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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE Inthe Matter ofthe Dependency of P.H.V.S., dob 3/29/13, A minor child, STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v. HEIDI GABHART and RICHARD SMITH, Appellants. No. 71300-1-1 (Consolidated with No. 71301-9-1)

PUBLISHED IN PART OPINION

FILED: March 2, 2015 Schindler, J. — Richard Smith and Heidi Gabhart are the parents of P.H.V.S. Smith and Gabhart seek reversal of the order of dependency and disposition order. The court found P.H.V.S. dependent because neither parent was capable of adequately caring for the child such that the circumstances constituted a substantial danger to the child's psychological or physical development under RCW 13.34.030(6)(c). Smith contends the absence of his guardian ad litem (GAL) during a portion ofthe dependency fact-finding hearing violated the mandatory statutory and GALR requirements and his right to due process. Smith also asserts insufficient evidenceNo. 71300-1-1 (Consol. with No. 71301-9-l)/2 

### supports finding that he was not capable ofadequately caring for P.H.V.S. or that the child was in circumstances constituting a danger of substantial harm. Gabhart contends insufficient evidence supports finding the Washington State Department of Social and Health Services made reasonable efforts to eliminate the need to remove P.H.V.S. Gabhart also asserts her attorney provided ineffective assistance of counsel and violation of her right to due process. We hold the absence of Smith's GAL during a morning session ofthe four-day dependency fact-finding hearing violated the mandatory statutory and GALR requirements. However, because the record shows there was little or no risk of error, we hold there was no violation of his right to due process. We also hold that substantial evidence supports the finding ofdependency under RCW 13.34.030(6)(c) and Gabhart cannot establish either ineffective assistance ofcounsel or violation of due process. Accordingly, we affirm. FACTS Heidi Gabhart and Richard Smith have lived together since 2010. Gabhart and Smith are the parents of P.H.V.S., born on March 29, 2013. 

### Gabhart is the mother ofthree other children: 20-year-old F.O., 7-year-old J.S., 

### and 4-year-oldA.G. F.O. has lived with his father since the age of 13. In May 2007, the Washington State Department of Social and Health Services (Department) removed 6- month-old J.S. from Gabhart because ofconcerns about her "deteriorating mental 

### health." The court found J.S. dependent and ordered Gabhart to participate in a 

### psychological evaluation, mental health counseling, and medication management. Gabhart did not participate inservices. The Department placed J.S. with her father.No. 71300-1-1 (Consol. with No. 71301-9-l)/3
A.G. was born in Nevada on September 7, 2008. While in the hospital, Nevada child protective services removed A.G. from Gabhart's care. Gabhart was diagnosed with paranoid schizophrenia. The court found A.G. dependent. Gabhart did not participate in mental health services or follow through with referrals for housing. In 2009, the court terminated Gabhart's parental rights to A.G. In February 2013, Gabhart went to Dr. Nicole Ingrisano for prenatal care. 

### Gabhart told Dr. Ingrisano that she had not engaged inmental health services for "well 

### over a year" and had "nodesire to be on medications." When Dr. Ingrisano tried to talk to Gabhart about her mental health, Gabhart became "very easily agitated" and "angry." 

### Gabhart made comments to Dr. Ingrisano about the father of the child, suggesting he 

### was "temperamental and that she was looking at moving outfrom him because he could be violent." Concerned about Gabhart's ability to care for an infant, Dr. Ingrisano instructed the hospital to put a "hold" on the baby. After P.H.V.S. was born on March 29, 2013, Dr. Ingrisano asked clinical social worker Jennifer Cruze to assess Gabhart. Cruze met with Gabhart on March 30. 

### Gabharttold Cruze she had a diagnosis of "psychosis NOS"1 and reported "hearing voices in her head sometimes." Gabhart said she was not engaged inmental health 

### treatment and was not currently on any medication to treat her illness. Gabhart told Cruze that she received Social Security disability income "for her mental health 

### diagnosis." Cruze made a referral toWashington State DepartmentofSocial and Health Services Child Protective Services (CPS). 

### CPS socialworker Molly Rice metwith Gabhart and Richard Smith at the hospital 

### that same day. Beforehand, hospital stafftold Rice that Gabhartreported having
1 Not otherwise specified.No. 71300-1-1 (Consol. with No. 71301-9-l)/4 

### hallucinations and hearing voices. Duringthe meeting, Rice had to repeat questions multiple times "due to [Gabhart] just not answering them." Rice said Smith's breath smelled ofalcohol and he was "not able to answer questions directly." CPS social worker Kyla Madsen met with Smith on April 1. Smith told Madsen that he had been taking care of [Gabhart]" for the last 2-3 years.'" Smith said that Gabhart had been " 'passing out, falling over, and losing consciousness for "years."'" Madsen testified that Smith " 'appeared to have some cognitive delays or difficulty communicating in a clear way,'" and while he was " 'obviously concerned about both Mom and child,'" he " 'appeared unable to understand [the] severity of [the] circumstances.'" On April 2, Madsen, a CPS supervisor, Gabhart, Smith, and Smith's niece 

### Amanda Twiggs-Johns attended a "FamilyTeam Decision Making" meeting. Duringthe meeting, Gabhart "almost passed out or fell asleep. Her eyes became groggy, her mouth was slightly agape, [and] her head bobbed." After approximately five to seven minutes, Gabhart "returned to a normal state and continued with the conversation." 

