### FILED AUGUST 8, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter ofthe Dependency of A.K.J and A.E.J. Minor children underthe age ofeighteen 

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### 34643-9-111 (Consolidated with No. 

### 34644-7-111) UNPUBLISHED OPINION KORSMO, J. -Afather appeals the trial court's determination finding his two daughters dependent due to no parentbeing capable ofadequately caring.for the children. We affirm. FACTS The father, L.R., is the biological father ofA.E.J. and has raised the other daughter, A.K.J., her entire life. The mother, T.J., is not a partyto this appeal. The current case traces its origins backto a telephone call the father made to 911 to report an assault athis house inrural Adams County on June 13, 

### 2016. A deputy sheriffrespondedto find that one ofthe father's cousins had assaulted a
woman. T.J., who was present atthe time ofthe incident, fled the scene withthe father's knowledge due to the fact there was an outstandingwarrant for her arrest. Despite calling 911, L.R. was ''very uncooperative" withthe deputy and denied knowing whathadNo. 34643-9-III (consolidated with No. 34644-7-III) In re Dependency of A.K.J &A.E.J happened. He later testified that he had been in his bedroom when the fight occurred. He told everyone to leave the property and asked his mother, T.M., to come over and pickup the two children. She arrived and took the children. Three days later, the Department ofSocial and Health Services (DSHS) filed the current dependency petitions as to each child. The case eventually wentto a fact-finding hearing. T.J. testified that she did not live with L.R. and the children, butthathe took

care ofthe children while she was struggling with drug addiction. She believes L.R. is a good father who provides a safe home for her daughters. She testified there were no drugs in the house. She also described incidents ofdomestic violence by L.R. against her that had occurred "several years ago." She attributed those incidents to L.R.'s use of alcohol, but stated he had notbeen a drinker for years. Fallowing the end ofT.J.'s first day oftestimony, the trialjudge opinedthat T.J. appeared under the influence because she was tired, slurred her speech, lacked "diction," and was "crying" and "emotional." Atthe next day oftestimony, T.J. explained she had

never testified in court before, found the experience "terrifying," and was extremely uncomfortable during her testimony because she is by nature a privateperson. She also explained she suffers from obsessive compulsive disorder (OCD) and anxiety disorder, both ofwhich make it hard for herto engage in public speaking. T.J. denied being under the influence ofdrugs and alcohol while in court. She also explained she suffers from undiagnosed narcolepsy, which is why she often appears tired and has difficulty focusing.

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## iNo. 34643-9-111 (consolidated with No. 34644-7-111) In re Dependency of A.K.J &A.E.J During testimony ofa later witness, thejudge interjected to opine that T.J. was "again nodding offin the open courtroom." Report ofProceedings (RP) at 193. During the court's oral ruling the trialjudge declared: [T.J.] is obviously under the influence ofmethamphetamine. I made a comment about it yesterday. She came in this morning and said her behavior was due to OCD and anxiety disorder and she held it together in the morning. And then this afternoon she's sitting next to counsel visibly nodding off, leaving the courtroom, coming back. She's addicted. She admits she's addicted and she admits she's untreated. But she's absolutely under the influence ofmethamphetamine. She shakes her head no as she sits there today; but she is. She's addicted to methamphetamine. RP at 251. T.M. testified that she considered her son a good father to the children and that he would putthem in daycare while he worked. She was a frequent visitor to the house and did not see any drug use. She had no concern for the children's well-being when in L.R.'s care. She thought the relationship between L.R. and T.J. was poorbecause he was always trying to "fixher." The deputy who responded to the 911 call described the house as "extremely dirty" with the floor covered in dirt and grime to the pointwhere the floor was sticky; there were food, clothes, and tools all overthe house; boxes were piled everywhere. He also saw items related to drug activity (dishes with soot or ash, objects appearing burnt), but observed no drugs. In contrast, a family preservation therapist testified thathe had

