IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


### In re the Matterofthe Dependency of F.G. and J.G., minors STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v. JASMINE WEBSTER, Appellant. NOS. 71015-0-1 71016-8-1 (Consolidated Cases) DIVISION ONE

UNPUBLISHED OPINION FILED: July 28, 2014 r= o *r.

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Lau, J. — Jasmine Webster challenges her dependency order, arguing that the 

### frequency ofvisitation with her children violates RCW 13.34.136. Because Webster raises this issue for the first time on appeal, we decline to considerthe asserted error, and we affirm. FACTS Jasmine Webster is the mother of two boys, eight-year-old JG and five-year-old FG. Both children sufferfrom developmental delays, posttraumatic stress disorder, and71015-0-1,71016-8-1/2 

### behavioral problems, among other issues. The Washington State Departmentof Social and Health Services (DSHS) has been involved withthe familysince JG's birthbased 

### upon Webster's cognitive and mental health issues and inabilityto protect the children byexposing them to domestic violence perpetrated on Websterby the children's father.1 

### Webster relied heavily onfamily members to assist her in parenting the children. InAugust 2012, after a particularly severe domestic violence incident, Webster 

### and the children left the father's home and moved in withWebster's grandmother Sonia Utleyand her partner. Atthattime, Websterwas subjectto a less restrictive order 

### issued by the mental health court, which stated that Webster had to reside with Utley and the children, take her medication, remain mental health treatment compliant, and 

### continue her financial arrangementwith a payee. Webster, however, had a pattern of leaving Utley's home and returning to the children's fatherfor days at a time. This pattern caused the children significant harm. In April2013, Utley requested that the children be removed because she was no 

### longer able to provide appropriate care for them. DSHS filed a petition alleging thatJG and FG were dependent under RCW 13.34.030(6)(c), which provides that a child is dependent ifthere is "no parent, guardian, or custodian capable ofadequately caring for the child, such thatthe child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." In May 2013, DSHS social worker Megan Stampfli was assigned to the cases of JG and FG. During supervised visits, Stampfli observed that the children often



### 1The children were found dependent as to theirfather by default. He did not appeal the dependency order.71015-0-1,71016-8-1/3 

### displayed aggressive, violent, and destructive behaviors. Shefrequently had to intervene to assistWebster in parenting the children. Due in large part to the children's behavior, Stampfli had to move the children to eight differentfoster care homes before they stabilized at a foster home in Yakima. Supervised visitation between Webster and her children was set at twice a week 

### for two hours. Webster was opposed totraveling toYakima, so DSHS transported the children from Yakima to the Seattle area. Travel time for the children was 

### approximately five hours per visit. Because the lengthy traveling time was difficultfor 

### the children, DSHSfiled a motion to reduce the visits to twice a month for four hours per visit. On July 22, 2013, at a motion hearing setto determine visitation, an agreed order
was entered reducing visitation to two times per month. During a supervised visit on August 25, 2013, the children's guardian ad litem (GAL)observed thatWebster had minimal engagement with her children and that the visitation supervisor had to intervene 

### frequently to parentthe children. DSHS subsequently lost contactwithWebster, and she did not visit the children at all in September2013. 

### The trial court held a dependency and disposition trial on September 12 and 16, 2013. Bythat time, the children had been inthe same foster home inYakima for over two months. DSHS was unable to locate Webster, and she did not appear at either hearing. The GAL recommended that visitation be set attwice per month, with Webster traveling to Yakima for one ofthe visits. Webster's attorney replied: I'm in an awkward—well, Idon't have a lot of direction from my client as to any services she's willing to participate [in] or the visitation. So, Iguess itmay be 

### importantforthe Courtto know we previously have agreed to the visitations suggested by the Department.71015-0-1,71016-8-1/4 RP(Sept. 16, 2013) at 211. 