### Gabhart said she had "a neurological condition." Twiggs-Johns told Madsen and the 

### CPS supervisorthat "the family has seen several instances where Mom has passed out 

### during busy family functions." Twiggs-Johns said she did not think Smith "fully processed or understood the seriousness of Mom's condition." Twiggs-Johns did not know ifSmith had a mental illness but said he "has behaviors that are concerning 

### including his inability to clearlyprocess information, communicate with others, and recognize the signs of Mom's condition."No. 71300-1-1 (Consol. with No. 71301-9-l)/5 On April 3, the Department filed a dependency petition alleging the child was abused or neglected, or had no parent, guardian, or custodian capable of adequately caring for the child such that circumstances constituted a danger of substantial damage to the child's psychological or physical development under RCW 13.34.030(6)(b) and (c). The Department recommended P.H.V.S. remain in out-of-home care, asserting Gabhart's untreated mental health issues constituted a danger to the child. The mother cannot control her behavior due to her significant mental health issues and this threatens child's well-being and safety. She is exhibiting psychotic likefeatures in her behavior and has minimal insight into how her mental health impacts her parenting despite the assistance of 

### multiple providers to facilitate her understanding. The mother's mental health issues prevent herfrom meeting child's cognitive, emotional, and developmental needs. 

### The Department alleged Smith's mental health status was unknown and he exhibited an "inability to recognize signs ofconcerns in Mom's behavior." Atthe shelter care hearing on April 8, the court placed P.H.V.S. infoster care. 

### The court entered an order requiring Gabhart and Smith to each obtain a psychological evaluation and follow treatment recommendations. The court authorized weekly 

### supervised visitswith P.H.V.S. and set a dependency fact-finding hearing forJune 7. In May, Smith's attorney Lorraine Roberts filed a motion to investigate Smith's competency and determine whether to appoint a guardian ad litem (GAL). The court 

### appointed Shawn Crowley as the investigative GAL forSmith. In early June, Gabhart's attorney Matthew Pang asked the court to appoint a GAL to investigate Gabhart's 

### competency. The courtappointed Craig McDonald as the investigative GAL for Gabhart. The court continued the dependency fact-finding hearing to August 23.No. 71300-1-1 (Consol. with No. 71301-9-l)/6 Crowley recommended the court appoint a GAL for Smith. Crowley stated that Smith had "difficulty in comprehending abstractions" and because he was not "capable ofweighing the merits ofthe various legal options involved inthis case[,] I'm doubtful he

can meaningfully assist his attorney beyond stating his goal of having the child returned
home."McDonald recommended the court appoint a GAL for Gabhart. McDonald stated Gabhart's "understanding ofthe legal process is, at best, minimal" and "she did not

seem to retain information, veered offtrack and ultimately became unresponsive." 

### After holding separate competency hearings, the court ruled Smith and Gabhart 

### were "notcompetent." The court found that neither Smith nor Gabhart could understand
or intelligently "comprehend the significance of the legal proceedings and their effect on [his/her] best interests." The court appointed Crowley as the GAL for Smith and McDonald as the GAL for Gabhart "to assist" each parent "in these dependency 

### proceedings." The court continued the dependency fact-finding hearing to September
10. 

### The dependency fact-finding hearing began on October 22. Gabhart; her GAL, McDonald; her attorney Pang; Smith; his GAL, Crowley; his attorney Roberts; the court 

### appointed special advocate (CASA) forP.H.V.S.; the attorney representing the CASA; the Department; and social workerNoemi Peredo appeared for the dependency fact 

### finding hearing. At the beginning of the hearing, Gabhart's attorney made a motion to continue the hearing until Gabhart was found competent. The court denied the motion

to continue.

### No. 71300-1-1 (Consol. with No. 71301-9-l)/7 

### Fifteenwitnesses testified during the four-day dependency fact-finding hearing, including Dr. Ingrisano, Cruze, Rice, Madsen, and Twiggs-Johns. Cruze and Madsen testified the first day. Madsen testified that when she spoke with Smith at the hospital, "[h]isconversationjust was very sporadic and all overthe place." For instance, when Madsen asked Smith if he had any Native American ancestry, Smith told her that he was "100 percentWhite and that he had learned that he

was full Irish. And then in the next breath he told me that he was 100 percent Aztec Indian and started talking about how Aztec Indians had all been
. . . obliterated." Madsen stated that when she talked to Smith about his failure to recognize the severity of Gabhart's mental illness, Smith "got really upset with me and told me that Iwas twisting his words." Five witnesses testified the second day, including Dr. Steven Haney, CPS social worker Rice, the CASA for P.H.V.S., a visitation supervisor, and a mental health crisis and intake specialist. 

### Dr. Haney conducted a mental health evaluation ofGabhart inApril 2013. Dr. Haney testified that Gabhart reported hearing voices and "seemed somewhat depressed and anxious." Dr. Haney diagnosed Gabhart with schizoaffective disorder. 

### Dr. Haney said Gabhart told him she was hospitalized for mental health concerns in 

### 2000 and again in 2007. Gabhart told Dr. Haney she was "put on a whole range of medications" after herfirst hospitalization but did not think the medications were helpful 

### and stopped taking the medications altogether. Dr. Haney testified that Gabhart "did not have any insight into her mental illness and thus did not see herselfas having mental
illness."No. 71300-1-1 (Consol. with No. 71301-9-l)/8
The CASA for P.H.V.S., Jennifer Franklin, recommended P.H.V.S. remain in foster care. Franklin testified that after observing Gabhart and Smith interact with P.H.V.S., she did not believe they could "meet the basic needs ofthe baby." Franklin said the parents did not "respond to [the baby's] cues or seem to know what to do when she's upset." Franklin recommended Gabhart and Smith each obtain a psychological evaluation and parenting coaching. Monet Frazier supervised visitation with P.H.V.S. Frazier said Smith and Gabhart "consistently come to all visits" but Gabhart would "nod off' during 

