IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Welfare and Guardianship of: A.N.B.; A.C.B.; A.J.B.; and A.J.B., Minor Children, CARLOS BENITEZ,Appellant,

WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. No. 71230-6-1 (Consolidated with Nos. 71231-4-1, 71232-2-1, 71233-1-1, 71234-9-1, 71236-5-1, 71237-3-1) DIVISION ONE

UNPUBLISHED FILED: February 23. 2015



### Cox, J. — In this consolidated appeal, Carlos Benitez contests termination 

### of his parental rights and dismissal of his petition forguardianship. He argues that collateral estoppel does not bar the petition forguardianship. He further claims thatthe Department of Social and Health Services failed to prove all 

### statutoryelements fortermination. Finally, he claims the trial courtabused its discretion by notfully granting his motion to appear unshackled in court. We hold thatthe doctrine ofcollateral estoppel bars relitigation ofthe 

### question whetherthe paternal grandmother ofthese children is a suitable 

### guardian. DSHS proved and the trial court properly found that one of the challenged statutory elements for termination was established. But the trial courtNo. 71230-6-1/2 did not make a required finding for the other challenged element. Finally, any


### error in not fullygranting his motion to appear unshackled incourtwas harmless. We affirm in part, reverse in part, and remand for further proceedings. 

### Benitez is the biological father of four children—A.N.B. (D.O.B. 2/8/99), A.C.B. (D.O.B. 12/15/99), A.J.B. (D.O.B. 5/16/02), and A.J.B. (D.O.B. 9/15/06). In December 2011, the Department of Social and Health Services (DSHS) 

### petitioned for dependency ofthe children for the second time. Atthe time, Benitez was incarcerated. The trial court ordered the children placed in foster care, and itdirected DSHS to investigate whetherthe children's relatives could offer appropriate placement. On March 20, 2012, the court heard oral argument on Benitez's motion to place A.J.B. with her paternal grandmother. DSHS opposed this proposed 

### placement due to allegations ofphysical and sexual abuse inthe grandmother's home when the children were younger. Atthe hearing, the children provided the 

### court with specifics regarding her alleged conduct. Their biological mother also opposed this placement. The court denied Benitez's motion. 

### On April 18, 2012, the court held the dependency disposition hearing. Benitez acknowledged that he would be incarcerated until2031. Nonetheless, he contested dependency on the basis that the children had a "guardian" or "custodian" to care for them—their paternal grandmother. But, as this court later stated inthe appeal ofthe dependency disposition order entered on that date, Benitez "failed to refute the concerns that were raised about the paternalNo. 71230-6-1/3 

### grandmother at the March 20 hearing."1 TheApril 18, 2012 disposition order of 

### dependencyfor all the children was based onRCW 13.34.030(6)(c).2 Underthat statute, the children were dependent because they had "no parent, guardian, or 

### custodian capable ofadequately caring for [them].
.. ."3 They remained placed
in foster care. 

### Benitez appealed the April 18, 2012 dependency disposition orderto this court, challenging the trialcourt's determination that his four children were 

### dependent and challenging the trial court's placementdecision.4 This court rejected his arguments and affirmed. Thereafter, the supreme court denied Benitez's petition for discretionary review. 

### InMarch 2013, DSHS petitioned to terminate Benitez's parental rights. 

### Benitez petitioned forguardianship, naming the children's paternal grandmother 

### as the proposed guardian. He also moved to continue the termination hearing and requested that DSHS conduct a home study to consider placement of the children with the paternal grandmother. In response, DSHS moved to dismiss 

### the guardianship petition. Thetrial court dismissed the guardianship petition on the basis ofcollateral estoppel and entered an orderterminating Benitez's parental rights.

1 In re Welfare ofA.N.B., noted at 174 Wn. App. 1047, 2013 WL 1739120, at*3. 2Clerk's Papers at 25. 

### 3(Emphasis added.) 4Welfare ofA.N.B.. noted at 174 Wn. App. 1047.No. 71230-6-1/4 Benitez appeals. TERMINATION OF PARENT CHILD RELATIONSHIP 

### Benitez makes two arguments that the trial court erred in finding that DSHS met its burden under RCW 13.34.180(1). The first is without merit. But
we agree with the second. 

