IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON In the Matter of the Dependency of M.C.D.P. (D.O.B. 07/07/2003),
Minor Child.
HEATHER PHILLIPS and COURT-APPOINTED SPECIAL ADVOCATE, Appellants,

v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and JUSTINO DELGADO LOZANO, Respondents. FILED: April 1.2013 Spearman, A.C.J.

— When making a placement decision in a dependency proceeding, a court must give effect to a child's right to conditions of basic nurture, physical and mental health, and safety where such rights are in conflict with a biological parent's legal rights to the care and custody ofthe child. In re the Dependency of J.B.S.. 123 Wn.2d 1, 8-9, 863 P.2d 1344 (1993). Because we determine that the superior court, on revision, applied an incorrect legal standard and did not consider evidence relevant to the dependent child's best interests, we reverse and remand. But we affirm the superior court's denial of a request for a continuance and a motion for the appointment of independent counsel for the dependent child. No. 68401-9-1

DIVISION ONE

UNPUBLISHED OPINION I

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FACTS This appeal arises from a dependency action regarding nine-year-old M.C.D.P. (D.O.B.: 7/7/2003). InJune 2007, when M.C.D.P. was four years old, she
was found dependent as to her mother, Heather Phillips, who suffers from severe 

### physical and mental impairments. Around that time, Justino Delgado Lozano 

### (hereinafter "Delgado") was identified as M.C.D.P.'sbiological father. In October 2007, Delgado agreed to entry ofdependency as to him due to concerns over his 

### drug and alcohol use and because he had no relationship with M.C.D.P. In November 2008, M.C.D.P. was placed with Delgado and the dependency as to him
was dismissed inJune 2009. In September 2009, the Department of Social and 

### Health Services (DSHS) filed a dependencypetition and removed M.C.D.P. from 

### Delgado's custody after she accused him oftouching her inappropriately. After an investigation, DSHS determined the allegations had no merit and thatPhillips may have coached M.C.D.P. into making them. The dependency was dismissed in 

## January 2010 and M.C.D.P. was returned to Delgado.1 In October 2010, Delgado was detained byimmigration authorities and scheduled for deportation to Mexico. M.C.D.P. was unable to accompany him because she did not have a passport and did not share his last name. Accordingly, 

### DSHS filed a dependencypetition on October 26. M.C.D.P. was placed in foster care, where she currently remains. Delgado was deported sometimethereafter.
1M.C.D.P. stayed at Ruth Dykeman Children's Center for part ofthetime she wasremoved from Delgado's care. There, she displayed violent andaggressive behaviors. After DSHS's investigation, Delgado agreed to a briefvoluntary placement agreement toallow M.C.D.P. tocontinue in services at Ruth Dykeman and he alsoagreed toenroll M.C.D.P. in counseling and Parent-Child Interaction Therapy (PCIT) upon herreturn to his care. He did notultimately enroll M.C.D.P. in counseling orPCIT, reporting that due to hisfull-timejobhe was unable todo so.No. 68401-9-1/3
On December 13, 2010, DSHS filed a motion requesting (1) a continuance of 

### the pre-trialconference and factfinding hearing; (2) concurrentjurisdiction with the district court to allow a petition to add Delgado's last name to M.C.D.P.'s; (3) 

### authority to obtain a passport for M.C.D.P.; (4) authority to transport M.C.D.P. to 

### Mexico; and (5) authority to place M.C.D.P. with Delgado in Mexico.2 ADSHS social worker's declaration accompanying the motion stated that Delgado was a capable 

### parent, M.C.D.P. had done well in his care, and a dependency was not necessary. 

### King County Juvenile CourtCommissioner Richard Gallahergranted DSHS'sfirst three requests, denying the fourth and fifth. 

### Phillips entered an agreed dependency order on April 20, 2011. Delgado 

## entered an agreed dependency and disposition order on May 18.3 The order notes, "Father cannot return to United States. [M.C.D.P.] cannot travel to Mexico." Clerk's 

### Papers(CP) at64. Among thefacts establishing dependency is that"[c]oncerns have been reported about the father leaving [M.C.D.P.] with babysitters longer than 

### arranged and his drinking alcohol, and that[M.C.D.P.] looked unkempt. Thefather denies these allegations." CP at 63. The orderrequires Delgado to participate in twice-weekly urinalysis (UA) testing, including for alcohol, for 60 days and to
2Phillips opposed all but thefirst request. Theguardian ad litem (GAL), April Rivera, agreed only tothefirst three. Rivera expressed concerns about Delgado's parenting. Shereported that since residing in foster care, M.C.D.P. had made statements indicating that she did not receive properfood while in Delgado's care and had beenleft tosleepin Delgado's car at night while he was in a casino, and that Delgado would drink alcohol in the morning. Rivera wrote that in May 2010, a Child Protective Services referral was received from Federal Way Public Schools indicating that Delgado was supposed topick up M.C.D.P. from a babysitter ona particular Friday but did not doso until after the weekend. 3Delgado agreed todependency underRCW 13.34.030(6)(c) "in that thechild has noparent, guardian orcustodian capable ofadequately caring for thechild, suchthatthechild isin circumstanceswhich constitutea danger ofsubstantial damage to the child'spsychological orphysical development." CP at64. By this time, CASA Carol Moore had replaced Rivera and signed offon Delgado's order of dependency.No. 68401-9-1/4
cooperate with a home study and follow recommendations. The order states the permanent plan is to return M.C.D.P. to a parent, which could include Delgado's
home in Mexico. In Mexico, Delgado made efforts to prepare for M.C.D.P.'s arrival. Mexican authorities reported in June 2011: Currently [Delgado] is employed full time, with a steady income and benefits, he has a suitable schedule that allows him to care for his daughter and in addition he lives with his mother, Mrs. Soledad, who is able and willing to help him in the raising of his daughter. CP at 205. Home studies in Mexico were conducted in December 2010 and April 2011. The first, at Delgado's sister's home, was unfavorable, noting his unstable situation. The second, at his mother's home, noted he was employed and the home
was suitable but raised concerns about the changes M.C.D.P. would experience and the need for private bilingual education. 