### approximately half ofthe visits. Frazier testified that there was an ongoing problem with the parents preparing and feeding P.H.V.S., and she had to remind Smith "several times that he needed to support the baby's neck." Frazier said that after Gabhart and Smith 

### began working with a parent coach, they were better able to respond to P.H.V.S. and seemed "more comfortable" around the baby. Frazier testified Gabhart typically did "the 

### majority [of] all child care" during the visits, such as feeding and changing diapers, but Smith had "taken on a little bit more ofthat role in the last few weeks." Cross

### examination ofFrazier was not complete at the end ofthe second day of the fact-finding hearing. 

### Before the beginning of the third day of the dependency fact-finding hearing, Smith's court-appointed GAL sent an e-mail stating he did not plan to attend the morning session but wanted the court to proceed without him. The attorneys representing Smith and Gabhart did not object. THE COURT:
... Inotice that Mr. Crowley's not here, but I understand he wants us to proceed without his — without him. MR. McDONALD: Correct.No. 71300-1-1 (Consol. with No. 71301-9-l)/9 MR. PANG: That's what he indicated by e-mail. MR. McDONALD: Correct. 

### During the morning session of the third day, the parties completed crossexamination of Frazier, Nevada social worker Natalie Miller testified, and the 

### Department began the direct examination of social workerNoemi Peredo. Millertestified that she was involved in the Nevada dependency and termination 

### proceedings concerning A.G. Miller said that Gabhart appeared "erratic" and "delusional" but denied having any mental health issues. Peredo testified that she had met with Gabhart and Smith at leastthree times a 

### month for the past sixmonths. Peredo said that Smith and Gabhart were "very 

### responsive to thefeedback thattheparent coach gives them" but continued to ask"the 

### samequestion again." Peredo testified that during thevisits she supervised, Gabhart "tended to thebaby." Smith "would bewatching themother and thebaby" and "would 

## only hold the baby, like, once ortwice, and itwouldn'tlastfor avery long time." Crowley was presentwhen thedependencyfact-finding hearing reconvened for theafternoon session. During theafternoon session, Dr. Ingrisano and a mental health
case manager whoworked with Gabharttestified. 

### On thefourth andfinal day ofthe dependencyfact-finding hearing, the 

### Departmentrecalled Peredotocomplete directexamination and four otherwitnesses testified, including Twiggs-Johns and Dr. Maria Flores. Peredo testified that Gabhart was no longer engaging in mental health treatment 

### and thatGabharttold her she hadstopped taking the medications "afew months" 

### before September. Peredo testified that Smith gave "conflicting information" about whether hehad ever soughtmental health services ortaken medication for amental

### No. 71300-1-1 (Consol. with No. 71301-9-l)/10 

### illness. Peredo reiterated that during the visits with P.H.V.S., Gabhart did the majority of the basic childcare, like changing diapers, and that in the beginning, Smith was "really not engaged in holding the baby" and there was a "lack of interaction between the father and the baby." Peredo also repeated her concerns about Smith's "abilityto process information" because he asked the same questions multiple times. Peredo testified that P.H.V.S. would "be at risk ofneglect" ifshe were placed in her parents'

care. Peredo stated that in her opinion, Gabhart and Smith were "not able to care for the child at this time." The mother has mental health issues that

— and she has not seek [sic] consistent treatment for that. The father has confidence in the mother's ability to care for the child. And the father does not seem to have understanding of the mother's limited capacity to take care of herselfand an infant.[2] Dr. Flores had been Gabhart's primary care doctor since 2002. Dr. Flores testified that Gabhart had paranoid schizophrenia and was bipolar. Dr. Flores testified that Gabhart's symptoms had become worse over the last two years. Dr. Flores stated that she was concerned when Gabhart became pregnant with P.H.V.S. because she did

not believe Gabhart would be able to care for a child. Dr. Flores said she never met Smith but her impression from Gabhart was that it"wasn't a stable relationship." 

### Gabhart frequently interrupted the hearing with inappropriate comments. On at least two occasions, Gabhart appeared to be "nodding off' and "her eyes rolled back in her head so that the whites showed." Gabhart requested medical attention after one of the episodes. The court found P.H.V.S. dependent under RCW 13.34.030(6)(c) because 

### neither parent was "capable ofadequately parenting the child and there's danger of 2Alteration in original. 10No. 71300-1-1 (Consol. with No. 71301-9-l)/11 

### substantial damage to the child's physical and psychological development." Because Smith was in denial about the seriousness of Gabhart's condition, the court found he


### was not able to assume responsibility as the primary caregiver.3 The court entered an order ofdependency ordering P.H.V.S. to remain in out-ofhome care. The order of disposition requires Gabhart to obtain mental health counseling and follow through with treatment recommendations, including taking medications as prescribed. The court ordered Smith to obtain a psychological 

### evaluation "with parenting component and a cognitive component and follow through withany treatment recommendations."4 Smith and Gabhart appeal the order of dependency and disposition order.

3The court ruled, in pertinent part: Ithinkthese parents want the child. They are trying. They're consistently going to the supervised visit. They're makingas much effortas they can, but they have issues, psychological issues that are — it's making itverydifficult for them to follow directions, comprehend, change behavior..
. . But the concern of this Court is truly and profoundly the issue of the mother having some untreated mental health issue, Fatherappears to also, and the mother having some untreated medical issues..
..