### The only aspect of visitation thatWebster's attorney objected to was the GAL's recommendation thatWebster be required to travel to Yakima. The court granted the GAL's request that one ofthe two monthly visits take place inYakima, withWebster traveling there by bus. 

### On October 3, 2013, the court issued an orderofdependency. The courtfound thatWebster is not capable ofmeeting the children's basic needs due to hercognitive and mental health issues. The court also found thatWebster cannot adequately and safely care for the children, that she cannot maintain herown stability, and that she continues to have a destructive relationship with the children's father. Regarding visitation, the trial court ordered: During the time the children are placed in Yakima, two times per month supervised by DCFS or its designee. The mother and children shall alternate traveling for the visits so the burden oftraveling is shared. The mother shall travel to the children for one visit per month and the children shall travel to the motherfor one visit per month. The Department shall pay for the mother's bus ticket once per month to travel for the visit with the children. If a placement located closerto the motherbecomes available that is appropriate for the children, the mother shall have visits twice perweek for two hours each visit supervised by DSHS or designee. Webster appeals. ANALYSIS 

### Forthe first time on appeal, Webster argues thatthe trial court erred in restricting supervised visits to twice a month. RCW 13.34.136(2>(b)(ii) provides that DSHS "shall 

### encourage the maximum parent and child and siblingcontact possible, when it is in the best interest of the child
. .. ." Based on this standard, Webster asserts that ifshe is71015-0-1,71016-8-1/5
able to travel to Yakima, she should be allowed to see her children as much as possible. 

### The State argues that Websterwaived the asserted error byfailing to raise it below. We agree. "The general rule is that appellate courts will not consider issues raised forthe first time on appeal." State v. Kirkman. 159 Wn.2d 918, 926, 155 P.3d 

### 125 (2007). However, "[a] party may raise forthe first time on appeal a manifesterror 

### affecting a constitutionalright." In reAdoption ofM.S.M.-P. Wn. App. , 325 P.3d 392 (2014); RAP 2.5(a)(3). "We look to the asserted claim and assess whether, if correct, itimplicates a constitutional interest as compared to anotherform of trial error." 

### State v. O'Hara. 167 Wn.2d 91, 98, 217 P.3d 756 (2009). "A manifest errorrequires a showing ofactual prejudice." M.S.M.-P. 325 P.3d at 398. Actual prejudice requires a "plausible showing bythe [appellant] thatthe asserted error had practical and identifiable consequences inthe trial ofthe case." Kirkman, 159 Wn.2d at 935, quoting State v.WWJ Corp.. 138 Wn.2d 595, 603, 980 P.2d 1257 (1999). Webster has not shown manifest error affecting a constitutional right. First, we note thatWebster provided no argumentwhatsoever regarding RAP 2.5(a)(3). Second, Websterfails to assertthatfrequency ofvisitation is an error ofconstitutional 

### magnitude. Her arguments are based solely on her claim thatthe frequency of visitation constituted a statutory violation. Third, Websterfails to show that the claimed error had practical and identifiable consequences. "To determine whether an error is practical and identifiable, the appellate court must put itselfin the shoes ofthe trial courtto ascertain whether, given what the trial court knew at the time, the court could have corrected the error." M.S.M.-P. 325 P.3d at 398. The record shows that at the time of71015-0-1,71016-8-1/6


### the dependency and disposition hearings, (1) DSHS had been unable to contact Webster, (2) Websterfailed to appear, (3) Webster had previously agreed to twice a month visits, and (3) Webster's attorney opposed the GAL's recommendation that Webstertravel to Yakima for one ofthe two monthly visits. Given what the trial court knew at the time oftrial aboutWebster's interest in visitation, it had no basis on which to 

### decide thatWebster might demand additional visitation, let alone correct it. CONCLUSION 

### Webster shows no asserted errorfalling within the RAP 2.5(a)(3) exception to the 

### general rulebarring review of claims raised for the firsttime on appeal. We affirm.

WE CONCUR: 

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