### Following the first dependency review hearing in August 2011, Commissioner Gallaher found Delgado in compliance (though he noted Delgado needed to start 

### UAs), stated that return to a parent was still the permanent goal, and rejected adoption as an alternative plan. On September 15, after a passport was obtained for M.C.D.P. and a court order changed her name to include his, Delgado filed a motion requesting that M.C.D.P. be placed with him in Mexico. DSHS supported placement with him but requested preconditions, including a FamilyTeam Decision Making meeting and a courtesy social worker to be assigned in Mexico. Italso requested that placement be contingent on UA testing, counseling for M.C.D.P., regular contactNo. 68401-9-1/5
between Delgado and DSHS, and home visits. Phillips and the CASAs opposed 

### placement with Delgado.4 After reviewing the CASAs' submissions to the court, DSHS told the court
more information was needed and it no longer supported placement with Delgado at that time. DSHS was concerned with the opinion of M.C.D.P.'s therapist that she suffers from anxiety disorder, has strong attachments to her maternal and foster families, and should not be moved until an attachment therapist evaluated how transition might affect her psychological well-being. DSHS asked the court to grant it 

### authority to place M.C.D.P. with Delgado once (1) an attachment assessment of M.C.D.P. was conducted and any results were considered; (2) Delgado completed 

### the home study and followed recommendations; (3) the home study recommended 

### placement; and (4) DSHS's previous requests were met. In October2011, Delgado moved to strike his placement motion, agreeing to an attachment assessment of M.C.D.P. but disputing that the April 2011 home study was incomplete. The court granted his motion to strike. On December 1, 2011, in an "attempt to move this case forward," Delgado 

### filed the subjectmotion, noting DSHS had not completedM.C.D.P.'s assessment. He

4Gloria Overgaard was assigned to be co-CASA with Moore in September2011. TheCASAs' main concerns with the proposed move, as detailed in theirreport, are summarized as follows: (1) there had been no verification M.C.D.P. would receive educational and therapeutic services in Mexico; (2) there had been no verification she would receivethe recommended evaluationsand testing; (3) a move mightundermine the behavioral progress M.C.D.P. had made in her current stable placement; (4) Delgado'salcohol and drug issues had not been addressed; (5) M.C.D.P.'s rights as an American citizen in Mexico had not been determined; (6) the CASAs needed to approve plans regarding safety, transition, and reunification; (7) DSHS's request for a "courtesy social worker" in Mexicowas insufficient because social workers in Mexico do not remove children from homes without a lengthy process; (8) both home studies expressed concernfor M.C.D.P. should she be relocated; (9) Delgado had not shown he could pay for privatebilingual education; and (10) there was no visitation plan to ensure M.C.D.P. would remain in contact with her maternal family. The CASAs pointed out that M.C.D.P.'s expressed wishes were to livewith her foster parents and that she did not want to go to Mexico, attaching a letter she wrote to that effect.No. 68401-9-1/6 

### requested (1) a father-child attachment assessment (to be conducted in Mexico), (2) a visit with M.C.D.P. in Mexico, and (3) that M.C.D.P. be placed with him. He claimed 

### he had re-engaged with counseling and complied with UAs for eightweeks,5 and noted that a discussion with Mexican contacts who conducted the home study determined that it had been completed but there were questions about whether 

## services were required. DSHS, Phillips, and the CASAs opposed Delgado's motion.6 DSHS argued placementwith Delgado was premature given M.C.D.P.'s mental health issues and noted Dr. JoAnne Solchany had begun the assessment. On December 15, Commissioner Gallaher heard oral argument and denied Delgado's motion, stating in a written ruling: The best interests ofthe child are the paramount concern ofthe 

### court, and although they must be balanced with the fundamental 

### rights of parents, the best interests ofthe child outweigh the rights 

### of parents. It is not only contrary to [M.C.D.P.'s] best interest to be placed or have a visit with her father in Mexico, itwould be detrimental to [her] to grant these motions at this time.
CP at 1135-36. 