... Ithink it's undisputed that at the time the baby was born, at least, [Gabhart] wasn'ttaking her meds and she wasn't in any treatment. Her behaviorin Court, both her mental behavior where she's not able to control herself and has some frequent outbursts

—I'm saying "outburst" in the mildestmanner. Imean, Idon't —she's not, youknow, loud and angry, but she is expressing her opinions inappropriately during court. So myobservation is that she's not able to manage herbehavior. Plus she's had two, at least, medical incidents, one where 911 was called at her request because she was nodding offorpassing out or something..
.. [I]fMom isnodding off, there's a risk to the child's physical safety ifshe can't watch her. There's argument that perhaps the father can pick up the slack. But the father has expressed to multiple witnesses that either she doesn't nod — the mother doesn't nods [sic] offor the mother is justtired from working. There's some denialgoing on ... .

... So there's concern that the father is not going to be able to pick up the slack in this case. That's myfear in thiscase about the baby. Ihope both parents can have an evaluation done to determine what needs to be addressed in terms of their mental health issues, the mother can figure out what it is, is wrong medically. Ifeel that the Department has proved by a preponderance that the child is dependent. And, frankly, if

—Idon'tthink thechild is safe without some services. 4Emphasis omitted. 11No. 71300-1-1 (Consol. with No. 71301-9-l)/12

ANALYSIS Absence of GAL 

### Smith seeks reversal ofthe order ofdependency on the grounds that the 

### absence of his GAL during the morning session of the third day of the dependency fact finding hearingviolated RCW 4.08.060, the Guardian ad Litem Rules, and due process. Under RCW4.08.060, ifan incapacitated person is a party to an action, he "shall appear by guardian."5 RCW4.08.060 provides, in pertinent part: 

### When an incapacitated person is a party to an action in the superior courts 

### he or she shall appear by guardian, orifhe orshe has no guardian, orin 

### the opinion ofthecourtthe guardian is an improper person, thecourt shall appoint one to act as guardian ad litem.[6] In In re Welfare of Dill. 60 Wn.2d 148, 150, 372 P.2d 541 (1962), the Washington 

### Supreme Court held thatthe requirements ofRCW4.08.060 are"mandatory" and an 

## incapacitated person "can appear in courtonly by aguardian ad litem orby aregularly appointed guardian." 

### In Dill, the Departmentfiled a dependencypetition alleging the motherwas 

### mentally ill and thefather could not carefor thechildren. Dil|, 60Wn.2d at 149. 

## Approximately six months afterthe motherwas "adjudicated as mentally ill" and committed to Western State Hospital, she was "granted a terminal leave." Dill, 60 

### Wn.2d at 149-50. The Departmentfiled a petition toterminate theparents' rights tothe children. The mother and fatherappeared "with theirattorney" at the termination 

## hearing. Dill, 60Wn.2d at 149. The courtentered an orderterminating the parents'

5 Emphasis added. 6It iswell established that use of theword "shall" indicatesa mandatory obligation. See Amren v. 

### Citv ofKalama 131 Wn.2d 25, 35, 929 P.2d 389 (1997); Wash. State Coal, forthe Homeless v. Dep'tof Soc. &Health Servs.. 133 Wn.2d 894, 907-08, 949 P.2d 1291 (1997); Strenqe v. Clarke, 89Wn.2d 23, 29, 569P.2d60(1977). 12No. 71300-1-1 (Consol. with No. 71301-9-l)/13 rights to their children. Dill, 60 Wn.2d at 149. 

### The Supreme Court reversed. The court rejected the argument that because the mother was represented by counsel, the statutory requirements were met. Dill, 60 Wn.2d at 150-51. "The statutory mandate is not satisfied when the person under legal 

### disability is represented by an attorney." Dili. 60Wn.2d at 150. The courtheld RCW 4.08.060 was mandatory and the mothercould appear and participate only through a GAL. Dili. 60Wn.2dat150. 

### A person under such legal disability can appear in courtonly by a 

### guardian ad litem or by a regularly appointed guardian. Aguardian ad litem has complete statutory power to represent the interests of the ward. Rupe v. Robison, 139 Wash. 592, 595, 247 Pac. 954
.. . (1926). See, 

### also, In re Miller. 26 Wn. (2d) 202, 173 P. (2d) 538 (1946). Di!i,60Wn.2dat150. 

### TheGALR alsoimpose a mandatory obligation on theGAL to bepresent at the 

### fact-finding hearing. The purpose ofthe GALR is to "establish a minimum setof 

## standards applicable to all superiorcourtcaseswhere the court appoints aguardian ad 

## litem
... to represent... an adjudicated incapacitated person pursuantto Title 11,13 or 26 RCW." GALR 1(a). GALR 2(i) expressly states the GAL "shall appear at any 

## hearing forwhich the duties ofaguardian ad litem orany issues substantiallywithin the guardian ad litem's duties and scope ofappointment are to be addressed." Because the GAL had a mandatory obligation underRCW4.08.060 and the 

### GALR toattend and participate in theentire dependency fact-finding hearing, the court 

### erred in proceeding withoutthe presence ofSmith's GAL. However, because the absence ofthe GAL during themorning session ofthe third day ofthe hearing created little or no risk of error, we conclude there is no due process violation.

13No. 71300-1-1 (Consol. with No. 71301-9-l)/14 

### The due process clause of the Fourteenth Amendment protects the rights of 

### parents to the custody, care, and companionship of theirchildren. In re Welfare ofKey. 119 Wn.2d 600, 609, 836 P.2d 200 (1992); U.S. Const, amend. XIV. Parents have a 

### fundamental libertyinterest in the care and welfare of their minor children. In re Dependency of Schermer. 161 Wn.2d 927, 941, 169 P.3d 452 (2007). But this interest 

### is not absolute. The State has a constitutionally protected parens patriae interest in 

### protecting the best interests ofthe child and "the physical, mental, and emotional health of children." In re Welfare of Sumev. 94 Wn.2d 757, 762-63, 621 P.2d 108 (1980); Schermer, 161 Wn.2d at 941. 

