Opinion
Nos. 48808-2-I c/w 48871-6-I.
Filed: June 30, 2003. UNPUBLISHED OPINION.
Appeal from Superior Court of King County Docket No: 99-7-00369-0 Judgment or order under review Date filed: 06/04/2001.
Counsel for Appellant(s), Edward L. Mueller, Attorney at Law, 2050 112th Ave NE Ste 230, Bellevue, WA 98004-2992.
Counsel for Respondent(s), Richard Joel Lewison, Ofc of The Atty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Rian Kazuo Ebesugawa, Attorney at Law, King Co Pros Aty-Ofc Fam, 900 4th Ave Ste 900, Seattle, WA 98164-1022.
Counsel for Minor(s), Linda Lillevik, Attorney at Law, Public Defenders Ofc, 810 3rd Ave Ste 800, Seattle, WA 98104-1656.
Counsel for Other Parties, Patricia Cotton (Appearing Pro Se), 600 Front Street, #j302, Issaquah, WA 98027.
Jana L. Heyd (Appearing Pro Se), Attorney at Law, 1401 E Jefferson St. Ste 200, Seattle, WA 98122-5570.
This is an appeal of child support modification orders entered by a juvenile court commissioner on June 4, 2001, under consolidated King County cause numbers 99-7-00369-0 SEA (the "dependency action") and 86-5-00029-2 SEA (the "family court action"). Richard Jones contends that the court erred by modifying the child support order in the family court action rather than modifying the disposition order in the dependency action under which the State was made responsible for the child's support in foster care. He also contends that certain errors in connection with the juvenile court's permanency planning order invalidate the child support orders. And he contends that the court erred by making his current support obligation retroactive to the date the State filed its modification petition in the family court action, and by refusing to allow him to offset the current support payments from his judgments against the mother entered in the family court action for past-due child support. Both the father and the State premise some of their arguments on erroneous legal conclusions, which we will discuss in the course of this opinion. We affirm the support orders here at issue, but only insofar as they determine Jones' child support obligations during the continuation of the dependency action, and subject to such corrective action as may be necessary following our remand in light of the fact that the dependency action is ongoing — if the child has not remained with her mother during the pendency of this appeal and is not residing with her mother at the time of our remand. To the extent that the support modification orders were intended to permanently modify Jones' child support obligation even after termination of the dependency action, however, we reverse, in that to date there has been no request for a permanent change in the child's residential parent in the family court matter, and the parenting plan and child support orders in the family court action were merely suspended, not terminated or otherwise permanently modified by the dependency action. We also recognize that the State, as the child's legal custodian during the duration of the dependency action and as the provider of public assistance and/or foster care expenses for the support of the child, is the true support obligee in this case, notwithstanding that the support order now in effect names Patricia Cotton as the obligee.
FACTS
M.L.C. resided with her mother, Patricia Cotton, from the time of her birth in July 1985 until April of 1994, in accordance with a parenting plan entered in the family court (parentage) action in this case. Thereafter, as a result of a petition filed by M.L.C.'s father, Richard Jones, to modify the parenting plan, which was granted, M.L.C. resided with Jones until April of 1999 when the Department of Social and Health Services (DSHS) filed the dependency action in this case.
Judge Marilyn Sellers found at the time of the modification of the parenting plan in the family court action that the mother was suffering from a significant mental illness, so the best interests of the child required that the father be named M.L.C.'s primary residential parent. The mother's visitation with M.L.C. was to be therapeutically supervised, and the court ordered that both the mother and M.L.C. were to remain in mental health counseling. Judge Sellers also entered a child support order requiring the mother to pay child support to the father.
On April 15, 1999, the Department of Social and Health Services (DSHS) filed a dependency petition regarding M.L.C., in that the child had run away from the father's home and was refusing to return. On June 14, 1999, Juvenile Court Commissioner James Doerty granted concurrent jurisdiction with the family court case for the purpose of allowing the father to proceed in his efforts to collect existing child support judgments against the mother. By then, judgments in excess of $17,000 had been entered against the mother for past-due child support and accumulated interest accrued under Judge Sellers' modification and child support orders.