### Delgado moved for revision, arguing that a parent must be found unfit by clear and convincing evidence before a court could considerthe child's best interests. DSHS, Phillips, and the CASAs opposed the motion, arguing that the overriding consideration in placement decisions is the best interests ofthe child. The superior

5The submissions show clean results for drugs but do not address alcohol. 6DSHS argued an attachment assessment was necessary under the dependency order because the orderrequired M.C.D.P. to participate in counseling and recommendations, and the assessment was recommended by hertherapist. DSHS noted M.C.D.P. had becomemore anxious, stopped talking toDelgado on the phone, and would not let caregivers out ofhersight. DSHS would not support placement in Mexico until it was clearthemove would notnegatively impact herand placementthere would befinal. The CASAs emphasized the sameissues noted in their previous submissions to the court and stated that M.C.D.P. had been determined to have a learning disability and social skills deficits.No. 68401-9-1/7

court granted Delgado's motion and ordered DSHS to place M.C.D.P. with Delgado in Mexico. Its January 23, 2012 order stated: The court's analysis must [begin] with whether or not there is a parent available and capable of safely parenting this child. Ifthe answer to that question is yes, we do not reach the "best interest of the child" test. The legislature and case law is clear that parents!'] right to parent their children must be protected that these decisions must not turn on which family can provide the "most or the best" for the child. Here the father's only deficiency was his inability to immediately take his child with him when he was deported. In fact the Department was in favor of moving the child to Mexico and the 

### only barrier was the passport/immigration issue.171 He has corrected that "deficiency" and wants his child returned. Neither the Department nor CASA cite any credible evidence that the father's ability to parent this child changed once he was in Mexico.
CP at 1230-31. 

### Phillips filed a motion for stay and reconsideration, supported by the CASAs. 

### Atthe February 13, 2012 hearing, the CASAs informed the superior court that 

### Solchany's assessment had been completed and requested a continuance ofthe motion for reconsideration ifthe court would not consider the report. The court denied 

### the request for a continuance and the motion for reconsideration, but stayed its 

### January 23 orderto allow an appeal.8 On February 17, Phillips filed a motion requesting appointment of independent counsel forM.C.D.P. The Children and Youth AdvocacyClinic (CAYAC) at the University of Washington School ofLaw made a

7The court cited the DSHS social worker's December 2010 declaration. 8The superiorcourt's order on revision is also being stayed by order of this courtuntil this appeal is decided.No. 68401-9-1/8
limited appearance in support, while Delgado opposed the motion. The superior court denied the motion on March 2.9 

### Phillips and the CASA10 appeal from the superior court's orders on revision anddenying reconsideration.11 Phillips also appealsfrom the court's denials ofthe request for a continuance and the motion to appoint counsel for M.C.D.P.
DISCUSSION
Order on Revision 

### We review the superior court's ruling, not the commissioner's. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004): State v. Hoffman, 115 Wn. App. 91, 101, 

### 60 P.3d 1261 (2003). Commissioner rulings are subject to revision by the superior court. RCW 2.24.050. On revision, the superior court reviews the commissioner's 

### findings offact and conclusions oflaw de novo based upon theevidence and issues presented to the commissioner. In re Marriage ofMoody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). A superior court's placementdecision in a dependency 

### proceeding is reviewed for abuse ofdiscretion. In reDependency of A.C., 74 Wn. App. 271, 275, 873 P.2d 535 (1994). Acourt abuses its discretion when it "applies thewrong legal standard, or bases its ruling on an erroneous view ofthe law." Gildon v.Simon Prop. Group. Inc.. 158 Wn.2d 483, 494, 145 P.3d 1196 (2006).

9The court stated, "[A]fter consideration of the Mathews v. Eldridqe. 424 U.S. 319, 96 S. Ct. 893, 47 L.Ed.2d 18 (1976) factors, the courtdetermined that the child's rights wereprotected with the current representation and there was no need... ." CP at 1522.

10 Only CASA Carol Moore filed the notice of appeal. 11 Phillips and the CASA filed notices ofappeal as well as notices ofdiscretionary review regarding thechallenged orders. Because this court has determined thatdiscretionary review is warranted in anyevent, we need notdecide whether the orders are appealable as ofright.

8No. 68401-9-1/9
The main issue is what standard applies to a motion for change of 

### placement.12 M.C.D.P.13, Phillips, and the CASA contend the applicable standard is
the "best interests ofthe child" standard set forth in In re the Dependency of J.B.S., 123 Wn.2d 1, 863 P.2d 1344 (1993). DSHS agrees with them on this issue. These 

### parties contend the superior court erred as a matter of law by expressly refusing to consider M.C.D.P.'s best interests. Delgado contends that ifthere is an available and 

### capable parent, the child's best interests are not considered. He relies primarily on 

### the permanencyplan, the goal of the dependency statute to reunite children with fit parents, and cases such as In reWelfare ofA.B., 168Wn.2d 908, 232 P.3d 1104 (2010).