### Adependency proceeding "is 'a preliminary, remedial, nonadversary proceeding' that does not permanently deprive a parent ofanyrights." Key, 119Wn.2d at 609 (quoting In reA.W.. 53Wn. App. 22, 30, 765 P.2d 307(1988)). Dependency 

### proceedings aredesigned toprotectchildren from harm, help parents alleviate the 

### problems that led to intervention, and reunite families. In re InterestofJ.F., 109Wn. App. 718, 728, 37 P.3d 1227 (2001). In thecontext ofadependency proceeding, the essential requirements ofdueprocess arenotice, anopportunity to beheard, and the 

### rightto berepresented by counsel. Key, 119Wn.2d at611. "[D]ue process is flexible andcalls for suchprocedural protections as the particular situation demands." Morrissev v. Brewer. 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). In 

### determining whether aprocedure violates due process, we must considerthree factors: 

## (1) the parents' interests, (2) the riskoferror created bythe procedures used, and (3) thecountervailing governmental interest supporting useofthechallenged procedure. Key, 119Wn 2d at 610-11: see Mathews v. Eldridqe. 424 U.S. 319, 334-35, 96 S. Ct.

14No. 71300-1-1 (Consol. with No. 71301-9-l)/15 

### 893, 47 L. Ed. 2d 18 (1976); Santoskv v. Kramer. 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). 

### Here, the record establishes little or no risk of error related to the absence of 

### Smith's GAL at the morning session of the third day of the dependency fact-finding 

### hearing. Nevada social worker Millertestified only about herinvolvementwith Gabhart in the dependency and termination proceedings related to A.G. 

### Frazier'stestimony concerning Smith'sability to parent P.H.V.S. repeated what 

### she hadtestified to the day before. The daybefore, Fraziertestified at length about her observations ofSmith during the supervisedvisits with P.H.V.S. Oncross-examination 

### during themorning ofthe third day, Frazierrepeated herearliertestimonythat Gabhart 

### was the primary caregiverduring visits and thatGabhartand Smith asked "numerous" "[b]asic, necessary child care questions." 

### Peredo alsotestified during direct examination aboutSmith's ability to carefor 

### the child. Although Peredo's testimony during themorning session on the third day was critical of Smith's ability to care forP.H.V.S., Peredo repeated those same concerns 

### when theDepartmentcontinued directexamination and Smith and his GALwere 

## present. Peredo reiterated thatitwas "strictlythe motherthatwould be caring forthe child" during visits and that she had to "make repeated statements" when "advis[ing] the father" because "he seems to forget information."7

7The record also shows thecourtdisregarded testimony thatSmith asserts wasprejudicial by 

### crossing outanumberofproposedfindings. Specifically, thecourtcrossedoutproposedfindings based on Peredo's testimony that Smith smelled ofcigarette smoke and P.H.V.S. would crybecause ofthe smell that Smith did notfollow the properfeeding schedule and repeatedly gave P.H.V.S. an empty bottle 

### to suck on, and thatthere were "control issues betweenthe parents." The courtalso refused to orderthe 

### drug and alcohol evaluation Peredo recommended, ruling therewas insufficientevidencetowarrantdoing

so. 15No. 71300-1-1 (Consol. with No. 71301-9-l)/16 

### We hold the absence ofSmith's GAL during the morning session ofthe third day 

### violated the mandatory statutory requirements and GALR, and the court erred in 

### proceeding without the presence of Smith's GAL. Butbecause the absence of the GAL resulted inlittle or no risk of error, there is no due process violation.8 Because the remainder of this opinion has no precedential value, the panel has determined itshould not be published in accordance with RCW 2.06.040. Sufficiency ofthe Evidence 

### In the alternative, Smith contends insufficientevidence supports finding P.H.V.S. 

### dependent under RCW 13.34.030(6)(c).9 We review a trial court's decision in a dependency for abuse ofdiscretion. In re 

### Dependency ofT.L.G.. 139 Wn. App. 1, 15, 156 P.3d 222 (2007). A court abuses its 

### discretion ifthe decision is manifestly unreasonable or based on untenable grounds or untenable reasons. T.L.G., 139 Wn. App. at 15. 

### Tofind a child dependent, the State mustprove by a preponderance ofthe evidence that the child meets one of the statutory definitions ofdependency under RCW 

### 13.34.030(6). Key, 119Wn.2d at612. In this case, thetrial courtfound P.H.V.S. 

### dependent under RCW 13.34.030(6)(c). RCW 13.34.030(6)(c) provides that a child is dependentwhere thechild "[h]as no parent.. . capable ofadequately caring forthe

8Smith also contends his counsel provided ineffective assistance byfailing to object to the absence of the GAL. Because we conclude the absence of the GAL did not violate due process, Smith cannot establish prejudice. 