### The court may enter an orderterminating allparental rights to a child only ifthe court finds all ofthe following elements are established by clear, cogent, and convincing evidence: 

### (a) That the child has been found to be a dependent child; (b) That the court has entered a dispositional order pursuantto RCW 13.34.130; 

### (c) That the childhas been removed orwill, at the time of the hearing, have been removed fromthe custody ofthe parentfor a 

### period of at least six months pursuantto a finding ofdependency; (d) That the services ordered under RCW 13.34.136 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 inthe nearfuture.
.. . ; and 

### (f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable 

### and permanent home. Ifthe parent is incarcerated, the court shall considerwhether a parent maintains a meaningful role in his or her child's life based on factors identified in RCW 13.34.145(5)(b); 

### whether the department or supervising agency made reasonable efforts as defined in this chapter; and whether particular barriers existed as described in RCW 13.34.145(5)(b) including, but not 

### limited to, delays or barriers experienced inkeeping the agencyNo. 71230-6-1/5 

### apprised of his or her location and in accessing visitation or other 

### meaningful contactwith the child.[5l "Clear, cogent, and convincing evidence exists when the ultimate fact in 

### issue is shown by the evidence to be 'highlyprobable.'"6 Ifthis firststep is met, the trial court must also find that termination ofthe parent-child relationship is in the best interests ofthe child.7 "The dominant consideration
... is the moral, 

### intellectual, and material welfare ofthe child."8 "'Where the trial court has weighed the evidence, review is limited to 

### ascertaining whetherthe findings of fact are supported by substantial evidence, and ifso, whetherthe findings support the conclusions of law and the 

### judgment.'"9 "'Substantial evidence is evidence in sufficientquantity to persuade


### afair-minded, rational person of the truth of the declared premise.'"10 Here, Benitez does not challenge four ofthe six termination elements. 

### Rather, he contends that DSHS failed to prove that two ofthe elements had been established—specifically RCW 13.34.180(1 )(d) and (f).
5RCW 13.34.180(1); RCW 13.34.190(1)(a)(i). 6 In re Dependency of K.R., 128Wn.2d 129, 141,904P.2d 1132(1995) 

### (internal quotation marks omitted)(quoting In re Seqo. 82 Wn.2d 736, 739, 513 P.2d831 (1973)). 7RCW 13.34.190(1 )(b). 

### 8In re Dependency ofJ.W., 90 Wn. App. 417, 427, 953 P.2d 104 (1998). 9In re Dependency ofA.M.M., 182 Wn. App. 776, 785, 332 P.3d 500 

### (2014) (quoting In re Dependency ofP.P.. 58 Wn. App. 18, 25, 792 P.2d 159 (1990)). 

### 10 Id (internal quotation marks omitted) (quoting In re Welfare ofT.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009)).No. 71230-6-1/6 RCW 13.34.180(1)(d) First, Benitez asserts that the State "did not expressly and 

### understandably provide allreasonably available services capable ofcorrecting 

### Mr. Benitez's parental deficiencies."11 We disagree. DSHS must prove that ithas offered or provided "allnecessary services, 

### reasonably available, capable ofcorrecting the parental deficiencies withinthe foreseeable future."12 "The services offered must be tailored to each individual's 

### needs."13 "[T]he court may consider any service received, from whatever source, 

### bearing on the potential correction of parental deficiencies."14 "Even where the State inexcusably fails to offer a service to a willing 

### parent, termination is nonetheless appropriate ifthe service would not have 

### remedied the parent's deficienciesin the foreseeable future."15 Here, the trial courtfound that all necessary services reasonably available have been offered and thatthere is no hope that the child will be returned to Benitez regardless ofservices provided: 

### 2.10 Since dependency was established, services ordered under RCW 13.34.130 have been offered or provided and all 

### necessary services reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been
11 Motion forAccelerated Review Opening Brief ofAppellant at 29. 12RCW13.34.180(1)(d). 13 In re Dependency ofT.R., 108 Wn. App. 149, 161.29P.3d 1275(2001). 14 In re Dependency of DA, 124 Wn. App. 644, 651-52, 102 P.3d 847 (2004).15 Id. at 655.No. 71230-6-1/7 

### offered or provided. In this case, Mr. Benitez is in Department of Corrections (DOC) custody untilthe year 2031. The only services available to Mr. Benitez there, other than AA or NA, will be provided 

### two years prior to his release. Nothing inthe law requires [DSHS] to send outside professionals to an inmate who will be in custody for another twenty years. 2.11 Even if [DSHS] did send outside professionals to Mr. 

