Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of          )       NO. 65769-1-I
                                            )
K.A.S., D.O.B. 4/28/03                      )       DIVISION ONE
                                            )
T.S.,                                       )
                                            )
                      Appellant,            )
       v.                                   )       UNPUBLISHED OPINION
                                            )
THE DEPARTMENT OF SOCIAL                    )
AND HEALTH SERVICES,                        )
                                            )
                      Respondent.           )       FILED:  March 26, 2012
                                            )

       Leach, A.C.J.  --  T.S. appeals an order of dependency for her daughter, 

K.A.S.   T.S. contends that due process required appointment of counsel for 

K.A.S.   Because  T.S. did not raise this issue in the trial court and does not

demonstrate  actual  prejudice, she may not raise  it  now.   Alternatively,  T.S.

claims that the trial court erred by concluding that K.A.S. met the abuse or 

neglect definition of a dependent child.  Because uncontested findings of fact 

support the trial court's conclusion, we affirm.

                                        FACTS

       Before this dependency action, K.A.S. lived with her mother, T.S.  T.S.

has significant medical problems that affect her ability to care for K.A.S.  She 

experiences severe lower back pain and takes several medications, including  

NO. 65769-1-I / 2

clonazepam and methadone.  She blacks out frequently and requires an in-home 

caregiver for 130 hours per month to provide for her basic needs.  

       Born in 2003, K.A.S. also has extraordinary needs and requires highly 

skilled parenting.  She can be violent toward other children and adults.  She has 

been diagnosed with an anxiety disorder and attention deficit  hyperactivity 

disorder.  Before her placement in foster care, K.A.S. also exhibited gross motor 

delays and "behaviors typical of children much younger socially, physically, and 

emotionally."  

       The State filed an earlier dependency action in September 2007, after 

police found then four-year-old K.A.S. wandering alone near busy streets on 

several different occasions.  K.A.S. enrolled in school and attended therapy, and 

T.S. worked with the Department of Social and Health Services (DSHS) to install 

an alarm on her apartment door to prevent K.A.S. from leaving without 

supervision.  K.A.S. returned to T.S.'s care in December 2008, and the State 

eventually dismissed that dependency petition.

       Between January and August 2009, T.S. had six more contacts with 

police regarding K.A.S.'s care and supervision.  In January, K.A.S. left the 

apartment by herself while T.S. showered.  Neighbors called police after they 

saw the six-year-old child walking around on the opposite side of the apartment 

complex from her own building.  In June 2009, K.A.S. dialed 911 on two 

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NO. 65769-1-I / 3

separate occasions and told the 911 operator that she wanted friends.  Police 

also responded after a neighbor reported slapping sounds and crying coming 

from T.S.'s apartment, although responding officers saw no evidence of harm or 

wrongdoing.     On several occasions, T.S. appeared heavily medicated to the 

officers.  

       On August 8, 2009, at approximately 3:00 a.m., K.A.S. climbed out of her 

bedroom window when she heard adult neighbors talking outside.  She went to 

the third floor of the apartment complex to visit with the neighbors, who called 

police when they saw K.A.S. wandering around the building.  Once again, police 

responded and notified T.S., who had been sleeping and unaware that K.A.S.

had left the apartment.  A few days later, a social worker contacted T.S. to 

discuss the incident; when the social worker arrived at T.S.'s home, T.S.

appeared heavily medicated.  After the social worker requested a drug screen 

and tried to schedule a "Family Team Decision-Making Meeting," T.S. slammed 

the door and refused to speak with her. 

       On August 24, 2009, DSHS filed a dependency petition and removed 

K.A.S. from T.S.'s home        the following day.  After that, K.A.S.'s behavior 

"improved markedly" as she "responded well to the consistency and stability in 

foster care and an appropriate school setting."  T.S. frequently visited K.A.S. but 

usually arrived late to the visits and, at times, behaved inappropriately and 

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NO. 65769-1-I / 4

appeared "droopy, dazed, unsteady, or asleep."  

       At  a fact-finding hearing, the court considered testimony from several

witnesses, including K.A.S.'s court-appointed guardian ad litem.  Although the 

court found that T.S. and K.A.S. love each other very much, the court also found 

that K.A.S. met two of the three statutory definitions of a dependent child:          (1) 

she was abused or neglected, and (2) she had no parent capable of adequately 

caring for her.  At no point in the proceedings did any party ask the court to 

appoint counsel for K.A.S. T.S. appeals.

