In re L.C.S.

514 P.3d 644

In the MATTER OF the DEPENDENCY OF L.C.S., a minor.

No. 99792-6

Supreme Court of Washington.

Argued: May 17, 2022

Filed: August 11, 2022

Jennifer M. Winkler, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Petitioner.

Andrew Daniel Pugsley, Office of the Attorney General, 7141 Cleanwater Drive Sw, Olympia, WA, 98504-0121, Usama Ahmed, Office of Attorney General, 3501 Colby Ave. Ste. 200, Everett, WA, 98201-4795, for Respondent.

MADSEN, J.

¶1 This case presents the question of what reasonable efforts the Washington State Department of Children, Youth, and Family (Department) must make before a child may be removed from the care of his/her parent guardian. In this case, a child was taken from his mother after she brought him to the hospital, where hospital staff found he had serious injuries. At the subsequent shelter care hearing, the father, who lives separately from the mother, asked that the child be placed with him. The Department recommended out-of-home placement, citing concern for the child's safety. The court determined the child should be placed with his godparents, based on the Department's recommendation. The father moved for discretionary review of the shelter care order, arguing the court erred because the Department failed to make reasonable efforts to prevent removal from a parent. The commissioner of Division One of the Court of Appeals denied review, and a panel of the court declined to modify its ruling. The father then filed a motion for discretionary review in this court, which we granted.

¶2 The issue before the court is moot, as the father in this case agreed to an order of dependency in a subsequent hearing. However, given the substantial public interest involved in keeping families together and the potential that this issue will further evade review, we took review of this case. The Department argued, and the trial court agreed, that given the acute and emergent circumstances of the case, it did not violate the reasonable efforts requirement. The father argued that there is no such exception for emergent circumstances.

¶3 We take this opportunity to clarify that there is no exception to the reasonable efforts requirement. Further, we provide additional guidance as to what constitutes reasonable efforts, given the lack of case law on the standard in our state. Although we need not remand the case given its mootness, we nonetheless reverse and hold that the trial court erred when it excused the Department from making reasonable efforts to place the child with his father.

BACKGROUND

¶4 D.S. is the father of L.C.S. Born in 2018, L.C.S. was diagnosed with autism and speech and language delays. L.C.S. lived with his mother, but D.S. would visit periodically and engaged in video visits. By May 2020, L.C.S.'s mother began dating another man and stopped allowing D.S. to see L.C.S. ¶5 On August 8, 2020, the mother took L.C.S. to the emergency room because he was vomiting. L.C.S. had bruises on his leg, lower back, and right ear. Child Protective Services sent a social worker, Raena Lorio, and a sheriff's deputy to visit L.C.S. at his mother's home. During the visit, it was reported that D.S. had been violent with the mother and that he was not involved in parenting L.C.S. Lorio submitted L.C.S.'s medical records and photos of his injuries to Seattle Children's Hospital for a medical consultation. The next day, the consulting pediatrician expressed concern that bruising around L.C.S.'s ear seemed likely to be an inflicted injury, as opposed to an accident as the mother had suggested.

¶6 On August 23, the mother brought L.C.S. to the hospital again because of bruising and lethargy. At that time, L.C.S. tested positive for amphetamines and opiates. He also had over 50 separate injuries, including bruising, cuts, scratches, swelling, and burn marks. According to the medical staff, none of the explanations provided by the mother or maternal grandmother explained the injuries. Because of the extent of the injuries, the hospital placed L.C.S. on medical hold and transferred him to Harborview Medical Center, where he underwent a full evaluation by Seattle Children's Safe Child and Adolescent Network.

¶7 The next day, Lorio and another social worker, Victoria Cantu, spoke with D.S. D.S. told them that he did not have a working car. He also shared that he was unemployed due to a physical disability and that he was taking muscle relaxers for his back pain and antidepressant medication for depression and anxiety. He told the social workers that he had not seen L.C.S. since May 2020 because the mother did not want D.S. around. The social workers also spoke with L.C.S.'s half-sister, S.A., who told them that the mother's boyfriend was with L.C.S. the day that he was injured. S.A. also told Lorio that D.S. had previously threatened her mother.

