In the Matter of the Dependency of: H.S.W. & H.N.W.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Dependency of
H.S.W. and H.N.W.,
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No. 37062-3-III
(consolidated with
No. 37063-1-III)
UNPUBLISHED OPINION
KORSMO, J. — K.W. appeals from a Chelan County Superior Court dependency
order that placed his two daughters with a family member. Because the evidence
supports the court’s dependency and placement findings, we affirm.
FACTS
The two daughters were 15 and 11 at the time of the dependency hearing in 2019.
K.W. had a history of drug dependency that dated to the mid-1990s. As a result, he had
been through in-patient drug treatment in 1996, 2008, and 2016. He also had repeated
brushes with the law during that period and continued to use controlled substances.
FILED
JULY 21, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
2
K.W.’s wife (the children’s mother) died due to cancer in October 2018, leaving
K.W. the sole parent of his minor children. At the time, he was on community custody
due to a 2017 felony conviction, but was not complying with the testing and drug
abstinence conditions and racked up 11 supervision violations. The children later would
testify to their father’s drug use, the presence of needles and drugs throughout their
residence, and the presence of strangers who used drugs in the home.
Officers responded to the residence following a 911 call reporting that K.W. had a
firearm. Officers also learned that he had a warrant outstanding for his arrest. K.W.
refused to leave the house or to allow his youngest daughter to do so. Armed officers
surrounded the residence and the ensuing standoff lasted 2½ hours. K.W. eventually
surrendered and was incarcerated.
The standoff and ensuing incarceration led to a shelter care hearing; the children
were sent to live with a relative in Tacoma. Dependency petitions were filed June 10 and
the matter proceeded to a hearing on August 19, 2019. K.W. was not present.1 His
counsel sought a continuance due to both his client’s request and his absence. The
attorney was “somewhat uncomfortable representing” K.W. under the circumstances.
The court denied the continuance request and the hearing proceeded. When the
plaintiff’s case was complete, defense counsel was able to contact his client by telephone.
K.W. personally requested a continuance of the hearing, blaming his absence due to a

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
3
mix-up of the hearing time. He asked to be permitted to appear the following day in
person. The court again declined to continue the matter. K.W. then testified by
telephone. At the conclusion of the hearing, the court found the children were dependent
due to lack of a parent capable of adequately caring for them. K.W. was directed to
engage in multiple services related to his drug dependency. The children were placed in
the care of a relative in Tacoma.
K.W. timely appealed to this court. A panel considered his case without hearing
argument.
ANALYSIS
K.W. presents three arguments. In order, we consider his contentions that the
evidence did not support the dependency determination, the court erred in placing the
children with a relative, and the court erred in not removing counsel.
Sufficiency of the Evidence
K.W. contends that the evidence does not support the dependency finding since he
is a functioning drug addict.2 Properly viewed, the evidence does support the finding.
1 The attorneys believed that a warrant recently had been issued for K.W.’s arrest.
2 K.W. assigns error to 14 findings related to the three issues. As all are supported
by the evidence, we lump them together with the relevant legal argument and do not
explain in detail why each one is supported by the evidence. It was appellant’s obligation
to explain why they were not supported by the evidence; his world view did not need to
be accepted by the trial judge and is not the standard by which we consider his appellate
challenges.

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
4
Well-settled standards govern our review. This court reviews the factual findings
for substantial evidence and whether the findings support the conclusions of law. In re
Welfare of X.T., 174 Wn. App. 733, 737, 300 P.3d 824 (2013). “Substantial evidence
exists if, when viewing the evidence in the light most favorable to the prevailing party, a
rational trier of fact could find the fact more likely than not to be true.”3 Id. This court
does not weigh the evidence nor the credibility of any witness. Id. “Because the trial
court has the opportunity to hear the testimony and observe the witnesses, its decision is
entitled to deference.” In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470
(2011).
This petition was filed under RCW 13.34.030(6)(c), which provides that a child is
dependent if there is “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.” A finding of actual abuse
or neglect is not necessary to find a child dependent under that subsection; the danger of
harm is sufficient. In re X.T., 174 Wn. App. at 737. The trial court has “broad
discretion” in determining whether there exists a risk of harm. Id. at 738.
3 This standard also has been defined to mean that the evidence “is sufficient to
persuade a rational, fair-minded person that the finding is true.” Cantu v. Dep’t of Labor
& Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012).

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
5
K.W. argues that there was insufficient evidence that he was unable to care for the
children, pointing out that the evidence only established past evidence of drug use rather
than current use, the children were able to rouse him when he passed out, he made
arrangements for neighbors to watch the children whenever he was incarcerated, and that
police behavior during the standoff demonstrated that his youngest child was not in
danger.
We agree with the trial court that K.W. was not able to care properly for the
children due to his addiction, the source of his parenting deficiencies. Someone who is in
thrall to alcohol and controlled substances necessarily is not in control of his own life and
has a diminished ability to care for others. His own admission that he is a drug addict is
sufficient evidence of current drug usage to support the court’s findings on that topic, and
his admission was amply supported by his daughter’s testimony to his heroin and
methamphetamine use in the home. And the need of his own children to awaken him in
order to receive his care and attention speaks volumes about his abilities. The trial court
had an adequate factual record to support its determination that K.W. was not adequately
caring for his children
The remaining question is whether there was a substantial danger to the
development of the children. We again agree that the trial court had an ample basis for

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
6
its finding and did not abuse its broad discretion. There was a large amount of evidence
in the record that K.W. engaged in open, continuous drug use in the house and permitted
strangers to use drugs in the home he shared with the children. The police standoff not
only frightened the younger daughter, it occurred in large part because K.W. did not seem
to recognize that his failure immediately to surrender led to the entire confrontation and
put his child in danger. Officers understandably surrounded the residence where a known
felon was reported to have a firearm and would not be leaving the child to the tender
mercies of her armed father. While law enforcement showed remarkable restraint and
waited K.W. out, the father’s own actions caused the entire incident.
The constant drug use in the family home constituted a danger to the children, and
no child should be forced to endure a police siege. Understandably, the court determined
that K.W.’s behavior threatened the development of his children, with the siege
“scarring” the younger daughter. The evidence was overwhelming.
The dependency finding is well-supported in the evidence.
Placement with Relative
K.W. also challenges the placement of the children with a relative in Tacoma,
reiterating his previous argument that his care of the children was adequate and did not
endanger them. As noted, the trial court had ample reason to believe otherwise.

