INTHE COURT OF APPEALS OFTHE STATE OFWASHINGTON 

### Inthe Matterofthe Dependencyof J.O. and J.O., Minor Children. STATE OFWASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v. SONIA OROZCO-SALGADO, Appellant. No. 72097-0-1 

### (Consolidated with No. 72098-8-1) DIVISION ONE

UNPUBLISHED OPINION

FILED: March 2, 2015 c*n

1 ' T-= ro ;<-:•', *-]

—, f r, r- r

C-.



### Leach, J. — Sonia Orozco-Salgado appeals an order declaring her twin boys, J.O. and J.O., dependent. She contends the order violates her statutory and constitutional rights becausethe courtstruck heranswerto the dependencypetition and deemed the petition's allegations admitted after she failed to appearattrial as required by a CR 43(f)(3) notice. She also contends the court erred in striking her answer without first addressing the discovery sanction factors discussed in Burnet v. Spokane Ambulance.1 We affirm. FACTS The twins were born on October 17, 2013. At that time, Sonia and the twins tested positivefor amphetamines. Thetwins spenttwo weeks in intensive care.



### 1 131 Wn.2d 484, 933 P.2d 1036 (1997).No. 72097-0-1 (consol. with No. 72098-8-1) / 2
On October 23, 2013, social worker Debra Daniel spoke with Jose Avila, one of the twins' potential fathers. Avila told Daniel he put methamphetamines in Sonia's food several times during herpregnancy. Sonia admitted using methamphetaminewhen she
was two months pregnantbutclaimed she did not know shewas pregnantuntillater. On October 24, 2013, Daniel imposed a safety plan. Under the plan, Sonia's housemates, Nidia and Juan Orellana, would monitorSonia and thetwins when they left the hospital and ensure thatAvila did not have access to them. Sonia agreed to submit to random urinalysis. On October 29, 2013, Sonia and the twins left the hospital. The next day, the Orellanas called Daniel and reported that Sonia and the twins had not stayed with them afterthey leftthe hospital. On November 4, 2013, the Department of Social and Health Services (Department) filed a dependency petition. In addition to the facts recited above, the petition alleged that a friend of Sonia's called Daniel on October 30 and reported that Sonia and the twins stayed with her after they left the hospital. The friend had tried, 

### unsuccessfully, to locate Sonia and was "really concerned aboutthe babies." The petition alleged that Sonia agreed, butfailed, to meetwith Daniel on October 30, 2013, and refused to reveal her location. Sonia's oldest child, Edith Estrada, told Daniel thatSonia submitted Estrada's urinefor her urinalysis tests and sold drugs inthe 

### form of white powder and rocks in bags. The Department recommended out-of-home
care for the twins due to Sonia's "negligent behaviors and inability to maintain herNo. 72097-0-1 (consol. with No. 72098-8-1) / 3 

### sobriety," as well as her failure to engage "in any treatment or services that would provide safety measure inthe home." 

### On November 5, 2013, the court placed the twins in shelter care. The court 

### found that "services offered or provided to the parent(s) have been unable to remedy the unsafe conditions inthe home" and thatout-of-home placementshould continue. 

### On December23, 2013, Soniafiled an answer admitting many of the allegations inthe petition. 

### On April 17, 2014, the Departmentfiled an amended petition. Itallegedthetwins had "noparent, guardian orcustodian capable ofadequately caring for [them], such that 

### [they are] in circumstances which constitute a danger ofsubstantial damage to [their] psychological orphysical development." 

### Trial began on April 24, 2014. Despite notice, Sonia did not appear. Citing CR 

### 43(f),2 the Department moved to strike Sonia's answer, deem the allegations in the petition admitted, and proceed to trial. The court asked what it should consider in deciding whetherto strike Sonia's answer. The Departmentresponded, [T]he motherhas an obligation underthe rules to appearand participate in these proceedings, and to enable the Department to examine her and to elicit information that's relevant to the proceedings. And she has failed to do so. And the rules provide that in the event that a party does not participate inthe proceedings, thattheiranswermay be stricken. 

### 2CR 43(f)(3) provides inpertinentpart: Ifa party . . . refuses to attend and testify before the officer designated to take his deposition or at the trial after notice served as prescribed in rule 30(b)(1), the complaint, answer, or reply of the party may be stricken andjudgmenttaken againstthe party.No. 72097-0-1 (consol. with No. 72098-8-1)/4 

### . . . [And]pursuantto RCW 13.34.020, itspecificallysays thatwherethe rights of the children and the parent conflict, the rights ofthe child shall prevail. And the statute also provides that permanency shall be achieved at the earliest possible time.
. . .

. . . And
... the information that the Court has at this time is simply that the mother is not involved with these children, has not been involved with these 

### children for many, many months, is, we think, outofstate; we don't knowexactly where. And so, the idea that she should be able to dabble with the fates ofher 

### children at herwhim is . . .there's simply no equitable supportforthat. We have a proceeding. Shewas given notice ofthe proceeding.
. .. She's not here.