¶8 On August 25, the Department held a Family Team Decision Meeting to discuss placement options. D.S. was on the call, but his phone connection cut in and out, hindering his ability to participate in the meeting. The mother requested that L.C.S. be returned to her care or, alternatively, that he be placed with D.S.

¶9 That same day, the Department filed a dependency petition for L.C.S. The Department requested a shelter care hearing and continued out-of-home placement for L.C.S. due to concerns of physical abuse and negligent treatment in the home.

¶10 A shelter care hearing was held the following day. D.S. asked that L.C.S. be placed with him. The mother requested L.C.S. and S.A. be placed with their godparents. The Department requested an out-of-home placement, expressing concern that there was a serious threat of substantial harm if L.C.S. was returned home.

¶11 Cantu testified that the Department was not considering D.S. for placement because it had not had the opportunity to fully assess his ability to be a safe parent. Cantu also noted that D.S. did not have a phone or transportation at that time. She also mentioned his physical impairments, expressing concern that these might affect his ability to be a safe placement. Lorio testified that she had not contacted D.S. about either L.C.S.'s initial incident or the second hospitalization. She also had not done a walkthrough of D.S.'s home. She testified that the Department had not yet performed a background check on D.S. and had not offered D.S. any services to help with his potential lack of transportation. Lorio also stated that she had not investigated the mother's claims about domestic violence.

¶12 After the testimonies of the social workers, D.S. asked the court to find that reasonable efforts had not been made and that L.C.S. should be placed with him. In response, the Department stated it had made reasonable efforts as to the mother and that it was too early to consider the father for placement. The Department also reiterated concerns about domestic violence between D.S. and the mother as well as his ability to care for L.C.S. given D.S.'s physical disabilities.

¶13 The court decided to place L.C.S. with Aaron Fonceca and Vanessa Gliege Fonceca, who are L.C.S. and S.A.'s godparents. Aaron Fonceca did not pass his background check. Nonetheless, the court heard testimony from Aaron Fonceca and determined the godparents would be the best placement. In its ruling, the court stated that "it would be nice if the father had been more thoroughly investigated between 8/24 and 8/26 as a potential placement for [L.C.S.], but obviously that didn't happen." 1 RP¹ at 40. The court determined that given the extreme injuries sustained by L.C.S., there was need for decisive action to ensure he was safe. The court directed the Department to make reasonable efforts to assist D.S. to allow L.C.S. to return to his care. In the shelter care hearing order, the court noted that "under the emergent and acute circumstances in this [case] there were no reasonable efforts the Department could have taken to keep the child in the home while ensuring his safety and protecting him from substantial harm." Clerk's Papers at 4.

¶14 On December 15, 2020, D.S. moved for interlocutory review of the shelter care hearing order. Commissioner Masako Kanazawa of Division One of the Court of Appeals denied discretionary review, holding that the evidence presented supported the finding that releasing L.C.S. to either parent would present substantial harm and that the emergent and acute circumstances excused the Department from reasonable efforts. The Court of Appeals denied D.S.'s motion to modify the commissioner's ruling. D.S. then filed a motion for discretionary review in this court, which we granted. Order, No. 99792-6 (Wash. Sept. 3, 2021).

¶15 On March 21, 2021, D.S. stipulated to an agreed order of dependency and disposition, agreeing that the Department had made reasonable efforts, that there was a need for decisive action in order to protect L.C.S. from further abuse, and that L.C.S. should remain in out-of-home care, rendering the shelter care issue moot.

ANALYSIS

1. Mootness

¶16 A case is moot when the appellate court can no longer provide effective relief. State v. Gentry , 125 Wash.2d 570, 616, 888 P.2d 1105 (1995). Generally, we will not review a moot case. Orwick v. City of Seattle , 103 Wash.2d 249, 253, 692 P.2d 793 (1984). But we may review a moot case if the contested issue is a matter of continuing and substantial public interest. In re Marriage of Homer , 151 Wash.2d 884, 891, 93 P.3d 124 (2004). In deciding whether a case presents an issue of continuing and substantial public interest, this court considers the following factors: whether the issue is of public or private nature, whether an authoritative determination is desirable to provide future guidance, and whether the issue is likely to reoccur. Id. at 892, 93 P.3d 124. The court may also consider the adverseness of the parties, the quality of the advocacy, and the likelihood that the issue will escape review. Id.

¶17 Here, the case is public in...