### 9Smith also assigns errortofinding offact 2.5 that states theDepartment made reasonable efforts toprevent oreliminate theneed for removal butthose efforts were unsuccessful because 

### P.H.V.S.'s health, safety, and welfare could notbeadequately protected in thehome. However, Smith 

### does not supportthe assignmentoferrorwith any argument. Where aparty assigns errorto afinding but 

### presents no argumentin theiropening briefon any claimed assignment, thatassignmentoferroris waived. Boslev. 118 Wn.2d at 809.
16No. 71300-1-1 (Consol. with No. 71301-9-l)/17 child, such that the child is in circumstances which constitute a danger of substantial 

### damage to the child's psychological or physical development." 

### The legislature has determined that in balancing the legal rights of parents against the rights of the child, the rights and safety of the child shall be the paramount

concern. RCW 13.34.020; Schermer. 161 Wn.2d at 942. There are no specific factors 

### a court must considerwhen determining whether a parent is capable of parenting under 

### RCW 13.34.030(6)(c); rather, the inquiry is highly fact-specific. Schermer. 161 Wn.2d at 951-52. The State need not prove that a parent is unfit to prove a dependency. Schermer. 161 Wn.2d at 944. 

### Adependency based on RCW 13.34.030[(6)](c) does notturn onparental "unfitness" in the usual sense. Rather, itallows consideration of both a 

### child's special needs and any limitations or other circumstanceswhich affecta parent's ability to respond to those needs. UnderRCW 

### 13.34.030[(6)](c), it is unnecessary tofind parental misconduct in orderto find a child dependent. Schermer. 161 Wn.2d at 944. 

### In evaluating a claim ofsufficiency oftheevidence in adependency proceeding, we determine whether substantial evidence supports the trial court's findings of fact and 

### whetherthefindings supporttheconclusions oflaw. In reDependency ofE.L.F.. 117 

### Wn. App. 241, 245, 70 P.3d 163 (2003). Evidence is substantial if, when viewed in the 

## light mostfavorable to the prevailing party, arational trieroffact could find thefact by a preponderance oftheevidence. E.L.F.. 117 Wn. App. at245. In making this determination, thiscourt does notweigh theevidence or the credibility ofwitnesses, in re Welfare ofSeqo. 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). Unchallenged 

### findings are verities on appeal. J.F.. 109Wn. App. at 722. 

### Smith assigns errortofindings offact 2.2(dd) and 2.2(hh). Findings offact

17No. 71300-1-1 (Consol. with No. 71301-9-l)/18 2.2(dd) and 2.2(hh) state, in pertinent part: dd The mother mostly attended to the baby at visits, while the father watched. The father needed a lot of guidance from Ms. Peredo on how to hold the baby. At some visits, Ms. Peredo would have to remind the father how to hold the baby properly. After holding the baby for 2-3 minutes, the father would give the baby back to the mother. hh. The mother performs the majority of child care tasks at visits, including feeding the baby, and changing her diaper. The father only began changing diapers recently. The father usually only holds the baby for a few minutes at a time, and then gives the baby back to the mother. Substantial evidence supports the challenged findings. Frazier and Peredo testified that while Smith had recently become more involved in childcare 

### responsibilities during visits, Gabhart still did "the majority [of] all child care," such as 

### feeding and changing diapers, and that Smithtypically would only hold P.H.V.S. for a few minutes before giving her back to Gabhart. 

### Smith challenges the portions offindings offact2.2(w) and 2.2(oo)10 that state he is "in denial" about the significance ofGabhart's medical episodes and P.H.V.S. needs to remain in out-of-home placement because of "the risk that the father would allowthe mother to care for the child alone." Smith argues the findings are contrary to the record.
10 Findings of fact 2.2(w) and 2.2(oo) state: w. The mother's episodes of passing out or nodding off are very concerning. The mother could drop the baby ifshe were holding the child when she experienced one ofthese episodes. These episodes also prevent the mother from being able to provide appropriate supervision for the child, whichpresents a risk to the child's physical safety. The father is in denial regarding the significance of the mother having these episodes.
oo. The child needs to remain in out-of-home placement because of the mother's untreated mental health needs; the mother's untreated medical or neurological condition and physical health; the father's unknown mental health status; the father's inability to recognize signs of concern in the mother's behavior; the risk that the father would allow the mother to care for the child alone; and the risk that both parents together present to the child because of theirinability to consistently meet the child's needs and providesafe care during their supervised visits. The father is unable to pick up the slack, ifthe mother is unable to care for the child. 18No. 71300-1-1 (Consol. with No. 71301-9-l)/19 

### Smith cites Peredo's testimony that Smith told her he would "do whatever it takes" to


### care for P.H.V.S., including putting her in daycare. The unchallenged findings establish Smith also told Peredo that "the mother would care for the baby" and that he would 

### "take the baby to workwith him" even though Smith works outside doing landscaping. The evidence showed Smith did not appreciate the seriousness of Gabhart's illness or understand Gabhart could not care for P.H.V.S. alone. Smith's niece TwiggsJohns testified that she did not think Smith "understood the seriousness of [Gabhart's] condition." CPS social worker Madsen testified that Smith was unable to recognize "the 

### severity of the situation" regarding Gabhart's physical and mental health issues. Peredo testified that Smith did not "seem to have understanding ofthe mother's limited capacity to take care ofherselfand an infant," and that P.H.V.S. would be at risk ofneglect if 

### placed in her parents' care. Madsen, Peredo, and hospital social worker Rice 

### expressed concerns about Smith's ability to carefor thechild alone.11 Viewed in the light most favorable to the Department, substantial evidence 

### supports the court'sfinding thatSmith was not capable ofadequatelycaring for P.H.V.S. such that she is incircumstances which constitute a danger ofsubstantial 

### damage to her psychological or physical development. Reasonable Efforts to Eliminate Need for Removal 

### Gabhart contends insufficientevidence supports the finding that the Department 

### "made reasonable efforts to prevent oreliminate the need for removal ofthe child from the child's home" and there was a "manifest danger" that P.H.V.S. "will suffer serious