.... Itwas her responsibility to maintain contact so that she could pursue her 

### rights because she had filed an answer denying some ofthe allegations in the dependency petition. But, she has failed to pursue her rights. She has failed to remain incontactwith her counsel, and that is why it [i]s an appropriate remedy to strike the answerand deemthe allegations inthe petition admitted. 

### The twins' counsel agreed with the Department. Sonia's counsel opposed 

### striking the answer and asked the court to start the trial and then recess until Sonia could appearand testify. 

### Agreeing with the Department, the court noted, "there's no reason that's been 

### given for her non-appearance here today" and "the only way the Court can look at it is thatshe chose not to appear." The court struck Sonia's answer, deemedthe allegations inthe petition admitted, and started thetrial. 

### The Department called two witnesses. Social worker Megan Hall testified that she first met with Sonia on November 22, 2013. Sonia told her she "uses a lot of 

### drugs." Hall noted that the Department had "numerous allegations of drug use by [Sonia], including positive drug screens at the children's birth." Hall offered Sonia twice weekly urinalysis and a full drug and alcohol evaluation. She offeredthese servicesNo. 72097-0-1 (consol. with No. 72098-8-1) / 5
"two or three times," both in person and in service letters. When asked if Sonia engaged inany ofthose services, Hall said she engaged inone urinalysis test. Hall testified that she arranged for visitation, but Sonia only visited the children four or five times throughoutthe case and only once inthe nine weeks priorto trial. Hall testified that Sonia "lost multiple visitation contracts" and was incarcerated multiple times after the twins were removed from her care. Sonia called Hall three weeks before trial and said she was out of state. Hall had not heard from Sonia since. Hall believed Sonia was not capable ofadequately caring for "infants who are atthe mercy ofthe
. . . parentcaring for them" and thattheywould be in dangerif left inhercare. The twins' guardian ad litem, Pauline Duke, testified that a dependency should be established. She noted Sonia's "lack of engagement in the proffered services," failure to establish or maintain a bond with the children, "very concerning" history of drug use, lackoftreatment, and pending criminal matters. The court admitted several exhibits, including a November 2013 shelter care order. That order included the statement that Sonia "testified and has previously 

### represented that she agrees to substance abuse treatment." Otherexhibits included a January 2014 arrest warrant for Sonia's alleged possession of a stolen vehicle and a May2013judgmentand sentencefor fourth degree assaultthat required herto enroll in
a domestic violence program. 

### Sonia's counsel presented no witnesses. The court and counsel agreed, however, that Sonia could moveto reopen when court reconvened in May 2014.No. 72097-0-1 (consol. with No. 72098-8-1) / 6 

### On May 9, 2014, court reconvened, and Sonia again did not appear. Her counsel told the court that she had agreed to participate by phone, but she had not 

### called. The court asked counsel to present "anyother information you wanted to give me" prior to closing argument. Sonia's counsel presented no additional information. 

### Following closing arguments, the court granted the dependency petition. The 

### court noted the services offered by the Department and Sonia's failure to meaningfully participate inany ofthem. Sonia attended only 4 of a possible 100 visits withthetwins. 

### She also recently tested positive for methamphetamine in conjunction with a pending criminal matter. The court stated that its "factual findings are based upon the testimony ofthese witnesses combined with the Department's admitted exhibits, its petition, and any otherevidence that was presented at trial." The courtconcluded thatthe statutory prerequisitesfor a dependencywere satisfied and repeated its findings and conclusions in a memorandum order. Sonia appeals. DECISION For the first time on appeal, Sonia contends the court's decision to strike her


### answer and deem the petition's allegations admitted violated her statutory and 

### constitutional rights.3 Generally, an appellate court will not consider issues raised for 

### the first time on appeal.4 However, "[a] party may raise for the first time on appeal a 3Sonia's bare recitation ofboilerplate due process principles in her trial brief did notpreservethe errorshe now asserts on appeal. 

### 4Statev. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).No. 72097-0-1 (consol. with No. 72098-8-1) / 7


### manifest error affecting a constitutional right."5 "A manifest error requires a showing of actual prejudice."6 Actual prejudice requires a "'plausible showing bythe [appellant] that the asserted errorhad practical and identifiable consequences inthetrial ofthe case.'"7 The appellant has the burden to demonstrate the basis for reviewing an issue raised for 

### thefirst time on appeal.8 Sonia fails to address RAP 2.5(a) orthe relevant case law. She offers no basis for reviewing her statutory or constitutional claims for the first time on appeal. She has 

### thus failed to carry herburden. Even if Sonia had offered a basis for review, she could not establish manifest constitutional error on this record. Primarily, she contends that the court's decision to strike her answer and deem the petition's allegations admitted "resulted in a dependency
. . .based on unproven facts" and thus violated due process. While Sonia 

### and the twins were entitled to due process during the dependency proceeding,9 the process she received was adequate.



### 5 In re Adoption of M.S.M.-P., 181 Wn. App. 301, 312, 325 P.3d 392 (2014), reviewgranted. No. 90467-7 (Wash. Feb. 4, 2015); RAP 2.5(a)(3). 

