KAREN M. DINAN, SENIOR COUNSEL, AGO
2015 CASA CONFERENCE - WENATCHEE
Key Appellate Cases
In Re Welfare of A.W. and M.W.
, 182 Wn.2d 689, 344 P.3d 1186 (2015).
The mother appealed the order establishing a Title 13.36 Guardianship of her two children. The issue was whether a guardianship established under the new statute requires a heightened standard of proof because its effect is similar to the termination of parental rights or whether the preponderance of the evidence standard is sufficient because the effect of a guardianship under the new statute is the same or similar to guardianships established under the old statute. The
Supreme Court held that the preponderance of the evidence standard for establishment of a guardianship meets due process requirements.
In Re Dependency of A.M.M.
, 182 Wn. App 776 (2014).
Both parents appealed the termination of parental rights orders. The court must consider the incarcerated parent considerations in RCW 13.34.180(1)(f) – which references six factors in
RCW 13.34.145(5)(b) - if the parent is incarcerated. Also, parents are entitled to notice of their parental deficiencies before rights can be terminated.
In Re Termination of M.J. and M.J.
, 187 Wn. App. 399 (2015).
The mother appealed the termination of her parental rights. The mother was incarcerated for murder during the dependency. The issue was whether the trial court failed to properly apply the
2013 amendments to RCW 13.34.145 and RCW 13.34.180(1)(f) concerning incarcerated parents.
The court held that the effect of these two amendments was to require trial courts to consider whether an incarcerated parent could maintain a meaningful role in the child’s life and to require
DSHS to make reasonable efforts to help the incarcerated parent remedy parental deficiencies.
The court reversed and remanded for consideration of the factors. The court held that the legislature did not require findings. The trial court was required to consider whether the mother maintained a meaningful relationship with her children despite being incarcerated. The trial judges should opine on the record their consideration of the .180(1) factors. A “consideration” of evidence ultimately means a weighing or balancing of facts, along with a resolution of that weighing. In many instances, particularly where the evidence is uncontested or the State’s case is very strong, the court’s conclusion will need no further explication. In addition, following on
A.M.M.
, the court held that parent-child visitation is not required for an incarcerated parent and the trial court must only consider whether visitation is in the child’s best interest.
In Re Welfare of H.Q.
, 182 Wn. App 541 (2014).
The father had a legal guardian who sought to enter a relinquishment on the father’s behalf. The
Department and the trial court did not accept the relinquishment. The matter went to trial and the father’s parental rights were terminated. The father appealed claiming that he had a fundamental right to voluntarily relinquish his parental rights and that the trial court violated due process by failing to determine whether he was capable of voluntarily relinquishing his parental rights before proceeding with an involuntary termination hearing. The court held that a parent does
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have a substantive due process right to pursue options other than termination of parental rights.
The court vacated the termination order and remanded for a hearing on the father’s competence to voluntarily relinquish his parental rights.
In Re Termination of A.D.R. and A.K.D.R
, 185 Wn. App. 76 (2014).
The father appealed the termination order claiming that the trial court abused its discretion when it denied the father’s oral motion to continue the trial made the day of trial. Father claimed that he wanted time to consider an open adoption agreement. The court held that a parent does not have a right to a continuance to consider an open adoption agreement.
In Re Dependency of P.H.V.S.
, 339 P.3d 225 (2014).
Appeal of a dependency and dispositional order by both parents. Parents were found to be incompetent after separate competency hearings and guardians ad litem (GALs) were appointed.
Before the beginning of the 3 rd
day of the dependency fact-finding hearing, the father’s GAL sent an email stating that he would not be present for the morning session of court but that the hearing could proceed without him. Neither parents’ attorneys objected. The court found that the GAL has a mandatory obligation under RCW 4.08.060 and the GALR to attend and participate in the entire dependency fact-finding hearing, that the court erred in proceeding in the absence of the father’s GAL. However, because the absence of the GAL during the morning of the 3 rd
day created little or no risk of error, the court concluded that there was no due process violation.
In Re Adoption of M.S.M.-P.
