In Re the Welfare of C.M.

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Opinions in this case

Opinion
Majority

NOTICE: SLIP OPINION (not the court’s final written decision)

August 15, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

C.W.M.,

A Minor Child. PUBLISHED OPINION

VELJACIC, J. — J.H. appeals the juvenile court’s order declaring his daughter C.M. to be a

dependent child. He also appeals the disposition order regarding C.M.’s out-of-home placement.

J.H. argues that the dependency order should be reversed because substantial evidence does not

support the court’s dependency finding under RCW 13.34.030(6)(c) that no parent was capable of

adequately caring for the child. J.H. also argues that the disposition order should be reversed

because substantial evidence does not support the court’s finding that the Department of Children,

Youth, and Families (Department) made reasonable efforts to prevent C.M.’s out-of-home

placement. J.H. further argues that the court’s dependency order should be reversed because it

was required to consider the Department’s reasonable efforts to prevent out-of-home placement

prior to a finding of dependency.

We decline to address J.H.’s substantial evidence challenges to the dependency and

disposition orders because this case is moot. However, despite being moot, we will address J.H.’s

appeal as to whether the Department must prove its reasonable efforts prior to a dependency

finding because this contested issue is a matter of continuing and substantial public interest. In

reaching the merits, we hold that, under the plain language of RCW 13.34.030(6) and RCW

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13.34.130, the Department is not required to show reasonable efforts prior to the court entering a

dependency order. In contrast, the parties correctly agree that the Department must show

reasonable efforts before entering a disposition order placing the child outside of the home.

Accordingly, we affirm the dependency order.

FACTS

K.M. gave birth to C.M. on November 17, 2020. At the time of delivery, K.M. refused to

name J.H. as the biological father because he requested that K.M. not disclose his name. Soon

thereafter, the Department became involved with C.M. following allegations of negligent

treatment or maltreatment by K.M.

Three days after C.M.’s birth, the Department filed a dependency petition based on RCW

13.34.030(6)(c) as to K.M. and listed the alleged father as “John ‘Doe.” Clerk’s Papers (CP) at 1.

That same day, the Department filed a motion to remove C.M. and take her into custody. The

juvenile court granted the motion and placed C.M. in foster care.

On February 9, 2021, almost three months after C.M.’s birth, J.H. contacted the

Department, stating that he believed he was C.M.’s biological father. Zea Mendoza, the assigned

Department social worker, spoke with J.H. the following day. J.H. reported that he is homeless

and requested genetic testing to prove paternity.

In March, J.H. was offered his first visitation before paternity was established by a

Department case worker at its Tacoma office. This first visit lasted 30 minutes.

Mendoza testified that she did not offer J.H. additional visitations because it is the

Department’s policy not to offer visits until paternity was established due to the lack of a legal

relationship. The Department then made a referral for paternity testing.

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In June, J.H. underwent a paternity test pursuant to a stipulated court order. The results

were not filed with the juvenile court until July. The results confirmed J.H. as C.M.’s biological

father, and upon request of his attorney, the Department allowed J.H. to join K.M.’s next scheduled

visit with C.M. in July.

J.H.’s second visit with C.M. was supervised by two Department social workers splitting

the time in half. The visit lasted three hours.

On September 14, the Department filed an amended dependency petition as to J.H.,

alleging that C.M. was a dependent child under RCW 13.34.030(6)(c). In the petition, the

Department alleged that it had “concerns regarding [J.H.’s] ability to safely parent [C.M.] given

his reluctance to engage with the Department in order to show he is able to provide a safe, stable,

and nurturing environment for his child.” CP at 249-50. The juvenile court then held a factfinding

hearing on November 8, November 17, and December 17. On December 14, as the factfinding

hearing was ongoing, JH had a third visit with C.M.

On January 6, 2022, the juvenile court entered a dependency order as to J.H. under RCW

13.34.030(6)(c). Relevant for the purposes of this appeal, the court entered the following findings

of fact establishing the dependency:

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CP at 367.