### Inre J.B.S. involved an appeal from a superior court's refusal to reconsider a 

### commissioner's order changing placement of a dependent child from his foster family 

### to the custody of hisfatherin Mexico. In reJ.B.S., 123Wn.2d at 3. The facts ofln_re J.B.S. are similar to those in this case. J.B.S. was a citizen of the United States born to an American mother and a Mexican father. Ia\ Initially, the father was not involved with J.B.S. and the child lived with his mother. When the mother was unable to care 

### for J.B.S., he was found dependent under RCW 13.34.030 and placed with a foster 

### family. Id. at 3-4. DSHS sought a relative as an alternative placement and located the

12 It appears, based on the superior court's oral and written rulings, that the court may have viewed the matter before itas a motion to dismiss the dependency. For example, on reconsideration the courtstated, u[T]his father has no further deficits, there is no reason for us to continueto have a dependency." Verbatim Report ofProceedings (VRP) 2/13/12 at 18. To the extentthe superior court intended to dismiss the dependency, iterred. The motion before the commissioner was to change M.C.D.P.'s placement, not to dismiss the dependency. The dependency, which was established by agreementin May 2011, would havecontinued for at leastsix months following placementwith Delgado. See RCW 13.34.138(2), RCW 13.34.145(7). 13 M.C.D.P. is not officially an appellant, as she did notfile a notice of appeal, but she is represented onappeal by Columbia Legal Services and theChildren andYouth Advocacy Clinic at the University ofWashington School of Law.No. 68401-9-1/10 

### father, who agreed to the placement. Id at 4-5. The father was deported butreturned to Washington, completing classes, programs, and evaluations and visiting with J.B.S. regularly. He was again deported to Mexico. Id at 5. DSHS filed a motion to 

### change placementfrom the fosterfamily to the father in Mexico. Id at 5. At a hearing, the guardian ad litem (GAL) reported the foster parents were providing an exceptional home and J.B.S. was attached to his mother. The GAL expressed "grave concern about placing J.B.S. in a country whose language he did not speak, to live 

### among virtual strangers." Jd. at 5-6. The commissioner granted the motion. Jd, at 6. The superior court upheld the decision on a motion to revise, finding thatJ.B.S. would suffer separation anxiety or traumaifplaced in Mexico butconcluding it could not make the placement determination according to the child's best interests. \± at 6,
8. 

### TheWashington Supreme Court reversed, finding that the superior court had erroneously failed togive J.B.S.'s interests "paramount consideration" and thatits decision was "based on a fundamental misapprehension of its obligations under the [dependency] statute." Id at 8. The court wrote: 

### There is no support in the legislative scheme for the notion that a 

### biological parent's rights must override a child's best interests in determining placement under the dependency statute. To the contrary, 

### the pertinent statute, RCW 13.34.020, was amended in 1987 to 

### expressly reflect the Legislature's concern to assure the child's interests be given due consideration, and prevail in case of conflict with the parents': 

### [T]he legislature declares that the family unit should remain intact unless a child's right to conditions of basic nurture, health, or safety 

### is jeopardized. When the rights of basic nature, physical and mental health, and safety of the child and the legal rights of the 

### parents are in conflict, the rights and safety ofthe childshould prevail. The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter.

10No. 68401-9-1/11


### Id at 8-9. The court, finding RCW 13.34.020 consistent with case law, noted it had "repeatedly held that the child's 'best interests' is the primary consideration in deciding a petition formodification of an order regarding custody of a dependent child." Id at 10 (citations omitted). It observed, "The fact the child's interests should 

### prevail does not mean the rights and interests ofthe natural parents have noweight, 

### only that these rights are not paramount." Jd at 12. Thecourt reversed and remanded for a review hearing pursuantto RCW 13.34.130(5). Jd at 8-10. This court, afterJnre J.B.S., has consistently cited and applied that case and the "best interests ofthe 

## child" standard when considering matters ofplacement in dependency proceedings.14 Notwithstanding thatIn reJ.B.S. specifically applies to a motion for changeof placement, Delgado contends the superior court properly determined thatwhere there is a capable and available parent, the best interests ofthe child are not considered. The standard on which he relies is the standard applicable to termination 

### ofparental rights decisions orto custody/visitation disputes between parents and nonparents. Underthe termination cases hecites, anorderterminating parental rights requires clear, cogent, and convincing evidence ofthesix elements under RCW 13.34.180(i)(a)-(f) and a finding ofparental unfitness, andonly once thatis established does the courtdetermine, by a preponderance ofthe evidence, whether

14 See, e.g.. Dep't ofSoc. &Health Services v. Paulos, 166 Wn. App. 504, 517, 270 P.3d 607 (2012) (in determining placement in dependency proceeding, court's paramount duty isto protect best interests ofchild); In reDependency ofD.F.-M.. 157 Wn. App. 179, 192-93, 236 P.3d 961 (2010), rev. denied, 170Wn.2d 1026, 249P.3d 181 (20111 (same): In re Dependency ofR.W.. 143 Wn. App. 219, 223-25, 177 P.3d 186 (2008) (parents' fundamental liberty and privacy interest in careand custody of children do not override children's best interests when determining placement during dependency); In reDependency ofJ.S„ 111 Wn. App. 796, 46 P.3d 273 (2002) (same); In re Dependency ofA.C., 74 

### Wn. App. 271, 275-77, 873 P.2d 535 (1994) (errorto construe RCW 13.34.130 as a matter oflaw to require placement with father without consideration ofchild's bestinterests).

