In Re The Dependency Of: W.l.s. Jayna Palmer, App. v. State Of Wa., Dcyf, Res. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 8001 0-8-I
W.S.L., DOB: 1/26/2018,
DIVISION ONE
STATE OF WASHINGTON,
DEPARTMENT OF CHILDREN, YOUTH UNPUBLISHED OPINION
AND FAMILIES,
Respondent,
V.
JAYNA PALMER,
Appellant. FILED: March 2, 2020
CHUN, J. — Jayna Palmer appeared and participated in a dependency
action involving her son and yet failed to appear in a subsequent termination
proceeding. The trial court found her to be in default and then, following a brief
hearing on the termination petition, entered an order terminating her parental
rights. The mother contends on appeal that her appearance in the dependency
triggered the application of CR 55 and its requirement of prior written notice of a
motion for default. She also challenges the sufficiency of the evidence
supporting the court’s findings with respect to the required statutory elements
under RCW 13.34.180. We affirm.
No. 80010-8-112
BACKGROUND
Jayna Palmer is the mother of W.L.S., born in January 2018. When
W.L.S. was five months old, the Department of Children, Youth and Families
removed him from his parents’ custody due to concerns related to their mental
health, substance abuse, and the lack of safe and stable housing. W.L.S. has
not lived with either parent since that time. On August 7, 2018, the dependency
court found that W.L.S. was dependent as to both parents under
RCW 13.34.030(6)(c).
Seven months later, on March 13, 2019, the Department filed a petition to
terminate the parental rights of both parents.1
On March 19, 2019, Karen Nissly, the social worker assigned to the case
personally served the mother with the petition as well as a notice and summons.
The summons directed the mother to appear for a hearing on May 6, 2019. The
notice explained that the purpose of the hearing was to “consider evidence
relating to the petition” and that it was important to “be present at this hearing.”
The notice expressly informed the mother that, if she failed to appear, the court
could enter an order in her absence permanently terminating her parental rights.
The notice further advised the mother of her rights, including the right to an
attorney:
You have the right to be represented by a lawyer. If you cannot
afford a lawyer, you have the right to request that the court appoint
a lawyer to represent you at public expense. If you qualify, a lawyer
will be appointed by the court to represent you. If you are already
1The superior court assigned Snohomish County Cause No. 18-7-01183-31 to
the dependency action and Cause No. 19-7-00397-31 to the termination proceeding.
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represented by a court-appointed lawyer in the dependency action,
that lawyer will not represent you in this matter unless you reguest
new appointment of a lawyer.
(Emphasis in original.) The notice included instructions as to how to request the
appointment of counsel and contact information for the Department.
The mother did not file an answer to the petition, file a notice of
appearance, or request appointment of new counsel. She did not appear at the
May 6 hearing. Noting that the mother had been served with the petition and
summons and failed to appear, the Department asked the court to find her in
default.
The court granted the Department’s motion and then held a brief hearing
on the termination petition.2 The Department presented only the social worker’s
testimony. The court entered an order terminating the mother’s parental rights.3
The mother appealed that order.
Almost two months after entry of the termination order, on June 18, 2019,
the mother filed a notice of appearance in the termination matter.
ANALYSIS
The mother claims that the termination order is ‘void” because the
Department failed to notify her of its motion for default in accordance with CR 55.
A party may make a motion for default when the opposing party “has failed to
appear, plead, or otherwise defend as provided by these rules.” CR 55(a)(1).
2 The attorney who represented the mother in the dependency matter was
present, but confirmed that he did not represent the mother in the termination action and
did not take a position on the Department’s motion.
~ The father relinquished his parental rights two days later and is not a party to
this appeal.
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CR 55(a)(3) requires service of written notice of a default motion at least five
days before a hearing on the motion upon any party “who has appeared in the
action for any purpose.” “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.” RCW 4.28.210. Whether the
mother appeared for purposes of CR 55 is a question of law that we review de
novo. In re Welfare of SI., 184 Wash. App. 531, 540-41, 337 P.3d 1114 (2014),
review denied, 183 Wash. 2d 1002 (2015)
The mother contends that CR 55 applied because she appeared in the
dependency proceeding that preceded termination. But Division Three of this
court rejected this precise argument. ~ 184 Wash. App. at 540-41. The facts of
5.1. are analogous to those here. The mother appeared in the dependency
action and sporadically participated in some of the services the Department
offered. Si., 184 Wash. App. at 535-36. The assigned social worker personally
served the mother with a termination petition and summons to appear at a
scheduled hearing on the petition. 5.1., 184 Wash. App. at 536. The mother did not
file a notice of appearance in the termination matter or appear at the hearing.