### Benitez in prison to provide services, there is little likelihood that the conditions will be remedied so that the child could be returned to 

### [Benitez] inthe nearfuture. There is no hope this child will be 

### returned, regardless ofservices to [Benitez]. [Benitez] is unavailable due to his own making and the numerous felonies he committed.[16] 

### These findings are supported by substantial evidence, and they support the conclusion that this termination factor was satisfied. At trial, a counselor at the correctional center testified that DSHS recommended services for Benitez, but because of his incarceration until 2031, Benitez is not eligible to participate in those services until 2029.17 Benitez does not dispute that he is incarcerated until
2031. 

### Benitez argues that "if[he] is not offered services due to his incarceration, and his parental rights are terminated because he has not completed services which he was never offered, then incarceration is effectively the basis for 

### terminating his parental rights."18 But, while imprisonment alone does notjustify termination, "[T]he parent's resulting inability to perform his or her parental

16 Clerk's Papers at 309. 

### 17 Report ofProceedings (Nov. 7, 2013) at 43-44. 18 Motion for Accelerated Review Opening Brief ofAppellant at 30.No. 71230-6-1/8 

### obligations iscertainly relevantto the child's welfare."19 Further, termination is appropriate ifthe service would not have remedied the parent's deficiencies in the foreseeable future. Benitez is incarcerated until 2031, and his deficiencies
cannot be remedied in the foreseeable future. 

### Benitez also argues that DSHS "did not request or provide for outside 

### professionals to come to the facility."20 But, as the trial court stated, "Nothing in the lawrequires [DSHS] to send outside professionals to an inmate who will be in 

### custody foranothertwentyyears."21 Benitez fails to point to any authority to the contrary. Thus, this argument is not persuasive. 

### The trial court properly determined by clear, cogent, and convincing evidence that this element was satisfied. RCW 13.34.180(1)(f) Second, Benitez asserts that DSHS failed to prove all ofthe necessary elements to show that continuation of his relationship with his children clearly 

### diminished their prospects for early integration into a stable and permanent 

### home. Specifically, he argues that the trial court failed to consider recent 

### amendments to this statute regarding incarcerated parents.22 Because this record fails to show such consideration by the court, we agree.

19 Dependency of J.W.. 90 Wn. App. at 426. 20 Motion forAccelerated Review Opening Brief ofAppellant at 31. 21 Clerk's Papers at 309. 

### 22 Supplemental Brief ofAppellant at 1-4.

8No. 71230-6-1/9 The below emphasized portions ofthis statute show the amendments that

are at issue: That continuation ofthe parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. Iftheparentis incarcerated, the court shallconsiderwhetheraparentmaintains a meaningfulrole in his orherchild's life based on factors identified in RCW 13.34.145(5)(b); whetherthe departmentorsupervisingagency made reasonable efforts as definedin this chapter; and whetherparticularbarriers existedas describedin RCW 13.34.145(5)(b) including, butnotlimitedto, delays orbarriers experiencedin keeping the agencyapprisedofhis orher location andin accessing visitation orothermeaningful contact with the child,[23] 

### For example, as one ofseveral requirements, "[T]hecourt shall consider 

### whether [the] parent maintains a meaningful role in [the] child's life based on factors identified in RCW 13.34.145(5)(b)."24 That statute sets forth the following six factors the court may consider in making this assessment: 

### (i) The parent's expressions or acts ofmanifesting concern forthe child, such as letters, telephone calls, visits, and otherforms of communication with the child; 

### (ii) The parent's efforts to communicate and work withthe department or supervising agency or other individuals for the purpose of complying withthe service plan and repairing, maintaining, or building the parent-child relationship; 

### (iii) A positive response bythe parentto the reasonable efforts of the department or the supervising agency; 

### (iv) Information provided by individuals or agencies in a reasonable position to assistthe court in making this assessment, including but not limited to the parent's attorney, correctional and mental health personnel, or other individuals providing services to the parent;
23 RCW 13.34.180(1 )(f) (emphasis added). 24 Id.No. 71230-6-1/10
(v) Limitations in the parent's access to family support programs, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability to participate infoster care planning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and (vi) Whether the continued involvement ofthe parent inthe child's life is in the child's best interest.1251 In In re Dependency ofA.M.M., this court reversed a termination order because there was no evidence in the record that the trial court considered the 