11No. 68401-9-1/12 

### termination is in the best interests ofthe child.15 The cited custody cases support the proposition that a nonparent may interfere with a parent's rights to the care and custody of a child only after a showing that the parent is unfit or ifcustody with the 

### parentwould result in actual detrimentto thechild.16 In such cases, the "best interests ofthe child" is a constitutionally insufficient basis for seeking visitation or 

### custody. But none ofthese termination or custody cases involves placement 

### decisions in a dependency, and none purports to overrule or modify J.B.S. Termination proceedings and custody (orvisitation) disputes between parents and 

### non-parents—neither ofwhich was involved here—presentdifferent issues and have different ramifications from a placement decision in a case where dependency has
been established.

15 See In re Dependency of K.N.J.. 171 Wn.2d 568, 257 P.3d 522 (2011) (only ifparental unfitness shown by satisfying six statutory requirements may court determine iftermination isin best interest ofchild); In reWelfare ofA.B.. 168 Wn.2d 908, 918, 232 P.3d 1104 (2010) (parent has due 

### process right not to have parental rights terminated in absence offinding that heorsheis currently unfit, and only once court hasfound unfitness may it considerchild's best interests); In re H.W., 92 Wn. App. 420, 425, 961 P.2d 963 (1998) (parental rights can beterminated only ifsix statutory factors are established and termination is in the best interests of child). 16 See In re Custody of Smith. 137 Wn.2d 1, 9, 969 P.2d 21 (1998) (striking down, in cases involving efforts by non-parents toseekvisitation over parents' objections, statutes authorizing visitation rights "for any person when visitation may serve the bestinterest ofthechild"; Statemay interfere with family autonomy only where parent is unfit, a child has beenharmed, orthere is a threat ofharm), affd sub nom Troxel v. Granville. 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); [n_re Parentage ofC.A.M.A.. 154 Wn.2d 52, 109 P.3d 405 (2005) (striking down, incase where grandparents petitioned for visitation overfather's objection, statute providing that visitation with 

### grandparent ispresumed in child's best interests; statute "directly contravenes the constitutionally required presumption thatthefit parent acts in thechild's bestinterests" andemployed a "best interests" standard, which could notapply when interfering with a non-deficient parent); and In re Custody of Shields, 157Wn.2d126, 128, 136 P.3d 117 (2006) (holding court may award custody of child tononparent in proceeding against parent only ifparent isunfit orif placementwith parent would result in actual detriment to child; trial court thus erred in applying "best interests of the child" standard); In reCustody ofE.A.T.W.. 168 Wn.2d 335, 338, 227 P.3d 1284 (2010) (holding thatunder RCW 26.10.032, courtmustdenyhearing onmotion for third party custody unless nonparent sets forth facts showing adequate cause that parentis unfit or thatplacing child with parentwould result in arhialHpfrim^nt tnrhilri's growth and developments In re Custody ofC.C.M.. 149Wn. App. 184, 191, 202P.3d971 (2009) (holding, in action by nonparent for foster care placement underIndian Child Welfare Act, thatparty seeking to remove child from parentmustshowby clear andconvincing evidence that parent'scontinued custody is likely to result in seriousphysical oremotional harm to child). 12No. 68401-9-1/13 

## Delgado also cites certain provisions in chapter 13.34 RCW.17 While these statutes support reunification with him generally, given that the permanency planning 

### goal was to return M.C.D.P. to a parent, they do not mandate placement with him ifit would be contrary to M.C.D.P.'s best interests. 

### Having determined that In reJ.B.S. sets forth the standardapplicable to placement motions, the next question is whetherthe superior courtapplied the wrong 

### legal standard. We conclude it did. The court found thatthere was a capable and available parent andexpressly declined, as in In reJ.B.S., toconsider M.C.D.P.'s best interests. It focused on the triggering event for the dependency (Delgado's 

### inability totake M.C.D.P. upon deportation due topassport and name issues), found those issues had been remedied, and appears to have dismissed the dependency. 

### Application ofthe wrong legal standard can be harmless error only where it can be said "with confidence" that "thetrial court's erroneous view ofthe law did not affect itsview of the evidence." Backlund v. Univ. ofWash, 137Wn.2d 651, 671, 975 

### P.2d 950 (1999). In InreA.C this court held that while the trial court erred in 

## construing RCW 13.34.130 as a matter oflaw to require placementwith an available parent without consideration ofthe child's best interests, reversal ofthe disposition order placing the child with the father was not required because (1) the trial court did not, unlike in In reJ.B.S., expressly state thatit could not consider the child's best interests but instead acknowledged that the child's best interests were a factor; (2) 

### there was noevidence, as in J.B.S., that the change ofplacement would be harmful

17 See RCW 13.34.145(1)(c) ("Permanency planning goals should beachieved at theearliest 

### possible date, preferably before the child has been in out-of-home care forfifteen months."), RCW 13.34.136(1) ("The permanency planning process shall include reasonable efforts to return the child to 

### the parent's home"), RCW 13.34.136(3) ("Permanency planning goals should beachieved atthe earliest possible date."). 13No. 68401-9-1/14

to the child; (3) the decision did not involve, as in In re J.B.S., a drastic change that would effectively sever the child from contacts with his mother and foster family; and (4) the passage of time prevented any meaningful attempt to restore the circumstances existing prior to the placement decision. In re A.C., 74 Wn. App. at
279-80. 

