In Re The Dep Of Bb., M. C., Appellant V. Dshs, State Of Wa., Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of B.B.,
DOB: 07/31/15,
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
V.
M.C.,
Respondent,
Appellant.
No. 77686-0-1
(Consolidated with
No. 77687-8-land
No. 77688-6-1)
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 22, 2019
CHUN, J. — M.C. appeals the trial court's orders terminating her parental
rights to her son and denying the appointment of a dependency guardian. She
contends that the order of termination must be reversed because the Department
of Children and Youth Services1 did not meet its burden under
RCW 13.34.180(1)(f) to prove that continuation of the parent-child relationship
clearly diminished her son's prospects for early integration into a stable and
permanent home. She also argues that the trial court erred by improperly
weighing the competing guardianship and termination petitions and in finding that
guardianship was not in her son's best interest. We affirm.
I At the time of the termination trial, the agency was named the Department of Social and
Health Services. See RCW 43.216.906.

No. 77686-0-1/2
BACKGROUND
M.C. is the mother of B.B., born July 31, 2015. D.B. is B.B.'s father.2 Both
M.C. and B.B. tested positive for opiates at B.B.'s birth. The Department filed a
dependency petition. B.B. was removed from M.C.'s care at the hospital and
placed with M.C.'s sister, Katelyn Poison.
Poison ultimately became unable to care for B.B. due to the needs of her
own children, and in December 2015, the Department held a meeting to discuss
alternative placement options. M.C. "wasn't really talking to [D.B.'s]family" and
was "adamantly opposed" to B.B. being placed with any of his paternal relatives.
M.C. particularly disliked Samantha Franklin, B.B.'s paternal aunt, and stated that
B.B. would only be placed with the Franklin family "over her dead body." D.B.
agreed that placement with any of his family members would cause "too much
conflict."
Instead, M.C. agreed that B.B. should be placed with Dianna and David
Rule, Poison's mother-in-law and father-in-law. Because the Rules were not
biologically related to either M.C. or D.B., they were "kind of like Switzerland" with
regard to family dynamics. B.B. has lived with the Rules ever since.
The Franklins continued to express an interest in caring for B.B., and the
record indicates that they babysat B.B. frequently. However, M.C. remained
opposed to B.B.'s placement with the Franklins. In March 2016, M.C.'s attorney
sent an email to the Department social worker reiterating M.C.'s objections to
B.B. living with paternal relatives.
2 D.B. relinquished his parental rights to B.B. and is not a party to this appeal.
2

No. 77686-0-1/3
M.C. used heroin and methamphetamines throughout the dependency
proceedings. She did not participate in any of the remedial services ordered by
the juvenile court, and rarely visited B.B. In December 2016, the Department
filed a petition to terminate M.C.'s parental rights. M.C. continued to support
B.B.'s placement with the Rules and described them as "like family."
Sometime thereafter, M.G. reconciled with the Franklins, and in March
2017, M.C. requested that the juvenile court adopt a plan of guardianship with
the Franklins for B.B. By this time, B.B. had lived with the Rules for more than 15
months, the vast majority of his young life. In May 2017, M.C. filed a petition to
appoint the Franklins as B.B.'s dependency guardians.
Trial on the termination and guardianship petitions began in July 2017. At
the time of trial, B.B. was two years old and had lived with the Rules since he
was five months old.
The Department presented the testimony of Dr. Joanne Solchany, a
psychiatric nurse practitioner and family therapist, who conducted a "Child
Psychiatric Attachment Evaluation." Dr. Solchany observed B.B. with the Rules,
with the Franklins, and with M.C. Dr. Solchany testified that B.B. obviously felt
"extremely comfortable" with the Franklins and the Franklins "were loving and
attentive." However, Dr. Solchany concluded that Dianna Rule, who B.B. called
"Mom," was B.B.'s primary attachment figure. Dr. Solchany testified that the
impact of removing B.B. from the Rules would be devastating.
[B.B.] would be going from being with caregivers who have been
stable in his life for the past 18 months. Losing these caregivers
would be paramount to experiencing the deaths of both his
3

