In re the Termination of: L.R.C. ( 2015 )

FILED
NOV 19,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of: )
) No. 32638-1-111
L.R.C., )
)
)
) UNPUBLISHED OPINION
)
KORSMO, J. ­ RC, mother ofLRC, challenges the default termination of her
parental rights. We conclude that she had notice of the hearing and lacked a good excuse
for vacating the subsequent default judgment against her. Accordingly, we affirm.
FACTS
In late 2012, RC gave birth to a daughter, LRC. At the time, RC tested positive
for methamphetamine, but voluntarily agreed to services and retained custody ofLRC.
Over the next several months, medical staff became concerned by RC's interactions with
her daughter and her failure to bring the child to a number of medical examinations.
When the two were located, LRC had developed an infection and was placed in
protective custody. The Department of Social and Health Services (DSHS) then brought
a dependency petition. The court entered a dependency order on April 19, 2013.
No. 32638-I-II1
In re L.R.C.
At the start of dependency, a psychologist evaluated R.C. and determined that it
would be unlikely that she could adequately protect and nurture a child without two years
of therapy. She was also offered a parenting assessment and, following additional
positive tests for controlled substances, referred for a chemical dependency assessment.
While R.C. consistently visited her daughter throughout the dependency, she refused to
participate in any of the offered services. DSHS subsequently petitioned for termination
on September 4,2013.
On October 7, the social worker assigned to the case, Dolores Cantu, met with
R.C. and gave her the termination petition and summons. Ms. Cantu explained to R.C.
that her parental rights would be terminated if she failed to appear at the termination
hearing on October 28. Ms. Cantu also offered to give R.C. a ride to the hearing. On the
28th, R.C. failed to attend. The court held an evidentiary hearing on November 20 and
entered a termination order two days later.
Five months later R.C. set about bringing a motion to vacate the default
judgment. I Along with the motion, she submitted a declaration claiming to have
continued participating in parenting services, to have completed some parenting
education, and to have provided clean drug tests for those five months. She also asserted
I She met with her attorney on April 28, 2014. All the necessary papers were
prepared at that time. However, the motion was not actually filed until June.
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In re L.R.C
that she was unable to prepare the motion any sooner because she lives in Wapato and
April was the first opportunity for her to get in to Yakima in order to sign a declaration.
The trial court denied the motion. She then appealed to this court.
ANALYSIS
R.C. challenges the trial court's denial of the motion to vacate the default
judgment. Additionally, she argues for the first time on appeal that the termination order
was entered in violation of her due process rights and is void for defective service and for
lack of notice under CR 55. We conclude that these contentions are without merit and
will first treat the motion to vacate before turning to her additional arguments.
Motion to Vacate
Well settled standards govern the resolution of this appeal. A denial of a motion
to vacate a default judgment will be affirmed absent an abuse of discretion. Pedersen v.
Klinkert, 56 Wn.2d 313,314,352 P.2d 1025 (1960), Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v. Junker,
79 Wn.2d 12,26,482 P.2d 775 (1971). A trial court will grant a motion to vacate a
default judgment where the moving party has shown that (1) there is substantial evidence
to support a prima facie defense to the claims asserted by the opposing party, (2) the
moving party's failure to appear in the action was occasioned by mistake, inadvertence,
surprise, or excusable neglect, (3) the moving party acted with due diligence after notice
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In re L.R.C.
of the entry of default, and (4) no substantial hardship will result to the opposing party.
White v. Holm, 73 Wash. 2d 348, 352,438 P.2d 581 (1968).
While R.C. presented some limited evidence that she had engaged in services and
was working to correct her parental deficiencies, she failed to make any showing under
the remaining factors. Her only excuse for not appearing at the termination hearing was
that she did not understand its import, despite mUltiple written warnings and a direct
verbal warning by Ms. Cantu, informing her of the consequences of failing to attend.
She learned of the termination within the week and contacted her attorney to find
out how to go about vacating the judgment. She then waited five months before acting,
ostensibly because it took that long before she was able to travel the 14 miles to her
attorney's office in order to sign the necessary paperwork. This does not evince due
diligence. See, e.g., In re Welfare o/S.1., 184 Wn. App. 531,544-545,337 P.3d 1114
(2014), review denied, 183 Wash. 2d 1002 (2015); In re Estate a/Stevens, 94 Wash. App. 20,
35,971 P.2d 58 (1999).
Furthermore, in the intervening time L.R.C. has continued to age and was placed
in a permanent home with a family that is near to finalizing an adoption. 2 Given all of
2 Although L.R.C. is not an opposing party, she is a party to the action. Because
of the nature of a termination, it is appropriate to consider the potential hardship to the
child in addressing a motion to vacate a default judgment.
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this, the trial court's denial of the motion comports with the law and was not an abuse of
discretion.
