IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
FILED: June 13, 2011
Appelwick, J. — Slusser-Kelly appeals the order finding her daughter
L.M.K. dependent. She argues that the trial court violated her constitutional
rights by relying on evidence from outside the record, in determining that her
boyfriend, Burns, was an inappropriate caregiver for her child.
substantial evidence supports the finding of dependency, and because SlusserKelly has not demonstrated manifest error, we affirm the order of dependency.
No. 65958-8-I /2
The Department of Social and Health Services (DSHS) filed a
dependency petition on June 9, 2010, asserting that Brandi Slusser-Kelly’s two
year old child, L.M.K. was an abused or neglected child, and that the child had
no parent or guardian capable of adequately caring for the child. L.M.K. was
placed in out-of-home care with her aunt in June 2010. L.M.K.’s father, Jeffrey
Youngs, is incarcerated and signed an agreed order of dependency, entered on
August 10, 2010.
The trial court conducted a contested hearing on September 7, 2010 and
found that L.M.K. was a dependent child under RCW 13.34.030(6)(b) and (c).
The parties agreed to specifically adopt the trial court’s oral findings of fact by
reference in the dependency order. The trial court’s finding of dependency was
based primarily on four factors: (1) Slusser-Kelly’s use of marijuana on a daily
basis, including throughout her pregnancies with L.M.K. and L.M.K.’s younger
brother; (2) Slusser-Kelly’s failure to follow medical advice or obtain prescribed
medical treatment for L.M.K., following L.M.K.’s fever and febrile seizures; (3)
Slusser-Kelly’s failure to engage in needed services such as treatments for her
drug addiction, and meetings with L.M.K.’s guardian ad litem; and (4) the
decision to leave L.M.K. with Slusser-Kelly’s boyfriend, Todd Burns, during her
Slusser-Kelly appeals the trial court’s order of dependency.
I. Standard of Review
No. 65958-8-I /3
Parents have a fundamental liberty interest in the care and welfare of
their children, and State interference is never to be taken lightly.
Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007) (citing In
re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). But, the State
has an interest in protecting the physical, mental, and emotional health of
A dependency is a preliminary proceeding that does not
permanently deprive a parent of rights. In re Welfare of Key, 119 Wn.2d 600,
609, 836 P.2d 200 (1992). Dependency proceedings are designed to protect
children from abuse and neglect, help parents alleviate problems that led to
State intervention, and reunite families if appropriate.
In re Dependency of
T.L.G., 126 Wn. App. 181, 203, 108 P.3d 156 (2005); In re Interest of J.F., 109
Wn. App. 718, 728, 37 P.3d 1227 (2001); In re A.W., 53 Wn. App. 22, 27, 765
P.2d 307 (1988).
In evaluating a claim of insufficiency of the evidence in a dependency
proceeding, this court determines whether substantial evidence supports the trial
court’s findings of fact and whether those findings of fact support the trial court’s
conclusions of law. In re Dependency of C.M., 118 Wn. App. 643, 649, 78 P.3d
191 (2003). Evidence is substantial if, viewed in the light most favorable to the
prevailing party, a rational trier of fact could find the fact by a preponderance of
the evidence. In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163
(2003). The legislature has determined that in balancing the legal rights of
parents against the rights of the child, the rights and safety of the child shall be
the paramount concern. RCW 13.34.020; Schermer, 161 Wn.2d at 942. Thus,
No. 65958-8-I /4
when a child’s best interests conflict with the parent’s interests, the child’s
interests must prevail. In re Dependency of J.B.S., 123 Wn.2d 1, 9-10, 863 P.2d
1344 (1993). A best interests determination is highly fact dependent. In re
Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). The deference
paid to the trial judge’s advantage in having the witnesses before him or her is
particularly important in this context, and this court does not reweigh the
evidence or evaluate the witnesses credibility. Id.; Quinn v. Cherry Lane Auto
Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009).
findings of fact are verities on appeal. Cowiche Canyon Conservancy v. Bosley,
118 Wn.2d 801, 809, 828 P.2d 549 (1992).
An appellate court may refuse to review any claim of error which was not
raised in the trial court. RAP 2.5(a); State v. O’Hara, 167 Wn.2d 91, 97-98, 217
P.3d 756 (2009). “The appellate courts will not sanction a party’s failure to point
out at trial an error which the trial court, if given the opportunity, might have been
able to correct to avoid an appeal and a consequent new trial.” State v. Scott,
110 Wn.2d 682, 685, 757 P.2d 492 (1988). The rule comes from the principle
that trial counsel and the defendant are obligated to seek a remedy to errors as
they occur, or shortly thereafter.
