Dependency Of: L.j.f., Dob: 3/30/15, Jennifer Justice, App v. Dshs, Resp ( 2018 )

FILET
COURT OF APPEALS DIV
STATE OF WASHING I"ON
2018 AUG 13 At110:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 77861-7-1
L.J.F., dob: 03/30/2015,
DIVISION ONE
A minor child.
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
UNPUBLISHED OPINION
Respondent,
V.
JENNIFER CHRISTINE JUSTICE,
Appellant. FILED: August 13, 2018
SCHINDLER, J. — Jennifer Christine Justice seeks reversal of an order
terminating her parental rights to three-and-a-half-year-old L.J.F. Justice claims
the court violated her right to due process by denying her motion on the first day
of trial to continue the termination trial for the sixth time in order to obtain
documentation to verify participation in parenting classes and Narcotics
Anonymous meetings. Because the court allowed Justice to present any
relevant documents either during or after the trial but she failed to do so, we
affirm.
No. 77861-7-1/2
FACTS
When L.J.F. was born on March 30, 2015, the baby tested positive for
drugs. Jennifer Justice admitted she used methamphetamine and heroin on a
daily basis during her pregnancy. Justice agreed to place L.J.F. in the care of
her parents. The hospital released L.J.F. to Justice's parents when the baby was
approximately six weeks old.
At the conclusion of a contested hearing in June 2015, the juvenile court
concluded L.J.F. was dependent because there was no parent capable of
adequately caring for the child. See RCW 13.34.030(6)(c). The court ordered
Justice to (1) obtain a drug and alcohol evaluation and follow any treatment
recommendations,(2) participate in weekly urinalysis(UA) with 90 days of
"consistently clean" results,(3) obtain a parenting assessment and follow any
treatment recommendations,(4) cooperate in establishing paternity, and (5)
participate in intensive family preservation services upon reunification. The order
authorized "liberal" visitation with the child, supervised by the grandparents.
When L.J.F. was approximately two years old, the Washington State
Department of Social and Health Services (Department)filed a petition to
terminate parental rights. The court scheduled trial for July 3, 2017.1
The court continued the trial date five times. The court continued the trial
from July 3 to July 10, 2017 to allow Justice's attorney to file a notice of
appearance and an answer to the petition. On July 10, the court continued the
trial for approximately seven weeks to allow the mother to obtain new counsel
who would have "appropriate time to receive and review discovery." New
1 The court terminated the alleged father's rights by default on May 18, 2017.
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No. 77861-7-1/3
counsel filed a notice of appearance the next day on July 11. On August 7,
Justice joined in the Department's motion to continue the trial until September 18.
On August 28, the court continued the trial until October 30 because of the
Department's outstanding requests for additional discovery. On October 30, the
court granted the Department's motion to continue the trial to November 6.
At the beginning of the termination trial on November 6, 2017, Justice
requested a three-week continuance. The attorney acknowledged it was "late in
the game" to seek another continuance but said she had been "unable to meet
with my client in any meaningful sort of matter prior to today." Counsel also said
Justice had "documents" she wanted the court to consider that were "proof of
services that she has completed to remedy parental deficiencies which she
believes has not been acknowledged by the Department." Counsel explained
there was a no-contact order prohibiting the mother's access to the documents
but a hearing was scheduled the following week to request lifting the order to
obtain the documents.
The Department did not oppose a recess to allow counsel to consult with
the mother but objected to a three-week continuance of the trial. The
Department attorney argued the mother "has been indicating to the Department
for some time that she was going to submit proof of those documents" but had
not done so.
The court-appointed special advocate(CASA)opposed granting the
motion to continue the trial for three weeks. The CASA argued that although
Justice mentioned documents at the September 17 settlement conference, the
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No. 77861-7-1/4
mother did not provide or produce any information about the documents in the
seven weeks since the settlement conference.
The court denied the motion to continue the termination trial for three
weeks. But the court agreed to consider documents that Justice provided either
during or after the trial.
If there are — at some later date — some documents that
the Court should consider to give equitable treatment here to
consider the best interest of the child and their adjudication to the
mother, then [defense counsel] can bring those to my attention at
that point and propose a remedy for how I would consider those.
Either considering them on their face or considering them in
conjunction with some testimony. We'd find the time to take that
testimony and so forth.
Neither Justice nor her attorney requested a recess to confer.
The trial lasted two days. Two social workers, the CASA, Justice's
mother, and Justice testified. The court admitted into evidence more than 20
exhibits.
The testimony established Justice did not complete any court-ordered
services during the two-and-a-half-year dependency. In 2015, the social worker
assigned to the case referred Justice for UA testing and a parenting assessment.
Justice met with the provider once in person but did not complete the parenting
assessment because "the timing was just off." Justice did not complete any
court-ordered UAs. Justice explained that she did not want to start UA testing
until she "knew for sure that [she] could consistently make it to all of[the] UAs
required."2 Justice made an appointment for a drug and alcohol evaluation but
did not keep the appointment. Justice said she entered a "detox" program a
2 Justice maintained, however, that someone she lived with for four months gave her
periodic random UAs at home.