### Here, we cannot say the superior court's error was harmless. In re J.B.S. holds that the best interests ofthe child prevail over the rights ofthe parent when there is a conflictbetween a child's rights to basic nurture, health, or safety and the 

### parent'srights to the care andcustody ofa child. In reJ.B.S., 123 Wn.2d at 9-11. The question iswhether there was evidence thatM.C.D.P.'s rights may haveconflicted with Delgado's and evidencethat placement with him was not in her best interests. We observe there was such evidence before the commissioner, who found that it 

### would be "detrimental" to grant the placement motion at thattime, and then before 

### the superior court. TheCASAs and DSHS submitted evidence thatM.C.D.P. was 

### suffering from mental health issues, anxiety, and learning disabilities and could not speakSpanish. They argued Delgado had not shown hecould meet her needsin these areas. Theyalso submitted evidence that M.C.D.P. was strongly attached to her maternal and foster families, and argued an attachment assessment was 

### necessary toassess the effects ofa move onher psychological well-being. Delgado does not argue that the superior courtmade the correct decision underthe "best interests ofthe child" standard. And, assuming for purposes ofargument that

14No. 68401-9-1/15 

### Delgado's parental fitness was established, he cites no authority for the proposition 

### that placementwith a capable parent is necessarily in the bestinterests ofthe child.18 We reverse the superior court's order onrevision and remand.19 Request for Continuance The denial of a continuance is reviewed for abuse of discretion. In re Dependency ofV.R.R. and H.R.. 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006). 

### The appellant must make a clear showing that the court's exercise of discretion was manifestly unreasonable, exercised on untenable grounds, or made for untenable

reasons. State v. Downing. 151 Wn.2d 265, 273-74, 87 P.3d 1169 (2004). 

### The superior courtdid notabuse its discretion. The CASAs requested a continuance at the February 13, 2012 hearing so that Solchany's report could be considered as evidence on reconsideration. But RCW 2.24.050 limits the superior
18 Theparties dispute whether Delgado suffers from parental deficiencies andcontend the 

### record supports their respective positions. M.C.D.P., Phillips, and the CASA contend hesuffers from unaddressed alcohol-abuse and psychological issues, among otherthings, while Delgado contends his only deficiency washis inability totake M.C.D.P. with him upon deportation. We note that atthe hearing on reconsideration ofthe revision order DSHS conceded it "cannot say thatthis father isnot a capable parent." VRP 2/13/12 at 13. Neither thecommissioner nor the superior court made any specific findings as toalcohol issues orother issues identified in the dependency order (for example, disputed findings regarding M.C.D.P. being left with babysitters orlooking unkempt). The superior court did state that"[n]eithertheDepartment nor CASA cite any credible evidence thatthefather's ability toparentthis child changed once hewasin Mexico." CPat 1231. But it is unclearwhether it intended this finding toresolve theconcerns about alcohol use andother issues. In any event, the dispute over whether Delgado's parental fitness hasbeen established islargely irrelevant tothe issue onappeal. Even assuming it has, thesuperior court wasrequired toconsider evidence relevant to M.C.D.P.'s rights and best interests. 19 TheJ.B.S. courtprovided a non-exclusive list ofconsiderations for thetrial court in that case to evaluate should DSHS file a new motion for a change of placement: (1) the psychological and emotional bonds between the child and the child's (a) parent not being considered for placement, (b) siblings, and (c) foster family; (2) thepotential harm from effectively severing contact with these individuals; (3) the effectofplacement in a foreign country on the court'sability to overseeplacement; (4) thenature ofthechild's attachment totheparent being considered for placement; (5) thehistory and present circumstances oftheparent being considered for placement; (6) the home available in the 

### foreign country; and (7) the potential effect on the child ofanabrupt change in environment. Moreover, the court identified concerns by the GAL or CASAand a parent's immigration status as proper considerations. In re J.B.S., 123 Wn.2d at 11-12. On remand, some or all of these considerations may be relevant in M.C.D.P.'s case.
15No. 68401-9-1/16
court's review to the record ofthe case and the findings of fact and conclusions of 

### law entered by the court commissioner. See also In re Moody, 137 Wn.2d at 992-93 ("Generally, a superior courtjudge's review of a court commissioner's ruling, 

### pursuant to a motion for revision, is limited to the evidence and issues presented to the commissioner."). Solchany's report, dated February 3, 2012, was not before the commissioner. Itwas not an abuse of discretion to deny the continuance given the


### reason it was sought by theCASAs.20 Motion to Appoint Independent Counsel 

### M.C.D.P. and Phillips contend the superior court erred in denying Phillips' 

### request for independent counsel for M.C.D.P. under RCW 13.34.100 and the 14th Amendment to the United States Constitution.21 In support, various amici curiae 

### arguethatproviding children a constitutional right tocounsel in dependency matters is consistent with national trends and best practices, and is supported by state and federal constitutional law. DSHS and Delgado contend the court did not err, and the CASA takes no position.