On June 21, 1999, Commissioner James Doerty entered, by agreement, Orders of Dependency and Disposition as to Patricia Cotton. The commissioner found that M.L.C. had made and recanted allegations of sexual abuse in her father's home and that she was in severe emotional distress due to continuous, highly-contentious litigation between the parents over a period of several years. The mother acknowledged suffering from bipolar disorder and that she remained under psychiatric care. Accordingly, she agreed that M.L.C. should be placed in licensed foster care. On August 16, 1999, Judge Patricia Clark entered, by agreement, Orders of Dependency and Disposition as to Richard Jones. Judge Clark found that M.L.C. was in emotional distress and that a previous psychological evaluation indicated that M.L.C. was at risk of serious mental illness in the absence of a safe, stable environment. The father agreed that if M.L.C. were forced to remain in his home she likely would run away again, and that she would be at even greater risk of psychological and physical harm than other runaway girls her age because of her emotional distress and vulnerability to mental illness. Accordingly, the father also agreed that M.L.C. should be placed in licensed foster care.
The Agreed Findings of Fact, Conclusions of Law, and Order of Dependency, as to Richard Jones, contained, just below Judge Clark's signature and immediately above Jones' signature, the following notice:
"YOU MAY BE HELD FINANCIALLY RESPONSIBLE FOR THE FOSTER CARE COSTS TO THE EXTENT YOU CAN AFFORD TO PAY."
All underlining, bold, and capital lettering, in this and the following quotations, are as they exist in the orders referenced.
In the August 16 agreed dispositional order, Judge Clark provided that M.L.C. would be placed into licensed foster care under the supervision of DSHS/DCFS. The order also contained a listing of services to be provided, which read in pertinent part as follows:
H. SERVICES ORDERED FOR FATHER:
. . . .
Service: Participation in Child's counseling. (as recommended by child's therapist)
• Service to begin by: upon recommendation of child's therapist.
• To be completed by: as determined by the treatment provider.
§ Responsibility for payment: DCFS.
I. SERVICES TO BENEFIT THE CHILD:
The following services shall be made available to the child or for his/her benefit: 1. Service: Casework services, relative placement/foster care, medical assistance, individual counseling. Responsibility for payment: DCFS.
2. Service: psychological evaluation and any recommended therapy.
The purpose of the evaluation is to assess [M.L.C.'s] treatment needs, the appropriateness of her foster placement in meeting those needs, the advisability of resuming regular contact between [M.L.C.], her mother, her father and other family members. The evaluation shall include interviews with the mother, the father, and the foster parents.
The identity of the evaluator is reserved for the Dispositional Hearing to be set on September 21, 1999 before Judge Patricia Clark.
Responsibility for payment: DCFS, unless the evaluation is performed by Dr. Elizabeth Robinson, either by court order or by agreement. In which case the father will be responsible for payment.
Clerk's Papers at 1540.
The order also contained the following notice:
"YOU MAY BE FINANCIALLY RESPONSIBLE FOR THE FOSTER CARE COSTS TO THE EXTENT YOU CAN AFFORD TO PAY."
Clerk's Papers at 1533.
This was essentially the same notice contained in the Agreed Findings of Fact, Conclusions of Law, and Order of Dependency. It was also similarly placed below Judge Clark's signature and immediately above Jones' signature.
The agreed disposition orders were not appealed by either parent.
On September 15, 1999, Jones was served with a Notice and Finding of Financial Responsibility by the Division of Child Support (DCS). Jones appealed the notice and finding administratively. On October 12, 1999, after Jones sought a finding of contempt in juvenile court against the Assistant Attorney General with whom the agreed dependency and disposition orders had been negotiated, as well as relief from the agreed disposition order and clarification of his child support obligations under the August 16, 1999 dependency and disposition orders, Judge Clark held:
IT IS HEREBY ORDERED that the motion for a finding of contempt is denied; the motion for relief from judgment under CR 60(b) is denied; the dispositional order of August 16, 1999 is not inconsistent, and does not relieve father of any financial obligation*; Judge Clark retains jurisdiction.