                                      ANALYSIS

   I.  Due Process Right to Counsel

       For the first time on appeal, T.S. claims that the due process clauses of 

the federal and state constitutions require the appointment of counsel for a child 

at all stages of a dependency proceeding.  After oral argument, our Supreme 

Court announced its decision in In re Dependency of M.S.R.,1 in which it held,

       [T]he due process right of children who are subjects of dependency 
       or termination proceedings to counsel is not universal.  The 
       constitutional protections, RCW 13.34.100(6), and our court rules 
       give trial judges the discretion to decide whether to appoint 
       counsel to children who are subjects of dependency or termination 
       proceedings. 

Thus, we limit our review to whether T.S. may challenge the trial court's failure to 

appoint counsel for K.A.S.  RAP 2.5 allows a party to raise for the first time on 

       1 No. 85729-6, 2012 WL 664005 (Wash. Mar. 1, 2012), at *10.
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NO. 65769-1-I / 5

appeal a manifest error affecting a constitutional right.2  To demonstrate that an 

asserted error is manifest, the appellant must  show actual prejudice,3 which 

means, "'the asserted error had practical and identifiable consequences in the 

trial of the case.'"4

       T.S.  fails to demonstrate     actual prejudice.5      Because she does not 

challenge the trial court's findings of fact, we treat as a verity the trial court 

finding that K.A.S. had no parent capable of adequately caring for her.6            This 

finding supports the conclusion that K.A.S. is a dependent child and defeats

T.S.'s claim that failure to appoint counsel had any  practical and identifiable 

consequence in the fact-finding hearing.  

       At oral argument, T.S. asserted that the entire proceeding was inherently 

prejudicial because K.A.S. had no "voice" throughout the proceeding and could 

not express her wishes to the court.         But the record does not support this 

assertion.  K.A.S.'s  guardian ad litem testified that        while it was difficult to 

"extract" information from K.A.S., she never  expressed  interest in increasing

visitation with her mother or returning to her care.      And T.S. does not contend 

       2 RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 
(1995). 
       3 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).
       4 State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (internal 
quotation marks omitted) (quoting Kirkman, 159 Wn.2d at 935).
       5 For purposes of this analysis, we assume but do not decide that this 
alleged error is of constitutional magnitude.  
       6 In re Dependency of P.D., 58 Wn. App. 18, 30, 792 P.2d 159 (1990).
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NO. 65769-1-I / 6

that the guardian ad litem failed to perform her statutory duties to advocate for 

K.A.S.'s best interests and to report to the court K.A.S.'s expressed interests.7  

Moreover, T.S. has not challenged the trial court's finding of fact that K.A.S. did 

not express any desire to return to her mother's care to her social worker, 

teachers, or guardian ad litem.  T.S. does not identify any place in the record 

where counsel for K.A.S. might have supplemented the evidence, impeached a 

witness, or provided more effective advocacy for K.A.S.  Consequently, any 

alleged prejudice is entirely speculative and not sufficient to meet T.S.'s burden.8  

Because T.S. fails to show prejudice, we decline to address her due process 

claim.

   II. Dependency

       Alternatively,  T.S. claims that the trial court erred by concluding as a 

matter of law that K.A.S. was "abused or neglected as defined in chapter 26.44 

RCW."  But she does not assign error to the findings of fact supporting the order 

of dependency.  These unchallenged findings of fact, therefore, are verities on 

appeal.  We review a trial court's conclusion of law de novo to determine if it is 

       7 Under RCW 13.34.105(1)(a) and (f), the guardian ad litem must report to 
the court and advocate for the           child's best interests, and under RCW 
13.34.105(1)(b), the guardian ad litem must "report to the court any views or 
positions expressed by the child."
       8 See generally State v. Norby, 122 Wn.2d 258, 264, 858 P.2d 210 (1993) 
("The mere possibility of prejudice is not sufficient to meet the burden of showing 
actual prejudice.").
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NO. 65769-1-I / 7

supported by the findings of fact.9

       To declare a child dependent under RCW 13.34.130, the trial court must 

find by a preponderance of the evidence that the child meets at least one of the 

three statutory definitions of dependency.10           The statute provides that 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.[11]

While the trial court found K.A.S. dependent under both definitions (b) and (c), 

T.S. challenges the court's finding of dependency only under part (b), the abuse 

or neglect definition.  Thus, resolution of this claim is not dispositive of K.A.S.'s 

dependent child status because a court may declare a child dependent based on 

one of the three statutory definitions.  

