . . cannot be adequately protected in the home,” and (2) specific services
offered or provided to B.S. and V.M. have not succeeded in remedying parental
deficiencies. CP at 147.
15
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
(a) Reasonable efforts
The Department made reasonable efforts to avoid out-of-home placement where it
offered B.S. and V.M. the following: urinalysis testing, oral swabbing, family
preservation services, domestic violence services, anger management classes, emergency
housing, neuropsychological evaluation (for V.M.), and mental health evaluation (for
B.S.). L.S.’s school also provided the family with coordinated special education services.
As a regimen, the above services responded to B.S.’s and V.M.’s specific
parenting deficiencies—namely, chemical dependency, domestic violence, cognitive
deficiencies, and mismanagement of child hygiene. B.S. argues the Department failed to
offer a necessary service where it did not provide medication or toilet training services to
address L.S.’s hygiene issues. However, B.S. and V.M. did receive adequate services in
this regard where Ms. Nelson communicated to them that L.S. should not arrive at school
in the same vomit-stained sweatpants for days on end. Washing and replacing the child’s
sweatpants did not require medication or toilet training services. It required only B.S.
and V.M. to heed Ms. Nelson’s instructions, which they failed to do. The trial court
properly found that the Department had made reasonable efforts to avoid out-of-home
placement.
16
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
(b) Services unsuccessful
Substantial evidence indicates that the services the Department offered B.S. and
V.M. did not succeed. Despite Ms. Nelson’s efforts, B.S. and V.M. failed to address
L.S.’s hygiene deficiencies. Despite Ms. Stacy’s efforts, V.M. both (1) failed to sustain
safe housing for L.S., and (2) failed to separate herself and L.S. from a home where
domestic violence was chronic. The urinalysis and home walk-throughs were not
successful because B.S. thwarted these services. Where the Department administered an
oral swab to V.M., that swab indicated methamphetamine use. Accordingly, the trial
court properly found that services offered or provided to B.S. and V.M. did not obviate
the need for out-of-home placement.
(c) Inability to ensure health, safety, and welfare
Notwithstanding the success or failure of offered services, substantial evidence
indicates that the Department could not have ensured L.S.’s health, safety, and welfare in
the family’s home where B.S. obstructed the Department’s access to that home. Even if
B.S. and V.M. had accepted services, and even if those services had succeeded, the
Department could not have ensured L.S.’s protection where it could not evaluate the
child’s domestic environment.
The trial court properly found that it could not protect L.S. while the child lived in
B.S.’s and V.M.’s home.
17
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
(d) Conclusion
By offering or providing services that addressed B.S.’s and V.M.’s parenting
deficiencies, the Department made reasonable efforts toward avoiding out-of-home
placement. Those efforts failed when B.S. and V.M. did not partake in the available
services. Even if the services had succeeded, the Department could not ensure L.S.’s
health, safety, and welfare where B.S. refused access to the family’s home. For all these
reasons, substantial evidence supports the trial court’s finding of fact E.
Resulting orders
1. Dependency order
A dependency order is appropriate where the Department shows by a
preponderance of evidence that the child in question meets one of the statutory
definitions of a “dependent child.” RCW 13.34.110(1). As one definition, a child is
dependent where he “[h]as no parent, guardian, or custodian capable of adequately caring
for [him], such that the child is in circumstances which constitute a danger of substantial
damage to the child’s psychological or physical development.” RCW 13.34.030(6)(c).
When considering whether a parent may adequately care for a child, a trial court may
consider both the child’s special needs and the parent’s limitations. In re Dependency of
Schermer, 161 Wn.2d 927, 944, 169 P.3d 452 (2007).
18
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
Here, a preponderance of evidence supports the finding that B.S. and V.M. were
not capable of caring for L.S., given the parents’ limitations and the child’s considerable
needs. Specifically—as discussed supra—substantial evidence supports the following
findings:
• L.S. is a high-needs child requiring intensive, sustained, and attentive care.
