In Re The Dependency Of: M.h. Dmitriy Timpanidi, App. v. State Of Wa., Dcyf, Res. ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Dependency of )
) No. 78916-3-1
M.H., )
DOB: 11/4/16, ) DIVISION ONE
)
Minor Child. )
) UNPUBLISHED OPINION
STATE OF WASHINGTON, )
DEPARTMENT OF CHILDREN, )
YOUTH AND FAMILIES, )
)
Respondent, )
)
v. )
)
DMITRIY TIMPANIDI, )
) FILED: June 17, 2019
Appellant. )
)
LEACH, J. — Dmitriy Timpanidi appeals the termination of his parental rights to his
daughter M.H. Timpanidi challenges the validity of the underlying default dependency
order and also contends that the State did not prove continuation of the parent-child
relationship was a barrier to permanency for M.H. We disagree and affirm.
FACTS
At birth on November 4, 2016, M.H. tested positive for methamphetamine and
morphine. M.H.'s biological mother left the hospital shortly after the birth and did not
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return.1 She identified Jimmy Pinedi as M.H.'s father. In November 2016, the
Department of Social and Health Services, now known as the Department of Children,
Youth and Families (Department), filed a dependency petition as to M.H. The
Department placed M.H. with her maternal second cousin and his spouse the following
day, where M.H. has remained.
The Department had no contact information for Pinedi. So social worker Dan
Althoff initiated a "diligence search." During this process, Althoff discovered that the
Division of Child Support had identified Timpanidi as an alleged father of M.H. In March
2017, Althoff filed a first amended dependency petition naming Timpanidi as an alleged
father of M.H. Althoff found a last known address for Timpanidi and left his card at the
door. Althoff later received a call from Timpanidi's mother. After she informed Althoff
that she did not know where her son was, Althoff asked the court to allow service by
publication.
In June 2017, Althoff discovered that Timpanidi was being held in Snohomish
County Jail on theft and drug possession charges. Althoff contacted the Snohomish
County Prosecutor's Office to arrange for paternity testing and to serve Timpanidi with a
"service packet" that included the notice and summons, the initial dependency petition,
and the amended dependency petition. The notice and summons stated an initial court
date of July 11, 2017. It also advised Timpanidi to contact the Snohomish County
Office of Public Defense to request an attorney. In the return of service, the process
1 Her parental rights were terminated by default in May 2018, and she is not a
party to this appeal.
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server stated that Timpanidi was personally served with the dependency petition and
notice and summons on June 13, 2017.
Timpanidi did not obtain an attorney or appear at the July 11, 2017, hearing. The
court entered a default order of dependency that same day.2 The order required
Timpanidi to establish paternity and participate in services, including drug and alcohol
evaluation, urinalysis testing, mental health assessment, and parenting instruction.
Throughout the dependency, Althoff contacted the correctional facilities where
Timpanidi was being held to determine whether services were available, but none had
programs to assist incarcerated parents.
Timpanidi submitted to paternity testing. In September 2017, the test results
proved Timpanidi was M.H.'s father
On December 19, 2017, the Department filed a petition to terminate Timpanidi's
parental rights to M.H. The State had Timpanidi personally served at the Coyote Ridge
Correctional Facility on January 3, 2018. He later obtained counsel through the Office
of Public Defense. Timpanidi appeared through counsel in the termination proceeding
in late January 2018 and filed an answer to the termination petition in March 2018.
The termination trial took place in June 2018. After the Department rested its
case, Timpanidi's counsel asked the court to dismiss the case because the Department
had failed to establish the first three elements of the termination statute as a matter of
law because the default dependency petition was void. The trial court denied
2 There is no evidence in the record that Timpanidi appealed or moved to vacate
the default dependency order.
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Timpanidi's request and terminated his parental rights to M.H. The court's termination
order includes the following contested findings:
2.1 The [father] received adequate service.
2.9 Mr. Timpanidi was properly personally served with the amended
dependency petition on June 13, 2017.
2.10 The social worker testified that the prosecutor's office served Mr.
Timpanidi the original petition, the amended petition, and the
paperwork with the preliminary hearing date and contact
information for the Office of Public Defense.
2.11 The child was found to be dependent pursuant to RCW
13.34.030(6)(a) and (c) by Order filed on June 6, 2017 as to the
mother, August 29, 2017 as to the unknown and alleged father, and
July 11, 2017 as to alleged father, Dmitriy Timpanidi.