3No. 34643-9-111 (consolidated with No. 34644-7-111) In re Dependency of A.K.J &A.E.J been inside the house in May 2016, and had considered it "lived in,"but not unsanitary. 1 A social workertestified that she became involved with the family on May 23, 2016. She testified that the children hadbeen attending school and were in good health. L.R., age 33, testified thathe had issues with alcohol in his teenage years, buthad successfully completed treatment. He still struggled with alcoholism, but alcohol no longer was a problem for him. Alcohol had beenthe cause ofhis violence against T.J. in the past. He admitted police had been called to the house in the past due to domestic violence and, on one occasion, a suicide attempt. He testified that the house was kept clean, but that it would get "a little messy" when T.J. was around. The court issued its ruling finding both children dependent after hearing argument from counsel. The court accepted the deputy's description ofthe home as unsanitary. The court determined that the parents were "totally helpless" and couldnot function without the support ofone oftheir parents. Acknowledging that the domestic violence incidents had been in the past, thejudge nonetheless described them as "appalling" and he stated that "such a man" could notbe trusted with the care ofsmall children in the absence oftreatment or other assurance that his angerproblems had beenresolved.2

1The therapist also described an incident where L.R. refused him entry to the house on the basis that T.J. no longer lived there. The therapist took T.J. to a hotel to work out alternative living arrangements, butL.R. appeared and convinced T.J. to return to his house. 2 One ofthe incidents ofviolence involved L.R. smearing T.J.'s face with dog feces. In another, he made herremove her clothing and stay outside in the middle of winter. 4 

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# 'No. 34643-9-III (consolidated with No. 34644-7-III) In re Dependency of A.K.J. &A.E.J. Similarto his assessment ofT.J., the trialjudge expressed his opinion ofL.R.'s physical condition while in the courtroom: Now, I don'tknow what [L.R.'s] drug ofchoice is, and I know he's suffered a personal loss today, before this afternoon but he sits here on the witness stand andat counsel table and he's trembling like a leaf. It looks like withdrawal symptoms to me. He held it together for the morning but he was not able to hold it together today. He quit hisjobbecause he was stuff--suffering stress and 

### I think it was a little deeper than that; but he is under the influence orwithdrawing from some drug today and 

### I find that as a fact. 

### RP at 252. The written dependency orders found that the children had no parent capable of adequately caring for them such that the children were in circumstances that constituted a danger ofsubstantial damage to their psychological or physical development. Clerk's Papers (1CP) at 106; 2CP at 101. The court entered a detailed finding offact: These parents have a history ofdrug use, and onthe court's observations of the parents' behavior during the trial, which behavior is consistent with whatthe courthas seen over the years in people who suffer from drug addiction, the court is very concerned that theseparents are untreated drug addicts. Further, the court believes it is likely that each oftheparents may have been under the influence ofdrugs or withdrawing from drugs at the time ofthe hearing. [T.J.] exhibited great difficulty focusing on the proceedings, and several times (including during her testimony) appeared to fall asleep for periods oftime. She was also very emotionally labile. [L.R.] presented to the court's eyes as extremely nervous andjittery, far beyond what might be expected ofan individual in his circumstances, and was apparently unable to control his bodily movements. He seemed to the court to be clearly underthe influence ofsome drug. The court concludes that neither ofthese parents is currently capable of caring for these children, although there is no basis to conclude that any of the parents subjected any ofthese children to abuse orneglect. The parents 5No. 34643-9-III (consolidated with No. 34644-7-III) In re Dependency of A.K.J &A.E.J exhibit an inability to maintain an appropriate environment for these children: the deputy who responded to [L.R.'s] residence on June 13, 2016 to investigate an assault testified that the house was filthy and unsanitary, inhabited by individuals known to or wanted by law enforcement, and contained indications ofdrug use. [T.J.] fled the house, leaving her children behind, when law enforcement arrived at the home. [L.R.] is also incapable ofmaintaining his child safely in his care. His motherhas given him considerable assistance in caring for his child and the other child in his care, but he remains unable to parent either child adequately. [T.J.] admitted during testimony to an extensive history ofdrug abuse, to continuing use ofmarijuana and to use ofmethamphetamine during her pregnancy. She testified to being in need ofdrug treatment. ... [L.R.], although he did not admit to recent or current drug use, is also very likely candidate for treatment himself, and this should be explored. He is clearly in need ofsome kind oftreatment to address his issues around anger and domestic violence: the court was appalled by his admitted pastbehaviors toward [T.S.] finding them to be extremely punitive, controlling and borderline sadistic. 1

CP at 100-101; 2CP at 105-106. The court ordered the children to live with T.M. and allowed L.R. to live there as well as long as he was not left alone with the children. The court found that DSHS had made reasonable efforts to provide services, and although T.J. made some use ofthe services, L.R. was uninterested orresistant. The court ordered L.R. to undergo a drug/alcohol evaluation or present a copy ofa recent evaluation, as well as follow any recommended treatment. L.R. was also orderedto undertake a parenting class and have a domestic violence assessment. 1CP at 104; 2CP at 109. L.R. timely appealed to this court from both dependency orders. The two cases
were consolidated and considered by a panel without argument.

