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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of

A.J.C. and L.C.,

Minor children.

No. 82521-6-I 

(consolidated with No. 82522-4-I)

DIVISION ONE

UNPUBLISHED OPINION

CHUN, J. — In 2017, the Department of Children, Youth & Families 

removed A.J.C. and L.C. from their mother Z.B.’s care. A court entered a 

dependency order, which required Z.B. to participate in mental health counseling 

and a parenting program and provided for regular visits with her children. After 

Z.B.’s ongoing lack of engagement with services and visits, the Department 

petitioned for termination of parental rights in September 2018. The parties 

participated in a settlement conference in 2019 in which the parties agreed to 

continue the trial so that Z.B. could demonstrate engagement in services and 

visits. The case proceeded to trial during which, over Z.B.’s objections, the court 

admitted evidence referring to the settlement conference. The court terminated 

Z.B.’s parental rights. Z.B. appeals. For the reasons discussed below, we affirm. 

I. BACKGROUND

In March 2017, Z.B. called Child Protective Services (CPS) and said she 

could no longer care for her children A.J.C. and L.C.1 because she was 

 

1 The father is not a party to this case. 
No. 82521-6-I/2

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overwhelmed. She later explained this was in part because of domestic violence 

by the children’s father. A social worker came to Z.B.’s home but did not remove 

the children because she did not see an immediate risk of harm. The same 

evening, Z.B. called law enforcement and had them take the children to her 

mother’s home where the Department took them into its custody.

On June 30, 2017, the King County Juvenile Court entered an Order of 

Dependency to which Z.B. agreed. The Order allowed Z.B. to visit her children 

twice a week for two hours per visit. It also required Z.B. to undergo mental 

health assessment and treatment and participate in a parenting program called 

STRIVE. Z.B. satisfactorily completed those requirements and the children 

returned to her care in November 2017. Also in November, the Department 

referred Z.B. to mental health counseling but the counselor dropped the referral 

due to Z.B.’s lack of engagement. After the children returned to Z.B.’s care, she 

stopped communicating with the Department and stopped participating in 

services.

The Department removed the children from Z.B.’s care in December 2017,

after she placed them with her mother, because her mother had a history of CPS 

involvement. After the children’s removal, Z.B. had “minimal contact” with the 

Department for about four months. And Z.B.’s visits were “minimal and 

inconsistent.”

In early 2018, social worker Abbie Tauvell referred Z.B. to mental health 

counseling. Z.B. initially engaged with the counseling but stopped during the 

summer of 2018. In the fall of 2018, Z.B. requested a new referral for 
No. 82521-6-I/3

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counseling, but did not begin counseling once the referral was entered. Tauvell 

testified that while she was on the case, at times Z.B. would not respond to her 

email, phone, and text communications for weeks or months and Z.B. confirmed 

this to be the case.

On September 6, 2018, the Department petitioned for termination of Z.B.’s 

parental rights. On September 11, Z.B. emailed Tauvell requesting counseling 

and visits. She had regular visits for about three weeks. Z.B. also started 

counseling in the spring of 2019 but had only eight sessions in over a year 

despite a plan to meet every other week. In September 2019, Geneva Curry 

began as the social worker on Z.B.’s case.

In October 2019, Z.B. and the Department attended a settlement 

conference. At the conference, the parties agreed to continue the trial date so 

that Z.B. could demonstrate engagement with counseling, a parenting program, 

and visitation. Following the conference, Z.B. participated in regular weekly 

counseling for some time. Z.B. also regularly visited her children. And Z.B. 

began participating in a parenting program called Triple P. But in November 

2019, Z.B. stopped attending visits and fell out of contact with Curry. She also 

stopped participating in Triple P after three sessions.

In January 2020, Z.B. reached out to Curry and requested to schedule a 

visit but the visit was cancelled due to Z.B.’s failure to confirm. Z.B. once again 

stopped responding to Curry’s communications. In April, Z.B. responded to 

Curry and requested services. Curry again referred Z.B. to Triple P. But Triple P 

dropped the referral after one session due to Z.B.’s lack of contact and 
No. 82521-6-I/4

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engagement. In May, Z.B. re-engaged with counseling and had a few sessions 

before stopping again. In November, Z.B. again requested services and visits. 

She started Triple P for a third time and completed the classroom portion of the 

program. But she did not visit her children, so she could not practice the skills 

she learned, which was a required part of the program. She expressed concern 

to Triple P about restarting visits because she was not sure how her children 

would receive her after her absence from their lives.