, En Banc decision issued October 8, 2015
Appeal of a closed hearing to termination a parent’s rights under ch. 26.33 RCW, in which the parent is arguing that the termination order should be reversed due to the closure of the courtroom. The Supreme Court held that in a parental termination proceeding, a statement from a litigant’s attorney that there is no objection to a closure is a sufficient waiver of the litigant’s rights under the state constitution.
In Re Welfare of S.I.
, 184 Wn. App. 531 (2014).
The mother’s parental rights were terminated by default. The court held that a parent’s appearance in a dependency proceeding is not appearance in a termination proceeding; thus, a parent who does not also appear in the termination proceeding may be defaulted in that proceeding without five days’ notice of the motions.
In Re Dependency of O.R.L.
, 186 Wn. App. 682 (2015).
The mother appealed the order terminating her parental rights. The mother argued that DSHS failed to offer or provide all reasonably available services capable of correcting her parental deficiencies. Specifically, the mother argued that visitation is a remedial service that DSHS failed to provide. The court held, consistent with In Re the Dependency of T.H.
, 139 Wn.App.
784 (2007), that visitation is not a required service. The Supreme Court just denied a motion for discretionary review.
In Re Welfare of N.M.
, 184 Wash.App. 665 (2014).
The mother appealed the order terminating her parental rights. The mother argued that the trial abused its discretion by denying her motion to continue the termination trial in order to attempt to establish a guardianship. The Department opposed the continuance because guardianship was
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not an identified permanent plan and that it would be in the child’s best interest to move forward with termination. Following on its decision in In Re the Welfare of R.H.
, the court held denying a continuance for the purpose of exploring a guardianship is not a per se reversible error. The court held that since there was no identified guardian, there was no identified guardianship and the trial court did not abuse its discretion when it denied the motion to continue the termination trial.
In re Welfare of K.M.M.
, 187 Wn. App. 545 (2015).
The father appealed the order terminating his parental rights. The father argued that DSHS failed to offer or provide all reasonably available services capable of correcting his parental deficiencies by failing to provide (1) reunification services, (2) the same services that were offered to the foster parents, and (3) regular visitation with the child. The court rejected the father’s arguments. In regard to the claim that DSHS failed to provide visitation, the court rejected the argument because (1) visitation is not a service that DSHS is required to provide, (2) the dependency court suspended visits because of the harm to the child, and (3) ordering continued visitation would have been futile and harmful to the child.
In Re the Dependency of G.G.
, 185 Wn. App. 813 (2015).
The mother appealed the order terminating his parental rights. On appeal, the mother argued that she was deprived of her right to counsel of choice when the trial court denied her motion for a continuance to hire private counsel. The court held that because the mother had not selected substitute counsel and failed to show that she had the ability to obtain substitute counsel, the trial court did not violate her right to counsel of choice or abuse its discretion. In its ruling, the court held that the parent’s right to hire the attorney of their choice is inherent in the parent’s right to counsel in termination proceedings. However, a court retains the right to control its calendar, and the ability of the parent to secure substitute counsel is critical to the exercise of the right to choose retained or volunteer counsel.
In Re the Dependency of D.L.B.
, 355 P.3d 345 (2015)
The mother appealed the order terminating his parental rights. Although the mother had been incarcerated during the dependency, she was not incarcerated at the time of the termination trial.
The court held that the plain meaning of RCW 13.34.180(1)(f) supported the conclusion that the amended factors apply only when a parent is incarcerated at the time of the termination trial.
In Re the Welfare of K.J.B.
, 188 Wn. App. 263 (2015)
The father appealed the termination order. On appeal, he claimed that (1) DSHS did not satisfy the notice requirements of the ICWA, (2) DSHS did not offer or provide all necessary; (3) the trial court failed consider the amended language of RCW 13.34.180(1)(f) applicable to an incarcerated parent, and (4) the trial court erred when it found that termination was in the child’s best interest. The court agreed with the father’s third claim, but determined that the error was harmless. The father was incarcerated for 51 days leading up to the termination trial. The court held that since the father was incarcerated at the time of trial, the amended RCW 13.34.180(1)(f) applied and the trial court was required to consider the factors found in RCW 13.34.145.