. . . .
* the extent of which is reserved for further court order.
Clerk's Papers at 1501. This order was not appealed.
Subsequent to Judge Clark's October 12, 1999, order, the administrative law judge presiding over Jones' appeal of the Notice and Finding of Financial Responsibility by DCS dismissed the administrative appeal for lack of jurisdiction because Judge Clark had retained jurisdiction.
On September 18, 2000, a permanency planning hearing was held in juvenile court. The hearing was presided over by Juvenile Court Commissioner Eric Watness because Judge Clark had released jurisdiction when she moved from the downtown Seattle courthouse to the Kent Regional Justice Center.
All parties attended the September 18 permanency planning hearing, including M.L.C. Jones filed an objection to the State's proposed permanency plan and order, requesting that the court defer any action on the proposed plan under which M.L.C. was to be "returned" to her mother because: the planner had not consulted with the long term mental health therapists for the mother and the child; there was nothing to show that the mother's mental health had significantly improved since Judge Sellers removed the child from the mother's home in the family court case; and there was no showing that the mother's mental health had significantly improved since the entry of the agreed dependency and dispositional order in the dependency case under which the child had been placed in licensed foster care, in part because of the mother's mental health issues.
Although the permanency planning order required that the child be "returned" to her mother's home, we note that it was the father's home from which the dependency disposition orders removed the child, not the mother's home.
The court heard argument of counsel for both parents. The court then entered findings that DSHS had made reasonable efforts to reunite M.L.C. and her parents, and entered an order approving the proposed permanency plan whereby M.L.C. would be "returned" to her mother's home by January 31, 2001. The court made no finding that the reason for removal of M.L.C. from the mother's home no longer existed as required by former RCW 13.34.130(7)(a), now recodified as RCW 13.34.145(6)(b)(1). The court gave DSHS authority to gradually increase M.L.C.'s visitation with her mother, and ordered the mother to continue to participate in her mental health treatment. No effort was made to appeal this interlocutory order; discretionary review was not sought. According to the State, M.L.C. returned to her mother's home by January 31, 2001, in accord with the permanency planning order and was still there at the time the State filed its responsive brief for this appeal in August 2002.
According to the father, M.L.C. did not remain with her mother for very long after this appeal was filed, but moved somewhere else of her own choosing, and a guardian ad litem has been appointed to inquire into M.L.C.'s best interests and her poor performance at school. This information accompanied the father's motion to file an overdue reply brief.
The State has requested us to reject the reply brief. We grant the father's motion to file the late reply brief but agree with the State that we cannot properly consider the information regarding what may have taken place in the ongoing dependency action during the pendency of this appeal. See In re the Dependency of M.A., 66 Wn. App. 614, 621, 834 P.2d 627 (1992) (although claimed errors may have been remedied in ongoing dependency action as a result of review hearings while appeal is pending, appellate court's knowledge of what happened is frozen at the time the appeal is filed). Accordingly, we strike that extraneous information from the reply brief and accompanying motion, and consider only the portions of the reply brief that properly respond to the State's responsive brief.
On March 29, 2000, the King County Prosecutor filed a Petition for Support Modification in the family court case on behalf of M.L.C. and its client, the Division of Child Support, alleging a substantial change in circumstances since the entry of Judge Sellers' modification and child support orders entered in 1995, that is, that M.L.C. had been declared dependent and was living in foster care at the expense of the taxpayers. The petition made no request for modification with respect to M.L.C.'s permanent residence; nor did either parent petition for such a modification. The petition was originally set before Judge Mary Yu in superior court, but Jones filed a motion to have the matter transferred to juvenile court for consolidation with the dependency case. A juvenile court commissioner granted this motion by entering an order consolidating the matters on February 26, 2001.
