Dep Of C.a. , Appellant V. Dshs State Of Washington, Respondent

COURT GF APPEALS R;V 1
STATE OF WASHING"!*;:!
20KMAY-5 	AM 9=20
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
CA (DOB: 	2/21/1995),
A minor child.
THE DEPARTMENT OF SOCIAL
AND HEALTH SERVICES,
Respondent,
v.
CA,
Petitioner.
NO. 70121-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	May 5, 2014
Leach, J. — CA. appeals a superior court order granting revision of a
commissioner's ruling terminating her dependency guardianship and extending
juvenile court jurisdiction. 	She claims that the 2012 adoption of WAC 388-25-
0510 substantially changed 	her circumstances after the establishment of her
guardianship by excluding her from certain extended foster care services. 	The
Department 	of 	Social 	and 	Health 	Services 	(Department) 	has 	moved 	to
redesignate C.A.'s appeal as a motion for discretionary review. 	Because C.A.
does not appeal a disposition following a finding of dependency by the juvenile

NO. 70121-5-1/2
court, we redesignate this appeal as a notice for discretionary review. 	Because
C.A. fails to make the showing required by RAP 2.3(b), we deny discretionary
review and dismiss her petition.
FACTS
C.A. was born on February 21, 1995. 	In 2006, a court entered orders of
dependency as to C.A.'s mother and father.1 	In 2007, C.A. began living with
Angela Pitts-Long, a licensed foster parent. 	On June 27, 2008, a court appointed
Pitts-Long 	as 	C.A.'s 	dependency 	guardian. 	The 	court's 	order stated, 	"The
dependency guardianship will continue until the child reaches 18 years of age or
until further order of the Court." 	It also stated, "[TJhis dependency guardianship
has been established and it implements the permanent plan for the child."2
The guardianship has been very stable with no disruptions and no need
for services. 	C.A. has integrated into Pitts-Long's family.
1 The identity of C.A.'s father is unknown.
2 	RCW 	13.34.030(5) 	defines 	a 	"dependency 	guardian" 	as 	"the
person . .. appointed by the court pursuant to this chapter for the limited purpose
of assisting 	the 	court 	in the 	supervision 	of the 	dependency." 	Dependency
guardians must meet the minimum requirements enumerated in RCW 74.15.030.
See former 	RCW 13.34.236 (1994). 	The 	law does 	not require dependency
guardians 	to 	be 	licensed 	foster 	parents; 	any 	person 	meeting 	the 	statute's
requirements can serve as a dependency guardian. 	The fact that Pitts-Long was
C.A.'s dependency guardian and also happened to be a licensed foster parent
simply meant that she continued receiving foster care payments for C.A.'s care
until the time that C.A. turned 	18 and 	completed 	high 	school. 	If the court
terminated C.A.'s guardianship before her 18th birthday and C.A. remained in
Pitts-Long's care in extended foster care, Pitts-Long would continue to receive
foster care payments.
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NO. 70121-5-1/3
Former RCW 74.13.031(10) (2012) authorized the Department to provide
"continued extended foster care services to youth ages eighteen to twenty-one
years 	to 	participate 	in 	or 	complete 	a 	secondary 	education 	program 	or 	a
secondary education equivalency 	program, 	or 	a 	postsecondary academic or
postsecondary vocational education program. 	The department shall develop and
implement rules 	regarding youth eligibility requirements." 	RCW 74.13.020(7)
defines "extended foster care services" as "residential and other support services
the 	department 	is 	authorized 	to 	provide to 	foster 	children. 	These services
include, 	but are 	not limited 	to, 	placement in licensed, 	relative, 	or 	otherwise
approved care, or supervised independent living settings; assistance in meeting
basic needs; independent living services; medical assistance; and counseling or
treatment."
In 2012, the Department adopted WAC 388-25-0510(2), titled "When is a
youth not 'in foster care'?" 	This rule states, "For the purposes of determining
initial eligibility for the extended foster care program, a youth is not in foster care
if the youth is . . .[i]n a dependency guardianship." 	Previously, no statute or rule
defined "in foster care" or "not in foster care."3
3 WAC 388-25-0508 defines "in foster care":
For the purpose of determining initial eligibility for the extended
foster care program, a youth is in foster care if the youth is under
children's 	administration 	(CA) 	placement and 	care 	authority, 	is
placed by CA in out of home care, in relative care, licensed foster
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NO. 70121-5-1/4
On January 22, 2013, C.A. filed a motion requesting that the court "enter
an order modifying or terminating the dependency guardianship, placing her with
her 	current caregiver and 	extending juvenile 	court 	jurisdiction 	past her 	18th
birthday so that she may apply for and receive extended foster care services,
including 	financial 	support." 	She 	also 	asked 	the 	court 	to 	"authorize 	the
Department the ability to allow her to live on campus if she is accepted into an
approved 	educational 	program." 	C.A. 	planned 	to 	attend 	Washington 	State
University (WSU) beginning in fall 2013. 	C.A. argued in her motion,
Should her case be dismissed at her 18th birthday, she would be
deemed 	ineligible for ongoing 	supports due to 	the entry of an
agreement not anticipated when it was signed in 2008. 	[C.A.] will
find herself without necessary resources and programs for her to
complete high school and continue on to college. 	This was the very
intent of the new legislation. 	It is clearly not in [C.A.j's best interest
to deprive her of these resources simply because the law changed.