### 20 Similarly, the superiorcourt did not err in refusing to consider Solchany's report as partof the motion for reconsideration, as M.C.D.P. contends. 21 M.C.D.P. and Phillips also contend the state due process clause, article I, section 3, 

### provides greater protection than the 14th Amendmentfor the right to independent counsel for ail children in dependency proceedings. In other words, they contend RCW 13.34.100 violates Article I, section 3. See Bellevue Sch. Dist. v. E.S.. 171 Wn.2d 695, 702-04, 257 P.3d 570 (2011) (where statute made counsel forjuvenile at initial truancy hearing discretionary, juvenile's claim that article I, section 3 offered broader protection than federal counterpart andrequired appointment ofcounsel would require court tohold statute isunconstitutional). We decline toreview this claim because it was not raised below. RAP 2.5(a). M.C.D.P. assertstheargument wasraised by theattorney from CAYAC, 

### noting counsel's request in briefing "that the court appoint counsel pursuantto RCW 13.34.100 and the constitutions of the United States and the State of Washington" and statement at oral argument that "appointment ofcounsel in this case is required as a matter ofprocedural dueprocess under the 14th Amendment of the U.S. Constitution and under the Washington State Constitution." CP at 1372; VRP 3/2/12 at 7. Thesearguments madeno distinction between state and federal dueprocess and did not address Gunwall.

16No. 68401-9-1/17
In actions under chapter 13.34 RCW, a trial court may, but is not required to, appoint counsel for children twelve years or older ifthey request counsel. RCW 

### 13.34.100(6)(f).22 The court may appoint counselfor younger children ifthe GAL or the court determines that the child needs to be independently represented by counsel. Jd. Where RCW 13.34.100 makes appointment of counsel for children in dependency proceedings discretionary, we will review the superior court's decision
for abuse of discretion. RCW 13.34.100 does not specify any criteria in determining whether to 

### appoint counsel. The Washington Supreme Court recently held that the decision to 

### appoint counsel for a child in a termination of parental rights proceeding should be examined on a case-by-case basis using the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 LEd.2d 18 (1976). In re Dependency of M.S.R., 174 

### Wn.2d 1, 21-22, 271 P.3d 234 (2012), reconsideration denied (May 9, 2012). The
court explained: 

### [T]he due process right ofchildren who are subjects ofdependency or termination proceedings to counsel is not universal. The constitutional protections, RCW 13.34.100(6), and our court rules 

### give trial judges the discretion to decide whether to appoint counsel to children who are subjects of dependency or termination proceedings. Id at 22. The court later amended its opinion to state, "We recognize that this is an 

### appeal of a termination order. Nothing in thisopinion should be read to foreclose argument that a different analysis would be appropriate during the dependency stages." Ja\ at 22 n.13, as corrected (May 8, 2012).

22 AGAL shaltbe appointedfor all children unless there is good cause. RCW 13.34.100(1). 17No. 68401-9-1/18
In re M.S.R. was decided one day before the March 2, 2012 hearing on the 

### request for independent counsel forM.C.D.P. The superior court was alerted to the decision at the hearing and cited Mathews in its ruling. The amendment to In re M.S.R. was not added until May 8, 2012. At the time of the superior court's decision, therefore, itreasonably believed In re M.S.R./Mathews applied. The parties do not 

## dispute thatthe court acted appropriately in applying Mathews.23 Therefore, we
assume without deciding that Mathews applies in reviewing the superior court's 

### ruling.24 Mathews requires the weighing of(1) the private interest at stake; (2) the risk oferrorinvolved under the current procedures and the probable benefits ofadditional


### orsubstitute procedural protections; and (3) the government's interest in the 

## proceeding, including fiscal and administrative burdens.25 Mathews, 424 U.S. at 335.

23 Nor do M.C.D.P. and Phillips argue that the federal due process clause provides greater protection ofthe right tocounsel than what is required under RCW 13.34.100. 24 We declineto announce, for the first time, a more lenienttest for appointing counselfor 

### children in dependencies than for those in termination proceedings. Phillips and M.C.D.P. suggestthat because In re M.S.R. noted that itsdecision did notforeclose argument that a different standard might 

### apply to counsel for children in dependency proceedings, adifferent standard should apply. Butthey do not suggest what the testmight beorprovide adequate briefing on why a more lenienttest is merited otherthan toargue that all dependent children should receive counsel. Furthermore, ln_re M.S.R.'s statement that a different standard might apply in dependencies could mean that a more stringent standard might apply. 

### As to the argument that the 14th Amendment/Mathews require the appointment ofcounsel for 

### all dependent children, M.C.D.P. and Phillips do not explain how this courtcould make such aholding consistent with In re M.S.R. Termination proceedings begin as dependency proceedings. What they seek would lead to the result that, in cases where termination is initiated, courts would have to determine whether topermit mandated dependency counsel tocontinue torepresent thechild (thus, a child's attorney might betaken away). This isimpractical and problematic. 25 M.C.D.P. contends the lack of specificfindings by the superior court as to the Mathews factors is alonea basis for reversal, citing Hardee v. State. Dep't ofSoc. and Health Serv's.. 172 Wn.2d 1, 15-17, 256P.3d 339 (2011). In Hardee, thecourt overruled Onaom v. Deo't ofHealth, 159 Wn.2d 132, 148 P.3d 1029 (2006) becausethatcourt misapplied thefirst andthird Mathews factors 

### and failed to apply the second. Hardee does not stand for the proposition that atrial court must be reversed where itdoes not developeach factoron the record. Onoomwas reversed after the court was determined to have misapplied two of the factors.