### 6M.S.M.-P., 181 Wn. App. at 312. 7Kirkman. 159 Wn.2d at 935 (internal quotation marks omitted) (quoting State v. WWJ Corp.. 138Wn.2d 595, 603, 980 P.2d 1257 (1999)). 

### 8Statev. Grimes. 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011). 

### 9Dependency proceedings involvethe libertyinterests and constitutional rights of parents and children. In re Dependency ofM.S.R.. 174Wn.2d 1, 15-18, 271 P.3d 234 (2012): see In re Dependency of K.N.J., 171 Wn.2d 568, 579-80, 257 P.3d 522 (2011). 

### These rights are protected by due process, which includes notice, an opportunityto be 

### heard, and the right to be represented by counsel. In re Welfare of Key, 119 Wn.2d 600, 611, 836 P.2d 200 (1992).No. 72097-0-1 (consol. with No. 72098-8-1) / 8


### The adequacy of a particular process depends on a balancing ofthree factors: 

### (1) the private interest at stake, (2) the riskthatthe procedure used will result in error, 

### and (3) the State's interest.10 Here, Sonia, the twins, and the State all had strong interests at stake inthe dependency proceedings.11 Those interests, however, were not 

### as strong as the interests at stake in termination proceedings.12 This is due in part to the fact that, unlike decisions terminating parental rights, dependency decisions are 

### followed by review hearings and are reversible.13 The remaining Matthews factor—the risk that the procedure used will result in error—favors a conclusion thatSonia received constitutionally adequate process. While 

### the court's decision to deem the allegations in the petition admitted was unnecessary, the court did not simply rely on those allegations. Rather, the court heard sworn 

### testimony supporting those allegations, allowed cross-examination of the witnesses, and afforded Sonia the opportunity to testify or call witnesses. This greatly minimized 

### the risk of an erroneous determination of dependency and satisfied due process.14 Takentogether, the Matthews factors indicatetherewas no violation ofdue process. 10 Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L Ed. 2d 18 (1976); in 

### re DependencyofJ.W.. 90 Wn. App. 417, 429, 953 P.2d 104 (1998). 11 See M.S.R., 174Wn.2d at 15-18. 

### 12 Inre Welfare ofR.H., 176 Wn. App. 419, 425, 309 P.3d 620 (2013) (because of the interests at stake in a termination proceeding, parents are afforded greater due 

### process rightsin a termination proceeding than in adependencyproceeding). 13 See In re A.W., 53 Wn. App. 22, 27-28, 765 P.2d 307 (1988 (noting that a 

### dependency determination is reversible through periodic review hearings at which a newfinding ofdependencymust be made and that a party'sparticipationin suchreview hearings may render any due process violations at theinitialhearing harmless). 14 See In re Welfare of S.I.. Wn. App. , 337 P.3d 1114, 1119 (2014) (holding that risk of erroneous deprivation of parental rights from default termination was
-8-No. 72097-0-1 (consol. with No. 72098-8-1) / 9
Even ifSonia could establish a due process violation, she could not establish 

### actual prejudice. As noted above, the court's decision did not rest on unproven allegations inthe petition. The court's oral and written ruling expressly state that "[t]he Court's factual findings are based upon the testimony ofthese witnesses combined with the Department's admitted exhibits" and the allegations inthe petition. As noted above, the court heard testimony about Sonia's admitted drug use and need for treatment, her lack of visitation, her unavailability to the caseworkers and the court, and herfailure to follow through with services. Sonia also admitted that she and the twins tested positive for amphetamines when they were born, that she was incarcerated throughout her pregnancy, and that she used methamphetamine during her pregnancy. There was no manifest constitutional error. Sonia's arguments relating to Burnet are also raised for the first time on appeal and fail for essentially the same reasons. Burnet held that a court imposing harsh discovery sanctions must first expressly consider whether the discovery violation was willful, whether it substantially prejudiced the opponent, and whether lesser sanctions 

### would suffice.15 Assuming, without deciding, that Burnet's requirements for discovery sanctions apply in this setting, Sonia fails to demonstrate any constitutional error, let
minimized by court's use of "sworn testimony of one familiar with the case and an 

### opportunityfor a courtto independentlyquestion such person"), petition for review filed, No. 91261-1 (Wash. Feb. 6, 2015); Inre DependencyofA.G., 93 Wn. App. 268, 278-80, 968 P.2d 424 (1998) (although mother was not present or represented by counsel, no 

### due process violation occurred because court heard testimony and made findings on substantive issues). 15Burnet. 131 Wn.2d at494-97. -9-No. 72097-0-1 (consol. with No. 72098-8-l)/10
alone manifest constitutional error. And for the reasons set forth above, we decline to considerany errorunderBurnet. Affirmed.

WE CONCUR: 

# Tr\<M-*vj -i

-10-