In Re The Dependency Of A.l.f. Floyd A. Fox v. Dshs

I r\ I :. U I
LC iO i L-J>
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of No. 72498-3-1
A.L.F., dob 09/22/2005, and (Consolidated with No. 72499-1-1)
C.R.F., dob 09/22/2005,
Minor children.
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, PUBLISHED OPINION
Respondent,
FLOYD ALAN FOX,
Appellant. FILED: February 8, 2016
Schindler, J. — When a criminal defendant files a motion to enlarge time under
RAP 18.8(b) to file an untimely appeal of a conviction, the State must establish the
defendant made a voluntary, knowing, and intelligent waiver of his state constitutional
right to appeal. Because a parent does not have a constitutional right to appeal, we
hold the standard that applies to the appeal of a criminal conviction does not apply to a
parent's motion to enlarge the time under RAP 18.8(b) to file an untimely appeal of a
dependency and disposition order. And because Floyd Alan Fox fails to show
extraordinary circumstances justify an extension of time under RAP 18.8(b), we deny
No. 72498-3-1 (Consol. with No. 72499-1-l)/2
his motion to enlarge time to file an untimely appeal of the dependency and disposition
order, and dismiss the appeal.
Floyd Fox and Tonya Gilchrist married. In 2005, they were living in Oregon. On
September 22, 2005, Gilchrist gave birth to twin girls A.L.F. and C.R.F. In 2007, an
Oregon court entered a decree of dissolution of the marriage. The court awarded Fox
"full custody" of the children.
In 2012, Fox married Kathy Brown. In April 2013, Brown took the children to
California. Brown obtained an order from a California court prohibiting Fox from
contacting her or the children.
In October 2013, Brown and the children were living in Auburn, Washington. On
October 22, Auburn Police Department Officer Goethals arrested Brown on an
outstanding felony warrant for failure to register as a sex offender. Officer Goethals
placed the children in protective custody with the Washington State Department of
Social and Health Services (Department).
On October 23, the Department filed a dependency petition. The petition
identifies Floyd Fox and Tonya Gilchrist as the biological parents of A.L.F. and C.R.F.
The petition states the "children's biological parent's [sic] whereabouts are currently
unknown and information to suggest that they are able or willing to parent their children
is not known at this time and needs to be further investigated."
On October 24, the court held a shelter care hearing. Fox was represented by
counsel and appeared by phone. The court found A.L.F. and C.R.F. "had no parent,
guardian, or legal custodian to provide supervision or care" and "release of the children]
would present a serious threat of substantial harm to the children]." The court placed
No. 72498-3-1 (Consol. with No. 72499-1-l)/3
A.L.F. and C.R.F. in foster care. The court scheduled a fact-finding hearing on the
dependency petition for January 8, 2014.
On December 13, the Department filed an amended dependency petition. The
amended petition alleged Fox neglected the children, engaged in physical and sexual
abuse of the children, exposed the children to pornography, exposed the children to
domestic violence, and engaged in alcohol abuse. The court continued the dependency
fact-finding hearing to June 4, 2014.
On March 27, 2014, the court entered an order of dependency by default as to
the mother Tonya Gilchrist.
Fox did not appear at the June 4 dependency fact-finding hearing "either in-
person or by telephone." The court continued the fact-finding hearing to Monday, June
9, at 1:00 p.m., and ordered Fox to appear in person to testify.
Fox did not appear at the fact-finding hearing on June 9. During the three-day
hearing, the social worker, the children's therapists, and the court-appointed special
advocate testified. The court admitted into evidence a number of exhibits.
On June 18, the court entered extensive and detailed "Findings of Fact,
Conclusions of Law and Order of Dependency and Disposition as to the Father, Floyd
Alan Fox." The court found Fox engaged in "negligent treatment or maltreatment of the
children," a pattern of neglect and failure to protect, and substance abuse that put the
children's health, safety, and welfare at risk. The court found the children "suffered
trauma, chaotic lifestyle and neglect which already damaged their psychological and
physical development." The findings of fact state, in pertinent part:
[A.L.F.] was sexually abused by her father and both [A.L.F.] and [C.R.F.]
were exposed to inappropriate sexual situations by their father. Their
No. 72498-3-1 (Consol. with No. 72499-1-l)/4
father engaged in negligent treatment or maltreatment of the children and
showed a pattern of neglect of [A.L.F.] and [C.R.F.] by failing to protect
them from a sex offender, failing to protect them from exposure to
pornographic material, exposure to the father masturbating, exposure to
the father naked, observing or hearing their stepmother being raped and
exposure to domestic violence.
The father has shown a pattern of substance abuse that put the children's
health, safety and welfare at risk. The father's intoxication around his
children has impaired his ability to function, make appropriate parental
judgments and he is not capable of adequately caring for [A.L.F.] and
[C.R.F.] [A.L.F.] and [C.R.F.] suffered trauma, chaotic lifestyle and neglect
which already damaged their psychological and physical development.