home, 	licensed group care, or other suitable person placement.
Provided:
(1) A youth who is temporarily away from a foster care placement
in:
(a) A hospital;
(b) A drug/alcohol treatment facility;
(c) A mental health treatment facility; or
(d) For less than thirty days in a county detention center is
considered to be in foster care.
(2) A youth who is temporarily away from his or her foster
care placement without permission of the case worker or care giver,
but who is expected to return to foster care within twenty days, is
considered to be in foster care for purposes of determining initial
eligibility.
(3) A youth 	who 	is 	committed 	to 	juvenile 	rehabilitation
administration custody and who 	resides in a foster home, group
home, or community facility, as defined in RCW 74.15.020 (1)(a).
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NO. 70121-5-1/5
In a declaration attached to her motion, C.A. stated,
I would like to be able to stay living with Angela because I love her
and she means a lot to me. 	I know that if I were to attend college at
WSU that I would be able to return to Angela's when school is not
in session if I did not have a place of my own. 	I would like the
guardianship to be terminated and have my current caregiver be
approved as a suitable adult or foster parent so that I can continue
to have a place to live while I finish my education, even if I do go
away for school. 	Angie has provided me with a loving and stable
environment and supports my desire to further my education.
On February 5, 2013, a court commissioner granted C.A.'s motion and
ordered that C.A. "shall remain placed in foster care with her current caregiver as
a suitable adult placement with Angela Pitts Long." 	The commissioner found
"that the change in laws since this agreed order of guardianship was entered
created 	a 	substantial 	change 	that 	could 	not 	have 	been 	anticipated 	by the
parties."
On March 19, 2013, the superior court granted the Department's motion to
revise the commissioner's ruling. 	The superior court's order states,
1. 	A change 	in the 	law that was enacted 	subsequent [to] the
establishment of the 	dependency guardianship 	in this 	case,
which now provides licensed foster parents to continue getting
paid for the care of foster children after the youth's 18th birthday
is 	not 	a 	substantial 	change 	in 	circumstances 	sufficient 	to
terminate a dependency guardianship. 	Particularly in this case
where the youth is fully integrated into her guardian's home and
has lived there successfully since 2008 when the guardianship
was established and continued without oversight by the court or
[Department of Children and Family Services].
2. 	The 	commissioner 	erred 	in 	terminating 	the 	dependency
guardianship 	solely 	to 	circumvent 	WAC 	388-25-0510 	that
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NO. 70121-5-1/6
prohibits 	extended 	foster 	care 	for 	youth 	who 	are 	in
guardianships.
On March 26, 2013, C.A. appealed this order. 	On March 29, the superior
court denied C.A.'s motion to stay its ruling pending her appeal.4
On June 12, 2013, the Department moved to redesignate C.A.'s appeal as
a motion for discretionary review. 	A commissioner of this court referred the
Department's motion to the panel for determination under RAP 17.2(b).
ANALYSIS
We must first determine if the superior court's order is appealable under
RAP 2.2(a) or subject only to discretionary review under RAP 2.3(b). 	Because
we conclude that this order is not appealable as a matter of right, we must decide
if this case meets the grounds for discretionary review stated in RAP 2.3(b). 	We
grant the Department's motion to redesignate 	C.A.'s appeal 	as a notice for
discretionary review and decline review.
We address first the Department's motion to redesignate this appeal. 	In in
re Dependency of Chubb,5 our Supreme Court held, "RAP 2.2(a) sets out the
types of proceedings in which a litigant may appeal as a matter of right. 	Failure
to mention a particular proceeding in RAP 2.2(a) indicates this court's intent that
the matter be reviewable solely under the discretionary review guidelines of RAP
2.3." 	Appealable 	orders enumerated 	in 	RAP 	2.2 include 	"[t]he 	disposition
4 C.A. does not appeal the court's order denying a stay.
5 112 Wn.2d 719, 721, 773 P.2d 851 (1989).
