Department of Social & Health Services v. Ferguson ( 1982 )

Munson, J.

Mr. Frank Ferguson appeals the termination of his parental rights to his son, Dennis Ferguson, arguing the trial court's findings are without substantial evidence. We find clear, cogent and convincing evidence to support a finding that Dennis was dependent. There is an insufficient quantum of evidence, however, that the Department of Social and Health Services has provided reasonable services to help Mr. Ferguson become a better parent or that Mr. Ferguson is unlikely to become a better parent in the future.

DSHS initiated termination of Mr. and Mrs. Ferguson's parental rights to Dawn, approximately 12 years of age, and Dennis, approximately 9 years of age.¹ The record indicates the following: Mr. Williams of DSHS first contacted the Ferguson family on November 6, 1979, because of Dennis' behavior in school. Mr. Williams' second contact with the family occurred on December 6, 1979, when Dawn's schoolteacher called DSHS concerning alleged abuse of Dawn. DSHS placed the children in shelter care because of the abuse complaint and because the Ferguson home was unclean. The Fergusons cleaned their home and the children were returned after 5 days.

DSHS provided counseling and homemaker services to help the Fergusons become a stable family unit. Mr. Williams testified Mr. Ferguson was uncooperative with the homemaker; Mr. Ferguson testified he used the homemaker services as much as possible, but believed it interfered with his school schedule. Mr. Williams testified the Fergusons attended counseling from mid-December until mid-February 1980.

On February 8, 1980, both children were removed from the home because of allegations Dawn had been sexually abused by Mr. Ferguson. There was no allegation of abuse toward Dennis. Mr. Ferguson fled the state on February 12, 1980.

Dennis was placed in shelter care and, on March 17, 1980, found dependent based on allegations of abuse and neglect. Mrs. Ferguson was ordered to obtain counseling, change her circle of friends and clean up the family home. Because Mr. Ferguson was absent, he was not mentioned. He returned to the state May 5, 1980, was found guilty of taking indecent liberties with Dawn and incarcerated until early January 1981.

Mrs. Ferguson failed to comply with the court's orders. Finally, after she left the state in late November, DSHS filed petitions to terminate the parental rights of both Mr. and Mrs. Ferguson. The permanent deprivation hearing was held February 17, 1981, approximately 1 month after Mr. Ferguson's release from jail.

At the deprivation hearing, Mr. Williams testified concerning emotional abuse and neglect in the Ferguson home, but he did not personally know of any incidents where Mr. Ferguson had physically abused Dennis. Dennis testified, in chambers, to one incident of excessive discipline, but also stated he thought his father was "A-okay" and said he loved him. Mrs. Ferguson also related one incident which she witnessed in Illinois where Mr. Ferguson raised a welt on Dennis' stomach with a belt; she testified Mr. Ferguson was spanking Dennis on the buttocks and Dennis turned over quickly. Mr. Ferguson denied both incidents, but admitted he sometimes lost his temper and struck too hard. These two incidents, combined with the condition of the house, provided sufficient evidence to conclude Dennis and Dawn were abused, neglected and therefore dependent.

The difficult question is whether clear, cogent and convincing evidence was extant concerning the likelihood Mr. Ferguson's parental skills would not improve if provided with "necessary services, reasonably available, capable of correcting the parental deficiencies ..." See RCW 13.34-.180(4) and (5)² and RCW 13.34.190.³

The United States Supreme Court recently stated:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

(Footnote omitted.) Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Noting how final and irrevocable a termination of parental rights is, the Court held that parental rights may not be terminated absent clear, cogent and convincing evidence showing "permanent neglect", i.e., "a judicial determination that the parents are unfit to raise their own children." Santosky v. Kramer, at 760.

