117 Wash. App. 241 | Wash. Ct. App. | 2003
A court found Terri Fletcher’s son dependent after concluding that his failure to thrive was the result of Fletcher’s abuse or neglect. She appeals, and argues that the record shows only that she failed to respond to the inconsistent messages of social workers about nutrition. We find, however, that substantial evidence — includ
The child, E.F., was born on March 3, 2000. At birth he weighed 5 pounds 13 ounces, and as he grew he generally tracked near the fifth percentile in his growth curve. At the age of 15 months, he stopped gaining weight. Between September and November 2001, the Department of Social and Health Services (DSHS) received a number of referrals expressing concern about the baby’s low weight. Fletcher brought the child to Northwest Hospital for a checkup on November 27, 2001. Emergency room staff, concerned about their findings of malnutrition, dehydration, and a low blood platelet count, referred E.F. to Children’s Hospital. Children’s Hospital allowed the boy to return home with Fletcher, on the condition that she bring him back the following day. When she did not bring him back, Child Protective Services filed a dependency petition.
The court conducted a dependency hearing with respect to Fletcher in March 2002, when E.F. was two years old. The trial court found E.F. dependent due to abuse or neglect and the lack of a parent or guardian capable of adequately caring for him. Fletcher appeals from these determinations.
The State initially argues that Fletcher cannot maintain this appeal as a matter of right, based on this court’s recent decision in In re Dependency of T.J.B., 115 Wn. App. 182, 62 P.3d 891 (2003). At issue in that case was the rule of appellate procedure that allows an appeal as a matter of right from the “disposition decision following a finding of dependency by a juvenile court.” RAP 2.2(a)(5). The appellant attempted to appeal from the order of dependency without regard to the dispositional order. See In re T.J.B.,
In the present case, the trial court entered both the order of dependency and the related dispositional order on the same date. Although Fletcher’s notice of appeal seeks review of both orders, her assignments of error pertain solely to the findings and conclusions in the order of dependency. The State argues that her failure to assign error to the order of disposition means that she is appealing only the dependency finding, which under T.J.B. is not appealable as a matter of right.
By appealing from the order of disposition, Fletcher brings up for review the finding of dependency. This procedure does not implicate the policy concern expressed in T.J.B. Because Fletcher is bringing a single appeal of both orders, she will not be afforded “two bites at the apple.” The Rules of Appellate Procedure are to be interpreted “to promote justice and facilitate the decision of cases on the merits.” RAP 1.2(a). A parent may wish to contest a finding of dependency while at the same time agreeing to the service plan and other provisions of the dispositional order. It would be pointless to require an appellant to mount a pro forma attack upon specific provisions of the dispositional order, if the appellant’s only real interest is in reversing the finding of dependency and thereby eliminating the dispositional order altogether. Having appealed from the dispositional order in order to bring the dependency finding up for review, Fletcher is entitled to review of the dependency finding as a matter of right.
The trial court acknowledged Fletcher’s evident love for her son and strong emotional attachment to him, and the fact that she did not physically abuse the child by hitting or striking him. The court nevertheless concluded that E.F.
The order of dependency is supported by findings that E.F. was experiencing significant delays in his development. The court attributed the delays to Fletcher’s tendency to deny the existence of her son’s problems and refuse help in addressing them. Fletcher challenges the findings as insufficient to show that the boy was genuinely in danger or that her care of him amounted to actionable neglect.
We review a claim of insufficient evidence in a dependency case to determine whether substantial evidence supports the court’s findings of fact and whether the findings support the conclusions of law. In re Dependency of M.P., 76 Wn. App. 87, 90, 882 P.2d 1180 (1994), review denied, 126 Wn.2d 1012 (1995). “[E]vidence is substantial if, when viewed in the light most favorable to the party prevailing below, it is such that a rational trier of fact could find the fact in question by a preponderance of the evidence.” In re Dependency of M.P., 76 Wn. App. at 90-91. In making this determination, this court does not weigh the evidence or the credibility of witnesses. In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973).
The trial court’s primary finding was that E.F. failed to thrive while in his mother’s care, especially during the second year when his weight “essentially flat-lined.” The court also found that there was no likely explanation
Fletcher challenges this finding. She refers to her own testimony in which she described E.F. as small but healthy. She theorizes that his failure to gain weight could have been due to genetics, teething, or his preference for pureed foods. She faults the State and its witnesses for attributing the problem to her without ruling out these other possibilities. The record of the trial testimony, however, does not lend itself to a conclusion that the boy’s condition was less than serious, or that the observers who became concerned about him were exaggerating his thinness.
One witness was Dr. Talbot, E.F.’s pediatrician, who saw the child regularly from five weeks of age through 15 months. Fletcher points to Dr. Talbot’s statement that the boy “was growing parallel to the growth curves” as evidence that he did not consider E.F. to be suffering from a failure to thrive. But that statement was limited to the child’s first six months of life. Dr. Talbot testified that E.F. weighed 15 pounds 6 ounces in June 2001, at the age of 15 months, and still weighed only 15 pounds at his next checkup four months later. He further testified that the boy’s growth pattern with respect to weight “demands an explanation” and “is not healthy” and that there were no “apparent metabolic abnormalities that would account for [his] growth failure.”