On April 2, 2001, a hearing on the child support modification petition was held. On June 4, 2001, Commissioner Eric Watness signed Findings, Conclusions and Order on Modification of Child Support, and an Order of Child Support in the consolidated proceedings — under a caption designating only the family court proceedings. Commissioner Watness found that circumstances had changed since the entry of the previous child support order in the family law case, in that the child no longer resided with Jones because she had been residing in foster care and was then residing with her mother as a result of the dependency matter. The court also found that there was no inconsistency between Judge Clark's disposition order requiring DCFS to pay for the child's foster care and Judge Clark's subsequent order declining to find the Assistant Attorney General in contempt of court for seeking to obtain child support from Jones, and reserving the issue of the amount of support that he would be required to pay, in that the dispositional order gave notice to Jones that he could be found responsible for the foster care costs to the extent that he could afford to pay. The court also concluded that the State's petition for modification of Judge Sellers' orders in the family court matter was an appropriate means of bringing the issues regarding M.L.C.'s foster care expenses and ongoing support before the court. The modification order did not purport to change M.L.C.'s residential schedule permanently; it merely recognized the fact that M.L.C. had been in foster care and was by then living with the mother in accord with the juvenile court's placement order.
The court ordered Jones to pay child support for M.L.C., commencing in the sum of $155 per month from April 1, 2000, through September 2000, and increasing to $310 per month commencing October 1, 2000. Despite that nobody had sought a permanent change in M.L.C.'s residential schedule, the modification order had not purported to change her primary residence permanently, and the dependency court's permanency planning process was still in its infancy and far from "permanent" at that stage, the court ordered that Jones' support obligation would continue until M.L.C.'s 18th birthday or until she graduates from high school, whichever comes last (reserving the issue of college education expenses for later determination). Thus, the support order looked a lot like a permanent support order notwithstanding that it was based on changes in circumstances arising from the dependency action. The court also ordered that the support from April 1, 2000, through January 2001 was owed to the State for reimbursement of foster care costs, and that the support thereafter was owed to Patricia Cotton, payable through the Support Registry. According to the State, M.L.C. receives public assistance benefits while she is in the mother's home, in that Patricia Cotton lives on social security disability income based on her mental illness.
The court raised the support incrementally based on financial hardship to the father if support were to be imposed in the full amount initially. The $310 monthly support figure is a deviation downward from the schedule amount based on the fact that the father is responsible for the support of other children.
The court also imposed the standard statutory health insurance clauses, and ordered Jones to pay 72 percent of M.L.C.'s extraordinary health care expenses in excess of $25 in any month — that percentage being the father's proportional share of such expenses based on his net income ($1,359 per month) versus that of the mother ($539 per month from social security).
On July 5, 2001, Jones filed an appeal with this court seeking review and reversal of Commissioner Watness' child support modification orders.
ANALYSIS
Both Jones and the State base some of their arguments on mistaken legal premises, which we will address in the course of this analysis. Jones argues that he is still the legal custodian of M.L.C., pursuant to Judge Sellers' modification decree entered in 1995, and he concludes from this that the commissioner had no authority to order him to pay child support to Cotton. The State argues in response that the effect of the dependency order was to transfer the legal custody of M.L.C. to the juvenile court. Both sides are slightly off the mark. RCW 13.04.011(6) states that for purposes of Title 13, "`[c]ustodian' means that person who has the legal right to custody of the child." JuCR 3.8(e) provides that "[a] disposition which orders removal of the juvenile from his or her home shall have the effect of transferring legal custody to the agency or custodian charged with the juvenile's care." Here, the disposition order removed M.L.C. from Jones' home and designated DSHS/DCFS as the supervising agency to care for M.L.C. DSHS/DCFS thereby became the child's legal custodian. See State v. Harrell, 105 Wn.2d 840, 844-455, 718 P.2d 797 (1986) (where the juvenile court placed a dependent child under the supervision of DSHS, that agency had legal custody of the child; even though DSHS placed the child in foster care in a group home, the group home was not the legal custodian). Thus, Jones has not had legal custody of M.L.C. since August 16, 1999, the date of the dependency and disposition orders as to the father.