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
7
An out-of-home placement for dependent children is appropriate when efforts
have previously been made to provide the services needed to avoid removal and one of
three other circumstances exist. RCW 13.34.130(6). Here, the trial court determined that
the children’s safety and welfare could not be protected at home and the danger of serious
abuse or neglect was established by clear and convincing evidence. RCW
13.34.130(6)(c).4 The danger must be highly probable. Id. The trial court found that
these conditions were established.
K.W. challenges both determinations. As noted previously, this court reviews
factual findings for substantial evidence.5 Welfare of X.T., 174 Wn. App. at 737. We
review the placement decision for abuse of discretion. In re Dependency of R.W., 143
Wn. App. 219, 223, 177 P.3d 186 (2008). Discretion is abused when exercised on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,
26, 482 P.2d 775 (1971).
4 At the time this appeal was filed, these provisions were located at RCW
13.34.130(5), but the provisions were renumbered effective October 1, 2019. The parties
cite to the current version of the statute, as do we.
5 K.W. argues that this finding is actually a conclusion of law. We disagree. The
legislature has established the factual findings that must be made before a court can
exercise its authority to place a child outside the home. RCW 13.34.130(6). Here, the
court determined that the factual circumstances of RCW 13.34.130(6)(c) were present.
That action is properly labeled a finding of fact.

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
8
The record supports both findings. There was evidence that prior to the standoff,
K.W. was offered both an evaluation and drug monitoring through the community
custody portion of the felony sentence. K.W. failed to comply with the sentence
requirements and, hence, was the subject of an arrest warrant that fueled the standoff. He
was then incarcerated, leading to the need to place the children somewhere outside of the
parentless home. This constituted substantial evidence that the State was attempting to
provide the necessary drug evaluation and treatment K.W. needed to be an effective
parent. His failure to engage in the services required additional steps be taken.
The same evidence discussed in the first argument also supports the court’s
finding that the children would not be safe living with K.W. The evidence of ongoing
drug usage leading to diminished adult functioning and resulting in a police standoff
presented clear and convincing evidence that the children were in danger if left in their
untreated father’s care. Used hypodermic needles about the house, strangers ingesting
drugs on the premises, a father who was regularly under the influence of both alcohol and
controlled substances, and including a child in a totally unnecessary armed police
standoff, all point to a home where children were in danger. The father was not only
endangering his children, he was making no efforts to safeguard them. The court’s
determination that they were in danger was very amply supported by the evidence.

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
9
The remaining question is whether the trial court abused its discretion in
continuing the children’s placement with a relative in Tacoma. The court had very
tenable grounds for doing so. The father was incarcerated when the children initially
were removed and, at the time of the hearing, was about to become incarcerated again
due to the outstanding arrest warrant. K.W. could not meet his basic reporting
obligations and declined to comply with his sentence obligations. There was no reason to
believe that he would be in a position to attempt parenting any time soon. He was
making no effort to undertake the steps necessary to regain control of his life even though
he risked incarceration for not acting. This was an out-of-control man who was not in a
position to care for his children.
The children were enrolled in school in Pierce County and apparently were
thriving there. It was reasonable to leave them in that stable situation rather than return
them to the uncertainties of life with K.W., even if he had shown some effort to address
his problems. Since he had not made any effort, the placement decision was relatively
easy. The relative placement was working, while K.W. had not attempted to start the
difficult road to recovery and again undertake his parental role.
The court had very tenable reasons for placing the children with a relative. There
was no abuse of discretion.

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
10
Attorney Conflict
Lastly, K.W. argues the trial court erred in not allowing his attorney to withdraw.
Since there was no request to withdraw, and no evidence in the record that counsel
needed to do so, there was no error.
RPC 1.16 requires an attorney to seek to withdraw from representation when
continued representation would lead to a violation of the Rules of Professional Conduct.
A court appointed attorney may not withdraw without an order of the court. CR 71(b).
The trial court’s decision on a withdrawal request is reviewed for abuse of discretion.
Kingdom v. Jackson, 78 Wn. App. 154, 158-159, 896 P.2d 101 (1995). Whether a
conflict of interests exists is a question we review de novo. State v. O’Neil, 198 Wn.
App. 537, 542-543, 393 P.3d 1238 (2017).
The record is utterly devoid of evidence that there was a conflict of interest.
Counsel feared he may have a “conflict” representing his client in the client’s absence,
but he never identified a conflict of interest as the problem. Even at that, his client did
appear and testify by telephone. Whatever concerns the attorney may have had, they
appear to have revolved around the client’s absence rather than some factor relating to the
attorney-client relationship. As pointed out by the State, the attorney and client had met
four days before the hearing, yet no motion to withdraw based on a perceived conflict of
interest was ever filed.

No. 37062-3-III (consol. with 37063-1-III)
In re Dependency of H.S.W. & H.N.W.
11
The trial court did not abuse its discretion since it was never called on to act. This
court has no record on which to determine whether a conflict of interest existed. In short,
K.W.’s argument is nothing but speculation. There is no showing of error.
Affirmed.
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.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Siddoway, J.