11 Finding offact 2.2(aa) states: On October9, 2013,the fathertold Ms. Peredo that he had never been involved with mentally ill people orinstitutions and that hehad never had a psychological evaluation. In the same conversation, the father then said that he had had a psychological evaluation and wasput onmedication, but hedid not like it so hestopped taking themedication. 19No. 71300-1-1 (Consol. with No. 71301-9-l)/20 abuse or neglect ifthe child is not removed." Following a fact-finding hearing, the court may enter a disposition placing the child in out-of-home care if itfinds that (1) reasonable efforts have been made to prevent the need for removal, and preventative services have been offered or provided and have failed to prevent the need for removal; and (2) the Department proved by clear, cogent, and convincing evidence that a manifest danger exists that the child will suffer serious abuse or neglect ifthe child is not removed from the home. RCW 

### 13.34.130(5).12 Indetermining placement of a child in a dependency proceeding, the court's paramount duty is to protect the best interests ofthe child. RCW 13.34.020; in

re Dependency of J.B.S.. 123 Wn.2d 1,10, 863 P.2d 1344 (1993). This court reviews 

### child placement decisions for abuse ofdiscretion. Inre Dependency ofA.C.. 74 Wn. App. 271, 275, 873 P.2d 535 (1994). Here, the court found the Department "made reasonable efforts to prevent or eliminate the need for removal of the child from the child's home; but those efforts were 

### unsuccessful because . . . [t]he health, safety, and welfare ofthe child cannot be 

### adequately protected in the home." The court found "byclear, cogent and convincing evidence that a manifest danger exists that the child will suffer serious abuse or neglect
12 RCW 13.34.130(5) states, in pertinent part: An order for out-of-home placement may be made only ifthe court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home, specifying the services, including housing assistance, that have been provided to the child and the child's parent, guardian, or legal custodian, and that preventiveservices have been offered orprovided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and that: (a) There is no parent or guardian available to care for such child; (b) The parent,guardian, orlegal custodian is notwilling to take custodyof the child; or(c) The courtfinds, by clear, cogent, and convincing evidence, a manifest danger exists that thechild will suffer serious abuse orneglect ifthechild is notremoved from the home and an order under RCW 26.44.063 would not protect the child from danger. 20No. 71300-1-1 (Consol. with No. 71301-9-l)/21

if the child is not removed." Substantial evidence supports the court's findings. The evidence established 

### Gabhart has a history ofmental illness that prevents her from meeting the needs ofthe child. Gabhart also had multiple documented episodes where she appeared to suddenly lose consciousness, posing a safety risk to P.H.V.S. The Department provided Gabhart with medical care, mental health counseling, and medication management. Although Gabhart briefly reengaged in mental health services after P.H.V.S. was born, she discontinued treatment and stopped taking medication before the dependency fact-finding hearing. 

### The Department also provided Gabhart and Smith with a parent coach. While both parents improved their ability to feed and soothe P.H.V.S., Peredo and Frazier expressed serious concerns about the parents' ability to care for an infant. 

### Gabhart also argues that she and Smith could co-parent P.H.V.S. Gabhart's 

### argument ignores the evidence that Smith was in denial about the seriousness of her mental and physical issues and he was "unable to pick up the slack" ifshe could not

care for the baby. Ineffective Assistance of Counsel 

### Gabhart contends her attorney provided ineffective assistance ofcounsel by 

### conceding that she was not competentto testify and objecting to calling her as a witness at the dependency fact-finding hearing. 

### Parents have a statutory right to representation by counsel at allstages of a 

### dependency proceeding. RCW 13.34.090(2); In re Dependency ofV.R.R., 134Wn. App. 573, 581, 141 P.3d 85 (2006). This right includes the right to effective legal

21No. 71300-1-1 (Consol. with No. 71301-9-l)/22 representation. V.R.R.. 134 Wn. App. at 580. To prevail on her claim of ineffective assistance of counsel, Gabhart must show (1) deficient performance by counsel and (2) resulting prejudice. In re Dependency of S.M.H.. 128Wn.App.45.61, 115 P.3d 990; Strickland v. Washington. 466 U.S. 668. 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There is a strong presumption of effective representation of counsel, and Gabhart has the burden to show that based on the record, there are no legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland. 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after ithas proved unsuccessful, to conclude that a particular act or omission of counsel was 

### unreasonable. Cf. Enqle v. Isaac. 456 U.S. 107, 133-134[, 102 S. Ct. 1558, 71 L. Ed. 2d 783] (1982). A fair assessment of attorney 

### performance requires that every effort be made to eliminate the distorting effects ofhindsight, to reconstruct the circumstances ofcounsel's 

### challenged conduct, and to evaluate the conduct from counsel's 

### perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls withinthe wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial 

### strategy." See Michel v. Louisianaf. 350 U.S. 91, 101, 76 S. Ct. 158, 100 L.Ed. 83(1955)]. Strickland. 466 U.S. at 689. Ifcounsel's conduct can be characterized as legitimate trial 

### strategy, it cannot provide the basis for a claim ofineffective assistance of counsel. State v. Aho. 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999). 

### The Department identified Gabhart and Smithas potentialwitnesses to testify at the dependency fact-finding hearing. On the first day of the hearing, the attorneys

22No. 71300-1-1 (Consol. with No. 71301-9-l)/23 

### representing Gabhart and Smith moved to exclude the parents from testifying because the court had entered an order finding Gabhart and Smith were notcompetent and 

### appointed a GALto represent each parent. Thecourt granted the motion and ruled that neither Smith nor Gabhart could testify. 