By that same token, when the child was placed with her mother under the permanency planning order, Patricia Cotton did not thereby become the child's legal custodian within the meaning of the statute and court rule above quoted; the child's placement with the mother remains under the supervision of DSHS/DCFS. The agency can remove the child from her mother's home at any time if it deems the child's best interests to require that, for so long as the dependency action continues. See discussion infra.
The effect of the dependency disposition orders was to suspend Judge Sellers' custody and support orders in the family law case pending the eventual dismissal of the dependency case, not to terminate or permanently modify those orders. See In re Perry, 31 Wn. App. 604, 608-09, 644 P.2d 142 (1982) (suspending the custody modification order the Perry court had just affirmed and remanding for reconsideration at such time as the juvenile court might terminate its exclusive original jurisdiction in the dependency matter). See also Perry at 607-08 (by enacting RCW 13.34.030 granting exclusive original jurisdiction over all dependent children, the Legislature intended that superior courts defer determination of custody as between parents in a dissolution proceeding until the juvenile court has made a determination of the dependency matter; further, orders entered by the superior court in dissolution matters relating to custody are intended to be suspended pending the dependency disposition). Thus, we reject Jones' contention that the court had no authority to order him to pay child support for M.L.C. based on Judge Sellers' 1995 order. As we have just noted, the effect of the dependency disposition order was to suspend Judge Sellers' 1995 order for so long as the juvenile court retained jurisdiction, and not to terminate or permanently modify the order. See In re Walker, 43 Wn.2d 710, 715, 720, 263 P.2d 956 (1953) (divorce court did not err in failing to award permanent custody of children to one parent or the other in light of fact that children were in dependency status in juvenile court at the time of entry of divorce decree; neither did juvenile court err in subsequently placing children in mother's temporary custody; but the juvenile court exceeded its jurisdiction by ordering that children would remain with mother permanently if circumstances were unchanged after one year, such action being reserved exclusively to the superior court after termination of the dependency action); see also Perry, 31 Wn. App. at 608-09 (custody modification order in superior court suspended; modification case remanded for reconsideration at such time as the juvenile court terminates its jurisdiction).
The juvenile court is vested with the authority to order the parent or parents of a dependent child to pay child support as set forth in Ch. 26.19 RCW (Child Support Schedule Act), and all such support orders shall be in compliance with Ch. 26.23 RCW (Child Support Registry Act). RCW 13.34.160(1). The support modification action at issue here was filed in the family court action rather than in the dependency action. As we have just observed, the juvenile court has exclusive original jurisdiction over all matters relating to dependent children while the dependency action remains in effect. Thus, Jones has a point when he complains that the family court's support order, rather than Judge Clark's disposition order (by which the State was made initially responsible for the child's foster care and medical expenses) was modified in this child support action. But we think that any jurisdictional problem with bringing the child support action in the family law case rather than in the dependency case was cured when Jones moved, and the court granted his motion, to consolidate the family court support modification and dependency actions. This is not to say that the court was thereby authorized to do more than to modify support while the dependency action remained in effect — as we have already noted, nobody sought a modification of the family court's custody order, which had only been suspended by the dependency orders and not permanently modified by those orders, and the State's petition was based only on its right to collect support for the child, who had been placed in foster care in the dependency proceeding at State expense.
RCW 13.34.150 requires a change in circumstances before an order made in the case of a dependent child may be modified. Although the commissioner did not expressly modify Judge Clark's order requiring that DCFS pay for the child's expenses in foster care, as the commissioner properly observed, Judge Clark's dependency and disposition orders contained notices that the father could be made responsible for foster care expenses. Neither Judge Clark's subsequent order denying the father relief and clarifying his potential financial obligations for the child nor the support modification order now on review are inconsistent with Judge Clark's dependency and disposition orders. To the extent that Judge Clark's dependency and disposition orders may have been support orders that should have been expressly modified, they effectively have been modified by the current support orders in these consolidated proceedings. Any showing of changed circumstance that might be required since entry of the disposition order is satisfied by the fact that the father has now been found able to pay child support; thus he is legally responsible for the child's foster care expenses and for her support while she is under the jurisdiction of the dependency court. The father's ability to pay support was not an issue that was even before the juvenile court at the time of entry of the dependency and disposition orders.