The Department moved for default, and the court granted the motion on the
same day. ~j, 184 Wash. App. at 536-37. The court held that the notice
requirement of CR 55 did not apply because the mother’s appearance in the
dependency matter did not constitute an appearance in the termination
proceeding. ~ 184 Wash. App. at 541. The court reasoned:
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[A}n action to permanently terminate parental rights is a new
proceeding and not an extension of the dependency action. In re
Hiebert, 28 Wash. App. 905, 908-09, 627 P.2d 551 (1981). This is
because the purpose of a dependency proceeding and a
termination proceeding are diametric: A dependency proceeding
seeks to provide services to a parent to correct parental
deficiencies so as to reunify the parent-child relationship, whereas
a termination proceeding seeks to permanently terminate the
parent-child relationship.
S.1., 184 Wash. App. at 540.
The mother correctly points out that this court is not bound by the
decisions of another division. See In re Pers. Restraint of Arnold, 190 Wash. 2d
136, 153-54, 410 P.3d 1133 (2018) (one division of the Court of Appeals should
give respeciful consideration to the decisions of other divisions but is not bound
by the decision of another division). She asserts that the decision in ~ conflicts
with the Washington State Supreme Court’s decision in In re Derendency of
K.N.J., 171 Wash. 2d 568, 576, 257 P.3d 522 (2011). She contends that the court
in K.N.J. concluded that dependency and termination are a part of a unified
process such that a party’s appearance in a dependency constitutes an
appearance in a termination action involving the same child.
K.N.J. addressed whether an order of dependency was void because a
judge pro tempore entered the order without the consent of all parties. K.N.J.,
171 Wash. 2d at 578. Concluding that the order was void, our Supreme Court went
on to consider whether there was sufficient evidence of dependency to support
the subsequent order of termination. K.N.J., 171 Wash. 2d at 578. The court
affirmed the order of termination because the trial court made factual findings
that established dependency. K.N.J., 171 Wash. 2d at 582.
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In discussing the statutory framework under RCW 13.34, the court
described termination of parental rights as a “three-step process” which begins,
in some cases, with shelter care and must include a hearing to determine
dependency. K.N.J., 171 Wn.2d. at 576. The mother interprets this language
too broadly. In the context of its discussion, the court merely recognized that a
finding of a dependency precedes termination and that dependency is an
element the Department must prove in order to terminate parental rights. The
decision neither holds nor implies that dependency proceedings and termination
proceedings are the same legal action, as the mother suggests.
~j.. is consistent with K.N.J. and with prior case law recognizing that
dependency and termination proceedings are legally distinct and have “different
objectives, statutory requirements, and safeguards.” In re Welfare of K.K., 119
Wash. 2d 600, 609, 836 P.2d 200 (1992) (a finding of dependency, that does not
require a finding of parental unfitness, does not violate due process). For
example in Hiebert, the filing of a new termination action allowed the parents to
file of an affidavit of prejudice, notwithstanding that the same judge presided over
the dependency proceedings involving the same child. 28 Wash. App. at 909-10;
see also In re Gibson, 4 Wash. App. 372, 379, 483 P.2d 131 (1971) (accord).
“Permanent deprivation requires a new notice and action and is directed against
the parents.” Hiebert, 28 Wash. App. at 908.
The decision in Si. is persuasive and applies here. An action to
permanently terminate parental rights is a new and distinct proceeding, not an
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extension of the dependency action. ~ 184 Wash. App. at 540. And here, the
notice and summons explicitly informed the mother of the critical nature of the
proceeding initiated by the Department’s petition, the importance of attending the
hearing, the potential consequences of not attending, and the need to request
the appointment of a new lawyer for the termination action, even if she was
already represented by a lawyer in the dependency. The fact that a termination
proceeding initiates a new proceeding does not cause it to be a ‘trap[] for the
unwary.”
While default judgments are generally disfavored, there are competing
needs for efficiency and a process that encourages compliance with a summons
and complaint. ~ Morin v. Burns, 160 Wash. 2d 745, 759, 161 P.3d 956 (2007).
