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In re of Dependency of P.H.V.S.

Court of Appeals of Washington, Division 1

March 2, 2015

In the Matter of the Dependency of P.H.V.S., dob 3/29/13, A minor child, STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,
v.
HEIDI GABHART and RICHARD SMITH, Appellants.

SCHINDLER, J.

Richard Smith and Heidi Gabhart are the parents of P.H.V.S. Smith and Gabhart seek reversal of the order of dependency and disposition order. The court found P.H.V.S. dependent because neither parent was capable of adequately caring for the child such that the circumstances constituted a substantial danger to the child's psychological or physical development under RCW 13.34.030(6)(c). Smith contends the absence of his guardian ad litem (GAL) during a portion of the dependency fact-finding hearing violated the mandatory statutory and GALR requirements and his right to due process. Smith also asserts insufficient evidence supports finding that he was not capable of adequately caring for P.H.V.S. or that the child was in circumstances constituting a danger of substantial harm. Gabhart contends insufficient evidence supports finding the Washington State Department of Social and Health Services made reasonable efforts to eliminate the need to remove P.H.V.S. Gabhart also asserts her attorney provided ineffective assistance of counsel and violation of her right to due process. We hold the absence of Smith's GAL during a morning session of the four-day dependency fact-finding hearing violated the mandatory statutory and GALR requirements. However, because the record shows there was little or no risk of error, we hold there was no violation of his right to due process. We also hold that substantial evidence supports the finding of dependency under RCW 13.34.030(6)(c) and Gabhart cannot establish either ineffective assistance of counsel or violation of due process. Accordingly, we affirm.

FACTS

Heidi Gabhart and Richard Smith have lived together since 2010. Gabhart and Smith are the parents of P.H.V.S., born on March 29, 2013.

Gabhart is the mother of three other children: 20-year-old F.O., 7-year-old J.S., and 4-year-old A.G. F.O. has lived with his father since the age of 13. In May 2007, the Washington State Department of Social and Health Services (Department) removed 6-month-old J.S. from Gabhart because of concerns about her "deteriorating mental health." The court found J.S. dependent and ordered Gabhart to participate in a psychological evaluation, mental health counseling, and medication management. Gabhart did not participate in services. The Department placed J.S. with her father.

A.G. was born in Nevada on September 7, 2008. While in the hospital, Nevada child protective services removed A.G. from Gabhart's care. Gabhart was diagnosed with paranoid schizophrenia. The court found A.G. dependent. Gabhart did not participate in mental health services or follow through with referrals for housing. In 2009, the court terminated Gabhart's parental rights to A.G.

In February 2013, Gabhart went to Dr. Nicole Ingrisano for prenatal care. Gabhart told Dr. Ingrisano that she had not engaged in mental health services for "well over a year" and had "no desire to be on medications." When Dr. Ingrisano tried to talk to Gabhart about her mental health, Gabhart became "very easily agitated" and "angry." Gabhart made comments to Dr. Ingrisano about the father of the child, suggesting he was "temperamental and that she was looking at moving out from him because he could be violent." Concerned about Gabhart's ability to care for an infant, Dr. Ingrisano instructed the hospital to put a "hold" on the baby.

After P.H.V.S. was born on March 29, 2013, Dr. Ingrisano asked clinical social worker Jennifer Cruze to assess Gabhart. Cruze met with Gabhart on March 30. Gabhart told Cruze she had a diagnosis of "psychosis NOS"[1] and reported "hearing voices in her head sometimes." Gabhart said she was not engaged in mental health treatment and was not currently on any medication to treat her illness. Gabhart told Cruze that she received Social Security disability income "for her mental health diagnosis." Cruze made a referral to Washington State Department of Social and Health Services Child Protective Services (CPS).

CPS social worker Molly Rice met with Gabhart and Richard Smith at the hospital that same day. Beforehand, hospital staff told Rice that Gabhart reported having hallucinations and hearing voices. During the meeting, Rice had to repeat questions multiple times "due to [Gabhart] just not answering them." Rice said Smith's breath smelled of alcohol and he was "not able to answer questions directly."

CPS social worker Kyla Madsen met with Smith on April 1. Smith told Madsen that he had been.....taking care of [Gabhart]" for the last 2-3 years.'" Smith said that Gabhart had been " 'passing out, falling over, and losing consciousness for "years."'" Madsen testified that Smith " 'appeared to have some cognitive delays or difficulty communicating in a clear way, '" and while he was " 'obviously concerned about both Mom and child, '" he " 'appeared unable to understand [the] severity of [the] circumstances.'"

On April 2, Madsen, a CPS supervisor, Gabhart, Smith, and Smith's niece Amanda Twiggs-Johns attended a "Family Team Decision Making" meeting. During the meeting, Gabhart "almost passed out or fell asleep. Her eyes became groggy, her mouth was slightly agape, [and] her head bobbed." After approximately five to seven minutes, Gabhart "returned to a normal state and continued with the conversation." Gabhart said she had "a neurological condition." Twiggs-Johns told Madsen and the CPS supervisor that "the family has seen several instances where Mom has passed out during busy family functions." Twiggs-Johns said she did not think Smith "fully processed or understood the seriousness of Mom's condition." Twiggs-Johns did not know if Smith had a mental illness but said he "has behaviors that are concerning including his inability to clearly process information, communicate with others, and recognize the signs of Mom's condition."

On April 3, the Department filed a dependency petition alleging the child was abused or neglected, or had no parent, guardian, or custodian capable of adequately caring for the child such that circumstances constituted a danger of substantial damage to the child's psychological or physical development under RCW 13.34.030(6)(b) and (c).