We think that Jones' complaints about which court order was expressly modified in the consolidated proceedings go to form rather than to substance, so long as the support orders here at issue are construed to remain in effect only for so long as the dependency action itself remains open, and so long as the orders are changed from time to time as may be necessary to reflect any changes in the dependency court's orders regarding placement of the child somewhere other than in the home of her mother. The mother was not made the child's "legal custodian" within the meaning of RCW 13.04.011(5) and JuCR 3.8 by the entry of the permanency planning order. DSHS/DCFS retains the right to supervise the child, and to remove her from the mother's home during the life of the dependency, if circumstances should warrant such removal. And since the State is providing for the child's support through public assistance, the State, not Cotton, is the true obligee to whom child support is owed by Jones while the child remains under the jurisdiction of the juvenile court and on public assistance — notwithstanding that Cotton is named as the obligee in the support order now on review.
We turn next to Jones' contention that the permanency planning order in the juvenile court proceeding by which M.L.C. was placed with Cotton is fatally flawed and cannot provide a basis for the court's modification of Judge Sellers' child support order. Jones correctly observes that RCW 13.34.138(1)(a) requires that a child shall not be returned home at a review hearing unless the court finds that the reason for removal as set forth in RCW 13.34.130 no longer exists. The dependency and disposition orders as to the mother in this case reflect that the reason that Cotton's home was not an appropriate placement for M.L.C. at the time of the dependency finding is that Cotton suffers from bipolar disorder and could not properly take care of her daughter. Judge Sellers' modification order in the family court case removed M.L.C. from Cotton's home for that same reason. In spite of Jones' objections at the time of the permanency planning hearing, the permanency planning order contains no finding that the reason for removal as to the mother no longer exists. Given the nature and duration of the mother's mental illness, this is a matter of considerable concern to this court. But the State responds that these arguments constitute an impermissible collateral attack on the permanency planning order, and that since Jones failed to appeal the permanency planning order he cannot be heard to argue its invalidity now.
The State's argument is based on the flawed legal conclusion that the permanency planning order was appealable as of right. It was not. RAP 2.2(a)(5) lists the types of orders that are appealable as a matter of right. A juvenile court's disposition order following a dependency finding is appealable as a matter of right. In In re Chubb, 112 Wn.2d 719, 721-22, 773 P.2d 851 (1989) our Supreme Court determined that by limiting appeal as of right to disposition orders following a dependency finding, the drafters clearly intended to exclude subsequent dependency review hearings. See also In re Dependency of M.A., 66 Wn. App. 614, 834 P.2d 627 (1992) (dependency review hearings are not appealable as a matter of right even where the child's custody is changed as a result of the review hearing).
RCW 13.34.138(1) mandates in-court review hearings regarding all children found to be dependent at least every six months from the date dependency is established, and further provides that a permanency planning hearing is a type of review hearing that is in and of itself subject to further review.
RCW 13.34.145(1) explains that the permanency planning process continues until a permanency planning goal is achieved or until the dependency action is dismissed. RCW 13.34.145(1)(b) explains that the identified outcomes and goals of the permanency plan may change over time based upon the circumstances of the particular case. RCW 13.34.145(7) requires that where a child is returned to a parent's home, casework supervision shall continue for at least six months, at which time another review hearing will be had to determine the need for continued court intervention. Thus, a permanency plan may but need not eventually result in permanent placement of the child, even in the absence of another court action dealing with permanent legal custody (such as the parentage action in this case). See RCW 13.34.145(8).