### 2013 amendments to RCW 13.34.180(1)(f).26 Itstated, "This omission indicates both that the Departmentfailed to satisfy its burden ofproofas to the termination factor contained within RCW 13.34.180(1 )(f) and that the trial courtfailed to apply 

### the law ineffect at the time of its ruling."27 Here, there are some differences between this case and A.M.M. For 

### example, here, DSHS made the trial court aware ofthese 2013 amendments to the statute when itreferenced the amended language in its memorandum of 

### authorities submitted prior to trial.28 Additionally, DSHS presented evidence at trial that is relevant to Benitez's relationship with his children. Forexample, 

### DSHS presented testimony that letters Benitez wrote to his children were 

### inappropriate and notshared, that the children did notrequest phone contactwith

25RCW13.34.145(5)(b). 26 182 Wn. App. 776, 778-89, 332 P.3d 500 (2014). 27 Id, at 787. 28 Clerk's Papers at 271-72.

10No. 71230-6-1/11 

### Benitez, and that Benitez had not visited with his children.29 Further, in closing argument, DSHS argued, "Clearly the parent-child relationship diminishes these children's prospects for integration into a safe and stable home. The 

### relationship is notgoodbetween[Benitez]andhis children."30 Nevertheless, this record fails to show that the trial court considered all 

### factors thatthe amended language ofthe statute requires. Specifically, there is nothing to indicate thatthe trial court considered each ofthe three requirements under the amended statute—whether Benitez maintained a meaningful role in his children's life, whether DSHS made "reasonable efforts," and whether particular barriers existed. 

### Further, despite the argument of DSHS to the contrary, we do not infer from the findings thatthe trial court entered that it clearly considered the factors 

### required bythe amended language. Anappellate court may infer omitted 

### findings "'if—but onlyif—all the facts and circumstances in the record . . . clearly demonstrate that the omitted findingwas actually intended, and thus made, by the trial court.'"31 

### Here, the record does not clearly demonstrate that the omitted findings 

### were actually intended and made by the trial court. Like inA.M.M.. the trial court applied the language contained within former subsection (1)(f), and made no

29 See, e.g., Report ofProceedings (Nov. 7, 2013) at 59-60, 67-71, 78-80. 30 Id. at 110 (emphasis added). 

### 31 Dependency ofA.M.M., 182 Wn. App. at 788 (quoting In re Welfare of A.B., 168Wn.2d908, 921,232P.3d 1104(2010)).

11No. 71230-6-1/12 mention ofthe amended language or to the factors in RCW 13.34.145(5)(b) 

### either in its written findings or its oral ruling. InA.M.M.. this court stated, "Given this, we cannot conclude that all ofthe facts and circumstances in the record 

### clearly demonstrate that the omitted findings were actuallyintended."32 The

same is true here. 

### DSHS argues that the trial court considered allthe evidence and "then made clearfindings that [Benitez] did not maintain a meaningful relationship with the children . . . ,"33 Insupport of this, itcites the trialcourt's oral remarks that Benitez is not a fitparent and had not provided food, clothing, or medical care since 2007.34 But this is not a "clearfinding" that Benitez did not maintain a 

### meaningful relationship with the children. Rather, it is a clearfinding that Benitez is not a fit parent. And DSHS expressly asked the court to make a finding that 

### Benitez is not a fit parent based on that evidence.35 DSHS fails to explain how a 

### finding of parental unfitness is sufficientto show that the trial court considered each ofthe amended statutory requirements. Moreover, the court appears to have made this oral remark when considering whethertermination was inthe best interests ofthe children, not when itwas considering the six termination factors. For these reasons, this argument is not persuasive.

32 id, at 789. 