O’Hara, 167 Wn.2d at 98.
There is an
exception to this general rule, however, when the claimed error is a manifest
error affecting a constitutional right. RAP 2.5(a)(3). “Manifest” in RAP 2.5(a)(3)
requires a showing of actual prejudice.
O’Hara, 167 Wn.2d at 99.
demonstrate actual prejudice, an appellant must make a plausible showing that
the asserted error had practical and identifiable consequences in the trial. Id.
No. 65958-8-I /5
To find a child dependent, the State must prove by a preponderance of
the evidence that the child meets the statutory definition of dependency under
Key, 119 Wn.2d at 612; RCW 13.34.110(1).
13.34.030(6)(b) provides that a child is dependent if the child is “abused or
neglected as defined in chapter 26.44 RCW by a person legally responsible for
the care of the child.” RCW 13.34.030(6)(c) provides that a child is dependent
where the child “[h]as no parent, guardian, or custodian capable of adequately
caring for the child, such that the child is in circumstances which constitute a
danger of substantial damage to the child’s psychological or physical
development.” In this case, the trial court found L.M.K. dependent under both
RCW 13.34.030(6)(b) and (c).
Slusser-Kelly argues that both of these findings of dependency are
erroneous, because they rely, at least in part, on the trial court’s finding that
Burns was not a suitable caregiver for L.M.K. She argues that the trial court
relied on evidence from outside the record to reach this conclusion, in violation
of her constitutional rights. Because she did not object at trial to the trial court’s
alleged reference to evidence outside the record, however, she may not raise
this issue for the first time on appeal unless she can demonstrate manifest
constitutional error. RAP 2.5(a)(3).
II. Substantial Evidence Supports the Finding of Dependency
The trial court’s dependency finding was based on four main factors. (1)
Slusser-Kelly’s use of marijuana on a daily basis, including throughout her two
pregnancies; (2) Slusser-Kelly’s failure to follow medical advice or obtain
No. 65958-8-I /6
prescribed medical treatment for L.M.K., following L.M.K.’s fever and febrile
seizures; (3) Slusser-Kelly’s failure to engage in needed services such as
treatments for her drug addiction, and meetings with L.M.K.’s guardian ad litem;
and (4) the decision to leave L.M.K. with Slusser-Kelly’s boyfriend, Burns, during
Evidence at the fact-finding hearing supported each of those four factors.
First, Slusser-Kelly was forthcoming in her own testimony that she smoked
marijuana once or twice a day, including during her pregnancy with L.M.K., and
with L.M.K.’s younger brother. She had also disclosed her marijuana habit to
social workers, who corroborated the testimony.
Second, on the weekend of May 30, 2010, L.M.K. had a high fever and
experienced two seizures. Both times, L.M.K. went to the emergency room, and
Slusser-Kelly was instructed to give her daughter medication. After the second
visit, L.M.K. was given a prescription for antibiotics. Slusser-Kelly testified that
she failed to get that prescription filled or give L.M.K. the prescribed medication
over the following eight days.
Third, Slusser-Kelly acknowledged her history of poor follow-through with
appointments and services, though she vowed to improve in the future. SlusserKelly relies financially on a “Temporary Assistance for Needy Families” (TANF)
grant, and has done so since before January 2010. On January 28, 2010, she
was assigned to meet with a DSHS Work First social worker, Jessica Garretson.