The fact that Jones did not appeal the permanency planning order is no bar to our consideration of the order. Indeed, orders which are not appealable as a matter of right are nevertheless subject to discretionary review. Although Jones did not timely seek discretionary review of the permanency planning order, orders or rulings that are subject to discretionary review can also be reviewed in conjunction with review of subsequent orders that are appealable as a matter of right — such as the child support orders now before us. See RAP2.4(b) (an appellate court will review a trial court order or ruling not designated in the notice of appeal if the order or ruling prejudicially affects the decision designated in the notice of appeal and the order or ruling is made before the appellate court accepts review). Cf., RAP 2.3(c) (denial of discretionary review of a superior court decision does not affect the right of a party to obtain later review of the trial court decision or the issues pertaining to that decision).
We share Jones' concern that M.L.C. was placed with her mother with no finding by the court that the mother's mental disorder no longer existed or was otherwise not a substantial cause for concern regarding placement of M.L.C. in her home. Insofar as we can ascertain from the record before us, the court lacked credible evidence upon which it could have based such a finding in any event, in that the long-term mental health providers for mother and child were not even consulted in connection with the State's permanency planning. Nevertheless, when we inquired at oral argument for this appeal whether Jones is asking us to reverse the permanency planning order — relief that was not expressly sought in his briefing for this appeal — the answer was no, he is not asking us to do that. His answer made it clear that he was only seeking reversal of the child support orders, based in part on the perceived flaws in the permanency planning order; but he was not asking for reversal of the permanency planning order itself.
We will not provide relief that the father denies he is seeking. We also note that since this appeal was filed in July 2002, at least one six-month review hearing of the permanency planning order ought to have been held, and that another review hearing ought to be coming up in July of this year, so that if the placement with the mother did not in fact serve M.L.C.'s best interests, the juvenile court presumably has or soon will have remedied the situation. See Chubb, 112 Wn.2d at 722 (statute provides a built-in review process every six months, obviating the need for appeal of interlocutory orders as a matter of right). Because we have not been asked to reverse the permanency planning order, we will not vacate the child support orders on the basis of the failure of the court to support the permanency planning order with the required statutory findings in this case. Turning next to Jones' contention that the commissioner abused his discretion by failing to grant Jones' request to offset his current support obligation against the accumulated judgments for back child support owed by the mother, we affirm the ruling, but for different reasons from those relied upon by the commissioner and for different reasons from those now argued by the State. An appellate court may affirm a trial court on any correct ground, even if that ground was not considered by the trial court. Harrell, 105 Wn.2d at 842-43.
The commissioner denied the offset largely because he thought that it would reward Jones for nonpayment of support. That reasoning fails. Denial of the offset rewards Cotton for nonpayment, not Jones, who owed no support until the commissioner entered the support modification orders now on review. The State argues that we should affirm because granting the offset would render RCW 74.20.010 meaningless in that Cotton would be paying a debt "owed to the taxpayers with money she receives from the taxpayers." Respondent's Brief at 16-17. This reasoning also fails. Although it is true that Cotton would be repaying her debt with money she receives from the taxpayers, the debt here at issue is the debt that Cotton owes to Jones, not the debt that Jones owes to the taxpayers for the support of his child. And that is the whole point. By receiving public assistance for the support of M.L.C., Cotton assigned to the State her right to collect child support from Jones while M.L.C. is in her care, by operation of law. See RCW 74.20.330. She did not thereby assign to the State her responsibility to pay the debt she owes to Jones for back child support. Moreover, the public assistance monies Cotton receives while M.L.C. is in her care are for the benefit of M.L.C., not of Cotton. M.L.C. does not owe money to Jones; Cotton does. Neither is Cotton the true support obligee in this case. The State is the true obligee, and the State does not owe back child support to Jones; Cotton does. On these bases, we affirm the trial court's decision that Jones may not offset his obligations to the taxpayers against Cotton's obligations to him. Jones must find another means of enforcing his judgments for back child support against Cotton.