Due Process
R.C. raises a due process argument for the first time on appeal. Thus, in order for
us to address the issue, it must be a manifest constitutional error. RAP 2.5(a). Because
of the substantial rights at issue in a termination proceeding, due process requires an
evidentiary hearing on the merits of the case to establish the statutory requirements for
termination prior to any default judgment. s.J., 184 Wash. App. at 542; In re Dependency
o/CR.B., 62 Wash. App. 608, 616,814 P.2d 1197 (1991). In order to terminate parental
rights, the state must present evidence establishing that (1) the child has been found to be
dependent, (2) the court has entered a dispositional order, (3) the child has been removed
from the custody of the parent for at least six months, (4) all the necessary services have
been afforded to the parent to correct the parental deficiencies, (5) there is little
likelihood of remedying the parental deficiencies, and (6) continuation of the parent child
relationship clearly diminishes the child's prospects of permanent placement. RCW
13.34.180(1).
Relying on CR.B., R.C. asserts that the termination hearing was deficient because
the testimony merely "parroted" the statutory language. In CR.B., the hearing consisted
essentially of the caseworker giving legal conclusions as to whether each statutory factor
was satisfied. CR.B., 62 Wash. App. at 618-619. That approach failed because the court
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must be presented with factual evidence to support its conclusions. Id. Unlike C.R.B.,
here the evidence meets the statutory requirements.
The social worker, Ms. Cantu, testified that the dependency orders were entered
on April 19, 2013 and that L.R.C. had been outside her mother's custody since that date.
She testified that R.C. suffered from a chemical dependency and mental health issues,
and that remedial services had been provided in the form of a psychological examination,
psychological treatment, parenting and anger management classes, chemical dependency
treatment, and random urinalysis. Ms. Cantu then testified that R.C. completed her first
chemical dependency assessment, but following positive tests for methamphetamine,
failed to participate in any additional assessments or treatment. Ms. Cantu then testified
to her opinion concerning whether R.C. would further participate in services and whether
those parental deficiencies could be rectified. Finally, the guardian ad litem testified to
the present situation and best interests ofL.R.C. This testimony did not merely parrot the
statutory factors, but simply detailed the underlying facts necessary to support
termination. Consequently, the evidence presented was sufficient to support the court's
findings.
As a secondary assertion, R.C. claims that her due process rights were violated by
the court's reliance on hearsay evidence. However, she has failed to show that either of
these asserted errors prejudiced the proceeding in any way. In order for an asserted
constitutional error to be manifest, it must cause actual prejudice, which entails having a
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practical effect on the trial of the case. State v. O'Hara, 167 Wn.2d 91,99,217 P.3d 756
(2009).
Pertinently, the examining psychiatrist who made the treatment recommendation
did not testifY at the hearing. Rather, the social worker testified based on the
psychiatrist's written recommendations in the dependency file. R.C. challenges this as
inappropriate hearsay evidence. However, hearsay is ordinarily objectionable because
the opposing party does not have the opportunity to confront the witness. Since R.C.
absented herself from the hearing, there is no identifiable consequence to admitting
hearsay rather than requiring testimony from the psychiatrist.
Service and Notice
R.C. contends that the judgment was void for defective service because the
termination petition and summons was not handed directly to her, but was instead given
to the man with her at the meeting. This contention hinges entirely upon reading a
handwritten word as "man," where the State argues that the word reads as "mom."
However, given the surrounding context the meaning of the word is clear. Ms. Cantu
stated in a declaration:
I met and served [R.C.] that evening. She was present with a gentleman
friend. I served [man/mom] the paperwork and explained to her again the
purpose of the hearing. I informed her that if she did not appear her rights
would be terminated and she indicated she would be present.
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In re L.R.C
Clerk's Papers at 22 (emphasis added). Taken as a whole, this statement indicates that
the papers were served directly on R.C. Furthermore, she states in her own affidavit that
the papers were "handed to me." Consequently, she has failed to meet her burden of
establishing by clear and convincing evidence that service was improper. In re
Dependency ofA.G.,93 Wn. App. 268, 276-277, 968 P.3d 424 (1998).
R. C. also contends that the judgment is void because an appearance in the
predicate dependency proceeding should constitute a prior appearance in the subsequent
termination, so that a party is entitled to notice prior to any hearing on a motion for a
default judgment per CR 55(a)(3). This court recently rejected that argument. In re s.l.,
184 Wash. App. at 540-542. This case also is distinguishable from s.l. in that R.C. did not
raise the issue to the trial court in her motion to vacate.
The record here establishes that notice was sufficient under CR 55. The findings
of fact on the order for termination state that R.C. was given notice of the hearing but
failed to appear, and she confirms that fact in her motion to vacate and in her affidavit in
support of that motion. Consequently, the judgment is not void.
Affirmed.
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No. 32638-1-111
In re LRe
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
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