The court also entered a disposition order placing C.M. in foster care. In finding 2.5, the

court found that “[the Department] made reasonable efforts to prevent or eliminate the need for

removal of the child from the child’s home” and that “[s]pecific services have been offered or

provided to the parent(s), guardian or legal custodian and have failed to prevent the need for out-

of-home placement and make it possible for the child to return home.” CP at 369.

On January 21, 2022, J.H. filed a motion for discretionary review regarding the dependency

order and disposition order, which we granted. While under review, the Department filed a motion

to dismiss the dependency because the permanent plan to return C.M. home to her mother, K.M.,

had been achieved and court supervision is no longer needed. On March 20, the juvenile court

entered an order dismissing the dependency.

ANALYSIS

I. MOOTNESS

The Department argues that J.H.’s appeal is moot because the juvenile court entered an

order dismissing C.M.’s dependency and returning her to K.M.’s care. We agree.

“Generally, we will not review a moot case.” In re Dependency of L.C.S., 200 Wn.2d 91,

99, 514 P.3d 644 (2022). “A case is moot when the appellate court can no longer provide effective

relief.” Id. at 98.

Here, we can no longer provide effective relief to J.H. because the juvenile court already

dismissed the dependency at issue and returned C.M. home to K.M. Accordingly, the appeal is

moot.

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J.H. argues that the issues in this appeal are not moot because the juvenile court’s

dependency finding under RCW 13.34.030(6)(c) could have collateral consequences in later

matters in family court. We disagree.

In In re Dependency of H.S., the juvenile court found C.S.’s daughter, H.S., dependent

under both RCW 13.34.030(6)(b) and (c).1 188 Wn. App. 654, 657, 356 P.3d 202 (2015). C.S.

appealed the dependency findings, but during the appeal, H.S. turned 18 and requested dismissal.

Id.

Division Three of this court held that C.S.’s appeal as to the dependency finding under

RCW 13.34.030(6)(b) was not moot because he could still be afforded meaningful relief. Id. at

662-63. The court reasoned that “[t]he juvenile court’s labeling of C.S. as a child abuser carries

collateral consequences” under various statutes and regulations. Id. at 662. According to the court,

“[e]ach of these statutes and regulations puts the juvenile court’s finding of abuse or neglect into

play in other proceedings and licensing determinations; in many instances, these statutes and

regulations mandate an outright denial of the requested license, contract, or application because of

the finding of child abuse or neglect.” Id.

On the other hand, Division Three held that C.S.’s appeal as to the dependency finding

under RCW 13.34.030(6)(c) was moot. Id. at 662 n.2. The court reasoned that “[w]hile we have

concluded collateral consequences flow from the dependency finding under RCW

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13.34.030(6)(b), no similar consequences follow from RCW 13.34.030(6)(c) (no parent capable).”

Id.

Here, we find the H.S. court’s reasoning on mootness persuasive and we adopt it. J.H. is

correct that a subsection (c) dependency finding can be considered in later dependency

proceedings or other matters in family court. See RCW 26.09.182, .191(3), .194(1), .197(1); RCW

26.26B.020(7)(a); RCW 13.34.110(2). However, J.H.’s cited statutes do not mandate an adverse

outcome against him like a subsection (b) dependency finding would, as the H.S. court observed.

Moreover, a finding under (6)(c) that no parent was capable of caring for C.M., reflects the court’s

evaluation of the parents’ ability to care for C.M. at a specific moment in time. The statutory

scheme contemplates that a parent’s circumstances can and often do change, resulting in the parent

later being able to care for the child. Because subsection (c) dependencies are transitory in nature

and do not mandate an adverse outcome against the parent in a later proceeding like a subsection

(b) dependency would, there are no concrete collateral consequences for us to grant any

meaningful relief from. Accordingly, we hold that the appeal is moot.

II. MATTERS OF CONTINUING AND SUBSTANTIAL PUBLIC INTEREST

J.H. argues that we should nevertheless address the merits of his appeal because the

contested issues before us involve matters of continuing and substantial public interest. We

disagree with J.H. insofar as his substantial evidence challenges are concerned. However, we

agree that the issue of whether the dependency statutes require a reasonable efforts finding prior

to entering a dependency finding is reviewable under the public interest exception.