### 33 Respondent's Supplemental Brief at 5. 

### 34 ]d, at 5-6 (citing Report ofProceedings (Nov. 7, 2013) at 116). 35 Report ofProceedings (Nov. 7, 2013) at 110-11.

12No. 71230-6-1/13 

### DSHS also argues that the trial courtfound DSHS offered all necessary 

### services that were reasonably available.36 This is true, as the trial court made this finding to show that anothertermination factor—(1)(d)—was met. But DSHS fails to explain how this finding shows that the court considered whether DSHS made "reasonable efforts" as that term is contemplated within the amended 

### language of (1 )(f). Further, even ifthis finding is sufficientto show "reasonable efforts" under (1)(f), there is still no showing that the trial court considered the othertwo requirements ofthe amended language—whether Benitez had a meaningful relationship with his children and whether particular barriers existed. DSHS next points to the following language from A.M.M.: "[T]here is no 

### evidence inthe record suggesting that [DSHS] presented evidence in an effort to 

### satisfy its burden orthat the trial court did, in fact, make the findings referenced inthe amended subsection
. . . ,"37 DSHS emphasizes the "or" from that quote 

### and argues that, in this case, "the record is replete withevidence that [DSHS] met its burden."38 With this, DSHS appears to argue that either it is not 

### necessary forthe trial court to make the findings if DSHS met its burden, or that this court may make the required finding. But a proper reading ofA.M.M. does

36 Respondent's Supplemental Briefat 8. 37 Dependency of A.M.M. 182 Wn. App. 787 (emphasis added). 38 Respondent's Supplemental Briefat 9.

13No. 71230-6-1/14
not support this view. More importantly, an appellate court does not make 

### findings offact.39 Finally, DSHS argues that "[a]ny objective reading ofthe findings can only support the conclusion thatthe court determined Mr. Benitez had no relationship 

### with his children and had no hope of establishing one for the next 18 years."40 But an objective reading ofthe findings does not support the conclusion thatthe trial court determined that Benitez had "no relationship" with his children. And 

### regardless, the findings still do not address the othertwo requirements of the amended language. DSHS asks this court to infer too much. 

### We express no opinion whether DSHS proved the required factors on the record that is now before us. That is for the trial court to decide, in the first instance. But we cannot conclude that the trial court considered whether the 

### amended language had been satisfied by clear, cogent, and convincing 

### evidence. Accordingly, we must reverse this ruling and remand for further proceedings to address this element. COLLATERAL ESTOPPEL 

### Benitez next argues that the trial court erred indismissing his 

### guardianship petition based on the doctrine ofcollateral estoppel.41 Wehold that the trial court properly applied the doctrine to this case.

39 Marcum v. Dep't of Soc. & Health Servs.. 172 Wn. App. 546, 560, 290 P.3d 1045(2012). 40 Respondent's Supplemental Briefat 10. 41 Motion for Accelerated Review Opening Brief ofAppellant at 16-24.

14No. 71230-6-1/15 Inorderfor collateral estoppel to apply, the party asserting the doctrine 

### must prove the following: "'(1) the issue decided inthe prior adjudication is identical with the one presented inthe second action; (2) the prior adjudication 

### must have ended in a finaljudgment on the merits; (3) the party againstwhom the plea is asserted was a party or in privity with the party to the prior 

### adjudication; and (4) application of the doctrine does notwork an injustice.'"42 "Collateral estoppel requires a prior determination ofan issue on its 

### merits."43 Thus, "[t]hedoctrine will preclude relitigating only those issues which 

### have actually been tried and determined. Ifthere is ambiguity or indefiniteness in


### a verdict or judgment,collateral estoppel will not be applied as to that issue."44 Here, Benitez only disputes the first two elements ofcollateral estoppel— whether the issue decided in the prioradjudication is identical, and whetherthe prioradjudication ended in a finaljudgment on the merits. First, the court properly determined that the issue presented in the current 

### guardianship petition—the suitability of the paternal grandmother for placement of the children—is the same issue thatwas previously before the trial court in the dependency proceeding.

42 Thompson v. Dep't ofLicensing, 138 Wn.2d 783, 790, 982 P.2d 601 

### (1999) (quoting Nielson v. Spanawav Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d 312 (1998)). 43 Mead v. Park Place Props., 37 Wn. App. 403, 407, 681 P.2d 256 (1984). 44 id,

15No. 71230-6-1/16 

### The suitability of the children's paternal grandmotherwas the subject of both the March 20, 2012 hearing and the April 18, 2012 hearing. Inthe first 

### hearing, Benitez soughtto have his mother serve as the guardian. The children's mother and DSHS both opposed this. The court heard testimony from the 

### children and declined to appoint the paternal grandmother as guardian due to issues of her suitability. 

### At the April 18, 2012 disposition hearing, Benitez again soughtto have the 

### paternal grandmother appointed as guardian. The trial court declined this request. As this court stated in the priorappeal of the disposition order, "Benitez failed to refute the concerns that were raised about the paternal grandmother at 

### the March 20 hearing."45 And the supreme court denied review, quoting this 

### court's language characterizing theApril 18, 2012 disposition hearing.46 In sum, there is no doubtthat the question of the suitability ofthese 

### children's paternal grandmother was addressed in the priorproceeding. The issue is identical to that presented in this proceeding. 