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### No. 34643-9-III (consolidated withNo. 34644-7-III) In re Dependency of A.K.J. &A.E.J. 

### ANALYIS The sole issue in this appeal is whether substantial evidence supports the dependency orders. In particular, L.R. argues boththatthere are no facts that establish any riskto the children'sphysical orpsychological development and thatDSHS failed to prove thathe is currently incapable ofparentingthem. Properly viewed, the evidence supports the veterantrialjudge's assessment ofthe situation. Well-settled standards govern ourreview. This court reviews the factual findings for substantial evidence and whetherthe findings supportthe conclusions oflaw. In re Welfare of XT, 

### 174 Wn. App. 733, 737, 300 P.3d 824 (2013). "Substantial evidence exists if, when viewing the evidence in the light most favorable to theprevailingparty, a rational trier offact could find the fact more likely than nottobetrue."3 Id. 

### This court does not weigh the evidence northe credibility ofanywitness. Id. 

### "Becausethe trial court has the opportunity to hearthe testimony and observethe witnesses, its decision is entitledto deference." In re Welfare of S.J., 

### 162 Wn. App. 873, 881, 256 P.3d 470 (2011). This dependencypetitionwas filed under RCW 13.34.030(6)(c), whichprovides that a child is dependent ifthere is "noparent, guardian, or custodian capable ofadequately caring for the child, suchthatthe child is in circumstances which constitute a danger of

3 

### This standard also has been defined to meanthatthe evidence "is sufficientto persuade a rational, fair-minded personthatthe finding is true." Cantu 

### v. Dep't of Labor &Indus., 

### 168 Wn. App. 14, 21, 277 P.3d 685 (2012). 7No. 34643-9-111 (consolidatedwithNo. 34644-7-111) In re Dependency of A.K.J. &A.E.J. substantial damage to the child'spsychological orphysical development." A finding of actual abuse or neglect is not necessary to find a child dependentunderthat subsection; the danger ofharm is sufficient. In re 

### X T, 174 Wn. App. at 737. The trial courthas "broad discretion" in determining whetherthere exists a risk ofharm. Id. at 738. With respect to the question that L.R. was not capable ofbeing a parent, the trial court specifically noted, besides apparent current drug use: (1) law enforcementbeing called to the home to investigate an assault, (2) the unsanitary condition ofthe home, (3) indications ofdrug use in the home, (4) the presence offugitives in the home, and (5) the need for assistance from T.M. to provide proper care for the children. RP at 253. The record squarely supports each ofthese five facts. 

### It is undisputed that law enforcement was called to L.R.'s home due to an assault by one ofhis cousins; L.R. testified that he calledthepolice for that very reason. Additionally, T.J. was the fugitive in the home, and she testified that she fled with L.R.'s knowledge while thepolice were

on the way. The dependency petitions also indicate thatL.R. attempted to assist T.J. to elude law enforcement a second time on June 14. L.R. lied to thepolice about T.J. not beingpresent until she was discovered hiding in a closet within the home. These actions

are indicative ofextremely poorjudgment onL.R.'s part. The deputy's testimony was that the home was very dirty and thatthere were indications ofdrug use.4 The trialjudge

4 The trial court understandably credited these more recent observations overthose made by the social workers during the month ofMay. 8No. 34643-9-III (consolidated with No. 34644-7-III) In re Dependency of A.K.J 

### &A.E.J clearly deemed the deputy's testimony on this fact the most credible, and we defer to that credibility determination. In re X T, 174 Wn. App. at 737. The same is true ofthe deputy's testimony concerning indications ofdrug use in the home. Last, the testimony ofT.M. and L.R. indicates that L.R. would not be able to function as a parent without T.M.'s support. All ofthese findings supportthe determination thatL.R. was not currently capable ofparenting the children. The record is ambiguous whether the trial court considered L.R.'s apparent current drug use to be a factor in affecting his capacity to parent. The court statedthatL.R. "besides being withdrawing from a drug or alcohol or some substance, is not capable of being a parent." RP at 253. The trialjudge then listed the five facts noted in the previous two paragraphs. 