### [T]hey've been found incompetent such that they need a guardian ad litem [l]fthe parties can't understand the significance ofthe legal proceedings, Idon't see howthey can possibly testify 

### competently.
. . . [T]hey've been found incompetent. They can't assist their lawyers. That's why they have a GAL. Gabhart contends there was no strategic reason to disclose that she was not 

### competentor to objectto hertestifying at the hearing. We disagree. 

### First, thestipulation that Gabhartwasnot competenttotestify merely reflected theorder previously entered by thecourt. There isno dispute thatbefore the 

## dependencyfact-finding, the courtheld acompetency hearing, entered an orderfinding Gabhart notcompetent, and appointed a GAL. 

### Second, the record supports a legitimate strategic reason topreventthe 

## Departmentfrom calling Gabhart as awitness. The Department's attorneytold the courtthatwithouttheparents' testimony, "I don't know how theCourtcould make a 

## ruling on the parents' abilities to careforthe child and their

- Ithink itwould also inform their needs in terms ofdisposition." Theattorney was also"concerned tolose the 

## opportunityforthe Courtto observethe parents atall, which is what Ifeel I'm being
denied." 

### In In re Welfare ofHouts. 7 Wn. App. 476, 499 P.2d 1276 (1972), is 

## distinguishable. In Houts. the attorney stipulated thatthe parents should notbe present during the termination trial. Houts. 7Wn. App. at479. During an in-chambers

23No. 71300-1-1 (Consol. with No. 71301-9-l)/24 

### conference, the attorney also stipulated that the father was mentally ill. Houts. 7 Wn. App. at 480. A number of witnesses testified during the termination trial, including a psychiatrist who testified the mother suffered from chronic schizophrenia. Houts. 7 Wn. App. at 477-79. The court held that by not insisting on a competency hearing, the attorney "impliedlyadmitted that both his clients were either mentally incompetent or so far incompetent that they needed the protection of a guardian ad litem." Houts, 7 Wn. App. at 483. This implied admission became an express admission with respect to Mr. Houts
.... The breadth ofthe stipulation was such as to substantially 

### impairwhatever chances Mr. and Mrs. Houts might otherwise have had to prevent entry of an order ofpermanent deprivation against the parents. Furthermore, their attorney's . . . stipulation that neither Mr. nor Mrs. Houts be present during the hearing ofthe state's case ... did not conform to due process requirements. Houts. 7 Wn. App. at 483-84. Here, unlike in Houts. the court held a hearing on competency and appointed a 

### GAL to represent Gabhart at the dependency fact-finding hearing. There is no dispute Gabhart and her GAL were present throughout the dependency fact-finding proceedings. 

### For the first time on appeal, Gabhart claims the court violated her right to due 

### process byruling that she could nottestify. The right to be heard does not necessarily mean the right to givetestimony. In re Dependency of R.L. 123Wn. App. 215, 223, 98 P.3d 75 (2004). Gabhart does "notchalleng[e] the competency determination by the trial court." Awitness who is not competent to testify has no right to testify. RCW 5.60.050. The court did not violate Gabhart's due process right by ruling she could not testify.

24No. 71300-1-1 (Consol. with No. 71301-9-1)725 Gabhart also contends the court erred in rulingthat her GAL could not "participate in trial" by questioning or cross-examining witnesses. Gabhart misrepresents the record. Before the dependency fact-finding hearing began, the Department asked the court to clarify that the GAL would not be acting as Gabhart's attorney during the hearing and would not be permitted to question or cross-examine witnesses. Gabhart's GAL agreed. The GAL states it is his understanding that he was "simply here for purposes of assisting and providing such assistance as is necessary, but Iwould not be cross-examining." The court advised Gabhart's counsel to treat Gabhart's GAL "as if you're talking to your client."
Motion to Continue 

### Gabhart next argues the court erred in denying her motion to continue the dependency fact-finding hearing until she was found competent. We review a trial court's decision to deny a continuance for manifest abuse of 

### discretion. V.R.R.. 134 Wn. App. at 580. A trial court abuses its discretion when it exercises that discretion based on untenable grounds or reasons. State ex rel Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Indeciding a motion to continue, the trial court takes into account a number offactors, including due diligence, due process, 

### the need for an orderly procedure, the possible effect on the fact-finding hearing, and 

### whether priorcontinuances were granted. V.R.R.. 134 Wn. App. at 581. To show that the denial of a continuance violated the right to due process, an appellant must show 

### that either she was prejudiced bythe denial, orthat the outcome would have been different ifthe continuance had been granted. V.R.R.. 134 Wn. App. at 581.

25No. 71300-1-1 (Consol. with No. 71301-9-1)726
At the beginning of the fact-finding hearing, Gabhart's attorney requested an indefinite continuance until Gabhart was found competent. The attorney proposed "set hearings" where "we would check in and determine whether or not Ms. Gabhart is competent." The Department opposed a continuance, arguing that RCW 13.34.020 

### guarantees a childthe right to "speedy resolution" of a dependency proceeding. The court denied the request. RCW 13.34.070(1) requires a court to hold a fact-finding hearing on a 

### dependency petition "no later than seventy-five days after the filing of the petition, 

### unless exceptional reasons for a continuance are found." Here, the dependency fact 

### finding hearing had already been continued twice. And as the courtnoted, "Even if there was a date you could come up with that you think your client mightbecome 

### competent, as you said . . . , people go in and out ofcompetency." The courtdid not abuse its discretion in denying Gabhart's request to continue.
We affirm. 

# Q x ;WP^ ^

WE CONCUR: 

# LX^(, J •

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