Relying on the decision in In Re M.J. and M.J.
, the court held that a failure to weigh the required considerations will not require reversal if the state’s case is strong or the factors are not contested. The court concluded that the trial court’s failure to weigh the required considerations
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was harmless error, which did not require reversal. There is a motion for discretionary review pending before the Supreme Court challenging the court harmless error holding.
Key Legislation in 2015 Legislative Session
2SSB 5404 – Homeless Youth Prevention and Protection Act – Creates the Office of Homeless
Youth Prevention and Protection Programs within the Department of Commerce, which will provide management and oversight of HOPE Centers, crisis residential centers, and street youth services. The Office will gather data and outcome measures and develop recommendations to address funding, policy, and practice gaps. The Office must be operational by January 1, 2016.
2SSB 5486 – Codifies the Parents for Parents Program in the Office of Public Defense is under
RCW 2.70. Instead of the term “veteran parent”, the term used now is “child welfare parent mentor” which means a parent who has successfully resolved the issues that led to the parent’s child being in the dependency system, resulting in family reunification or another permanency outcome. A “child welfare parent mentor” would provide structured peer mentoring for families entering the dependency court system which may include if specific funds are appropriated, outreach and support to dependent parents, a “dependency 101” class, ongoing individual peer support, and structured, curriculum-based peer support groups..
HB 2140 – Roger Freeman Act – In regard to RCW 13.34.145(5) and the requirement for the court to order the Department to file a petition for termination of parental rights unless the court makes a good cause exception, two of the good cause exceptions had sunset clauses of June 30,
2015. Those two good cause exceptions (if the parent is participating in and showing good progress in long-term chemical dependency treatment, dual-diagnosis treatment, or family treatment court and when a parent files a declaration stating a financial inability to obtain a necessary service) have no sunset provisions.
SSB 5740 – Extended Foster Care - added the fifth eligibility category to the extended foster care program for children who are not able to participate in the other eligibility category activities due to a documented medical condition. Medical condition for the purposes of qualifying for extended foster care services means a physical or mental health condition as documented by any licensed health care provider… In addition, it took away the predicate language of “within amounts appropriate specifically for this purpose” for the fourth category of eligibility. Finally, a new section was added to RCW 74.13 to require representatives from specific agencies
(DBHR, DSA, ESA & JJRA) to the shared planning meeting which is to occur between age 17 and 17 ½. Effective date: July 1, 2016.
SB 5692 – Permanency Plans – Amendment of RCW 13.34.136(2)(a) as a result of federal bill,
H.R. 4980. The law requires judicial determination at permanency hearings, based on compelling reasons, explaining why it is not in the best interest of the child to: return home; be placed for adoption; be placed with a legal guardian; or be placed with a fit and willing relative.
The law limits the permanency plan options of long-term foster and relative care for youths 16 and older. Although a permanency plan of care may only identify long-term FC & relative care for youth 16-18, children under age 16 may remain placed with relatives or in foster care. The bill also amended RCW 13.34.145(4)(a) to specify that the court must find at the permanency
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planning hearing that the child's placement and plan of care is the best permanency plan for the child and provide compelling reasons why it continues to not be in the child's best interest to (i) return home; (ii) be placed for adoption; (iii) be placed with a legal guardian; or (iv) be placed with a fit and willing relative. If the child is present at the hearing, the court should ask the child about his or her desired permanency outcome.
SHB 1879 - Health Care (and Mental Health) for Children in Foster Care - This bill requires
HCA to issue an RFP for integrated managed health and behavioral health care for foster children receiving care through the medical assistance program. The RFP must be issued and completed to begin in time for health care services on October 1, 2016. Behavioral health services must be integrated into the managed health care plan beginning October 1, 2018. The
HCA, within existing funds, must require a second opinion for all prescriptions of one or more antipsychotic medications of all children under 18 years of age in the foster care system. 2nd opinion feedback must include a discussion of psychosocial interventions (and if appropriate) in order to address identified behavioral issues.
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