### In short, because the issue decided inthe prioradjudication is the same 

### as the one presented here, the first element ofcollateral estoppel is satisfied. Second, the trial court properlydetermined that there was a finaljudgment 

### on the merits of the placement decision by the trial courtin the dependency that
was the subject ofthe prior appeal.

45 Welfare ofA.N.B., 2013 WL 1739120, at *3. 46 Clerk's Papers at 257-61.

16No. 71230-6-1/17 

### A disposition decision following a finding ofdependency is a final and appealable order under RAP2.2(a)(5).47 The finality of that order is subjectto timely requests for review. But upon exhaustion of review, the order is a final 

### judgment.48 Here, it is undisputed that the disposition decision followingthe finding of 

### dependency was the subject of review, both in this court and the supreme court. This court rendered its decision inthe prior appeal, and the supreme court 

### denied review. Thus, the disposition decision ofthe trial court was a final 

### judgmentfor purposes of collateral estoppel. 

### The remaining issue is whetherthe disposition decision was a final 

### judgment on the merits on the suitability of the paternal grandmother for placement. 

### In his priorappeal to this court on the disposition decision, Benitez 

### challenged the trial court's placement decision, arguing that itwas based on evidence shown to be false.49 This court rejected his challenge and stated: We conclude the trial court did not abuse its discretion in 

### denying Benitez's requestto place the childrenwith their paternal 

### grandmother and determining that continued placement in foster care was in their best interests. On March 20, 2012, several weeks 

### before the dependency and disposition hearing, the court heard 

### argument about moving A.J.B. to the paternal grandmother's home. At that hearing, three children provided statements to the court
47 In re Dependency of Brown, 149 Wn.2d 836, 839-40, 72 P.3d 757 (2003).

### 48 See Gronouist v. State, 177 Wn. App. 389, 397, 313 P.3d 416 (2013), review denied, 180Wn.2d 1004(2014). 49Welfare ofA.N.B., 2013 WL 1739120 at *3.

17No. 71230-6-1/18 indicating that they wished not to be placed with the paternal grandmother and that she had physically or sexually abused the children in the past. DSHS and the children's mother also opposed placement with her. Atthe dependency anddisposition hearing, Benitezfailed to refute the concerns that were raised aboutthepaternalgrandmotheratthe March 20 hearing. The evidenceprovidedgoodcause notto follow Benitez's wishes regardingplacement, particularly where the othernatural 

### parentopposedsuchplacements 

### The supreme court denied review of this court's decision.51 In its ruling denying review, itstated, "Contrary to Mr. Benitez's seeming argument, no 

### evidence shows that the children's allegations were false."52 The trial court considering the motion to dismiss the guardianship petition at the time ofthe termination hearing properly relied, in part, on this court's prior decision when itdismissed the guardianship petition. Itstated: The Court ofAppeals
. . . went on to decide that the trial court Commissioner Paxton did not abuse its discretion in denying Mr. Benitez's request to place the children with their paternal grandmother and determining that continued placement infoster care was in their best interest. So in light of a clear mandate inthe statute that the child shall be placed with a relative unless there is a risk to the child in doing so the Court ofAppeals affirmed Commissioner Paxton's ruling that the children should not be placed with the paternal grandmother. / think thatdecision, the Courtof Appeals' decision, very clearlyshuts the dooron anyfuture guardianshipproceedings. That decision by Commissioner Paxton inthe face of a statutory mandate thatthe children should 

### be placed with [a] relative unless there is something that was of concern about the children's safety or welfare inthat placement. Andthe Courtof Appeals affirming CommissionerPaxton's


### 50jd, (emphasis added). 51 Clerk's Papers at 257-61. 52 Id. at 260.

18No. 71230-6-1/19 decision notto place the children with theirpaternal grandmotherconstitutes a decision which collaterally estops Mr. Benitezfrom furtherpursuingplacementwith his mother eitheras a fosterplacementrelative, fosterplacement, oras a 