The concern for timely permanency for children is particularly paramount in
cases under the termination statute. .~ RCW 13.34.020. “[A] child’s right to a
stable home cannot be put on hold interminably because a parent is absent from
the courtroom and has failed to contact [their] attorney.” In re Dependency of
C.R.B., 62 Wash. App. 608, 616, 814 P.2d 1197 (1991). The mother’s appearance
in the predicate dependency action did not entitle her to notice under CR 55 of
the motion for default in the termination proceeding.
The mother next challenges the sufficiency of the evidence to support the
termination order. Where, as here, a parent fails to respond to a notice and
summons of a proceeding to terminate parental rights, the State may still obtain a
judgment “permanently terminating that parent’s right to the custody and care of
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No. 80010-8-118
[their] child.” C.R.B., 62 Wash. App. at 616. In order to comply with due process,
before entering a default termination order, a court must hold a hearing on the
merits of the petition in accordance with the statutory requirements required for
termination.4 See RCW 13.34.180(1); S.l. 184 Wash. App. at 542. That process
must generally include the sworn testimony of a person familiar with the case and
allow the court an opportunity to question such person. SI, 184 Wash. App.
at 542.
An appellate court will not disturb the trial court’s findings concerning the
elements of a parental rights termination case if substantial evidence supports
them. In re Seqo, 82 Wash. 2d 736, 739, 513 P.2d 831 (1973). When the
Department must prove its case by clear, cogent, and convincing evidence, the
evidence must be more substantial than that required under a preponderance
standard. C.R.B., 62 Wash. App. at 618. Required findings must be sufficiently
specific to permit meaningful review. In re LaBelle, 107 Wash. 2d 196, 218, 728
P.2d 138 (1986). Although the degree of particularity required depends on the
circumstances of each case, at minimum the findings should indicate the factual
bases for the ultimate conclusions. C.R.B., 62 Wash. App. at 618.
~ In order toterminate parental rights, the Department must first prove the six
elements outlined in RCW 13.34.180(1) by clear and convincing evidence.
RCW 13.34.190(1)(a)(i); In re Dejendency ofT.L.G., 126 Wash. App. 181, 197, 108 P.3d
156 (2005). Second, a preponderance of the evidence must establish that termination is
in the child’s best interests. RCW 13.34.190(1)(b); In re Welfare ofA.B., 168 Wash. 2d
908, 911, 232 P.3d 1104 (2010). In addition to these two statutory requirements, due
process also requires the court to make a finding of current parental unfitness. Inre
Parental Rights to K.M.M., 186 Wash. 2d 466, 479, 379 P.3d 75 (2016).
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No. 80010-8-1/9
The mother argues that the facts here are comparable to those in C.R.B.
In that case, after finding the mother to be in default, the court terminated her
parental rights based on the testimony of her caseworker. C.R.B., 62 Wash. App.
at 612-13. Apart from stating the date she began to work on the case, the
caseworker testified to none of the facts underlying the dependency and
termination proceedings. C.R.B., 62 Wash. App. 612. She answered seven
questions affirmatively in response to the Department’s attorney’s questions that
mirrored the language of the statutory elements for termination under
RCW 13.34.180. C.R.B., 62 Wash. App. at 612. This court reversed the order
terminating the mother’s parental rights, in part, because the “evidence”
consisted of only legal conclusions. C.R.B., 62 Wash. App. at 618. And since the
trial court’s findings of fact merely repeated the caseworker’s testimony, there
was no factual support for the legal conclusions and they were not sufficiently
specific to permit appellate review. C.R.B., 62 Wash. App. 619.
Although the hearing on the petition here was brief, the Department
presented evidence that differs in significant respects from the evidence in
C.R.B. First, Nissly, who signed the petition to terminate the mother’s rights on
behalf of the Department, testified that she was familiar with the facts alleged in
the termination petition. She confirmed that those facts were “true and correct” to
the best of her knowledge. Nissly’s unrefuted testimony therefore incorporated
all of the facts supporting the required statutory elements stated in the
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termination petition. The termination order also includes those facts. The court’s
order thus provides the factual basis to support its legal conclusions.