The Department recommended P.H.V.S. remain in out-of-home care, asserting Gabhart's untreated mental health issues constituted a danger to the child.

The mother cannot control her behavior due to her significant mental health issues and this threatens child's well-being and safety. She is exhibiting psychotic like features in her behavior and has minimal insight into how her mental health impacts her parenting despite the assistance of multiple providers to facilitate her understanding. The mother's mental health issues prevent her from meeting child's cognitive, emotional, and developmental needs.

The Department alleged Smith's mental health status was unknown and he exhibited an "inability to recognize signs of concerns in Mom's behavior."

At the shelter care hearing on April 8, the court placed P.H.V.S. in foster care. The court entered an order requiring Gabhart and Smith to each obtain a psychological evaluation and follow treatment recommendations. The court authorized weekly supervised visits with P.H.V.S. and set a dependency fact-finding hearing for June 7.

In May, Smith's attorney Lorraine Roberts filed a motion to investigate Smith's competency and determine whether to appoint a guardian ad litem (GAL). The court appointed Shawn Crowley as the investigative GAL for Smith. In early June, Gabhart's attorney Matthew Pang asked the court to appoint a GAL to investigate Gabhart's competency. The court appointed Craig McDonald as the investigative GAL for Gabhart. The court continued the dependency fact-finding hearing to August 23.

Crowley recommended the court appoint a GAL for Smith. Crowley stated that Smith had "difficulty in comprehending abstractions" and because he was not "capable of weighing the merits of the various legal options involved in this case[, ] I'm doubtful he can meaningfully assist his attorney beyond stating his goal of having the child returned home."

McDonald recommended the court appoint a GAL for Gabhart. McDonald stated Gabhart's "understanding of the legal process is, at best, minimal" and "she did not seem to retain information, veered off track and ultimately became unresponsive."

After holding separate competency hearings, the court ruled Smith and Gabhart were "not competent." The court found that neither Smith nor Gabhart could understand or intelligently "comprehend the significance of the legal proceedings and their effect on [his/her] best interests." The court appointed Crowley as the GAL for Smith and McDonald as the GAL for Gabhart "to assist" each parent "in these dependency proceedings." The court continued the dependency fact-finding hearing to September 10.

The dependency fact-finding hearing began on October 22. Gabhart; her GAL, McDonald; her attorney Pang; Smith; his GAL, Crowley; his attorney Roberts; the court appointed special advocate (CASA) for P.H.V.S.; the attorney representing the CASA; the Department; and social worker Noemi Peredo appeared for the dependency factfinding hearing. At the beginning of the hearing, Gabhart's attorney made a motion to continue the hearing until Gabhart was found competent. The court denied the motion to continue.

Fifteen witnesses testified during the four-day dependency fact-finding hearing, including Dr. Ingrisano, Cruze, Rice, Madsen, and Twiggs-Johns.

Cruze and Madsen testified the first day. Madsen testified that when she spoke with Smith at the hospital, "[h]is conversation just was very sporadic and all over the place." For instance, when Madsen asked Smith if he had any Native American ancestry, Smith told her that he was "100 percent White and that he had learned that he was full Irish. And then in the next breath he told me that he was 100 percent Aztec Indian and started talking about how Aztec Indians had all been . . . obliterated." Madsen stated that when she talked to Smith about his failure to recognize the severity of Gabhart's mental illness, Smith "got really upset with me and told me that I was twisting his words."

Five witnesses testified the second day, including Dr. Steven Haney, CPS social worker Rice, the CASA for P.H.V.S., a visitation supervisor, and a mental health crisis and intake specialist.

Dr. Haney conducted a mental health evaluation of Gabhart in April 2013. Dr. Haney testified that Gabhart reported hearing voices and "seemed somewhat depressed and anxious." Dr. Haney diagnosed Gabhart with schizoaffective disorder. Dr. Haney said Gabhart told him she was hospitalized for mental health concerns in 2000 and again in 2007. Gabhart told Dr. Haney she was "put on a whole range of medications" after her first hospitalization but did not think the medications were helpful and stopped taking the medications altogether. Dr. Haney testified that Gabhart "did not have any insight into her mental illness and thus did not see herself as having mental illness."

The CASA for P.H.V.S., Jennifer Franklin, recommended P.H.V.S. remain in foster care. Franklin testified that after observing Gabhart and Smith interact with P.H.V.S., she did not believe they could "meet the basic needs of the baby." Franklin said the parents did not "respond to [the baby's] cues or seem to know what to do when she's upset." Franklin recommended Gabhart and Smith each obtain a psychological evaluation and parenting coaching.

Monet Frazier supervised visitation with P.H.V.S. Frazier said Smith and Gabhart "consistently come to all visits" but Gabhart would "nod off' during approximately half of the visits. Frazier testified that there was an ongoing problem with the parents preparing and feeding P.H.V.S., and she had to remind Smith "several times that he needed to support the baby's neck." Frazier said that after Gabhart and Smith began working with a parent coach, they were better able to respond to P.H.V.S. and seemed "more comfortable" around the baby. Frazier testified Gabhart typically did "the majority [of] all child care" during the visits, such as feeding and changing diapers, but Smith had "taken on a little bit more of that role in the last few weeks." Cross-examination of Frazier was not complete at the end of the second day of the fact-finding hearing.

Before the beginning of the third day of the dependency fact-finding hearing, Smith's court-appointed GAL sent an e-mail stating he did not plan to attend the morning session but wanted the court to proceed without him. The attorneys representing Smith and Gabhart did not object.

THE COURT: ... I notice that Mr. Crowley's not here, but I understand he wants us to proceed without his - without him.
MR. McDONALD: Correct.
MR. PANG: That's what he indicated ...

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