### It appears that the court simply treated this observation ofcurrent drug usage as bearing on the need for services rather than as an additional reason for finding L.R. incapable ofparenting. 5 But even ifit was used as an additional reason for finding L.R. incapable ofparenting, we believe the trialjudgewas capable ofassessing whether

or not L.R. was under the influence at the time he testified in court. From our earliest days, trialjudges have been assigned the task ofdetermining whether a witness is incompetent to testify due to intoxication or mental incompetency. RCW 5.60.050. See Fox v. Territory, 2 Wash. Terr. 297,299, 5 P. 603 (1884). We are confident an

5 lCP at 100-101; 2CP at 105-106. 9No. 34643-9-III (consolidated with No. 34644-7-III) In re Dependency of A.K.J. &A.E.J. experiencedjurist, as we have in this case, is capable ofdetermining whether ornot a witness before him was underthe influence. 6 The remaining question is whether there was a substantial danger to the development ofthe children. Although this is a closer call, we agree thatthe trial court had a basis for its finding and did not abuse its broad discretion. There is a large amount ofevidence inthe record that L.R. has past domestic violence issues thatwere never treated. Consideringthis pasthistory, the violence in the home perpetratedby others (cousins ofL.R.), and the indications ofdrug use in the home, there is more than enough evidence for the trial courtto find a danger ofharm to A.K.J. and A.E.J. With this in mind, the trial court's statementthat it "could nottrust such a man to take care ofsmall children in the absence ofsome sort oftreatment or some sort ofassurance thathe had his anger problems under control" is, despite somepositive efforts by L.R., perfectly reasonable and in the best interests ofA.K.J. and A.E.J. See In re Dependency of Brown, 149 Wn.2d 836, 841-842, 72 P.3d 757 (2003). Whatever control L.R. might ormight not currently have on his anger issues, the trial courtwould be remiss not to investigate further in light ofhis failure to control others from committing acts ofviolence in his own house and his inability to prevent drug use, including by the children's mother, intheir

6 We are not suggesting that ajudge's courtroom observations would constitute sufficient evidence to rule that a witness was addicted orto serve as a basis for terminating the child-parentrelationship. Professional evaluation would be in orderto serve those purposes. However, the court's long-held authority to determine sobriety suffices to determine whether there is a basis for finding a dependency and ordering additional services. 10No. 34643-9-III (consolidated with No. 34644-7-III) In re Dependency of A.K.J &A.E.J home. These activities all indicate a risk ofharm to the children from an unhealthy and unsafe environment that L.R. cannot control. Accordingly, we affirm the dependency orders. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

I CONCUR:



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11No. 34643-9-III (consolidated with No. 34644-7-III) LAWRENCE-BERREY, A.CJ. (concurring)-Throughvarious legislative enactments, trial courts are tasked with protecting vulnerable adults and children. Whether the case involves children with divorcing parents, victims ofdomestic violence, vulnerable adults, dependency determinations, parental terminations, or a host ofother enactments, a trial court's assessment ofcredible danger authorizes it to protect vulnerable persons from possible violence and harm. Here, the trial court had the opportunity to observe L.R. throughout a multiday hearing. The trial court's observations caused it to believe that L.R. was under the influence ofdrugs or withdrawing from drugs. Its beliefwas based on obvious signs that permitted no other credible explanation. The dissent asserts, "[w]hen ajudge takes on the role ofan opinion witness, the litigant's fair hearing rights are undermined." (Dissent at 2). Although theoretically possible, that is not the case here. Here, the trial court's opinion was based on obvious signs likely noted by all courtroom participants. Also, ifthe trial court's opinion was wrong, L.R. could have taken a drug test and submitted the results with a motion for reconsideration. He did not. L.R.'s right to a fair hearing was not undermined here. I commend the trial court for noting its observations on the record and making a decision that protects the children. The trial court's order requires L.R. to obtain a drug

### No. 34643-9-111; No. 34644-7-111 In reDependencies of A.K.J. &A.E.J.

assessment and follow the recommendations ofthe treatment provider. IfL.R. suffers from drug addiction, the trial court's order not only protects the children, it results in treatment for L.R.'s addiction, thus leading to a better outcome for L.R. and his children.