That meeting was assigned as a result of Slusser-Kelly’s pregnancy, and
because she was in sanction for her earlier nonparticipation in the Work First
No. 65958-8-I /7
program in Snohomish County. Slusser-Kelly self-reported to Garretson that she
had been diagnosed with ADHD (attention deficit hyperactivity disorder),
borderline personality disorder, PTSD (posttraumatic stress disorder), and other
To address the sanctions and concerns with Slusser-Kelly’s mental
health, Garretson and Slusser-Kelly worked out a plan for 28 days of activities,
including 7.5 hours of mental health services each week and a 9 hour-per-week
volunteer position. After two weeks, Slusser-Kelly began missing work for the
volunteer position and failed to complete the services required to participate in
Work First and to receive TANF.
On March 3, 2010, Slusser-Kelly told Garretson that the reason she
missed work was that she was the victim of domestic violence at the hands of
her boyfriend, Burns. She told Garretson that Burns was verbally abusive daily,
physically abusive monthly, and that the previous sanction was the result of
Burns breaking her ankle.
She also disclosed to Garretson that Burns was
drinking on a daily basis. In Slusser-Kelly’s testimony at the fact-finding hearing,
she denied that Burns perpetrated domestic violence against her or broke her
ankle. At that time, Slusser-Kelly agreed to place L.M.K. in full-time child care
by March 8, 2010; she agreed to attend an intake with Skagit Recovery and to
continue services with Skagit Recovery; she agreed to schedule and attend an
intake with Parent Child Assistance Program (PCAP) before March 8; she
agreed to contact a domestic violence advocate in the Community Services
Office; and she agreed to continue her 7.5 hours a week of mental health
However, she did not complete any these services as required.
No. 65958-8-I /8
Garretson testified to that fact:
[Slusser-Kelly] attempted to complete several of them and had
trouble with the follow through.
She then attended one
appointment for her CD [chemical dependency] assessment but
had to leave, and then had some missed appointments . . . .
She never did follow through with domestic violence
services. She accessed mental health services for a short time
and then fell out of compliance with that. So it was kind of a long
By July 2010, Slusser-Kelly was in the third trimester of her pregnancy, and
Work First program rules required the focus of her program to shift towards
chemical dependency and mental health. Slusser-Kelly had admitted herself for
six months of inpatient chemical dependency treatment in Spokane. But, after
10 days, she left voluntarily, based on her fear that she would lose her housing.
Garretson testified that after leaving treatment, Slusser-Kelly failed to attend
certain required appointments or to contact Child Protective Services about the
treatments. There was also testimony from L.M.K.’s guardian ad litem, Marianne
Yamashita, that Slusser-Kelly failed to make or keep appointments with her.
Fourth, Slusser-Kelly was incarcerated for 28 days during March 2010 for
her 2005 possession of hallucinogenic mushrooms, a controlled substance.
During that time, DSHS social worker Leann King became involved with the
family, based on a referral indicating that Slusser-Kelly was incarcerated and
there were concerns with the care of L.M.K. King went to the family home,
where Slusser-Kelly had left L.M.K. in the care of Burns.
Based on Burns’
dilated pupils and rapid speech, King believed that he was under the influence of
methamphetamine. Following an objection by Slusser-Kelly, the court stated
No. 65958-8-I /9
that it would consider King’s observations on Burns’s behavior, but not her
Slusser-Kelly focuses her appeal narrowly on the fourth basis of the
findings, the issue of Burns’s suitability as a caregiver for L.M.K. But, she does
not challenge or assign error to the other three bases. Those unchallenged
findings are thus verities on appeal. Cowiche Canyon, 118 Wn.2d at 809. And,
here, those findings are sufficient to support the trial court’s ultimate conclusion
of dependency under 13.34.030(6)(b) and (c), regardless of the outcome of
Burns’s suitability as a caregiver.
a. The RCW 13.34.030(6)(b) Finding: Neglect
The State bears the burden of proof, by a preponderance of the evidence,
that the child meets one of the statutory definitions of dependency. Key, 119
Wn.2d at 612; RCW 13.34.110(1).
Under RCW 13.34.030(6)(b), a child is
dependent if the child is “abused or neglected as defined in chapter 26.44 RCW
by a person legally responsible for the care of the child.”
maltreatment of a child. Such treatment is defined as: “an act or failure to act,
or the cumulative effects of a pattern of conduct, behavior, or inaction, that
evidences a serious disregard of consequences of such a magnitude as to
constitute a clear and present danger to a child’s health, welfare, or safety.”