2.23 It is obvious that Mr. Timpanidi did know how to access counsel
through the Office of Public Defense because, in fact, he did it in
January of 2018 when Mr. Stebbins ended up being his attorney,
while being held at the Northwest Detention Center.
2.24 The fact that Mr. Timpanidi eventually requested an attorney seven
months after he was served with the paperwork shows that he
knew how to get a lawyer. In fact, he eventually did.
2.25 The father's cooperation with the paternity testing with the
prosecutor's office did not constitute appearance in the dependency
case.
2.26 Mr. Timpanidi was required to request an attorney if he wished to
have an attorney.
2.27 At the time he was served, Mr. Timpanidi was merely an alleged
father. DNA testing did not come back until September of 2017,
after the July default. There was a delay in establishing paternity
due to the mother's whereabouts being unknown.
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2.28 Mr. Timpanidi was not a parent under the dependency statute until
after the paternity testing revealed he was the father.
2.29 Coughlin v. Jenkins [State ex rel. Coughlin v. Jenkins, 102 Wn.
App. 60, 7 P.3d 818 (2000)] is not applicable to this case for the
purpose of establishing the father appeared via paternity testing.
Furthermore, according to the case of Morin v. Burris, 160
Washington 2nd 749, a 2007 case,"The defendant must go beyond
merely acknowledging that a dispute exists and instead
acknowledge that a dispute exists in court." That did not happen
here.
2.30 Mr. Timpanidi never appealed the order of dependency. He never
filed a CR 60 motion. The argument that Mr. Timpanidi appeared
when the underlying dependency order was entered is nothing
more than a collateral attack upon the July 11, 2017 dependency
finding, which was final and appealable.
2.31 Under RAP 2.2(a)(5), "a party may appeal as a matter of right from
the disposition decision following a finding of dependency by a
juvenile court." A final judgment includes any order, such as this
one, "from which an appeal lies." Under the Rules of Appellate
Procedure 5.2, that needed to be done within 30 days after the
judgment was entered. Mr. Timpanidi did not appeal that order.
2.32 The underlying dependency order entered on July 11, 2017 was
valid.
2.33 Dispositional orders pursuant to RCW 13.34.130 were entered on
June 6, 2017 as to the mother and July 11, 2017 as to the father.
Mr. Timpanidi was ordered to complete a drug and alcohol
evaluation, mental health assessment, urine analysis testing and
parenting classes. He was also ordered to establish paternity.
2.54 Mr. Timpanidi is currently unfit to parent.
2.67 Mr. Timpanidi does not understand and is incapable of providing for
the child's emotional, physical, mental, and developmental needs.
The father is incapable of safely parenting the child.
2.68 Mr. Timpanidi has not demonstrated the ability to care for his child.
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2.73 Mr. Timpanidi has no demonstrated parenting skills.
2.75 Mr. Timpanidi has no work history.
2.77 Mr. Timpanidi has a very lengthy criminal history and obvious drug
problems.
2.80 Continuation of the parent-child relationship clearly diminishes the
child's prospect for early integration into a stable and permanent
home.
Timpanidi appeals.
STANDARD OF REVIEW
The United States Constitution protects parental rights as a fundamental liberty
interest.3 To terminate parental rights, the State must first prove the following statutory
elements by clear, cogent, and convincing evidence:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
(c) That the child has been removed or will, at the time of the
hearing, have been removed from the custody of the parent for a period of
at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
3 Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982).
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(e) That there is little likelihood that conditions will be remedied
so that the child can be returned to the parent in the near future. . . and
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.[41
If the trial court finds that the Department has met its burden under RCW 13.34.180, it
may terminate parental rights if it also finds by a preponderance of the evidence that
termination is in the "best interests" of the child.5 "The dominant consideration is the
moral, intellectual, and material welfare of the child."6 Where a child's rights conflict with
the parent's legal rights, the child's rights prevail.7
We will not disturb the trial court's findings if substantial evidence supports them.5
"Substantial evidence' is evidence in sufficient quantity to persuade a fair-minded,
rational person of the truth of the declared premise."9 We do not judge the credibility of
the witnesses or weigh the evidence.10 An appellate court accepts as true on appeal
unchallenged findings of fact.11 Whether a termination order satisfies statutory
requirements presents a question of law that an appellate court reviews de novo.12
4RCW 13.34.190(1)(a)(i); RCW 13.34.180(1).