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2No. 34643-9-III (consolidatedwith No. 34644-7-III) PENNELL, J. (dissenting)- L.R. lost custody ofhis children based, at least in part,

on the trial court's assessment that L.R. was either underthe influence ofdrugs or withdrawing from drug use. Although no party orwitness alleged L.R. had everused drugs, thejudgepresiding over a dependency hearing for L.R.'s children, A.K.J. and A.E.J., determined L.R. must have been using drugs based on L.R.'s demeanor in court. In making this substantive assessment, thejudgetook on the role ofa witness. Because this was improper, I would reverse the order ofdependency. Thejudge's evaluation ofL.R. was not akin to declaring a witness incompetentto testify under RCW 5.60.050. Excluding a witness based on intoxication is an evidentiary ruling. It has no substantive value. See 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 1.02, at 24 (6th ed. 2012). The trialjudge could have stricken L.R.'s testimony based on intoxication. Orthe court couldhave made an adverse credibility determination. Butthe court should not have made substantive findings aboutL.R.'s intoxication based on thejudge's ownpersonal experiences and expertise. When the intoxication is relevant for substantive reasons, as opposed to merely impeachment or competency, it mustbe supported by competentevidence. Typically, intoxication evidence is admitted through lay or experttestimony. See United States v. Horn, 185 F.Supp.2d 530, 559-60 (D. Maryland 2002) (collecting cases). SuchNo. 34643-9-III; 34644-7-III In re Dependency of A.K.J &A.E.J (dissent) testimony affords a litigant due process throughprotections such as the rights of discovery, cross-examination, and appellate review. When ajudgetakes onthe role ofan opinion witness, the litigant's fair hearing rights are undermined. Contrary to the majority's assessment, I believe thejudge's findings on drug use

were material to the dependency determination. Thejudgebeganhis oral ruling by commenting that it felt like he was "holding court in an icehouse." 1Report of Proceedings (Aug. 3, 2016) at 251. This was not a reference to the room temperature. 1 Thejudge's concerns about drug use permeatedthe court's rulings, both oral andwritten. The repeated reference to L.R.'s alleged drug use leaves the impression that drug use was ofgreatconcern to the court, ifnottheprimary factor behind the court's dependency finding. This is not a case where the evidence against the father was overwhelming. A.K.J. anq A.E.J.'s mother and grandmotherbothtestified that L.R. was a good father. The uncontested evidence was that domestic violence between L.R. and the children's mother had only been a problem in the past. Although a sheriffs deputy had claimedL.R.'s house was filthy, a service providerwho hadbeen to the home on several occasions testified he had never noticed anything unsanitary orpotentially dangerous to children on the premises.

1Ice is a street name for crystal methamphetamine. 2 f l l 

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## i l !No. 34643-9-111; 34644-7-111 In re Dependency of A.K.J &A.E.J (dissent)

Given the weightthejudgeplaced onhis assessment ofL.R.'s drug use in the ultimate dependency decision, I would reverse the dependency order. The fact that this

was a dependency hearing, as opposed to a termination ofparental rights trial, should not color our assessment ofwhetherthejudge improperly assumed the role ofan opinion witness. While parental rights trials are governed by a higher standard ofproofthan dependency proceedings, compare RCW 13.34.190(l)(a)with RCW 13.34.110(1), both contexts demand competent evidence. See In re Welfare of Ross, 45 Wn.2d 654, 655-56, 227 P.2d 335 (1954); RCW 13.34.110(1). Furthermore, a dependency order marks the first step in the statutory process required to terminate parental rights. In re Dependency of K.NJ, 171 Wn.2d 568, 579, 257 P.3d 522 (2011). Once an order is entered, the State gains access to a family's private affairs. Children's lives are disrupted and their futures

are placed in limbo. Meaningful appellate review isjust as important in the dependency context as it is with respect to the termination ofparental rights. We should exercise this review to reverse the trial court's dependency order.

Pennell, J.

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