### guardianshipplacement. So the motion to dismiss the petition for 

### guardianship is granted.[53] Generally, issues ofplacement are subjectto regular review and 

### modification at review hearings.54 But, as the trial court stated, as to placement 

### with the paternal grandmother, this court's priordecision "very clearly shut[] the 

### door on any future guardianship proceedings."55 Notably, this court pointed out that Benitez failed to refute concerns about the paternal grandmother at the 

### dependency hearing. Thus, the disposition decision was a finaljudgmenton the merits as to denying placementwiththe paternal grandmother. The law ofthe case doctrine also supports this conclusion. This doctrine 

### provides that "once there is an appellate holding enunciating a principle oflaw, 

### thatholding will befollowed in subsequentstages ofthe same litigation."56 Thus,
we decline to revisitthe holding in the priorappellate decision—thatthere was no abuse ofdiscretion because placementwiththe paternal grandmotherwas inappropriate.



### 53 Report ofProceedings (Nov. 7, 2013) at 32 (emphasis added). 54 See RCW 13.34.138. 

### 55 Report ofProceedings (Nov. 7, 2013) at 32 56 Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005).

19No. 71230-6-1/20 Benitez argues that collateral estoppel does not apply because 

### dependency revieworders are notfinaljudgments.57 In doing so, he relies heavily on In re Dependency ofChubb.58 It is true that dependency review orders are not final orders. But, the relevant order here is the dependency 

### disposition order, not any ofthe review orders thatfollowed. Thus, reliance on Chubb is misplaced. 

### Benitez argues that this court "did not render a finaljudgmenton the 

### merits as to [the paternal grandmother's] suitability, but merely found that the commissionerdid not abuse his discretion indenying [Benitez's] dependency 

### placement request."59 For the reasons already explained, this argument conflicts both with this court's prior view of the record at the disposition hearing and our view ofthe arguments in this case. 

### Benitez next argues that collateral estoppel does not apply because the 

### issue ofsuitability ofthepaternal grandmotherwas not actually litigated.60 He argues that the commissioner"did notintend for his placement decisions to bar any future placement of the childrenwith their grandmother" and he cites 

### excerpts from thetranscriptofthehearings tosupportthiscontention.61 For example, he cites the following statements by the commissioner: "I'm notin a 57 Motion forAccelerated Review Opening Brief ofAppellant at 16. 58 112 Wn.2d 719, 773 P.2d 851 (1989). 59 Motion for Accelerated Review Opening Brief ofAppellant at 19. 60 id, 61 id, at 18.

20No. 71230-6-1/21 position today to make any decision with regard to placing the children [withthe paternal grandmother]," "I'm not going to ruling [sic] today
... ifwe learn 

### something down the road okay, but nottoday."62 Notwithstanding these assertions, Benitez fails to address this court's prior observations that there was nothing at the April 18, 2012 hearing that refuted the allegations made at the March 20, 2012 hearing regarding placement with the paternal grandmother. We do not depart from those observations here. Finally, Benitez argues that the trial court's error indismissing the 

### guardianship petition requires reversal ofthe termination order, because the availability of a guardianship placement is material to whetherthe State can meet its burden to prove RCW 13.34.180(1 )(f). Because we conclude that there was
no error, we reject this argument. DENIAL OF MOTION TO REMAIN UNSHACKLED 

### Benitez argues that the trial court abused its discretion when itdenied his 

### motion to remain unshackled during the termination proceeding.63 Any error in this ruling was harmless. It is well settled that "a prisoner is entitled to be brought into the presence ofthe court free from restraints."64 "'Restraints are viewed with disfavor because 

### they may abridge important constitutional rights, including the presumption of innocence, privilege of testifying inone's own behalf, and right to consultwith
62 Clerk's Papers at 202-03, 231. 63 Motion for Accelerated Review Opening Brief ofAppellant at 24-28. 64 State v. Damon, 144 Wn.2d 686, 690, 25 P.3d 418 (2001).