5RCW 13.34.190(1).
6 In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001).
7 RCW 13.34.020.
8 In re Dependency of J.A.F., 168 Wn. App. 653, 667, 278 P.3d 673(2012).
9 In re Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009).
19 In re Welfare of M.R.H., 145 Wn. App. 10, 24, 188 P.3d 510 (2008).
11 In re Dependency of M.-A.F.-S., 4 Wn. App. 2d 425, 455, 421 P.3d 482, review
denied, 191 Wn.2d 1024 (2018).
12 In re Dependency of K.N.J., 171 Wn.2d 568, 574, 257 P.3d 522(2011).
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ANALYSIS
Default Dependency Order
Timpanidi claims that the Department did not prove the first three elements of
RCW 13.34.180(1). Specifically, he contends that the default dependency order was
void because the court entered it in violation of his rights to notice and to counsel. We
disagree.
Timpanidi first argues that the dependency order is void because the State did
not properly serve him. "Where a court lacks jurisdiction over the parties or the subject
matter, or lacks the inherent power to make or enter the particular order, its judgment is
void."13 Proper service of a summons and complaint is necessary to invoke the
personal jurisdiction of the court.14 A court presumes that an affidavit of service regular
in form and substance is correct.15 The party denying proper service of process has the
burden of showing by clear and convincing evidence that proper service did not occur.16
Here, the service affidavit indicates via checked boxes that Timpanidi was
personally served at the Snohomish County Jail with the following documents:
"Dependency Petition" and "Notice and Summons/Order, a copy of which is attached."
From this description, Timpanidi contends this court must presume the State served him
with only the initial dependency petition that named a different alleged father, not the
amended dependency petition naming him as an alleged father of M.H. But Althoff
13In re Marriape of Mu Chai, 122 Wn. App. 247, 254, 93 P.3d 936 (2004).
14 Morris v. Palouse River & Coulee City R.R., 149 Wn. App. 366, 370-71, 203
P.3d 1069 (2009).
15 Leen v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991).
16 Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014).
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testified that the service packet he prepared contained the first dependency petition, the
amended dependency petition naming Timpanidi as the alleged father, and the notice
and summons. Timpanidi claims that the trial court could not rely on this testimony to
find proper service because Althoff admitted that he was not physically present at the
time and place of service. We will not disturb the trial court's credibility determination.
Substantial evidence supports the trial court's finding that the State had Timpanidi
properly personally served with the dependency petition. The court had personal
jurisdiction over Timpanidi when it entered the default order of dependency.17
Timpanidi next argues that the trial court violated his statutory right to counsel at
the dependency proceeding when it entered the default order. He contends that a
statute required the court appoint counsel first because he "appeared" in the
dependency proceeding by agreeing to submit to paternity testing. We disagree. RCW
13.34.090(2) provides,
At all stages of a proceeding in which a child is alleged to be dependent,
the child's parent, guardian, or legal custodian has the right to be
represented by counsel, and if indigent, to have counsel appointed for him
or her by the court. Unless waived in court, counsel shall be provided to
the child's parent, guardian, or legal custodian, if such person (a) has
appeared in the proceeding or requested the court to appoint counsel and
(b) is financially unable to obtain counsel because of indigency.
17 Timpanidi, citing In re Dependency of K.N.J., 171 Wn.2d 568, 257 P.3d 522(2011), asserts that the void dependency order was insufficient to establish that M.H.
was dependent. In K.N.J., the dependency order was signed by a judge pro tempore
without the consent of all parties. Because consent is the basis for a judge pro
tempore's power to act, lack of consent deprived the court of jurisdiction and rendered
the dependency order void. K.N.J., 171 Wn.2d at 578. Here, in contrast, service was
not constitutionally inadequate, and the court did not lack jurisdiction. Moreover, we
note that Timpanidi failed to appeal the order of dependency or to file a CR 60 motion
for relief from judgment or order.
