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AGO 1987 No. 23 - November 19, 1987
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

JUVENILE COURTS ‑- PROCEEDINGS ‑- SHELTER CARE ‑- DEPENDENCY ‑- ALTERNATIVE RESIDENTIAL PLACEMENT ‑- WHAT IS ENTAILED IN JUDICIAL DETERMINATION ‑- REMOVAL OF A CHILD 

A court order approving alternative residential placement issued pursuant to RCW 13.32A.170 or 13.32A.180 necessarily constitutes a judicial determination that continuation of the child in the home would be "contrary to the welfare of the child" or that removal of the child from the home would be "in the best interests of the child."      

 Such court orders necessarily require removal of the child from the home.         

 Removal of a child from the home pursuant to a court order for shelter care under RCW 13.34.060 necessarily entails a judicial determination that such removal is "in the best interests of the child" or, conversely, that continuation of the child in the home would be "contrary to the welfare of the child."

 A court order entered in accordance with RCW 13.34.060(6) necessarily requires removal of the child from the home.

 Removal of a child from the home pursuant to a court order entered under RCW 13.34.130 necessarily entails a judicial determination that such removal is "in the best interests of the child" or that continuation of the child in the home is "contrary to the welfare of the child."       

 A court order for out-of-home placement entered in accordance with RCW 13.34.130 necessarily requires removal of the child from the home. 

                                                              - - - - - - - - - - - - - 

                                                               November 19, 1987

 Honorable Jule M. Sugarman
Secretary, Department of Social & Health Services
OB‑2, 4th Floor
Twelfth & Franklin
Olympia, WA 98504

Cite as:  AGO 1987 No. 23                                                                                                                

  [[Orig. Op. Page 2]]

 Dear Secretary Sugarman:

             By letter previously acknowledged, you asked for our opinion on several questions.  They concern the operation of Washington statutes governing alternative residential placement proceedings, shelter care proceedings, and dependency proceedings.  Alternative residential placement proceedings are governed by chapter 13.32A RCW.  Shelter care and dependency proceedings are addressed by chapter 13.34 RCW.  Insofar as they are relevant to your inquiries, each of these statutes governs procedures under which a child may be removed from the child's home and placed in foster care.

             With this background in mind, we turn to the questions you pose.  We have paraphrased and ordered them according to the type of proceeding to which they relate.

                                                                    QUESTIONS

                          ALTERNATIVE RESIDENTIAL PLACEMENT PROCEEDINGS

             (1) Does a court order approving alternative residential placement issued pursuant to RCW 13.32A.170 or 13.32A.180 necessarily constitute a judicial determination that continuation of the child in the home would be "contrary to the welfare of the child" or that removal of the child from the home would be "in the best interests of the child"?

             (2) Do such court orders necessarily require removal of the child from the home?

                                                   SHELTER CARE PROCEEDINGS

             (3) Does removal of a child from the home pursuant to a court order for shelter care under RCW 13.34.060 necessarily entail a judicial determination that such removal is "in the best interests of the child" or, conversely, that continuation of the child in the home would be "contrary to the welfare of the child"?1/

              [[Orig. Op. Page 3]]

                                                    DEPENDENCY PROCEEDINGS

            (4) Does a court order entered in accordance with RCW 13.34.060(6) necessarily require removal of the child from the home?

             (5) Does removal of a child from the home pursuant to a court order entered under RCW 13.34.130 necessarily entail a judicial determination that such removal is "in the best interests of the child" or that continuation of the child in the home is "contrary to the welfare of the child"?

             (6) Does a court order for out-of-home placement entered in accordance with RCW 13.34.130 necessarily require removal of the child from the home?

             We answer each of these questions in the affirmative for the reasons set forth in the following analysis.

                                                                      ANALYSIS

             RCW 13.32A.170 and 13.32A.180, the statutory provisions relating to your first two questions, establish juvenile court procedures for alternative residential placement (placement of a child in a residence other than that of the child's parent).  Under RCW 13.32A.170, a fact-finding hearing must precede entry of a court order approving or denying a petition for alternative residential placement.  RCW 13.32A.180, which provides for a 3-month out-of-home placement period, also requires a court hearing prior to an order for such placement.

             As our State Supreme Court recognized in In re Sumey, 94 Wn.2d 757, 621 P.2d 108 (1980), an order approving alternative residential placement must be based on a finding that family conflict of such severity exists that parent and child are not able  [[Orig. Op. Page 4]] to reside in the same home, even with the provision of family reconciliation services.  See RCW 13.32A.170(1)(c) [and] (d); RCW 13.32A.190; RCW 13.32A.040.2/

              In upholding the constitutionality of Washington's alternative residential placement statute, the court inSumey characterized the interests of the State and the child supporting alternative residential placement as "extremely weighty for they concern the welfare and best interests of the child . . . ."  94 Wn.2d at 765.  The court emphasized that an alternative residential placement can be invoked only if severe conflict exists between the parent and child and the court has determined that this conflict cannot be resolved by alternatives less restrictive than removal of the child from the home.  Id.