RCW 74.20.010 provides that Ch. 74.20 shall be "liberally construed to the end that persons legally responsible for the care and support of children within the state be required to assume their legal obligations in order to reduce the financial costs to the state of Washington in providing public assistance funds for the care of children."
We also reject Jones' contention that the trial court erred by making the support order retroactive to April 1, 2000, which is the first day of the month following the filing of the State's petition for modification. The taxpayers began supporting M.L.C. when she was declared to be a dependent child and placed into foster care in 1999. The taxpayers continued to support her after she was placed with her mother under the permanency planning order on or about January 31, 2001, by way of public assistance. Jones fended off an earlier attempt by DSHS to collect support administratively, by seeking clarification of his support obligations from Judge Clark in the dependency matter — in that Judge Clark elected to retain jurisdiction over the amount of Jones' potential support obligation, leading to the dismissal of the administrative support action. Under these circumstances, we would have thought it odd if the commissioner had not made the support obligation retroactive to a date shortly after the filing of the State's petition. Moreover, Jones' request for reversal of the retroactivity provision appears to be based on a misunderstanding of the terms of the order of support. In his reply brief, he contends that the court's ruling that the support obligation would become effective April 1, 2000, had the effect of ordering Jones to pay support to Cotton months before M.L.C. actually went to live with Cotton. That is not correct. Although Cotton is improperly named in the support order as the obligee when the State is the true obligee, the order specifically provides: "Support from April 1, 2000 through January, 2001 is owed to the State for reimbursement of foster care costs." Clerk's Papers at 928.
In sum, while we affirm the commissioner's support orders entered on June 4, 2001, we do so only insofar as the orders set Jones' child support obligation while the dependency action continues in force, and we also recognize that the State and not Cotton is the true support obligee while the State continues to provide public assistance or foster care expenses for M.L.C.
We think that much of the parties' confusion regarding the issues in this appeal arises from the fact that (once Judge Clark decided to retain jurisdiction over the father's support obligation) the State chose to file its petition in the family court action rather than in the dependency action as contemplated by RCW 13.34.160. If that had been done, it would have been clearer from the start that the order for current support was to remain in effect during the life of the dependency action, and that Judge Sellers' orders would be reinstated at the termination of the dependency action, subject of course to modification in superior court if M.L.C. were not to return to her father's home at the termination of the dependency action. Indeed, we think it likely that this appeal, or at least some of the issues on appeal, never would have arisen if the support action had been brought in juvenile court rather than in family court. Jones does not and cannot seriously contend that the taxpayers, rather than he, bear the primary responsibility for the support of his child. Instead, he bases this appeal on technicalities arising largely from the forum in which the State's petition was filed, the fact that Cotton, rather than the State, was designated as the support obligee, and the fact that the family law support order rather than the dependency disposition order was expressly modified by the court — albeit in a consolidated proceeding.
The State having chosen to pursue support through the family court action rather than the dependency action, we place the onus upon the State to assure that the support orders contained in the family court file are kept current with the dependency court's rulings from time to time regarding placement of M.L.C., until such time as the dependency may be terminated. That we have rejected some of Jones' arguments on appeal as "form over substance" does not alter the fact that M.L.C. was removed from Jones' home under the dependency action and that Jones' support obligations arose because M.L.C. was placed first in foster care and then with her mother under the auspices of the dependency action, not the family court action.
In conclusion, we affirm the support orders here at issue only insofar as they are construed to set Jones' obligations for current support during the life of the dependency action, and we reverse the portion of the orders that purport to set Jones' support obligations after the termination of the dependency action — a matter that is reserved for the superior court in the parentage action upon termination of the dependency action. We direct that following our remand, the support orders be brought current and kept current with any changes in the dependency court's orders regarding placement of the child, and that it is the obligation of the State to see that this is done.
Affirmed in part, reversed in part, and remanded for such action in the juvenile and family court cases as shall be consistent with this opinion.
APPELWICK and BECKER, JJ., concur.