Neither one of them had control of their own basic bodily functions.
The court concluded the Department met its burden of establishing the
dependency of A.L.F. and C.R.F. Specifically, the court found the children were abused
or neglected under RCW 13.34.030(6)(b); and had "no parent capable of adequately
caring for them, such that the children are in circumstances which constitute a danger of
substantial damage to the children's psychological or physical development," under
RCW 13.34.030(6)(c). The court concluded, "It is currently contrary to the children's
welfare to return home." In the order of disposition, the court ordered Fox to obtain a
drug and alcohol evaluation, a sexual deviancy evaluation, a domestic violence and
parenting assessment, and follow treatment recommendations.
The attorney representing Fox notified him that the dependency and disposition
order had been entered on June 18 and the deadline to file an appeal was July 18,
2014. The attorney sent Fox directions for filing an appeal of the dependency and
disposition order and a declaration of indigency.
On August 26, the trial attorney filed an untimely notice of appeal of the
dependency and disposition order and a motion to enlarge the time to file the untimely
notice of appeal under RAP 18.8(b). The motion to enlarge time to file the appeal was
No. 72498-3-1 (Consol. with No. 72499-1-l)/5
"based upon the attached declaration of [trial] counsel." In the declaration, trial counsel
states she "exercised due diligence" in informing Fox of the entry of the dependency
and disposition order and his right to appeal. The attorney states she "calculated the
deadline for filing an appeal on behalf of Mr. Fox as the 18th of July, 2014," and "sent to
Mr. Fox specific direction to appeal and the declaration of indigency which Mr. Fox
would need to complete in order for me to file an appeal on his behalf." The attorney
states that after the appeal deadline, Fox said he "wanted to file an appeal." On August
6, Fox sent the attorney "Specific Direction to Appeal" and the declaration of indigency.
The Department opposed the motion to enlarge time to file an untimely notice of
appeal under RAP 18.8(b). The Department argued no extraordinary circumstances
justified granting the motion.
In reply, appellate counsel argued the court could not dismiss the motion to
enlarge time under RAP 18.8(b) unless the Department established Fox voluntarily,
knowingly, and intelligently waived his right to appeal the dependency and disposition
order.
A notice of appeal must be filed in the trial court within 30 days of entry of the
decision. RAP 5.2(a). RAP 5.2(a) states:
Notice of Appeal. Except as provided in rules 3.2(e) and 5.2(d) and (f), a
notice of appeal must be filed in the trial court within the longer of (1) 30
days after the entry of the decision of the trial court that the party filing the
notice wants reviewed, or (2) the time provided in section (e).
RAP 18.8(b) provides an exception to the filing requirement. RAP 18.8(b) allows
the appellate court to enlarge the time to file a notice of appeal "only in extraordinary
No. 72498-3-1 (Consol. with No. 72499-1 -l)/6
circumstances and to prevent a gross miscarriage of justice." RAP 18.8(b) states:
Restriction on Extension of Time. The appellate court will only in
extraordinary circumstances and to prevent a gross miscarriage of justice
extend the time within which a party must file a notice of appeal, a notice
for discretionary review, a motion for discretionary review of a decision of
the Court of Appeals, a petition for review, or a motion for reconsideration.
The appellate court will ordinarily hold that the desirability of finality of
decisions outweighs the privilege of a litigant to obtain an extension of
time under this section. The motion to extend time is determined by the
appellate court to which the untimely notice, motion or petition is directed.
As a general rule, "the desirability of finality of decisions outweighs the privilege
of a litigant to obtain an extension of time." RAP 18.8(b); Shumwav v. Payne, 136
Wn.2d 383, 395, 964 P.2d 349 (1998). However, in State v. Kells. 134 Wn.2d 309, 314,
949 P.2d 818 (1998), our Supreme Court held that in considering a motion to enlarge
the time to file an untimely appeal of a criminal conviction, the strict application of RAP
18.8(b) must be balanced against the state constitutional right of a defendant to appeal
a criminal conviction. The court held that "before a notice of appeal may be dismissed
as untimely," the State must show the defendant waived his constitutional right to
appeal. Kells. 134 Wn.2d at 314.
Fox concedes his appeal of the dependency and disposition order is untimely
under RAP 5.2(a). Fox argues that because he has a due process liberty interest in the
care and custody of his children and a right to counsel at public expense, we should
treat his motion to enlarge time in the same manner as a criminal defendant and require
the Department to show he waived the right to appeal the dependency and disposition
order.