             These same circumstances exist under the present provisions of chapter 13.32A RCW.  Approval of a petition for alternative residential placement must be preceded by a fact-finding hearing.  RCW 13.32A.170.  In that hearing the court is required to give due weight to the intent of the Legislature that parents have the right to place reasonable rules and restrictions upon their children.  RCW 13.32A.170.  Further, RCW 13.32A.170 provides in part:

             The court may approve an order stating that the child shall be placed in a residence other than the home of his or her parent only if it is established by a preponderance of the evidence that:

                        . . .

                         (c) The conflict which exists cannot be resolved by delivery of services to the family during continued placement of the child in the parental home; and

                        (d) Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the  [[Orig. Op. Page 5]] child's home and to make it possible for the child to return home.

 A dispositional order for a 3-month out-of-home placement under RCW 13.32A.180 also follows a court hearing and is predicated upon the continued existence of these circumstances.

             Thus, both statutes require a judicial determination.  It also is clear to us that although neither RCW 13.32A.170 nor RCW 13.32A.180 explicitly states that placement outside the family home must be "in the best interests of the child" or that continuation of the child in the family home would be "contrary to the welfare of the child", such a determination is inherent in the findings the court is required to make.  Indeed, the essence of the decision in Sumey is that the intervention into family affairs authorized by chapter 13.32A RCW (alternative residential placement) is constitutionally justified only by reason of the governmental interest it serves in protecting the welfare and best interests of the child.

             We also believe that court orders entered under RCW 13.32A.170 and 13.32A.180 necessarily require removal of the child from the home.  As the court recognized inSumey, an alternative residential placement order depends upon a finding that family conflict is of such a magnitude that it cannot be adequately addressed while the child remains in the home.  In other words, an alternative residential placement order, of necessity, reflects a judicial determination that the child cannot remain in his or her home.  In our view, it clearly follows that such an order requires the child's removal from the home.

             We now turn to your questions concerning shelter care proceedings under chapter 13.34 RCW, which we repeat here for ease of reference.

             (3) Does removal of a child from the home pursuant to a court order for shelter care under RCW 13.34.060 necessarily entail a judicial determination that such removal is "in the best interests of the child" or conversely, that continuation of the child in the home would be "contrary to the welfare of the child"?

             (4) Does a court order entered in accordance with RCW 13.34.060(6) necessarily require removal of the child  [[Orig. Op. Page 6]] from the home?

             The Legislature has identified the fundamental purpose and scope of chapter 13.34 RCW as follows:

             The Legislature declares that the family unit is a fundamental resource of American life which should be nurtured.  Toward the continuance of this principle, the legislature declares that the family unit should remain intact unless a child's right to conditions of basic nurture, health, or safety is jeopardized.  When the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail.

 RCW 13.34.020 (emphasis added).

             Shelter care proceedings typically begin when a court enters an order taking a child into custody under RCW 13.34.050.  A court is authorized to enter such an order when the following circumstances exist:  (1) A petition alleging that the child is dependent3/

            has been filed with the juvenile court; (2) the court  [[Orig. Op. Page 7]] finds reasonable grounds to believe that the child is dependent; and (3) the court finds reasonable grounds to believe that the child's health, safety, and welfare would be seriously endangered, if the child is not taken into custody.  RCW 13.34.050.

             A child taken into custody under RCW 13.34.050 must be placed immediately in shelter care.  RCW 13.34.060.  By virtue of 13.34.060, a child may be held in shelter care for no longer than 72 hours without a court order for continued shelter care.  Before entering an order for continued shelter care, the court is obligated to examine the need for shelter care and to release the child to the care, custody, and control of the child's parents, unless the court finds reasonable cause to believe that:  (1) Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home; and (2)(a) the child either has no parent, guardian, or legal custodian to provide supervision and care, or (b) the release of the child would present a serious threat of substantial harm to the child, or (c) the parent, guardian, or legal custodian to whom the child could be released is alleged to have violated RCW 9A.40.060 or RCW 9A.40.070.4/

             RCW 13.34.060(6).

             The judicial findings required by RCW 13.34.050 (authorizing shelter care in the first instance) and by RCW 13.34.060 (authorizing continued shelter care) reflect one fundamental prerequisite to such care:  a court determination that shelter care is needed to protect the welfare of the child.  Thus, in our opinion, shelter care orders issued pursuant to these statutes  [[Orig. Op. Page 8]] implicitly constitute judicial determinations that continuation of the child in the family home would be "contrary to the welfare of the child."  We believe it clearly follows that court orders for shelter care necessarily require removal of the child from the home.

             We next address your questions concerning juvenile dependency proceedings, which we repeat here for ease of reference.