21No. 71230-6-1/22 

### counsel duringtrial.'"65 "[Restraints should 'be used only when necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.'"66 

### "Atrialjudge must exercise discretion in determining the extentto which courtroom security measures are necessary to maintain order and prevent 

### injury."67 In State v. Hartzog, the supreme court listed several factors the trial court may consider in determining whetherto use physical restraints: "[T]he seriousness of the present charge againstthe defendant; defendant's temperament and character; his age and physical 

### attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk ofmob 

### violence or ofattempted revenge by others; the possibility ofrescue 

### by other offenders still at large; the size and the mood of the audience; the nature and physical security of the courtroom; and 

### the adequacy and availability ofalternative remedies."[68] A court's discretion to restrain a defendant "must be founded upon a factual basis set forth in the record."69 Thus, "the trial court should allow the use



### 65 State v. Turner, 143 Wn.2d 715, 725, 23 P.3d 499 (2001) (quoting State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981)). 66 State v. Finch, 137 Wn.2d 792, 846, 975 P.2d 967 (1999) (quoting Hartzog, 96 Wn.2d at 398). 67 Hartzog, 96 Wn.2d at 400. 

### 68 96 Wn.2d 383, 400, 635 P.2d 694 (1981) (alteration in original) (quoting State v. Tollev, 290 N.C. 349, 368, 226 S.E.2d 353 (1976)). 69 id,

22No. 71230-6-1/23 

### ofrestraints only after conducting a hearing and entering findings into the record 

### that are sufficient to justify the use of the restraints."70 This court reviews a trial court's decision to shackle a defendant under an abuse ofdiscretion standard.71 "Aclaim of unconstitutional shackling is subject to harmless error 

### analysis."72 "[T]he Defendant must show the shackling had a substantial or injurious effect or influence on thejury's verdict."73 Here, at the hearing on Benitez's motion to remain unshackled, defense counsel requested "to have [Benitez] at least unshackled on his hands in orderto 

### communicate with the attorneys" and to have his hands free whiletestifying.74 DSHS opposed the motion, stating that Benitez was in custody for extremely 

### violent crimes, and asked "that all he be allowed is one shackle."75 The following exchange then occurred: [DEFENSE COUNSEL]: Certainly we're not opposed to the leg shackles remaining on. There are obviously deputies inthe courtroom. I would ask that both of his hands be unshackled. 

### THE COURT: Alright. Are you right handed or lefthanded? [BENITEZ]: Right handed.

70Damon, 144 Wn.2d at 691-92. 71 Turner. 143 Wn.2d at 724. 72 State v. Hutchinson, 135 Wn.2d 863, 888, 959 P.2d 1061 (1998). 73 id, 

### 74 Report ofProceedings (Nov. 7, 2013) at 4. 75 id, at 5.

23No. 71230-6-1/24
[THE COURT]: Alright. So the motion to change into civilian clothes is denied. There is no jury present. Idon't see any need for that. The decision here is going to be made by the court. And believe me I've seen a lot of people in red pajamas. So the right hand can be uncuffed so that you can communicate with your attorney and write if you need to. But the left hand will remain 

### shackled to the waist chain. Alright.[76] Benitez does not contest that he was incarcerated for extremely violent crimes, as DSHS stated. It is clearfrom the above exchange that Benitez did not 

### oppose the leg shackles. It is also clearthat the court ordered that Benitez's dominant right hand remain free so that he could communicate with counsel. 

### So the only real dispute is the effect of the court not explaining its 

### reasoningfor the use of a restraint on Benitez'sleft hand, as case law dictates.77 Assuming, without deciding, this was error, itwas harmless. Benitez's dominant 

### right hand remained free so he could communicate with counsel. Benitez never 

### appeared in front of ajury, and a proceeding without a jury"greatly reduces the likelihood ofprejudice."78 Further, the trial court indicated that it would not be 

### prejudiced. There is no reason to doubt this. In sum, Benitezfails to show that the use of a restraint on his left arm substantially affected the trial court's fact finding.

76 id, 77 See Damon, 144 Wn.2d at 691-92; Hartzog, 96 Wn.2d at 400. 78 State v. E.J.Y., 113 Wn. App. 940, 952, 55 P.3d 673 (2002).

24No. 71230-6-1/25 

### DSHS argues that Benitez "did not have a right to appearfree from 

### shackles" because this "was a civil trialexecuted without ajury."79 Because of

our resolution of the issue, we need not address this argument. We affirm in part, reverse in part, and remand for further proceedings to address the recently amended statute. 

# 6dxJ.

WE CONCUR: 

# >?JlownQ,.,

79 Respondent's Brief at 26.

25 rW r.
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