       Even if it were dispositive, uncontested findings of fact support the trial 

court's conclusion that K.A.S. was "abused or neglected, as defined in Chapter 

26.44 RCW."   In relevant part, RCW           26.44.020 broadly defines "abuse or 

neglect" as  "the negligent treatment or maltreatment of a child."12   In turn, 

       9 Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 (2002).
       10 See In re Welfare of Key, 119 Wn.2d 600, 612, 836 P.2d 200 (1992).
       11 RCW 13.34.030(6).
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NO. 65769-1-I / 8

"negligent treatment or maltreatment"        includes  "the cumulative effects of a 

pattern of conduct, behavior, or inaction, that evidences a serious disregard of 

consequences of such magnitude as to constitute a clear and present danger to 

a child's health, welfare, or safety."13  

       T.S.  argues that the     trial court's findings of fact do not support a 

conclusion that she neglected K.A.S. because the trial court did not explicitly or 

implicitly find that her conduct, behavior, or inaction resulted in a clear and 

present danger to her daughter.  But in findings 2.2(1), 2.2(5), and 2.2(7), the 

court   documented      several occasions when police located K.A.S. -- at 

approximately six years old -- wandering outside her home without supervision, 

including one incident that occurred at 3:00 a.m.  And in findings 2.2(2) and 

2.2(7), the court found that each time police returned K.A.S. to her mother, T.S.

appeared heavily medicated and unaware K.A.S. had left the apartment.  

       While K.A.S. experienced no physical harm from any of the incidents, an 

abuse or neglect dependency need not rest on proof of actual harm.14  In In re 

       12 RCW 26.44.020(1).
       13 RCW     26.44.020(14).      Washington Administrative Code provisions, 
which serve as DSHS rules, expressly recognize neglect in the form of a 
"chronic failure on the part of a parent or guardian to perform basic parental 
functions, obligations, and duties, when the result is to cause injury or create a 
substantial risk of injury." WAC 388-15-009(5)(c).
       14 In re Interest of J.F., 109 Wn. App. 718, 731, 37 P.3d 1227 (2001); see 
also In re Dependency of Schermer, 161 Wn.2d 927, 951, 169 P.3d 452 (2007) 
("A dependency . . . does not require proof of actual harm, only a 'danger' of 
harm.").
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NO. 65769-1-I / 9

Interest of J.F.,15 a mother sent her nine-year-old daughter on a road trip to 

California with a man she recently met through a personal advertisement.  The 

mother knew that the man had extensive criminal history and that her daughter, 

who had been the victim of two unrelated sexual assaults, lacked boundaries 

with strangers.16  While there was no evidence of actual harm to the child, this 

court held that the mother's conduct in creating such a risk clearly met the clear 

and present danger standard.  There, we affirmed the trial court's dependency 

order based on both abuse or neglect and inadequate care.17

       T.S. attempts to distinguish J.F. from the circumstances here.  She argues 

that while J.F.'s mother affirmatively engaged in conduct that placed her child in 

danger, T.S. "did not send K.A.S. out of the house in the middle of the night to 

associate with strangers."   We find this distinction unpersuasive.  While  we

appreciate the fact that children may be difficult to supervise at all times, T.S.

repeatedly failed to prevent her six-year-old child from leaving the home, despite 

ongoing assistance from social workers.  This inaction demonstrates a serious 

disregard for the potential consequences of a six-year-old child wandering alone 

outside and constitutes a clear and present danger to K.A.S.'s health, welfare,

and safety.

       15 109 Wn. App. 718, 731, 37 P.3d 1227 (2001).
       16 J.F., 109 Wn. App. at 731.
       17 J.F., 109 Wn. App. at 731, 734.
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NO. 65769-1-I / 10

       Aside from supervision, other findings of fact support the trial court's 

conclusion.  In finding 2.2(9), the court found that T.S. failed to provide K.A.S. 

with adequate socialization and or allow K.A.S. adequate "physical activity 

necessary for children to achieve sensory integration."      Finding 2.2(10) points to 

the marked improvement in K.A.S.'s gross motor delays and behavior issues 

following her removal from T.S.'s home.  These facts support the reasonable 

inference that K.A.S.'s marked improvement while in foster care reflects that 

neglect was a contributing factor to her developmental delays while in the care 

of her mother.  Coupled with T.S.'s failure to supervise her daughter, these 

unchallenged findings of fact support the trial court's conclusion that K.A.S. met 

the statutory definition of a dependent child. 

                                    CONCLUSION

       Because T.S. does not demonstrate actual prejudice, we hold that she 

may not raise  K.A.S.'s alleged due process right to counsel for the first time on 

appeal.  We also hold that the findings of fact support the trial court's conclusion 

that K.A.S. was "abused or neglected, as defined in Chapter 26.44 RCW" and 

affirm.

WE CONCUR:

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