In January 2021, Z.B. again requested visits, which Curry scheduled. But 

Z.B. again failed to confirm so the visits were cancelled.

Trial commenced in February 2021. A.J.C. was seven years old at the 

time of trial and L.C. was four years old. The children had been living in licensed 

care for over three and a half years. The children’s guardian ad litem (GAL)

testified that she did not believe either child had a strong bond with Z.B. at that 

point and that she believed termination was in the best interest of the children. 

During trial, Z.B. repeatedly objected to any mention of the settlement 

conference. The mentions fell into two categories, testimony by people who had 

attended the conference and service letters from Curry following the conference. 

The court overruled the objections and noted that it would not consider the 

evidence for an improper purpose under ER 408. The trial court ordered 

termination of Z.B.’s parental rights.

Z.B. appeals.

II. ANALYSIS

Z.B. contends that the trial court erred by admitting evidence relating to 
No. 82521-6-I/5

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the settlement conference in violation of ER 408. We conclude that the trial court 

acted within its discretion by admitting the contested evidence, and even if it had 

not, any error would be harmless. 

We review a trial court’s decision to exclude evidence under ER 408 for 

abuse of discretion. Klotz v. Dehkhoda, 134 Wn. App. 261, 271, 141 P.3d 67 

(2006). A court abuses its discretion when its decision “is manifestly 

unreasonable or based on untenable grounds or reasons.” Salas v. Hi-Tech 

Erectors, 168 Wn.2d 664, 668–69, 230 P.3d 583 (2010) (quoting State v. 

Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)). 

ER 408 provides in pertinent part, 

In a civil case, evidence of (1) furnishing or offering or promising to 

furnish, or (2) accepting or offering or promising to accept a valuable 

consideration in compromising or attempting to compromise a claim 

which was disputed as to either validity or amount, is not admissible 

to prove liability. . . . Evidence of conduct or statements made in 

compromise negotiations is likewise not admissible. . . . This rule also 

does not require exclusion when the evidence is offered for another 

purpose, such as proving bias or prejudice of a witness, negating a 

contention of undue delay, or proving an effort to obstruct a criminal 

investigation or prosecution.

In sum, the rule “excludes evidence of conduct or statements made in settlement 

negotiations to prove liability,” but courts may admit such evidence for other 

purposes. Klotz, 134 Wn. App. at 271. 

“ER 408 was enacted to protect parties and witnesses from the potentially 

corrosive effect settlement evidence may have on a jury.” Northington v. Sivo, 

102 Wn. App. 545, 550, 8 P.3d 1067 (2000). Yet “in the context of ‘a bench trial, 

there is even a more liberal practice in the admission of evidence on the theory 
No. 82521-6-I/6

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that the court will disregard inadmissible matters.’” Bill & Melinda Gates Found. 

v. Pierce, 15 Wn. App. 2d 419, 445, 475 P.3d 1011 (2020) (internal quotation 

marks omitted) (quoting State v. Jenkins, 53 Wn. App. 228, 231, 766 P.2d 499 

(1989)), review denied, 197 Wn.2d 1006, 483 P.3d 785 (2021) ; see also State v. 

Gower, 179 Wn.2d 851, 855, 321 P.3d 1178 (2014) (There is “a presumption on 

appeal that the trial judge, knowing the applicable rules of evidence, will not 

consider matters which are inadmissible when making [their] findings.” (internal 

quotation marks omitted) (quoting State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 

723 (1970)). 

To grant a petition for termination of parental rights in a dependency case, 

the trial court must find the following, among other requirements, proven by clear,

cogent, and convincing evidence: 

(d) That the services ordered . . . have been expressly and 

understandably offered or provided and all necessary services, 

reasonably available, capable of correcting the parental deficiencies 

within the foreseeable future have been expressly and 

understandably offered or provided;

(e) That there is little likelihood that conditions will be 

remedied so that the child can be returned to the parent in the near 

future. A parent’s failure to substantially improve parental 

deficiencies within twelve months following entry of the dispositional 

order shall give rise to a rebuttable presumption that there is little 

likelihood that conditions will be remedied so that the child can be 

returned to the parent in the near future. The presumption shall not 

arise unless the petitioner makes a showing that all necessary 

services reasonably capable of correcting the parental deficiencies 

within the foreseeable future have been clearly offered or provided. 