And second, unlike the caseworker’s testimony in C.R.B., Nissly testified
about many of underlying facts, and did not merely recite legal conclusions
“parroting” the statutory language. C.R.B., 62 Wash. App. at 618. Nissly testified
about the services the Department offered to the mother, about the mother’s lack
of progress in those services, and about the issues that rendered her currently
unfit to parent. Nissly stated that the Department offered the mother “[m]ental
health services, a mental health assessment and counselling, a drug and alcohol
assessment, random UAs,~5~ housing assistance, [and] casework management”
to address her identified deficiencies of unaddressed mental health issues,
substance abuse issues, and lack of safe and stable housing.6 She also testified
that the Department provided substance abuse treatment to the mother.
Nissly further testified that the mother had not seen W.L.S. in
approximately three months. She said that the mother initially participated in an
outpatient drug treatment program, but continued to use drugs. The treatment
provider therefore recommended a more intensive level of treatment. The
Department such treatment available and the mother enrolled in an inpatient
treatment program, but left after only four days. Nissly testified that the mother
~ Urinalysis testing.
6 The Department additionally offered the mother drug and alcohol treatment and
the opportunity to participate in medical and developmental appointments for her child.
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No. 80010-8-I/li
stopped attending mental health counselling in October 2018, about six months
before the hearing on the termination petition.
Evidence in the record establishes that the mother’s substance abuse and
mental health issues were “significant” and required “long-term treatment.” The
mother tested positive for drugs in September and October of 2018, and failed to
appear for several other UAs Nissly scheduled for her. The mother had not
engaged in drug treatment after leaving the impatient program, approximately
five months before the termination hearing. She had not obtained stable and
safe housing, participated in her son’s medical and developmental appointments,
or regularly visited him. She lacked understanding and was incapable of
providing for the child’s physical, emotional, mental, and developmental needs.
The mother specifically challenges the evidence to support the court’s
finding that the Department offered all necessary and reasonably available
services capable of correcting her parental deficiencies, as required by
RCW 13.34.180(1)(d).7 She claims the record fails to show that the Department
offered services that were appropriately tailored to meet her individual needs.
But the mother does not explain how any of the services could have been more
helpful or identify her specific needs that the services failed to address. The
Department offered, and the mother completed, both mental health and drug and
alcohol assessments. The Department offered services to the mother based on
those professional, individualized assessments. And the Department adjusted
~ RCW 13.34.180(1)(d) requires proof that “all necessary services, reasonably
available, capable of correcting the parental deficiencies within the foreseeable future
have been expressly and understandably offered or provided.”
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the services it offered the mother after the treatment provider determined that the
mother needed intensive treatment. The evidence demonstrates that the
Department offered services that were tailored to meet the mother’s needs.
The mother also contends the Department failed to offer services in a
meaningful way. She points out that Nissly did not testify that she gave the
mother a “referral list” to access services. But providing a list of service providers
is merely one way the Department may offer services. See In re Hall, 99 Wash. 2d
842, 850, 664 P.2d 1245 (1983). The evidence here demonstrated that the
Department offered the mother services in a way that enabled her to access
them because she participated, to a limited degree, in assessments, treatment,
UAs, and counselling. The evidence in the record supports the court’s finding
that the Department expressly offered specific services to the mother capable of
addressing her parental deficiencies.
Finally, the mother claims the Department failed to demonstrate a
connection between her parental deficiencies and harm to the child, and
therefore, failed to establish current parental unfitness. See In re K.R., 128
Wash. 2d 129, 142, 904 P.2d 1132 (1995) (in addition to finding the statutory
elements, due process requires that a court make a finding of current parental
unfitness before parental rights can be terminated). Contrary to the mother’s
claim, the evidence in the record is sufficient to justify linking her deficiencies and
current unfitness to parent. According to the facts in the record, the mother’s
behavior indicates a failure to prioritize parenting. She was not regularly visiting
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her child and had not seen him at all for three months. She stopped participating
in the services necessary to address her significant mental health and substance
abuse issues. She had not availed herself of the opportunity to attend her son’s
medical and development appointments. And although the social worker
personally provided notice, she failed to respond to the termination action or
appear at the hearing.
The Department presented unrebutted evidence sufficient to meet its
burden to prove the required statutory factors by clear, cogent and convincing
evidence. The evidence was also sufficient to provide a factual basis that
supports the court’s legal conclusions.
Affirmed.
WE CONCUR:
AJii
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