Also supporting the key finding was the testimony of Dr. William Walker, a developmental pediatrician who evaluated E.F. in February 2002. He testified that E.F. was behind in speech, language, gross motor skills, fine motor skills, and personal social skills. While in his mother’s care between ages 15 1/2 and 20 months, the child maintained reasonable growth in height and head circumference and yet his weight kept falling further and further off of his growth curve. Then, in the three months of foster care immediately following removal from his home, he gained 3.3 pounds. Dr. Walker said he knew of no medical disorder or genetic condition that would explain this growth pattern.
Substantial evidence thus supports the trial court’s determination that E.F.’s failure to thrive was circumstantial evidence of neglect of a magnitude that constituted a clear and present danger to the child’s health, welfare, and safety. Other courts have affirmed findings of parental neglect based on a diagnosis of nonorganic failure to thrive where treating pediatricians testified that they found no organic explanation for the child’s low body weight and where the child gained weight when removed from the parent’s care. See In re D.J.W., 764 So. 2d 825, 827 (Fla. Dist. Ct. App. 2000); In re Jones, 59 Ill. App. 3d 412, 418, 376 N.E.2d 49, 17 Ill. Dec. 156 (1978); In re Walton, 79 Ill. App. 3d 485, 487, 398 N.E.2d 409, 34 Ill. Dec. 734 (1979). These features are present here.
Fletcher argues that neither the medical testimony nor the court’s findings explain precisely how her son’s drop in the growth chart constitutes a “clear and present danger” to his health. While the presentation of the medical testimony could have focused more precisely on this question, the record justified a conclusion that the child was not only small, but dangerously small due to malnutrition.
The court found, for example, that E.F. lacks attachment to his mother: “Something is amiss, the child is not pleased, or comforted, to be with the mother.” In disputing this finding, Fletcher emphasizes Dr. Talbot’s description of E.F. during his checkup at age 15 months as a “very clingy child,” and very emotionally drawn to his mother. However, the trial court’s finding was with respect to later observations made “during visitation over an extended period of time.” A psychologist’s parenting evaluation concluded that the boy displayed “poor attachment with his mother,” as evidenced by distressed facial expressions when seeing her, avoiding eye contact with her, reluctance to engage in play with her, and showing a desire to end the visit early. Another experienced observer said she had never seen the same level of anxiety toward a parent that E.F. showed toward Fletcher. She stated that during 10 supervised visits E.F. never reached for Fletcher, or asked her to pick him up, or attempted to crawl into her lap. She described one visit where the child cried the entire time and appeared to avoid his mother.
Substantial evidence also supports the court’s findings that Fletcher denied that her son had problems and failed to provide necessary medical care. Dr. Talbot said that Fletcher did not bring her son in for any checkups between June and October 2001, even though this was a time when he “should have been seen very frequently.” Dr. Talbot also testified that Fletcher did not follow his recommendations to obtain help with the boy’s nutrition and to obtain therapeutic day care to address his developmental delays. Fletcher expressed the view that her son “was fine” and did
Substantial evidence also supports the finding that Fletcher did not consistently follow through with her son’s medical appointments, her own appointments with a psychiatrist, a requirement for drug and alcohol evaluation, and scheduled visitation with E.F. after he was removed from the home. She missed appointments for the services recommended by Dr. Talbot, and failed to return to Children’s Hospital with E.F. as she had promised. The psychiatrist testified that she intended to see Fletcher at least once a month for mental health issues, but that Fletcher frequently cancelled appointments or failed to show up. Fletcher missed 4 of 10 scheduled visits with E.F. in December 2001 and January 2002, and improved her attendance only after stricter visitation procedures were imposed. Thus, the court was justified in concluding that the structure of dependency was warranted to ensure consistent attention to the child’s essential needs.
Substantial evidence also supports the court’s findings that Fletcher demonstrated poor judgment, and engaged in inappropriate and volatile behavior. An investigative social worker with Child Protective Services and a DSHS child welfare service worker both testified that they received scores of telephone messages from Fletcher at all hours. Sometimes Fletcher’s words were slurred. Sometimes she yelled angry accusations and threats. In one call, she said she intended to flee with the child rather than engage in services. Medical service providers similarly testified to receiving as many as nine angry, slurred-speech messages in the middle of the night.
Substantial evidence also supports the court’s finding of concern and suspicion that Fletcher “may be abusing alcohol or drugs,” and the finding of mental health issues that interfered with her ability to parent. Fletcher agreed to
In summary, the trial court’s findings are all supported by testimony from various service providers whose attempts to get help to a boy with significant development delays were consistently thwarted by his mother’s denials, inconsistency, and active hostility. The court’s findings support the conclusions that Fletcher’s conduct was a form of neglect that presented a clear and present danger to her son’s health, welfare, and safety, and that he was in danger of substantial damage to his development.
Affirmed.
Coleman and Baker, JJ., concur.
The department later amended its dependency petition to allege that E.F.’s father was a registered sex offender. An order of dependency and a dispositional order were entered against the father by default on March 5, 2002.