18No. 68401-9-1/19
As to the first factor, M.C.D.P.'s physical libertyand fundamental liberty interests in 

### thedependency proceedings generally were significant.26 However, at thetime Phillips brought the motion for appointment ofcounsel, the superior court had already made its placement ruling, ordered that M.C.D.P. be placed with Delgado, and denied the motion for reconsideration.27 Therefore, M.C.D.P.'s private interest at stake at that time did not include the placement decision. Furthermore, a placement 

### decision can be changed. To the extent separate counsel for M.C.D.P. might be 

### beneficial in the future if problems arose with placement and with overseeing the 

## remainder ofthe dependency, arequest for counsel could be made atthattime.28 Tne second factor is the risk of erroneous deprivation and the value ofthe 

### additional procedural protections sought. In re M.S.R., 174Wn.2d at 18. Relevant considerations include the legal and factual complexity of the case and whether there 

### is already someone who canadequately represent thechild's interests orwhose interests are aligned with the child's. Id M.C.D.P. and Phillips contend thisfactor 

### weighs in favor ofappointment ofcounsel given (1) the complexity oftheinternational law and citizenship issues; (2) the heightened risk oferror underthe subjective "best interests of the child" standard and the "preponderance of the evidence" burden of
26 M.C.D.P. cites, among otherthings, the court'sdiscussion in In reM.S.R., 174Wn.2d at 15- 17, ofthe substantial risks faced bychildren in dependency andtermination proceedings; the 

### possibility ofbeing removed to another country; being denied the liberty to associate with herfamily in theUnited States; herrights in herown safety; and thepossibility thata dependency court could make decisions about her life for years. 27 Wereject theassertion by Phillips andM.C.D.P. thatthe superior court wasrequired to appoint counsel sua sponte at anearliertime. They make no persuasive argument in this regard and donot explain how appointment ofcounsel would have altered theresult reached by thesuperior court. 28 By thetime thesuperior court made its decision onappointing counsel, Phillips had filed a notice ofappeal as toits order onrevision. Enforcement oftheplacement decision wasstayed pending theappeal. It isunclearwhether there were other decisions before thesuperior courtthat could be affected by M.C.D.P.'s having counsel. 19No. 68401-9-1/20 

### proof; (3) that GALs and CASAs cannotfulfill the function ofanattorney29; and (4) that no other party could adequately represent M.C.D.P's interests. DSHS responds that there has been no shortage of advocacy for M.C.D.P.'s position regarding being 

### placed with Delgado in Mexico, noting that the CASAs, Phillips, and DSHS—all 

### represented byattorneys—provided case law and materials as to why she should not be placed in Mexico at that time. It notes the superior court rejected their arguments and contends there was no reason to think an additional attorney would have 

### changed its ruling. We agree with DSHS. Again, we note the motion was not brought until after the superior court made itsdecision on revision and reconsideration, and thus the risk oferroneous deprivation related to that decision was not at issue at the 

### time. Timing aside, weconclude the superior court did not abuse its discretion in finding that, in the case before it, M.C.D.P.'s interests were being adequately 

### represented by the CASAs and their attorney. The CASAs, through an attorney atall times,30 had been advocating strenuously for M.C.D.P.'s desire to stay in the United States with her fosterfamily. M.C.D.P. and Phillips note that the CASAs and 

### M.C.D.P. might not agree onvisitation matters orregarding an ongoing relationship 

### with Delgado, but at thetime ofthemotion it was not clearthese issueswere ripe to be dealt with or that there was in fact a difference in M.C.D.P.'s position and that of
the CASAs.

29 Theappellants note GALs andCASAs are not trained toprotect a child's legal rights and are obligated to representwhattheyconsider the child's best interests, whereas an attorney can represent thechild's expressed desires. They note thathere, theCASA andM.C.D.P. do not necessarily agree onthe amount, location, ortiming ofvisitation or thenature ofanongoing relationship. They alsonote thatlawyers maintain confidentiality with their clients andexplain to the child the proceedings and the child's rights. 30 The CASAs have been represented by an attorneythroughout the proceedings. The initial guardian ad litem, April Rivera, is an attorney. 20No. 68401-9-1/21


### The third factor is the government's interest in the proceeding, including fiscal and administrative burdens. The State "has a compelling interest in both the welfare of the child and in 'an accurate and just decision' in the dependency and termination 

### proceedings." In re M.S.R., 174Wn.2d at 18. Here, DSHS did not oppose the motion to appoint counsel for M.C.D.P. On appeal, DSHS notes that it has an economic interestin preventing separate expendituresfor an attorneywhen the attorneywill 

### primarily be duplicating work doneby the CASA and the CASA's attorney. M.C.D.P. points to a studyindicating thatproviding counsel to children in dependencies 

### generally might reduce the long-term financial burden on the state. This factor does not weigh more heavily in either direction. In sum, the superior court did not abuse its 

## discretion in deciding that counsel was not necessary at thattime.31 Reverse and remand superior court's order on revision. Otherwise affirm.

WE CONCUR: i\ 

# ^(u^^fY ConJ.

31 M.C.D.P. soughtappointment ofcounsel onappeal, which she received. We express no 

### opinion as to whether, on remand, the appointment ofcounsel for M.C.D.P. may beappropriate or necessary. 21