• V.M. failed to sustain safe housing for L.S. even where the Department
affirmatively and repeatedly arranged such housing.
• V.M. failed to discontinue cannabis use even when doing so would have
ensured continued safe housing for L.S.
• V.M. used methamphetamine.
• V.M. failed to remove L.S. from a home where domestic violence occurred and
was worsening.
• V.M. failed to obtain the services of a domestic violence advocate despite the
Department providing instructions for how to obtain those services.
• B.S. created a violent environment for L.S. by subjecting V.M. to physical
abuse.
• B.S. failed to prioritize L.S.’s routines and schooling over his own vendettas,
quarrels, and impulses.
19
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
• B.S. subjected L.S. to unnecessary stress and tension by initiating and
prolonging a standoff with law enforcement in L.S.’s presence.
• B.S. refused drug tests and residential walk-throughs designed to ensure L.S.’s
welfare and safety.
• Both B.S. and V.M. failed to care for L.S.’s personal hygiene, even after L.S.’s
teacher informed them of hygiene deficiencies.
• Both B.S. and V.M. failed to visit L.S. in foster care despite the Department
facilitating those visits by providing transportation.
In light of these verities, the trial court was justified in finding that B.S. and V.M.
were more likely than not incapable of caring for L.S. See In re Pers. Restraint of Pugh,
7 Wn. App. 2d 412, 422, 433 P.3d 872 (2019) (a preponderance of evidence exists where
the premise is more likely than not true). This is especially so given that B.S. and V.M.
failed to provide any meaningful evidence in support of their ability to care attentively for
a high-needs child. The dependency order was proper.
2. Out-of-home dispositional order
A trial court may not order out-of-home placement for a child unless the
Department has first made reasonable efforts to obviate the need for such a placement.
RCW 13.34.130(6). Where the court orders out-of-home placement, it must specify
the offered or provided services that constitute the Department’s reasonable efforts.
20
No. 39817-0-III; No. 39818-8-III
In re Dependency of L.S.
RCW 13.34.130(6). Where such efforts fail, out-of-home placement may be appropriate.
RCW 13.34.130(6). Out-of-home placement may also be appropriate where the
Department’s efforts succeed but where the State nevertheless cannot ensure the child’s
health, safety, and welfare in the parents’ home. RCW 13.34.130(6).
Here, the Department made reasonable efforts to obviate the need for out-of-home
placement where it offered or provided services tailored to B.S.’s and V.M.’s specific
needs. Those efforts failed when B.S. and V.M. did not partake in the available services.
Even if the services had succeeded, the Department could not have ensured L.S.’s health,
safety, and welfare in the family home where B.S. refused access to that home.
INTERESTED RELATIVE
B.S. argues the trial court erred where it failed to explore the possibility of placing
L.S. with an interested relative. We agree.
Standard of review
Our court reviews a child’s dispositional order for abuse of discretion. In re
Dependency of A.C., 74 Wn. App. 271, 275, 873 P.2d 535 (1994). A trial court exceeds
its discretion where its findings lack support from the record or where its conclusions
apply incorrect law. In re Dependency of T.L.G., 139 Wn. App. 1, 15, 156 P.3d 222
(2007).
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No. 39817-0-111; No. 39818-8-111
In re Dependency ofL. S.
Placement with relative
A trial court may authorize placing a child with an unrelated party only where the
Department cannot place the child with an interested relative (or other party familiar with
the child), or when doing so would harm reunification efforts. RCW 13.34.130(3).
Here, the Department informed the trial court that L.S.'s maternal grandmother
was interested in caring for L.S. However, the court failed to complete the section of its
boilerplate order related to relative placement. Moreover, the trial court at the fact-
finding hearing did not address the possibility of relative placement. This was error.
CONCLUSION
We generally affirm, but we remand for the trial court to vacate the "serious
neglect" finding and to consider relative placement.
A 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.
WE CONCUR:
Pennell, J. .. Cooney, J.
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