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NO. 70121-5-1/7
decision following a finding of dependency by a juvenile court."6 	The court in
Chubb concluded that the only dependency disposition appealable as a matter of
right is disposition following a finding of dependency at the original fact-finding
hearing.7 	C.A. does not appeal this decision. 	This court reviews the court's
order granting revision of the commissioner's ruling solely under the discretionary
review standards of RAP 2.3.8
C.A. argues, "Chubb was not so limiting as the [S]tate makes out." 	She
relies on language stating that an "appeal by right applies only to the disposition
decision following the finding of dependency or to a marked change in the status
quo, which in effect amounts to a new disposition."9 She contends that "the order
of revision re-instated the dependency guardianship and amounted to a 	new
disposition." 	But we rejected a similar argument in In re Dependency of MA,10
explaining,
6 RAP 2.2(a)(5).
7 Chubb, 112Wn.2dat722.
8 See In re Dependency of R.V., 113 Wn. App. 716, 719, 54 P.3d 716
(2002) 	(discretionary 	review 	of a 	trial court 	order 	modifying a 	dependency
guardianship); see also In re Marriage of Greenlaw, 67 Wn. App. 755, 759, 840
P.2d 223 (1992) (trial court order granting a motion to revise a temporary custody
order is not an action to deprive the parent of all her parental rights under RAP
2.2(a)(6), a final judgment under RAP 2.2(a)(1), or a final order after judgment
under RAP 2.2(a)(13) and thus is reviewable only under RAP 2.3), rev'd on other
grounds, 123 Wn.2d 593, 869 P.2d 1024 (1994).
9 Chubb, 112Wn.2dat725.
10 66 Wn. App. 614, 620-21, 834 P.2d 627 (1992).
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NO. 70121-5-1/8
[T]he language relied on by appellant is dicta and is immediately
preceded 	by the court's discussion concluding that dependency
review orders are interlocutory in character. 	Placing the language
in the context of the entire Chubb opinion, we do not believe the
court meant to allow an appeal by right for every dependency order
in which the child's custody has been changed.
Discretionary review is available only in the following circumstances:
(1) The superior court has committed an obvious error which
would render further proceedings useless;
(2) The superior court has committed probable error and the
decision of the superior court substantially alters the status quo or
substantially limits the freedom of a party to act;
(3) The superior court has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned such
a departure by an inferior court or administrative agency, as to call
for review by the appellate court; or
(4) The superior court has certified, or all the parties to the
litigation 	have 	stipulated, 	that 	the 	order 	involves 	a 	controlling
question 	of law as 	to which there 	is substantial 	ground 	for a
difference of opinion and that immediate review of the order may
materially advance the ultimate termination of the litigation.^
C.A. fails to 	demonstrate 	any 	of these 	grounds. 	In fact, 	by 	revising the
commissioner's 	ruling 	and 	thereby declining to terminate 	C.A.'s dependency
guardianship and extend juvenile court jurisdiction, the court maintained the
status quo.
C.A. alleges, "The court erred in granting the State's motion for revision as
WAC 38[8]-25-0510 created a substantial change in circumstances such that
termination of the dependency guardianship was clearly in C.A.'s best interest."
11 RAP 2.3(b).
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NO. 70121-5-1/9
RCW 13.34.233(2) permits a court to modify or terminate a guardianship "upon
the motion of any party ... if the court finds by a preponderance of the evidence
that there has been a substantial change of circumstances subsequent to the
establishment of the guardianship and that it is in the child's best interest to
modify or terminate the guardianship."
C.A. presents no authority establishing that a mere change in the law can
create a "substantial change in circumstances subsequent to the establishment
of 	the 	guardianship" 	warranting 	termination 	of 	the 	guardianship, 	and 	she
presents no factual evidence showing a substantial change of circumstances.
Even if C.A. were eligible at any point for extended foster care services, she does
not show that she was at any point entitled to these services.
C.A. alleges that the 	change at issue is her "exclusion from extended
foster 	care 	services 	altogether." 	She 	supports 	her 	contention 	by 	citing 	a
declaration from Department social 	worker Oliver Pavek. 	In his declaration,
Pavek stated,
1. 	I 	am 	the 	social 	worker 	who 	would 	be 	responsible 	for
supervising [C.A.]'s dependency if the court 	granted 	a stay
and the dependency remains in place. 	As a social worker, I
would 	be 	required 	by 	[Department 	of 	Children 	and 	Family
Services] policy to make health and safety visits to see [C.A.]
every thirty days, 	and 	I would 	be 	required 	to 	prepare court
reports and orders and attend review hearings, and permanency
planning 	hearings, 	and 	otherwise monitor and 	supervise 	her
care—none of which has been required or needed since the
guardianship order was put in place in 2008. . . .