No. 77686-0-1/4
caregivers at the same time. Losing one caregiver for a young child
can be devastating. Losing both can cause intense grief and trauma
that can impact the child throughout his childhood.
Dr. Solchany also testified that termination, not a guardianship, was in
B.B.'s best interest. She stated that guardianships were most appropriate for
older children who "had a good relationship with" their biological parents.
Dr. Solchany testified that B.B.'s bond with M.C. was poor. She stated:
My concern is that, especially with the family dynamics that have
been described in all of the documents I've reviewed, that in this
family, there seems to be a lot of kind of "if I'm mad at you, then I
take things away. If I'm not mad at you, then I like you and we'll go
do these things."
My concern would be that [B.B.] would be in a situation where he
would never feel that sense of permanency and there would always
be a risk of somebody intruding and disrupting his life, whether that
be for trying to vie for more rights later on or, you know, keeping this
child involved in some kind of a court process when things came up
or disagreements happened.
M.C. presented the testimony of Emma Puro, a social worker who
conducted a private home study for the Franklins. Puro testified "that it's in
[B.B.'s] best interest to be raised amongst his family by his aunt, that they are
people that know and love him, and it would be a fairly easy transition, and in the
long term, in his best interest." Puro agreed with Dr. Solchany that adoption,
rather than guardianship, was preferable for a child B.B.'s age.
After hearing testimony from 14 witnesses and reviewing 65 exhibits, the
trial court entered findings of fact and conclusions of law and an order
terminating M.C.'s parental rights to B.B. The trial court concluded that a
guardianship with the Franklins was not in B.B.'s best interest and denied M.C.'s
guardianship petition. M.0 appeals.
4

No. 77686-0-1/5
ANALYSIS
To terminate the parent-child relationship, the Department must prove
each of the following six statutory elements by clear, cogent, and convincing
evidence:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
(c)That the child has been removed or will, at the time of the hearing,
have been removed from the custody of the parent for a period of at
least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future. ..[and]
(f) That the continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.
RCW 13.34.180(1). If all of these elements are proven, the trial court must also
find by a preponderance of the evidence that termination is in the "best interests"
of the child. RCW 13.34.190(1).
Although the burden of proof is different, the first five statutory elements
for guardianship and termination are identical. See RCW 13.36.040(2)(c)(i)-(v).
Unlike a termination, however, the court is not required to find as a prerequisite
to establishing a guardianship that continuation of the parent-child relationship
clearly diminishes the child's prospects for early integration into a stable and
5

No. 77686-0-1/6
permanent home. In addition, the court must find by a preponderance of the
evidence that "it is in the child's best interests to establish a guardianship, rather
than to terminate the parent-child relationship and proceed with adoption, or to
continue efforts to return custody of the child to the parent."
RCW 13.36.040(2)(a).
When a court is faced with petitions both for termination and for a
dependency guardianship, the court must first consider the dependency
guardianship as an alternative to termination. In re Dependency of A.C., 123
Wn. App. 244, 246, 98 P.3d 89 (2004). "If guardianship is not preferable, then
the court must decide whether continuing the parent's relationship with the child
would diminish the child's prospects for early integration into a stable and
permanent home, such that parental rights should be terminated." A.C., 123 Wn.
App. at 246.
This court reviews an order of termination to determine whether the
findings of fact are supported by substantial evidence in the record and whether
the findings support the conclusions of law. In re Dependency of C.B., 79 Wn.
App. 686, 692, 904 P.2d 1171 (1995). We treat unchallenged findings of fact as
verities. In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227(2001).
M.C. first argues that that the best interests standard of
RCW 13.36.040(2)(a) is unconstitutional and violates substantive due process
because "[t]he law is not narrowly tailored if it allows the court to choose between
guardianship and termination solely on the basis of the best interests of the
child." She contends that "because the State's compelling interest is preventing
6

No. 77686-0-1/7
harm, not choosing the best home for a child, a viable guardianship alternative
can be rejected only if it would be harmful, not because the government prefers
the home it has chosen."
But M.C.'s argument misapprehends the nature of the guardianship
statute. In making the best interests determination, a trial court is not tasked with
merely determining that a specific guardianship placement is in the child's best
interest.3 Rather, a trial court is required to find that dependency guardianship
rather than termination is in the child's best interest. While the circumstances of
a specific placement may be relevant to this determination, a trial court should
consider a variety of "case-specific factors relevant to the best interests of the
child," including "the strength and nature of the parent-child bond; the benefit of
continued contact with the parent or extended family;[and] the likelihood the
child would be adopted if parental rights were terminated." A.C., 123 Wn. App. at
255.
Here, the trial court's finding that a dependency guardianship was not in
B.B.'s best interest was not based solely on a determination that the Rules' home
was preferable to the Franklins' home. The trial court found that dependency
guardianship, in general, would not "offer the permanency and security
necessary for the child's development." This finding was supported by
substantial evidence. Both Dr. Solchany and Puro testified that termination of
3 The dependency guardianship statute requires a separate finding that "the proposed
guardian is qualified, appropriate and capable of performing the duties of guardian under
RCW 13.36.050" or "[t]he proposed guardian has signed a statement acknowledging the
guardian's rights and responsibilities toward the child and affirming the guardian's understanding
and acceptance that the guardianship is a commitment to provide care for the child until the child
reaches age eighteen." RCW 13.36.040(2)(b), -(c)(vi)(emphasis added).
7