“If an issue presented is of continuing and substantial public importance, we may review

an otherwise moot case.” In re Dependency of T.P., 12 Wn. App. 2d 538, 545, 458 P.3d 825

(2020). “To determine whether the contested issue is of substantial and continuing public

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importance, we consider whether ‘(1) the issue is of a public or private nature; (2) whether an

authoritative determination is desirable to provide future guidance to public officers; and (3)

whether the issue is likely to recur.’” Id. (quoting In re Marriage of Horner, 151 Wn.2d 884, 892,

93 P.3d 124 (2004)). “We may also consider the likelihood that the issue will continue to evade

review due to the short-lived nature of the facts in controversy.” Id.

“The continuing and substantial public interest exception has been used in cases dealing

with constitutional interpretation, the validity of statutes or regulations, and matters that are

sufficiently important to the appellate court.” State v. Beaver, 184 Wn.2d 321, 331, 358 P.3d 385

(2015). “This exception is not used in cases that are limited to their specific facts.” Id. The

exception has also not been used in cases that “involve statutes or regulations that have been

amended [to cure the alleged illegality].” Hart v. Dep’t of Soc. & Health Servs., 111 Wn.2d 445,

449, 759 P.2d 1206 (1988).

Here, J.H.’s substantial evidence challenges (issues 1 and 2) to the dependency order and

disposition order do not meet the public interest exception. First, the issues are private in nature

because they do not involve the court’s application or interpretation of the law. Second, a decision

on whether substantial evidence supports the findings would not provide guidance to lower courts

because, as should be obvious, any determination would necessarily be limited to the facts of this

case. Third, the issue does not appear likely to recur because C.M. has been returned home to

K.M., and we are unaware if these specific set of facts will arise in other dependency proceedings.

Accordingly, we decline to address J.H.’s substantial evidence challenges.

However, J.H.’s challenge as to whether the dependency statutes require a reasonable

efforts finding prior to a dependency finding (issue 3) meets the public interest exception. First,

the issue is public in nature because it involves the application and interpretation of the dependency

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statutes. Second, an authoritative determination would be desirable to provide future guidance to

public officers because there is a lack of judicial opinions on whether the dependency statutes call

for such a requirement. Indeed, the legislature recently amended the dependency statutes and we

note that nowhere in it did the legislature explicitly require the courts to make a reasonable efforts

finding prior to the entering a dependency finding. See LAWS OF 2021, ch. 211, § 9 (effective July

1, 2023). Because the amended dependency statutes do not resolve the issue before us, the matter

is of sufficient public importance to warrant review. Third, the issue may likely be raised in the

future given the frequency of dependencies. Accordingly, we hold that this specific issue may be

reviewed under the public interest exception.

III. REASONABLE EFFORTS INQUIRY PRIOR TO THE ENTRY OF AN ORDER OF DEPENDENCY

J.H. asks us to hold the Department must prove that it made reasonable efforts to prevent

removal before a court can find a child dependent. Because he asserts that the Department failed

to make reasonable efforts to prevent C.M.’s removal, J.H. asks us to reverse the dependency order

as to him. We disagree.

“In a dependency, as in any case, questions of statutory interpretation are reviewed de

novo.” In re Dependency of D.L.B., 186 Wn.2d 103, 116, 376 P.3d 1099 (2016). “Generally,

when the meaning of a statute is ‘plain on its face,’ a court must give effect to that meaning.” Id.

(quotation marks omitted) (quoting State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)).

“[E]ach provision of a statute must be read together with related provisions to determine the

legislative intent underlying the entire statutory scheme.” In re Dependency of G.M.W., 24 Wn.

App. 2d 96, 116, 519 P.3d 272 (2022), review denied, 1 Wn.3d 1005 (2023). “[I]f the plain

meaning of the statute is unambiguous, we end our inquiry.” In re Dependency of E.M., 197 Wn.2d

492, 499, 484 P.3d 461 (2021).