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No. 77861-7-1/5
couple of months after L.J.F. was born but left because she "did not like that
program or their recommendations." Justice insisted on deciding the timing and
type of drug treatment "on her own terms."
In 2017, Justice told the social worker there was no need to participate in
UAs because she "had been clean .. . since shortly after [the] birth" of L.J.F. and
had "completed a bunch of stuff" on her own. Justice told the social worker she
would provide "paperwork that would prove" she had completed services but she
never provided any documentation.
Justice's mother testified that Justice visited L.J.F. only sporadically. In
the six months before trial, Justice visited L.J.F. no more than five times and did
not visit at all in the two months before trial. Justice would play with L.J.F. but
she did not participate in daily caretaking.
Justice's mother testified she did not believe that Justice stopped using
drugs after L.J.F. was born based on Justice's "entire demeanor," including her
Is]peech impairment," "[v]isual impairment," "speed," and eyes. When Justice
was sober, she was "present," "[o]n task," and "[o]n time"—qualities that she no
longer exhibited. One of the social workers also testified that Justice's lack of
consistency, repetitive speech, and sleepy demeanor caused her to believe that
Justice continued to use drugs.
Justice admitted using drugs while she was pregnant but said she had
been clean since "the day I was released from the hospital" shortly after L.J.F.
was born. But Justice testified that she entered "detox" a month or two after the
birth because she was not "fully clean."
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No. 77861-7-1/6
Justice stated she understood all the requirements of the disposition
order. Justice testified, "I needed to take a drug assessment, a parenting
assessment and do ninety days UAs as well as get acknowledgment of paternity
of [L.J.F.'s] father." Justice admitted she did not fulfill any of the requirements
because she was "going through yet another rough" period in her life. Justice
testified that her lack of reliable transportation was a barrier to participating in
services and visiting L.J.F. regularly. Justice said she was living in an area
without public transportation and although she had a truck, it had been broken for
many months before she "lost it" shortly before trial. Justice admitted her parents
helped to fix the truck and provided transportation assistance. Justice did not
ask the Department for transportation assistance.
When asked specifically about the documents she wanted to present to
the court, Justice mentioned "NAP]slips" and parenting classes as examples of
"things that I've done to better my life." Justice testified that she attended about
16 NA meetings with some people from a church she attended for a while and
that she completed one in-person and two online parenting classes.
Justice estimated that within three months, she would be ready to begin
the process of reuniting with L.J.F. Justice testified that she was currently
staying with a friend and did not have permanent housing. Justice said she was
currently seeking housing and was in the process of applying for a car loan.
The trial concluded on November 7, 2017. Two weeks later on November
22, the court entered findings of fact and conclusions of law and an order
terminating Justice's parental rights to L.J.F.
3 Narcotics Anonymous.
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No. 77861-7-1/7
The court's unchallenged findings of fact include the following findings:
2.9 During the dependency in this matter, the mother has not
completed any of the court-ordered services ... . But she
was told that and aware that(1) the Court ordered her to
complete these services and (2)she needed to complete
these services in order for the child to be returned to her
care.
2.20 The mother has not visited the child consistently. Pursuant
to the dependency order, visits are liberal and typically occur
at the maternal grandparents' home. In the past six months,
the mother visited the child only four to five times. Each of
these visits lasted about an hour. The most recent visit was
scheduled for October 25, 2017, but the mother did not show
up for the visit. The mother did go to see the child on the
evening of October 29, 2017, but the child was already
asleep. The mother had the opportunity and means to visit
the child more frequently and regularly, but she did not do
so. The mother is incapable of providing proper care for the .
child for extended periods of time.
2.21 The mother's testimony was not credible on several topics.
For example, the mother's testimony that she has been
clean and sober since a few days after the child's birth was
not credible and was contradicted by other testimony.
2.22 The mother failed to substantially improve her parental
deficiencies within 12 months following entry of the
dispositional order. The petitioner has shown that all
necessary services reasonably capable of correcting the
parental deficiencies within the foreseeable future have been
clearly offered or provided. This gives rise to a rebuttable
presumption that there is little likelihood that conditions will
be remedied so that the child can be returned to the mother
in the near future. The mother has not overcome this
presumption.
2.23 Even if the presumption discussed in the preceding
paragraph did not apply, there still is little likelihood that
\ conditions will be remedied so that the child can be returned
to the mother in the near future. The mother has made no
progress in remedying the parental deficiencies that led to
the child's removal.
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No. 77861-7-1/8
2.24 Throughout the dependency the mother has demonstrated
an unwillingness to participate in and/or successfully
complete services offered to correct parental deficiencies. If
the mother were to engage or re-engage in services now,
she would essentially be starting over. In a best-case
scenario—which is unlikely—it would be at least six months
of treatment, and an additional six months of consistency,
before there would be even consideration of transitioning the
child to his mother's care. This is too long for this young
child to wait.
Justice did not ask the court to consider any documents during the two-
week period after the trial ended and before the court entered the order
terminating parental rights.
ANALYSIS
Justice contends that the juvenile court violated her right to due process
by denying the motion on the first day of trial for a continuance. Justice claims
she had insufficient time to consult with her lawyer and denial of the motion
prevented her from presenting documents. Justice asserts the documents would
have provided the court with a "more complete understanding" of her "efforts to
cure her parental deficiencies" and "corroborate her claimed sobriety."
"[P]arents have a fundamental liberty and privacy interest in the care and
custody of their children." In re Welfare of N.M., 184 Wn. App. 665, 672, 346
P.3d 762(2014)(citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982)). Consequently, due process "requires that parents
have the ability to present all relevant evidence for the juvenile court to consider
prior to terminating a parent's rights." In re Welfare of R.H., 176 Wn. App. 419,
425-26, 309 P.3d 620 (2013). When deciding the motion to continue a
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No. 77861-7-1/9
termination trial, the court must consider "diligence, due process, the need for an
orderly procedure, the possible effect on the trial, and whether prior continuances
were granted." In re Dependency of V.R.R., 134 Wn. App. 573, 581, 141 P.3d 85(2006). The denial of a motion to continue does not violate constitutional due
process rights unless a parent demonstrates either prejudice from the denial or
that the result of the trial would have been different if the continuance had been
granted. V.R.R., 134 Wn. App. at 581.
An appellate court reviews the trial court's denial of a continuance for a
manifest abuse of discretion. V.R.R., 134 Wn. App. at 580. We will affirm the
decision "'unless no reasonable judge would have reached the same
conclusion.'" N.M., 184 Wn. App. at 673(quoting In re Marriage of Landry, 103
Wn.2d 807, 809-10, 699 P.2d 214 (1985)).
The record does not support the claim that denial of the motion to continue
deprived Justice of an adequate opportunity to consult with her attorney or forced
her to proceed to trial with unprepared counsel. Justice's attorney filed a notice
of appearance on July 11, 2017. The trial began on November 6, 2017. The
court granted prior continuances, in part, to allow her attorney time to prepare.
Justice and her attorney participated in a settlement conference in September.
At trial, the Department did not oppose a recess to give the attorney additional
time to consult with Justice. But Justice did not request a recess.
The record shows that denying the request to continue the trial for three
weeks did not prevent Justice from obtaining and presenting evidence. The court
ruled it would consider documents submitted by Justice either during or after the
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No. 77861-7-1/10
trial. As noted, the court did not enter its ruling on the petition to terminate
parental rights until more than two weeks after the termination trial concluded.
Nonetheless, Justice did not submit any documents.
The authority Justice relies on is inapposite. For example, in R.H., the
father requested a continuance a month before the scheduled trial date to allow
the Department to complete the investigation of a potential guardian for his
children as an alternative to termination. R.H., 176 Wn. App. at 422-23. The
Department was optimistic about the guardian placement but had not completed
a home study. R.H., 176 Wn. App. at 429. The availability of a guardianship is
evidence the court should consider when determining whether the State has met
its burden of proving continuation of the parent-child relationship clearly
diminishes the child's prospects for early integration into a stable and permanent
home. R.H., 176 Wn. App. at 429. Because the motion to continue was timely,
the potential guardian placement had been identified months earlier, and the
need for additional time was not a result of the father's lack of diligence in
pursuing guardianship, we held the court abused its discretion in denying the
motion to continue. R.H., 176 Wn. App. at 429.
This case bears little resemblance to R.H. Justice made the motion for a
three-week continuance on the first day of trial. The court denied the motion but
did not preclude Justice from presenting documents in support of her position
either at trial or during the more than two-week period after the trial. In addition,
the record shows a lack of diligence. Justice told the social worker at least seven
weeks before the scheduled trial date that she would produce the documents.
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No. 77861-7-1/11
We also conclude the documents Justice sought to present were not
material. See N.M., 184 Wn. App. at 673(we review each case on a fact-specific
basis to determine whether the evidence the parent sought to admit was
material). Justice does not challenge any of the findings that address the six
termination factors under RCW 13.34.180(1). The Department removed L.J.F.
because of her drug addiction. There was no evidence of progress toward
correcting that deficiency. Documents showing attendance at some NA meetings
and completion of three parenting classes do not address compliance with any of
the court-ordered services. Justice did not obtain a drug and alcohol evaluation,
participate in weekly UAs, or obtain a parenting assessment.
Denial of the motion to continue the trial for three weeks was not a
manifest abuse of discretion and Justice cannot show either prejudice or that the
result of the trial would have been different.
We affirm the order terminating parental rights to L.J.F.
5QD,
WE CONCUR:
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