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NO. 70121-5-1/10
2. 	I am not aware of any educational benefits that [C.A.] would be
denied, or deemed ineligible for if she is not dependent and in
extended foster care.. . . Because she was dependent and in
foster care prior to her 18th birthday, she is still able to go to
college with the same benefits, financial aid, and scholarships
that she would be eligible for if she were in extended foster
care. 	Some examples include the following: 	Passport, Tree
House and the Governor's Scholarship to mention a few. 	The
scholarships and financial aid for which she would be eligible
could 	cover 	tuition 	and 	room 	and 	board. 	Additionally,
[Department of Children and Family Services] does not have
separate funding 	available to 	it to 	pay for 	college tuition for
those in extended foster care. . . .
3. 	Additionally, 	since she was 	a 	foster 	child 	prior 	to 	her 	18th
birthday, 	she 	could 	still 	live 	in 	the 	dormitory 	at 	college,
regardless of whether she is in extended foster care. 	In fact,
having been a foster child before her 18th birthday, she has an
easier chance of getting into a dormitory than if she had not
been in foster care. . . .
5. 	[C.A.] also has medical coverage until the age of 21 regardless
of whether she is in extended foster care, so she will not be
denied 	medical 	benefits.. . . She 	would 	also 	have 	dental
coverage. 	And, if. . . the guardianship were not terminated, she
could be eligible for medical insurance until age 26 depending
on her guardian[']s medical insurance coverage.
6. 	... [C.A] 	will 	be 	eligible 	to 	receive 	Social 	Security
Administration benefits due to her mother passing away. 	Those
benefits are not available to her if. .. she remains in extended
foster care because that money will go instead to the state to
reimburse for the cost of foster care.
7. 	In short, other than foster care payments that her foster parent
would 	receive, 	I am 	not 	aware 	of 	any 	special 	benefits 	or
services that [C.A.] will only receive through extended foster
care.
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NO. 70121-5-1/11
C.A. asserts, "The evidence relied upon by Mr. Plavek [sic] as support for
his beliefs as to the availability of programs for C.A. was based on an outdated
chart from May 2012 that predates the emergency WAC defining C.A. as outside
the 	realm 	of 	'foster care.'" 	C.A. 	attached 	this 	chart, 	entitled 	"Educational
Resources for Youth in Foster Care Through [the Department] in Washington
State or a Tribal Child Welfare Agency," to her reply in support of her original
motion. 	She referred to this chart as listing "the multitude of resources that were
available to her four months ago when she was still defined as a youth in care."
The Department represented to the trial court that denying C.A.'s petition
would deprive her of access to three services. 	First, a social worker would not
perform health and safety visits. 	Second, the court would 	not supervise and
monitor her dependency. 	Third, 	Pitts-Long would 	no 	longer receive monthly
foster care payments. 	But C.A. makes no claim that she needs the first two
services and in fact has not been receiving these services during the course of
her dependency guardianship. 	She also states that the payments to Pitts-Long
did not influence her desire to terminate the dependency guardianship. 	C.A.
offers no evidence to rebut Pavek's statements about the programs and services
available to her if the court denied her petition. 	Because the Department made
these representations to the trial court and the court relied upon them in reaching
its decision, the Department concedes that it is bound by these representations.
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NO. 70121-5-1/12
Therefore, 	if C.A. 	remains 	in the 	dependency 	guardianship 	or 	if the 	court
terminates it, C.A. will have access to the same programs and services.
We note that C.A.'s access to these programs and services does not
guarantee her entitlement to receive them. 	Their actual availability depends on
other factors, 	including funding. 	Although C.A. is eligible to apply for certain
programs and services, such as educational benefits and the opportunity to live
in a 	college 	dormitory, 	a 	lack 	of 	resources 	prevents 	their 	availability to 	all
qualified applicants.
Because C.A. offers no authority establishing that a change in the law
created 	a 	substantial 	change 	in 	circumstances 	and 	that 	terminating 	the
guardianship is in her best interest and she offers no factual evidence showing a
substantial change in circumstances, she fails to demonstrate any of the grounds
required by RAP 2.3(b). 	Therefore, we deny discretionary review.
CONCLUSION
Because C.A. did not appeal the disposition that resulted from a finding of
dependency at the original fact-finding hearing, we review the superior court's
order granting revision of the commissioner's ruling solely under the discretionary
review standards of RAP 2.3. 	Because C.A. shows no error, she fails to make
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NO. 70121-5-1/13
the showing required by RAP 2.3(b). We deny discretionary review and dismiss
her petition.
WE CONCUR:
h 	^^edtfee, 	I
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