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RCW 13.34.030 says nothing about reasonable efforts being required prior to entry of an

order of dependency. RCW 13.34.030(6) defines a “[d]ependent child” as any child who:

We decline to read a requirement in RCW 13.34.030(6) that the legislature omitted. In re Welfare

of J.D., 112 Wn.2d 164, 168, 769 P.2d 291 (1989) (“This court does not have the power to add

words to existing unambiguous statutory language.”).

Additionally, RCW 13.34.130 requires the Department to prove its reasonable efforts, but

only as to disposition:

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(Emphasis added.) Again, we will not read a requirement into RCW 13.34.130 that the legislature

omitted. J.D., 112 Wn.2d at 168.

J.H. argues that the purpose of the Juvenile Court Act is to protect the family unit and, “[t]o

carry out this purpose, the Department must be required to prove it made reasonable efforts to

nurture the family before the court can enter a dependency order.” Br. of Appellant at 30. In so

arguing, J.H. directs our attention to Laws of 2021, ch. 211, sec. 9., contending that this newly

enacted statute provides: “the Department’s failure to meet its burden during shelter care ‘will be

considered when determining whether reasonable efforts have been made by the department

during a [dependency] hearing under RCW 13.34.110.’” Br. of Appellant at 30 (emphasis in

original) (alterations in original) (citing LAWS OF 2021, ch. 211, § 9(j)(iii)(B)). We disagree.

Here, J.H. adds words to the newly enacted statute that do not exist. Instead, the cited

statute provides: “Placement moves while a child is in shelter care will be considered when

determining whether reasonable efforts have been made by the department during a hearing under

RCW 13.34.110.” LAWS OF 2021, ch. 211, § 9(j)(iii)(B) (emphasis added). In turn, RCW

13.34.110(1) requires the court to hold a factfinding hearing and the petitioner to prove, by a

preponderance of the evidence, that the child is “dependent” within the meaning of RCW

13.34.030. Again, RCW 13.34.030(6) does not require the Department to prove its reasonable

efforts to establish a dependency. And RCW 13.34.110(2) provides that, during the factfinding

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hearing, the court may consider the past involvement of child protective services for the purpose

of establishing the Department’s reasonable efforts, but only as to disposition and placement. In

sum, nowhere in the newly enacted statute did the legislature explicitly require a reasonable efforts

finding prior to the entering a dependency finding. See LAWS OF 2021, ch. 211, § 9. Accordingly,

J.H.’s argument fails.

J.H. also argues that, under the reasoning of In re Dependency of K.W., 199 Wn.2d 131,

504 P.3d 207 (2022), “the Department must be required to prove it made reasonable efforts before

the court can find a child dependent.” Br. of Appellant at 32. We disagree because K.W. dealt

with disposition and placement, which again, is distinct from determining whether a child is

dependent within the meaning of RCW 13.34.030.

J.H. appears to contend the reasonable efforts inquiry should inform the court’s

dependency inquiry as a matter of sound public policy. But “public policy arguments do not

control our interpretation of a clear statute.” State v. Bays, 90 Wn. App. 731, 736, 954 P.2d 301

(1998). Rather, “[p]ublic policy arguments ‘are more properly addressed to the Legislature, not to

the courts.’” McCaulley v. Dep’t of Labor & Indust., 5 Wn. App. 2d 304, 316, 424 P.3d 221 (2018)

(quoting Blomster v. Nordstrom, Inc., 103 Wn. App. 252, 258, 11 P.3d 883 (2000)).

Because J.H.’s argument would require us to disregard the plain language of RCW

13.34.030 and RCW 13.34.130, we reject his proposition that the court was required to consider

the reasonable efforts of the Department prior to finding C.M. dependent under RCW

13.34.030(6)(c).

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CONCLUSION

We affirm the dependency order.

Veljacic, J.

We concur:

Maxa, J.

Glasgow, C.J.