Slusser-Kelly assigns error to the trial court’s finding of neglect under
RCW 13.34.030(6)(b). But, by limiting the basis for her assignment of error
No. 65958-8-I /10
solely to the trial court’s conclusion about her boyfriend, Burns, she concedes
the truth of the remaining three bases that the trial court relied on. One of these
bases was the finding that Slusser-Kelly failed to follow medical advice or fill a
prescription for L.M.K. for eight days. Her failure to provide needed medical
care was established by her own testimony.
A parent’s inability to provide
necessary medical care may support a dependency finding.
Wn.2d at 947. Viewing this evidence in the light most favorable to the State as
the prevailing party, we hold that there was substantial evidence to support the
trial court’s finding of neglect. E.L.F., 117 Wn. App. at 245.
b. The RCW 13.34.030(6)(c) Finding: No Capable Parent/Custodian
The trial court also found that L.M.K. was dependent under RCW
13.34.030(6)(c): the child “[h]as no parent, guardian, or custodian capable of
adequately caring for the child, such that the child is in circumstances which
constitute a danger of substantial damage to the child’s psychological or
As with the finding of neglect above, Slusser-Kelly
assigns error to this finding that there was no capable parent, but again she
limits her argument to the trial court’s conclusion about Burns, leaving the trial
court’s other findings unchallenged. Those other findings amply support the trial
court’s conclusion about the lack of a capable parent for L.M.K. Slusser-Kelly
testified to smoking marijuana once or twice a day, including when she was
pregnant with both L.M.K. and L.M.K.’s younger brother. Slusser-Kelly failed to
provide necessary medical treatment for L.M.K., as discussed above. And, the
trial court found that Slusser-Kelly failed to engage in and complete various
No. 65958-8-I /11
services she was required to do to obtain TANF money. Slusser-Kelly does not
challenge these findings, and they are thus verities on appeal. We hold that
these facts represent substantial evidence to support the trial court’s finding that
L.M.K. was dependent under RCW 13.34.030(c).
III. Manifest Constitutional Error
The trial court’s conclusion that Burns was not a suitable caregiver for
L.M.K. forms the sole basis for Slusser-Kelly’s appeal. She argues that the trial
court relied on evidence from outside the record in reaching its conclusion about
The basis for her argument is the trial court’s statement that it was
familiar with “the file.”
The exchange in question occurred during the direct
examination of King, a social worker.
While Slusser-Kelly was in jail, King
visited the family home to check on L.M.K. and to meet with Burns.
observed that Burns spoke rapidly and had dilated pupils. She asked Burns to
submit to a urinalysis, which he did the following day.
Do you know what the result of that [urinalysis was?]
What was it?
[Slusser-Kelly’s Attorney]: Objection as to hearsay, your Honor.
THE COURT: Sustained. You don’t need to work too hard to
prove that Mr. Burns is not an appropriate caregiver.
[Slusser-Kelly’s Attorney]: Is the Court familiar with Mr? Burns. [sic]
THE COURT: I’m familiar with the file.
Slusser-Kelly made no objection to the trial court’s reference to the file at that
No. 65958-8-I /12
time. The trial court was thus not appraised of any possible error in its reliance
on the file.
The trial court made one other reference to the file, during its oral findings
about Slusser-Kelly’s judgment in leaving L.M.K. with Burns during her
The fourth issue that was very concerning to me was when
mom was in jail, [L.M.K.] was left with Mr. Burns, the boyfriend, who
from all accounts and from a quick review of the file is not an
appropriate person to be left with an adult, let alone a small child
two years old.
Again, Slusser-Kelly did not object to the trial court’s reference to the file or to
the trial court’s oral findings. Slusser-Kelly agreed to incorporate by reference
into the dependency order the oral findings of fact. Her failure to object at trial
precludes her ability to raise the issue now on appeal, unless she can
demonstrate that there was a manifest constitutional error. RAP 2.5(a); O’Hara,
167 Wn.2d at 98. Slusser-Kelly attempts to argue that she implicitly objected to
the trial court’s reference to the file based on other objections she raised in
relation to hearsay evidence submitted by DSHS.