No. 77686-0-1/8
parental rights was preferable based on B.B.'s age and his lack of a bond with
M.C. Dr. Solchany also testified that the potential for modification inherent in a
dependency guardianship would be too disruptive for B.B.
Moreover, the trial court found that "[r]emoval from his current placement
would be detrimental to [B.B.'s] long-term welfare" and IT would be tantamount
to a death in the child's life to be severed from Mr. and Mrs. Rule." These
findings were also supported by substantial evidence. M.C. does not challenge
the trial court's findings that "[B.B.rs primary attachment is with his current
caregiver" and "[B.B.] is strongly bonded to the current caregivers, more than to
the Franklins." These findings are verities on appeal. And Dr. Solchany testified
at length about the negative effects of removing B.B. from the Rules' home and
placing him with a different family.
M.C. argues that the best interests standard violates the two-part structure
of the termination statute and "essentially renders meaningless the requirement
of RCW 13.34.180(1)(f)." But it is well settled that "the availability of a
guardianship is material to whether the State can meet its burden to prove
RCW 13.34.180(1)(f)." In re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d
620 (2013). And, as Division Two of this court held in Matter of J.B., 197 Wn.
App. 430, 438, 387 P.3d 1152 (2016), RCW 13.34.180(1)(f) "implicitly touches on
the best interest of the child standard."
Thus, when the juvenile court considers whether termination element
(f) has been established, R.H. allows it to consider the proposed
potential guardianship. R.H., 176 Wn. App. at 428-29. In turn, that
guardianship can only be established by determining whether it is in
the child's best interest, which requires consideration of the parent-
8

No. 77686-0-1/9
child bond and the potential adoptive home. Id.; A.W.,[182 Wn.2d
689, 711-12, 344 P.3d 1186 (2015)]. Coming full circle, when a
juvenile court determines whether element (f) is established, it
necessarily considers to some degree what is in the child's best
interest. Cf. In re Dependency of K.D.S., 176 Wn.2d 644, 656, 294
P.3d 695(2013).
J.B., 197 Wn. App. at 439-40.
M.C. next argues that the trial court erred in denying her guardianship
petition because guardianship, not termination, was in B.B.'s best interest. M.C.
argues that the trial court should have rejected Dr. Solchany's conclusion that
removing B.B. from the Rules' home would be devastating to his well-being and
that the Franklins would not adequately protect B.B. in interactions with M.C. But
this argument goes to the weight and persuasiveness of the evidence and is
therefore beyond the scope of our review. See In re Dependency of A.V.D., 62
Wn. App. 562, 568, 815 P.2d 277(1991)(this court defers to the trier of fact on
issues of conflicting testimony, credibility of the witnesses, and the weight or
persuasiveness of the evidence).
Finally, M.C. contends that the trial court erred in finding that the
Department met its burden to prove that the continuation of the parent-child
relationship impeded B.B.'s prospects for early integration into a stable and
permanent home, as required by RCW 13.34.180(1)(f). The Department can
satisfy RCW 13.24.180(1)(f) by proof that(1) prospects for a permanent home
exist but the parent-child relationship prevents the child from obtaining that
placement or (2) the parent-child relationship has a damaging and destabilizing
effect on the child that would negatively impact the child's integration into any
permanent and stable placement. R.H., 176 Wn. App. at 428.
9

No. 77686-0-1/10
M.C. argues that because either the Rules or the Franklins would have
been willing to become B.B.'s dependency guardians, B.B. could achieve
permanency without M.C.'s parental rights being terminated.4 But there was no
petition before the court to appoint the Rules as guardians. See In re
Dependency of I.J.S., 128 Wn. App. 108, 121, 114 P.3d 1215(2005)(a court
need not consider a dependency guardianship as an alternative to termination
when no petition has been filed). And, as discussed above, the trial court
properly denied M.C.'s guardianship petition because guardianship with the
Franklins was not in B.B.'s best interest.
We affirm the trial court's order terminating M.C.'s parental rights to B.B.
and denying M.C.'s guardianship petition.
WE CONCUR:
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4 M.C.'s reliance on In re Welfare of S.V.B., 75 Wn. App. 762, 880 P.2d 80(1994) is
misplaced. In S.V.B., the court held that it was error to terminate the parental rights of a child
who was already in a dependency guardianship because the parent-child relationship did not
interfere with the child's permanent home.
10