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Under RCW 4.28.210, "[a] defendant appears in an action when he or she answers,
demurs, makes any application for an order therein, or gives the plaintiff written notice
of his or her appearance." "Even informal acts, such as written or oral statements to the
plaintiff in the action can constitute an appearance."18 But "mere intent to defend . . . is
not enough; the defendant must go beyond merely acknowledging that a dispute exists
and instead acknowledge that a dispute exists in court."19
Timpanidi, relying on Coughlin, argues that he impliedly consented to the court's
jurisdiction and thus appeared by submitting to paternity testing. In Coughlin, the
alleged father responded to a summons and petition to establish parentage by sending
a letter to the State denying any acquaintance with the child's mother.2° After being
found in default for failing to submit to a court-ordered blood test, he again responded
by letter admitting that he had ignored the previous notices and asking for an
opportunity to comply. The blood test established paternity, and the court granted
summary judgment as to parentage. The superior court found that the father's letters to
the State constituted an appearance before entry of final judgment and that he thereby
waived all defenses as to jurisdiction.21 The appellate court agreed and held that the
father "appeared" in the case by voluntarily corresponding with the prosecutor's office
and submitting to the blood test.22
18State ex rel. Coughlin v. Jenkins, 102 Wn. App. 60, 63, 7 P.3d 818(2000).
19Morin v. Burris, 160 Wn.2d 745, 756, 161 P.3d 956 (2007).
29 Coughlin, 102 Wn. App. at 62.
21 Coughlin, 102 Wn. App. at 62.
22 Coughlin, 102 Wn. App. at 63-64.
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Here, in contrast, the record contains no evidence that Timpanidi did anything
besides submitting to a paternity test. Timpanidi does not dispute that he did not
respond to the dependency petition or attempt to request an attorney. He does not
dispute that the notice and summons advised him that if he wished to have a lawyer
appointed, he needed to contact the Office of Public Defense at the provided phone
number. Yet Timpanidi did nothing to exercise his right to counsel until after the
Department served the termination petition. Under these circumstances, the mere act
of submitting to a paternity test cannot be construed as an intent to appear and defend
against the dependency petition.
Timpanidi next argues the Department failed to serve him with a notice of default
five days before the dependency hearing. CR 55(a)(3) provides that "[a]ny party who
has appeared in the action for any purpose shall be served with a written notice of
motion for default and the supporting affidavit at least 5 days before the hearing on the
motion." However, "[a] party who has not appeared prior to filing of a motion for default
is not entitled to notice of the motion."23 Because Timpanidi did not appear in the
action, he was not entitled to notice of the motion for default.
Stable and Permanent Home
Timpanidi argues the Department failed to prove that "continuation of the parent-
child relationship clearly diminishes M.H.'s prospects for early integration into a stable
and permanent home" as required by RCW 13.34.180(f). Because maintaining this
legal relationship prevents M.H. from establishing a permanent home, we disagree.
23 Gage v. Boeing Co., 55 Wn. App. 157, 160, 776 P.2d 991 (1989).
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The Department may establish this factor in one of two ways:
The State can prove prospects for a permanent home exist but the parent-
child relationship prevents the child from obtaining that placement.
Alternatively, the State can prove the parent-child relationship has a
damaging and destabilizing effect on the child that would negatively
impact the child's integration into any permanent and stable placement.[24]
"[This factor is mainly concerned with the continued effect of the legal relationship
between parent and child, as an obstacle to adoption; it is especially a concern where
children have potential adoption resources."25
Timpanidi contends that maintaining the legal parent-child relationship has no
impact on this factor because M.H. lives in a stable placement with caregivers who are
willing to continue to care for her regardless of whether his parental rights are
terminated. He further contends that the record contains no evidence his legal
relationship with M.H. has a damaging or destabilizing effect on her. But placement in a
foster home is by definition temporary, even when it is stable.26 Here, Timpanidi did not
challenge the trial court's finding that "Mlle caregivers are a prospective adoptive
home." This finding is sufficient to establish that but for the legal relationship between
Timpanidi and M.H., there is a high probability that she will find a permanent adoptive
home.27 The record here thus supports the trial court's finding that continuation of the
parent-child relationship clearly diminishes M.H.'s prospect for integration into a stable
and permanent home.
24 In re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013)(citations
omitted).
25 In re Dependency of A.C., 123 Wn. App. 244, 250, 98 P.3d 89(2004).
26 In re Dependency of A.D., 193 Wn. App. 445, 458, 376 P.3d 1140 (2016).
27 A.D. 193 Wn. App. at 458.
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Affirmed.
WE CONCUR:
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