She argues that those
objections should thus preserve the argument she now makes on appeal. But,
her objections to hearsay are plainly distinguishable from the objection she now
asserts. We hold that Slusser-Kelly must prove manifest constitutional error in
order to raise this argument for the first time on appeal. RAP 2.5(a).
Slusser-Kelly argues that the trial court’s references to the file constitute
exactly such a manifest constitutional error. She asserts that the trial court’s
reference reflects its reliance on evidence from outside the record, and thus
No. 65958-8-I /13
reflects a violation of her due process rights. But, her argument is conclusory
and unsupported by persuasive authority. It was never clear what the trial court
meant when it referred to the file, because Slusser-Kelly never objected or
sought clarification at trial. Indeed, as the State points out, without clarification,
it is unclear that the reference to the file was anything other than a proper review
of DSHS’s dependency petition and the other documents presented to the court
during the hearing as part of the case file
Slusser-Kelly cites to a case from Illinois, People v. Harris, 57 Ill. 2d 228,
231, 314 N.E.2d 465 (1974), for the proposition that due process rights are
violated when a trial court conducts its own independent investigation or draws
conclusions based on facts outside the record. She also relies on Lussier v.
Runyon, 50 F.3d 1103, 1113 & n.13 (1st Cir. 1995), for similar support, citing to
its discussion about how a trial court’s consideration of extra-record evidence
deprives parties of standard trial protections. “These protections include . . . the
right to object to evidence, the right to question its source, relevance, and
reliability, the right to cross-examine its proponent, and the right to impeach or
contradict it.” Id. at 1113 n.13. But, neither of these cases supports SlusserKelly’s argument, because she has failed to demonstrate that reference to the
file implicated any extra-record evidence.
Slusser-Kelly, in raising a claim of manifest constitutional error for the first
time on appeal, bears the burden of proving that such an error actually occurred,
and that the error resulted in actual prejudice. RAP 2.5(a); O’Hara, 167 Wn.2d
at 98. To demonstrate actual prejudice, an appellant must make a plausible
No. 65958-8-I /14
showing that the asserted error had practical and identifiable consequences in
the trial. Id. at 99. “In determining whether the error was identifiable, the trial
record must be sufficient to determine the merits of the claim.
‘If the facts
necessary to adjudicate the claimed error are not in the record on appeal, no
actual prejudice is shown and the error is not manifest.’” Id. (citation omitted)
(quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).
Slusser-Kelly has failed to meet her burden of proof. She has not demonstrated
that the trial court’s reliance on the file was error at all, let alone error that
resulted in prejudice. There are no facts from the trial court record that show the
trial court improperly relied on evidence from outside the record. Thus, SlusserKelly has not shown any actual prejudice, and the error she asserts is not
Moreover, as the State points out, Slusser-Kelly’s case is distinguishable
from Harris and Lussier. Both of those cases contemplated the importance of
relying on evidence from within the adversarial process and the record, to
ensure the parties’ right to object to and challenge evidence. Harris, 57 Ill. 2d at
231; Lussier, 50 F.3d at 1113. But, in Slusser-Kelly’s case, the trial court’s
reference to the file was made openly during the contested fact-finding
proceeding, with an opportunity for either party to object or request clarification
from the trial court.
And, as indicated above, the dependency petition and testimony at the
hearing contained ample support, within the record, for the trial court to rely on
in assessing Burns’s ability to care for L.M.K. This encompassed information
No. 65958-8-I /15
about his criminal and parenting history, including that he used to make and
consume methamphetamine, that he drinks daily, and that he has been verbally
and physically abusive to Slusser-Kelly.
There was sufficient evidence to support the trial court’s conclusion that
Burns was not an adequate caregiver for L.M.K. Slusser-Kelly has failed to
demonstrate that the trial court considered or relied on any evidence from
outside the record in reaching its conclusion.
We hold that there was no
manifest constitutional error or violation of Slusser-Kelly’s due process rights,
and we affirm.