             (5) Does removal of a child from the home pursuant to a court order entered under RCW 13.34.130 necessarily entail a judicial determination that such removal is "in the best interests of the child" or that continuation of the child in the home is "contrary to the welfare of the child"?

             (6) Does a court order for out-of-home placement entered in accordance with RCW 13.34.130 necessarily require removal of the child from the home?

             Under chapter 13.34 RCW, juvenile dependency proceedings entail two distinct court hearings.  First, a fact-finding hearing is required by RCW 13.34.110 to determine whether a child alleged to be dependent is, in fact, a dependent child.5/

             If dependency is established by a preponderance of the evidence, then a disposition hearing is held by the court.  RCW 13.34.110, 13.34.130.  Under RCW 13.34.130(1)(b), the court may order that the child be removed from his or her home under certain limited circumstances.  RCW 13.34.130(1)(b) provides in part:

             Such an order may be made only if the court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home and that:

                        (i) There is no parent or guardian available to care for such child;

              [[Orig. Op. Page 9]]

                        (ii) The child is unwilling to reside in the custody of the child's parent, guardian, or legal custodian;

                         (iii) The parent, guardian, or legal custodian is not willing to take custody of the child;

                         (iv) A manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home; or

                         (v) The extent of the child's disability is such that the parent, guardian, or legal custodian is unable to provide the necessary care for the child and the parent, guardian, or legal custodian has determined that the child would benefit from placement outside of the home.

             A disposition order entered pursuant to RCW 13.34.130(1)(b) is a judicial determination.  It is also clear to us that inherent in the findings a court must make before ordering removal of a child from the child's home under RCW 13.34.130(1)(b) is a determination that such removal is "in the best interests of the child" or that continuation in the family home would be "contrary to the welfare of the child."  We base this view not only on the criteria set forth in RCW 13.34.130(1)(b), but also on numerous court decisions recognizing that in dependency proceedings, the paramount consideration of the court must be the welfare and best interests of the child.  In re Aschauer, 93 Wn.2d 689, 611 P.2d 1245 (1980);In re Snyder, 85 Wn.2d 182, 532 P.2d 278 (1975).  This same paramount consideration is evident in the statement of legislative purpose applicable to dependency proceedings.  See RCW 13.34.020.

             Nor do we have any doubt that a disposition order entered pursuant to RCW 13.34.130(1)(b) necessarily requires removal of the child from the home.  Not only does RCW 13.34.130(1)(b) obviously contemplate the existence of need for removal, but RCW 13.34.130(3)(a), which deals with court proceedings to review the status of children found to be dependent, also provides in part:  "A child shall not be returned home . . . unless the court finds that a reason for removal as set forth in this section no longer exists. . . ."  It would be completely contrary to the legislative scheme and purpose of dependency proceedings to conclude that a court order entered pursuant to RCW 13.34.130(1)(b) mandates anything less than removal of the child from the home.

              [[Orig. Op. Page 10]]

                                                                    SUMMARY

             In summary then, it is our opinion that orders approving alternative residential placement, orders for shelter care, and dependency disposition orders entered under RCW 13.34.130(1)(b) necessarily constitute judicial determinations that removal of the child from the child's home is "in the best interests of the child" or that continuation of the child in the home would be "contrary to the welfare of the child."  It is our further opinion that all such orders necessarily require removal of the child from the home.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

MAUREEN HART
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/As we understand it, this inquiry is confined to court ordered shelter care.  In other words, you do not seek our opinion with regard to RCW 13.34.055 which authorizes a law enforcement officer to place a child in shelter care for a maximum 72-hour period, prior to entry of a court order for continued shelter care.  See RCW 13.34.06(1).  Accordingly, our response to this question does not address that limited circumstance.

 2/Although Washington's alternative residential placement statutes have been amended since the Sumey decision, those amendments do not alter, in any substantial respect, the provisions relating to your questions.  See Laws of 1979, ch. 155; Laws of 1981, ch. 298; Laws of 1984, ch. 188; Laws of 1985, ch. 257; Laws of 1987, ch. 524.

 3/The term "dependent child" is defined by RCW 13.34.030(2) as follows:

             (2) "Dependent child" means any child:

             (a) Who has been abandoned; that is, where the child's parent, guardian, or other custodian has evidenced either by statement or conduct, a settled intent to forego, for an extended period, all parental rights or all parental responsibilities despite an ability to do so;

             (b) Who is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child;

             (c) Who has 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; or

             (d) Who is developmentally disabled, as defined in RCW 71.20.016 and whose parent, guardian, or legal custodian together with the department determines that services appropriate to the child's needs can not be provided in the home.  However, (a), (b), and (c) of this subsection may still be applied if other reasons for removal of the child from the home exist.

 4/These statutes define the crimes of custodial interference in the first and second degree.

 5/See supra, note 3 for the statutory definition of "dependent child."

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