RCW 13.34.180(1); Matter of K.M.M., 186 Wn.2d 466, 478, 379 P.3d 75 (2016)

(“The State must prove these allegations by clear, cogent, and convincing 

evidence.”). In assessing prong (e), the court may consider the 
No. 82521-6-I/7

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[f]ailure of the parent to have contact with the child for an extended 

period of time after the filing of the dependency petition if the parent 

was provided an opportunity to have a relationship with the child by 

the department or the court and received documented notice of the 

potential consequences of this failure.” 

RCW 13.34.180(1)(e)(iii).

During Z.B.’s testimony, the GAL’s counsel asked her whether she 

remembered “coming up with a plan to have more contact with [her] kids.” Z.B.’s 

counsel objected, saying that it involved communications from the settlement 

conference. The court allowed Z.B. to answer the question, stating that it did not 

“want [Z.B.] talking about what they were specifically doing to try to settle the 

case, to the extent that they were developing a plan that had to do with her 

having contact with her kids . . . that is appropriate for her to be able to testify 

about.”

During Curry’s testimony, the Department’s counsel asked her, “What was 

your understanding of what was agreed at the settlement conference?” Z.B.’s 

counsel objected. The court allowed the testimony stating, “Obviously there 

shouldn’t be any discussion of the negotiations. . . . But it does make sense, in 

terms of evaluating the services being provided by the Department, to 

understand what Ms. Curry’s understanding was.” Curry then testified that her 

understanding was that there would be weekly meetings, Z.B. would participate 

in counseling and Triple P, and they would re-establish visitation.2 

 

2 Z.B. also cites other mentions of the settlement conference during the trial in 

her briefing, but we do not address the mentions to which she did not object below. See

City of Seattle v. Long, 198 Wn.2d 136, 155, 493 P.3d 94 (2021) (“Generally a party 

waives the right to raise an issue on appeal that was not raised before the trial court.”); 

RAP 2.5(a).
No. 82521-6-I/8

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Also during Curry’s testimony, the Department sought to introduce seven 

service letters Curry sent to Z.B. after the settlement conference. All of the 

service letters included this language: “Since the settlement conference 

agreement to extend your case 90 days, the following has been agreed upon.” 

Z.B. objected to the introduction of Exhibits 62–67 on ER 408 grounds. The 

court admitted all of the service letters, noting that admission was proper for the 

purpose of recording the ongoing communications between Curry and Z.B. and 

stating that it would “disregard . . . anything that has to do with the actual 

settlement negotiations, as opposed to what Ms. Curry’s understanding was of 

the agreement going forward that therefore shapes the services that were being 

offered by the Department.”3

The court did not abuse its discretion by admitting Z.B. and Curry’s 

testimony relating to the settlement conference. Z.B.’s negative answer to the 

question of whether she remembered coming up with a plan to have more 

contact with her children was not “[e]vidence of conduct or statements made in

compromise negotiations” admitted to prove liability. ER 408. Nor was Curry’s

testimony about her understanding of what services the Department was to offer 

Z.B. following the conference “[e]vidence of conduct or statements made in

compromise negotiations” admitted to prove liability. ER 408. The testimony 

was admitted for the purpose of explaining what services the Department was 

offering to Z.B. 

 

3 Z.B. also objects to the admission of an email from Curry to Z.B. about Triple P 

on ER 408 grounds. But the email does not reference the settlement conference.
No. 82521-6-I/9

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The court also did not abuse its discretion by admitting the service letters 

that mentioned the settlement conference. The Department introduced the 

letters to show the Department’s continued efforts to communicate with Z.B. 

about the services it was offering to her. The court stated it would not consider 

any evidence related to the actual conference; it could still consider the letters for 

the purpose the Department introduced them. And courts are presumed to 

disregard inadmissible evidence. See Gates Found., 15 Wn. App. 2d at 445.

“We do not reverse a verdict based on an evidentiary error unless the 

error was prejudicial.” Diaz v. State, 175 Wn.2d 457, 472, 285 P.3d 873 (2012). 

“An error is not prejudicial unless it affects, or presumptively affects, the outcome 

of the trial.” Id. Even without the service letters in Exhibits 62–67 and the limited 

testimony about the settlement conference, the remaining evidence still supports

the court’s ruling. The evidence demonstrated a pattern of lack of engagement 

with services and a failure to regularly visit the children. Given the totality of 

other evidence in this case, we cannot say any error in admitting or considering 

settlement conference affected or presumptively affected the outcome of the trial. 

Id.

We affirm.

WE CONCUR: