In Re The Dependency Of R.o.a., Sierra Cotter, App v. Dcyf, Resp ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of ) No. 79997-5-I
R.C.A., date of birth 09/06/17, ) consolidated with
) No. 79998-3-I
Minor Child. )
STATE OF WASHINGTON, )
DEPARTMENT OF CHILDREN, )
YOUTH, AND FAMILIES, )
Respondent, )
)
v.
) UNPUBLISHED OPINION
SIERRA LEE COTTER, )
) FILED: February 3, 2020
Appellant.
__________________________________________________________________________________)
VERELLEN, J. — Sierra Cotter, the mother of R.A., appeals from orders
denying her petition for a permanent guardianship and terminating her parental
rights. We conclude the trial court properly balanced the appropriate factors in
terminating the mother’s parental rights rather than granting a permanent
guardianship.1 Substantial evidence supports the court’s findings of fact, and
It is important to keep in mind the distinction between a “dependency
guardianship” for a dependent child under ch. 13.34 RCW and a permanent
guardianship under ch. 13.36 RCW. In a dependency guardianship, a guardian is
appointed “for the limited purpose of assisting the court to supervise the
dependency,” RCW 13.34.232, while a permanent guardianship under
RCW 13.36.010 provides a final resolution of a dependency for a child “who
cannot safely be reunited with his or her parents.” This appeal addresses the
mother’s petition for a permanent guardianship as an alternative to termination of
the parent-child relationship.
No. 79997-5-1/2
those findings support the court’s conclusions, including the determination that
termination is in the best interests of the child. We affirm.
FACTS
On September 6, 2017, R.A. was born and tested positive for methadone,
opiates, and amphetamines. The mother has a history of substance abuse and
other concerns. The hospital placed an administrative hold on R.A. on
September 9, 2017, and he has never been in the custody of the mother. The
Department of Children, Youth, and Families (Department) filed a dependency
petition on September 12, 2017. The mother agreed to shelter care.
R.A.’s maternal grandmother, Lisa Cotter, is a United States citizen who
moved to Canada. As soon as the grandmother was contacted by the mother
shortly after R.A’s birth, she traveled to Washington and began caring for R.A.
The grandmother lives locally in the house of her friend, Ms. Ryden. The
grandmother has taken care of R.A. “his entire life.”2 The grandmother “is
basically the child’s parent” and is willing to adopt R.A.3 She “is willing to stay in
Washington as long as she needs to finalize the adoption, including remaining in
the United States permanently.”4
The mother filed a chapter 13.36 RCW permanent guardianship petition in
December of 2018, proposing her father, Tor Cotter, and his wife, Linda Lira, as
2 Clerk’s Papers (CP) at 16.
~ CP at 17.
~ CP at 17.
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No. 79997-5-1/3
guardians. Cotter and his wife live in Washington and completed a home study.
The court found they are “suitable and qualified” guardians.5
During the dependency, R.A. had regular weekly visits with the proposed
guardians and extended family members living in Washington, including
alternating weekend contact with his maternal uncle and two young cousins.
The mother did not visit consistently. Between the start of the dependency in
September 2017 and February 2018, the mother visited just once even though the
grandmother allowed visitation anytime she called. Beginning in February 2018,
the mother failed to confirm visits, resulting in the cancellation of two contracts for
supervised visitation. She also had the opportunity to visit R.A. during his visits
with the maternal grandfather and his wife, but she missed nearly one-third of
those opportunities. The mother also failed to make meaningful progress in
several attempts at substance abuse treatment. The mother was in jail in May of
2018, July to November of 2018, and beginning in March 2019.
The trial court considered the Department’s petition for termination and the
mother’s petition for a permanent guardianship. The mother raised the issue
whether the potential adoption by the grandmother was likely because she and her
husband owned a farm in Nova Scotia and because she had not satisfied the
Hague Convention on Protection of Children and Co-operation in Respect of
~ CP at 16.
3
No. 79997-5-1/4
lntercountry Adoption (Hague Adoption Convention or Convention)6 requirements
for an adoption that would move R.A. from Washington to Canada. Specifically,
the mother challenged the grandmother’s lack of a completed home study in
Canada and argued the grandmother failed to attempt to recruit a domestic
(United States) placement. The guardian ad litem and caseworker testified in
favor of termination and against the proposed guardianship, focusing on the
grandmother’s close bond with R.A.
In its March 4, 2019 oral decision, the court found that the elements for
termination were satisfied. It is undisputed that the mother is currently unfit to
parent, that the Department has expressly and understandably offered or provided
all necessary services to remedy the situation, and that there is little likelihood
conditions will be remedied such that the child can be cared for by the mother in
the near future. Additionally, the court found “the mother has been out of the
picture for the majority of the child’s life,” “[t}here is no quality relationship between
the mother and this child at present,” and “there is not much of a parent-child
bond.”7
The court determined that termination in contemplation of adoption by the
grandmother was preferable to permanent guardianship. The court recognized
that if the adoption by the grandmother was not viable, then the proposed
6 Hague Conference on Private International Law: Convention on Protection
of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993,
https://www. hcch net/en/instruments/conventions/full-textl?cid=69.
.
~ CP at 16.
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No. 79997-5-1/5
guardianship by the grandfather and his wife would be preferable to adoption by a
stranger. The court allowed the Department an additional six weeks to complete a
home study of the grandmother.
On April 15, 2019, the Department advised the court that a favorable local
home study of the grandmother had been completed and it was just awaiting the
grandmothers background check. Background checks of the grandmother’s
husband and Ms. Ryden had been successfully completed.
On May 8, 2019, the court allowed the proceeding to be reopened to allow
testimony by the caseworker updating the court with the favorable results of the
grandmother’s background check and completed home study. The court entered
its findings and order granting the petition for termination and its order denying the
guardianship petition.
ANALYSIS
To terminate the parent-child relationship, the Department must prove each
of 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
5
No. 79997-5-116
future have been expressly and understandably offered or
provided;
(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 the continuation of the parent and child relationship
clearly diminishes the child’s prospects for early integration
into a stable and permanent home.[8]
If all of these elements are proven, the trial court must also find by a
preponderance of the evidence that termination is in the “best interests” of the
child.9
We review an order terminating parental rights to determine if substantial
evidence supports the court’s findings and if those findings in turn support its
conclusions.10 “Substantial evidence is evidence sufficient to persuade a fair-
minded rational person of the truth of the declared premise.”11 “Unchallenged
findings are verities on appeal.”12 Because only the trial court has the opportunity
to hear the testimony and observe the witnesses, we do not judge the credibility of
witnesses, nor do we weigh the evidence.13
The requirements for termination of a parent-child relationship are
undisputed here with the exception of the RCW 13.34.180(1 )(f) requirement that
8 RCW 13.34.180(1).
~ RCW 13.34.190(1)(b).
10 In re Welfare of K.M.M., 187 Wash. App. 545, 564, 349 P.3d 929 (2015).
~ In re Welfare of C.B., 134 Wash. App. 942, 953, 143 P.3d 846 (2006).
12 In re Dependency of M.S.R., 174 Wn.2d 1,9,271 P.3d 234 (2012).
13 In re Dependency of A.V.D., 62 Wash. App. 562, 568, 815 P.2d 277 (1991).
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No. 79997-5-1/7
continuing with the parent child relationship “clearly diminishes the child’s
prospects for early integration into a stable and permanent home” and the
RCW 13.34.190 requirement that termination is in the “best interests” of the child.
The Department is not required to prove a stable and permanent home is available
at the time of termination.14 Neither is a specific prospective adoptive home
necessary to satisfy the integration into a stable and permanent home
requirement.15
A guardianship under chapter 13.36 RCW is a statutory alternative to
termination that permanently provides guardians with physical and legal custody of
a child until the child reaches the age of majority.16 In addition to other
requirements, the court must find that the guardianship rather than a termination
with adoption or continued efforts to return the child to the parent is in the best
interests of the child.17
If a court in a dependency is faced with competing petitions for termination
and for a permanent guardianship of a child and the first five requirements for
termination or such a guardianship are satisfied, as they are here,
14 In re Dependency of K.D.S., 176 Wash. 2d 644, 658, 294 P.3d 695 (2013)
(quoting In re Dependency ofK.S.C., 137 Wash. 2d 918, 927, 976 P.2d 113 (1999)).
15 In re Dependency of J.A.F., 168 Wash. App. 653, 668, 278 P.3d 673 (2012)
(quoting K.S.C., 137 Wn.2d at 927).
16 RCW 13.36.010 (“The legislature intends to create a separate
guardianship chapter to establish permanency for children in foster care through
the appointment of a guardian and dismissal of the dependency.”).
17 RCW 13.36.040(2)(a).
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No. 79997-5-1/8
the question is whether guardianship is preferable: whether
guardianship, rather than termination of the parent-child relationship
or continuation of efforts to return the child to the custody of the
parent, would be in the best interests of the child. Embedded in the
statute is a comparison between guardianship and termination. The
question is which better serves the child’s interests.~181
In making such a determination, the court should look to a nonexclusive list of
factors:
[un addition to the qualifications of the proposed guardian,
considerations should include the strength and nature of the parent-
child bond; the benefit of continued contact with the parent or the
extended family; the need for continued state involvement and
services; the likelihood the child would be adopted if parental rights
were terminated, and any other case-specific factors relevant to the
best interests of the child.~19]
Here, the trial court expressly recognized and addressed those factors.
First, the proposed guardians were found “suitable and qualified.”20 Second, the
court determined that there is “not much of a parent-child bond,” the mother “has
been out of the picture for the majority of the child’s life,” and ‘[t]here is no quality
relationship between the parent and the child at present.”21 The mother
challenges the sufficiency of the evidence supporting those findings. But viewing
the evidence and reasonable inferences in a light most favorable to the
Department, her challenge fails. The court’s findings are particularly supported by
the mother’s inconsistent visitation, her failure to make meaningful progress in
18 Derjendency of A.C., 123 Wash. App. 244, 249-50, 98 P.3d 89 (2004)
(citing former RCW 13.34.231(6) (2000)).
19 k1. at 254-55.
20 CP at 16.
21 CP at 16.
8
No. 79997-5-1/9
treatment of her substance abuse, and her repeated incarceration. Additionally,
R.A. does not have special needs, and there is no demonstrated need for ongoing
services. This appeal turns on “the likelihood the child would be adopted if
parental rights are terminated” and “other case-specific factors related to the best
interests of the child.”22
The mother argues that the proposed adoption by the grandmother is
subject to the Hague Adoption Convention because Canada is a signatory and
because the grandmother has indicated her desire to return there. As a result, she
argues, the grandmother must be approved in a Canadian home study, and she
must make reasonable efforts to find a domestic placement.
An intercountry adoption is one involving parents who reside in one country
and a child who resides in another. Both the United States and Canada have
adopted and ratified the Hague Adoption Convention, which “provides a framework
for the adoption of children habitually resident in one country party to the
Convention by persons habitually resident in another country party to the
Convention. It establishes procedures to be followed in such adoption cases and
imposes safeguards to protect the best interests of the children concerned.”23
22 A.C., 123 Wn. App. at 255.
23 See Intercountry Adoption—Issuance of Hague Convention Certificates
and Declarations in Convention Adoption Cases, 71 Fed. Reg. 34857-01 (June 16,
2006) (to be codified at 22 C.F.R. § 97.6-97.7); see also Hague Adoption
Convention, art. 1.
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No. 79997-5-1/10
In the United States, the Hague Adoption Convention is implemented
through the Intercountry Adoption Act of 2000 (IAA).24 The State Department is
responsible for the IAA’s administration.25 A “Convention adoption” under the IAA
includes “an adoption of a child resident in the United States by an individual
residing in another Convention country.”26 Guidance issued by the State
Department explains that an outgoing Convention adoption is one in which “the
prospective adoptive parent(s) demonstrate their intent to move the child from the
United States to another Convention country after adoption.”27 The IAA sets forth
requirements for state courts entering orders in outgoing Convention adoptions.28
A state court may not enter an order declaring an outgoing Convention adoption
final unless the court has:
- Determined that the adoptive placement is in the best interests of
the child;
- Verified documentation showing that a background study of the
child has been completed;
2442 U.S.C. § 14901.
2542 U.S.C. § 14911(a)(l).
2642 U.S.C. § 14902(10). Similarly, Hague Adoption Convention article
2(1) states that it applies where “a child habitually resident in one Contracting
State (‘the State of origin’) has been, is being, or is to be moved to another
Contracting State (‘the receiving State’) either after his or her adoption in the State
of origin by spouses or a person habitually resident in the receiving State, or for
the purposes of such an adoption in the receiving State or in the State of origin.”
27 U.S. DEP’T OF STATE, THE HAGUE CONVENTION ON INTERCOUNTRY
ADOPTION: A GUIDE TO OUTGOING CASES FROM THE UNITED STATES 7 (December
2011) (Outgoing Cases Guide), https://travel.state.gov/contentldam/aa/pdfs/
OutgoingCasesFAQs_201 I .pdf [https://perma.cc/EF4Z-GRLU].
28 42 U.S.C. § 14932(b).
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No. 79997-5-I/li
- Verified documentation that the adoption service provider has made
reasonable efforts to place the child in the United States and has
been unable to do so;~29~
- Verified documentation of the U.S. authorized entity’s determination
that the adoptive placement is in the best interests of the child;
- Verified the home study on the prospective adoptive parent
(background report);
- Verified the declaration by the Central Authority. of the receiving
. .
country that the child will be permitted to enter and reside
permanently in the receiving country;
- Verified the declaration by the Central Authority. of the receiving
. .
country that the Central Authority consents to the adoption, if
necessary; and
- Verified satisfactory evidence that the requirements of Articles 4
and 15 through 21 of the [Hague Adoption] Convention have been
met.~301
29 If the proposed adoptive parent is a relative of the child or if the birth
mother or biological parents have identified specific prospective adoptive parents,
there is no requirement that efforts be made to recruit adoptive parents in the
United States. 22 C.F.R. § 96.54(a).
30 Outgoing Cases Guide at 11-12; 22 C.F.R. § 97.3. Articles 4 and 15
through 21 of the Hague Adoption Convention, in relevant part, assign to the
authorities of the country of origin and the receiving country responsibility for
preparing and transmitting reports on the proposed adoptive parents and the child
to be adopted (articles 15 and 16), ensuring that, if required, appropriate consents
have been freely given (article 4), ensuring that both central authorities have
agreed the adoption may proceed (article 17), ensuring that the child will be
permitted to leave the country of origin and enter and reside permanently in the
receiving country (article 18), and arranging to keep the foreign entity informed
about the adoption process, measures taken to complete it, and its progress
(article 20).
ii
No. 79997-5-1112
Once an adoption is finalized by the state court, the adoptive parents may
apply to the State Department for a Hague Adoption Certificate (HAC).31 An HAC
signals to the receiving country that the adoption was completed in accordance
with the Hague Adoption Convention and the IAA and ensures the adoption will be
recognized by operation of law in the receiving country.32 The application for an
HAC must include an official copy of the adoption court’s findings verifying, in
substance, that each of the requirements of 22 C.F.R. § 97.3 has been met.33 If a
state court finalizes an adoption that fits the definition of an outgoing Convention
adoption without adhering to the requirements of the IAA and 22 C.F.R. § 97.3, the
adoptive parents are likely to face significant immigration consequences when
they travel home. The government of Canada, for example, will not admit an
adopted child unless the child has been granted either citizenship or a permanent
3122 C.F.R. § 97.2. If the child will emigrate to the receiving country before
the adoption is final, the adoptive parents may apply for a Hague Custody
Declaration. 22 C.F.R. § 97.2.
32 Hague Adoption Convention, art. 23.
~ 22 C.F.R. 97.2(b). The requirements of 22 C.F.R. 97.3 are substantively
very similar to those of the IAA but not identical. For example, the IAA requires
the state court to verify a background report or home study on the prospective
adoptive parents (including criminal background checks) prepared in accordance
with the laws of the receiving country. 42 U.S.C. § 14932(a)(2)(B). To obtain a
HAC, the home study must, in addition to meeting the statutory requirements, be
transmitted directly from the central authority of the receiving country or an agency
authorized by the foreign government to perform central authority functions to the
appropriate United States authorized entity, which may be the state court or an
approved state agency. 22 C.F.R. § 97.3(d). Further, the home study must
include the specific information set forth in 22 C.F.R. 97.3(d)(1)-(3).
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No. 79997-5-1/13
resident visa.34 Further, immigration authorities in Canada attempt to ensure that
intercountry adoptions comply with international law before granting permission to
enter: “If it is determined that the legal requirements for international adoptions
have been circumvented, the citizenship application of the adopted person must
be refused.”35
~ The Canadian Immigration and Refugee Protection Act (IRPA) provides
that a foreign national may not enter Canada without applying for a visa. IRPA,
S.C. 2001, c. 27, s. 11(1). Canadian law provides two avenues for Canadian
residents to bring their adopted child into Canada legally. One is to obtain a grant
of citizenship for the child and the other is to obtain a permanent resident visa. A
child adopted from abroad may be granted citizenship, with some exceptions, if at
least one of the adoptive parents is a Canadian citizen and the adoption meets the
statutory and regulatory requirements. See Citizenship Act (CA), R.S.C. 1985,
c. C-29, s. 5.1; Citizenship Regulations (CR) SOR/93-246 s. 5.1(c); CR No. 2,
SOR/2015-124, s. 5. A significant restriction on granting citizenship under the CA
is Canada’s first generation limit, which may prevent an adoptive Canadian citizen
parent who was born outside Canada to a Canadian parent from obtaining
citizenship for his or her adoptive child born outside Canada. See CA R.S.C. 1985,
c. C-29, s. 5.1.
The permanent resident visa approach is available to both Canadian
citizens and permanent residents who adopt a child outside Canada. An adopted
child may enter Canada as a permanent resident by being sponsored as a
member of the family or other provisions. See IRPA S.C. 2001 c. 27, s. 12(1)
(family member), s. 13(1) (sponsorship of foreign national by a permanent
resident); Immigration and Refugee Protection Regulations, SOR/2002-227
117(1)(g), (2), (3).
Because both the adoption and the immigration processes can be lengthy,
the Canadian government advises adoptive parents to “not plan to return to
Canada with the adopted child until you know for certain that all citizenship or
immigration requirements have been met.” Important Notice for adoptive parents
— Before you travel, https://www.canada.ca/en/immigration-refugees
citizenship/services/canadians/adopt-child-abroad/authorities.html (boldface
omitted).
~ CITIZENSHIP & IMMIGRATION CAN., CITIZENSHIP POLICY CP 14: GRANT OF
CANADIAN CITIZENSHIP FOR PERSONS ADOPTED BY CANADIAN CITIZENS 38 (2015)
(Adoption Policy Manual), https://www.canada.ca/content/dam/ircc/migration/jrcc/
english/resources/manuals/cp/cpl 4-eng.pdf [https://perma.cc/L722-726BJ. The
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No. 79997-5-1/14
The mother contends that if the grandmother finalizes the adoption of R.A.
premised on the home study completed here in Washington state, the adoption will
fail to meet the Convention’s requirements and will not enable R.A. to emigrate to
Canada. But the mother does not challenge the trial court’s finding that the
grandmother is willing to permanently move to the United States, if necessary, to
complete an adoption. If the grandmother establishes a habitual residence in the
United States, the mother provides no authority that the Hague Adoption
Convention will apply.36
And even assuming the Hague Adoption Convention might apply to a future
adoption proceeding, the mother does not provide compelling authority that the
grandmother will have to make reasonable efforts to recruit a domestic placement.
The requirement to recruit a competing petitioner does not extend to an adoption
Adoption Policy Manual also addresses circumstances in which adoptive parents
seek to avoid involving the Canadian provincial adoption authorities by finalizing
the adoption while abroad and then reporting that they were not residing in
Canada when they adopted the child. In the case of a child emigrating from a
Hague Convention country, if there is doubt about the actual legal residence of the
adoptive parents at the time of the adoption, immigration officials will request the
adoptive parents to provide an HAC. Adoption Policy Manual, 40. The State
Department defers to the receiving country’s determination that a prospective
adoptive parent resides in that country. See Outgoing Cases Guide at 8.
36 The Hague Adoption Convention does not include a definition of
“habitually resident” for purposes of intercountry adoptions. Counsel for the
Department and the mother were requested to appear for oral argument prepared
to address the requirements for habitual residents under the Hague Adoption
Convention. Although there appears to be limited authority, both acknowledged
that the term “habitually resident” for purposes of the Hague Adoption Convention
seems to focus on concepts of domicile. See generally 8 C.F.R. § 204.303. There
is no authority that the grandmother, a United States citizen, will be incapable of
establishing domicile in the United States if she permanently relocates to the
United States.
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No. 79997-5-1/15
by a blood relative.37 As to a Canadian home study requirement, the grandmother
may yet satisfy that requirement. The limited record regarding the months of delay
in the grandmother’s attempts to obtain a Canadian home study suggest
bureaucratic confusion rather than any doubts about the grandmother’s
background and qualifications.
For purposes of resolving competing Washington petitions for termination
and dependency guardianship, the key factor is the likelihood of an adoption, not
the certainty of an adoption. By allowing additional time to obtain the results of a
home study, the trial court focused on the viability of an adoption. The court was
satisfied by a favorable Washington home study that the grandmother was likely to
qualify for an adoption. The record does not reveal any concerns raised in the
home study about the grandmother’s background. In this setting, it would be
inappropriate for this court or the trial court to forecast the precise outcome of the
yet-to-be-heard adoption matter.
The trial court here had the opportunity to see and hear the grandmother
testify and gauge her sincerity when she represented her willingness to do what it
takes to accomplish an adoption, including a permanent move to the United
States. We do not resolve issues of credibility on appeal. It will be up to the
adoption court to determine whether the Hague Adoption Convention applies
based on the circumstances present at the time of the adoption.
~ 22 C.F.R. § 96.54(a), (b).
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No. 79997-5-1/16
Further, the mother argues that an adoption resulting in R.A.’s move to
Canada will impede an ongoing relationship between R.A. and his extended family
in Washington. Of course, similar to a move to the East Coast of the United
States, a relocation to Canada may inhibit the frequency of contact with the
extended family. But, as found by the trial court, the grandmother is willing to
grant access to extended family members and the mother.
Ultimately, the trial court had the discretion to conclude that the case-
specific factors related to the best interests of R.A. are served by a termination
with the potential for an adoption by the grandmother, who has cared for R.A. his
entire life and “is basically the child’s parent.”38 We conclude it was within the trial
court’s legitimate exercise of its discretion to opt for termination in contemplation of
a potential adoption by the grandmother rather than a permanent guardianship.
The trial court adequately considered the appropriate factors.
We affirm.
WE CONCUR:
D1~
38 CP at 16.
16