Our statutory scheme and case authority parallel the United States Supreme Court's position; we have, since In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973), required clear, cogent and convincing evidence of past abuse and future unfitness prior to termination of parental rights. In re Aschauer, 93 Wn.2d 689, 611 P.2d 1245 (1980); In re Becker, 87 Wn.2d 470, 553 P.2d 1339 (1976); In re Day, 189 Wash. 368, 65 P.2d 1049 (1937); In re Tarango, 23 Wn. App. 126, 129-30, 595 P.2d 552 (1979).⁴

At the close of all testimony, the court terminated the parental rights of both parents to both children. Noting the services that had been provided were limited because of Mr. Ferguson's incarceration, the court believed they were all that could reasonably be offered. The court also found "there's little likelihood that the conditions will be remedied so the children can be returned to the parents in the near future. Insofar as Mr. Ferguson is concerned, I am really speaking of physical abuse of the child Dennis." Based on both statutory analysis and applicable case law, we believe the trial court was too hasty.

The language of RCW 13.34.130(3)(b)(iv) and RCW 13.34.180(4) indicate the purpose for the services is to facilitate the return of the child to his parents. Where the record indicates the offer of services would be futile, see In re Aschauer, supra at 699 n.6, or the prison term is so long the parent has little hope, even with counseling, of establishing a relationship with the child, see In re Clark, 26 Wn. App. 832, 611 P.2d 1343 (1980), clear, cogent and convincing evidence would support a finding that reasonable services had been offered. Here, however, Mr. Ferguson received little counseling even though he was out of contact for only 11 months.

Moreover, Mr. Williams testified that Mr. Ferguson, while incarcerated, asked to meet with him on four or five occasions to discuss his future relationship with Dennis. Mr. Ferguson was allowed to see his son once and sent a birthday and Christmas present to him. Finally, Mr. Ferguson testified he wanted to learn new discipline methods, was willing to attend a mental health program, had completed a job training program, and wished for Dennis to remain a dependent for a reasonable time until he could "partake of the services that are offered that would make me a good parent."

Without a showing that Mr. Ferguson is incapable of changing after receiving adequate help from the State, we cannot find it "highly probable" he will not learn to be a parent to Dennis. In re Sego, supra. Here, there is no evidence the offer would be futile and we are loath to affirm the termination of Mr. Ferguson's parental rights without such evidence. We hold that neither RCW 13.34.180(4) nor (5) has been proved by clear, cogent and convincing evidence.

We reverse with orders that Dennis be maintained in foster care while DSHS provides "reasonably available" services to help Mr. Ferguson correct "his parental deficiencies". RCW 13.34.180(4). If after a hearing in 6 months, the trial court finds all elements of RCW 13.34.180 have been established as required by RCW 13.34.190, the tried court may terminate the parent-child relationship.

Roe, A.C.J., concurs.

1 Mr. Ferguson is not Dawn's natural father nor legal guardian; no issue at the termination hearing or upon appeal relates to a claim of his parental rights to Dawn. Mrs. Ferguson also appealed the termination of her parental rights to both children. She has since explicitly abandoned the appeal. We express no opinion concerning the merit of any issue which she may have raised.

2 RCW 13.34.180(4) and (5) state:

"A petition seeking termination of a parent and child relationship may be filed in juvenile court. Such petition shall conform to the requirements of RCW 13.34-.040 as now or hereafter amended and shall allege:

" (4) That the services ordered under RCW 13.34.130 have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided; and

"(5) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future;..."

3 RCW 13.34.190 states:

"After hearings pursuant to RCW 13.34.110, the court may enter an order terminating all parental rights to a child if the court finds that:

"(l)(a) The allegations contained in the petition as provided in RCW 13.34-.180(1) through (6) are established by clear, cogent, and convincing evidence; or (b) RCW 13.34.180(3) may be waived because the allegations under RCW 13.34-.180(1), (2), (4), (5), and (6) are established beyond a reasonable doubt; or (c) the allegation under RCW 13.34.180(7) is established beyond a reasonable doubt; and

"(2) Such an order is in the best interests of the child.”

4 In Santosky v. Kramer, at 756, the Court stated:

"This Court has mandated an intermediate standard of proof — 'clear and convincing evidence' — when the individual interests at stake in a state proceeding are both 'particularly important' and 'more substantial than mere loss of money.' Addington v. Texas, [441 U.S. 418, 424, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979)]. Notwithstanding 'the state's "civil labels and good intentions,"' id., at 427, quoting In re Winship, [397 U.S. 358, 365-66, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970)], the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with 'a significant deprivation of liberty' or 'stigma.' 441 U. S., at 425. 426."