Long-standing United States Supreme Court precedent establishes there is no
federal due process right to appeal, even in criminal cases. McKane v. Durston, 153
No. 72498-3-1 (Consol. with No. 72499-1-l)/7
U.S. 684, 688, 14 S. Ct. 913, 38 L. Ed. 867 (1894). The States have the authority to
decide how to structure their judicial system and appellate review. McKane. 153 U.S. at
688. "[WJhether an appeal should be allowed, and if so, under what circumstances or
on what conditions, are matters for each State to determine for itself." McKane, 153
U.S. at 688; see ajso Kohl v. Lehlback, 160 U.S. 293, 299, 16 S. Ct. 304, 40 L Ed. 432
(1895) ("the right of review in an appellate court is purely a matter of state concern");
Ortwein v. Schwab. 410 U.S. 656, 660, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973) (even in
criminal cases, due process does not require a state to provide an appellate system);
Ross v. Moffitt. 417 U.S. 600, 606, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) (reaffirming
traditional principle that there is no constitutional right to appeal and "a State is not
obliged to provide any appeal at all for criminal defendants"); M.L.B. v. S.L.J., 519 U.S.
102, 111, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996) (states under no obligation to
provide appellate review).
In Washington, our constitution expressly grants a convicted defendant the right
to appeal. Article I, section 22 (amendment 10) of the Washington State Constitution
provides, in pertinent part, "In criminal prosecutions the accused shall have . .. the right
to appeal in all cases."1
In State v. Sweet. 90 Wn.2d 282, 286, 581 P.2d 579 (1978), the Washington
Supreme Court held that because there is no presumption in favor of waiver of a
criminal defendant's constitutional right to appeal, "[t]he State carries the burden of
demonstrating that a convicted defendant has made a voluntary, knowing, and
intelligent waiver of the right to appeal."2
1 Emphasis added.
2 Emphasis omitted.
No. 72498-3-1 (Consol. with No. 72499-1-l)/8
In Kells, the court held that before an appellate court can dismiss the motion of a
criminal defendant to file an untimely appeal, the State must show the defendant waived
his state constitutional right to appeal. Kells, 134 Wn.2d at 314.
[I]n criminal prosecutions all defendants have a constitutional right to
appeal, and there can be no presumption in favor of waiver of a
constitutional right. Sweet establishes that the State has the burden to
demonstrate a defendant understood his right to appeal and consciously
gave up that right before a notice of appeal may be dismissed as untimely.
Kells. 134Wn.2dat314.
It is well established that the rights listed in article I, section 22 of the Washington
State Constitution, including the right to appeal, apply only to criminal prosecutions.
State ex. rel. Gray v. Webster, 122 Wash. 526, 530, 211 P. 274 (1922). Unlike the state
constitutional right of a criminal defendant to appeal a conviction, there is no state
constitutional right to appeal a dependency and disposition order. While parents have a
fundamental liberty interest in the care and custody of their children, the State has a
duty to intervene to protect the physical, mental, and emotional health of the child.
Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re
Dependency of K.D.S., 176 Wn.2d 644, 652, 294 P.3d 695 (2013); In re Dependency of
Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007); Stanley v. Illinois, 405 U.S. 645,
652, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Welfare of Sumev, 94 Wn.2d 757,
762-63,621 P.2d 108(1980).
The legislature has adopted a statutory scheme that balances the liberty interest
of a parent with the right of the child to a safe and healthy environment. K.D.S., 176
Wn.2d at 652. RCW 13.34.020 provides, in pertinent part:
The legislature declares that the family unit is a fundamental resource of
American life which should be nurtured. Toward the continuance of this
8
No. 72498-3-1 (Consol. with No. 72499-1-l)/9
principle, the legislature declares that the family unit should remain intact
unless a child's right to conditions of basic nurture, health, or safety is
jeopardized. When the rights of basic nurture, physical and mental health,
and safety of the child and the legal rights of the parents are in conflict, the
rights and safety of the child should prevail. In making reasonable efforts
under this chapter, the child's health and safety shall be the paramount
concern.
In balancing the legal rights of parents against the rights of the child," 'the rights and
safety of the child . . . shall be the paramount concern.'" Schermer, 161 Wn.2d at 9423(quoting RCW 13.34.020). " '[T]he goal of a dependency hearing is to determine the
welfare of the child and his best interests.'" Schermer. 161 Wn.2d at 9424 (quoting jn
re Welfare of Becker, 87 Wn.2d 470, 476, 553 P.2d 1339 (1976)).
Further, unlike a criminal conviction, a dependency proceeding "is 'a preliminary,
remedial, nonadversary proceeding' that does not permanently deprive a parent of any
rights." In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (quoting In re
A.W., 53 Wn. App. 22, 30, 765 P.2d 307 (1988)); Schermer, 161 Wn.2d at 943.
Dependency proceedings are designed to protect children from harm, reunite families,
and help parents alleviate the problems that led to intervention. In re Interest of J.F.,
109 Wn. App. 718, 728, 37 P.3d 1227 (2001). The primary purpose of a dependency
proceeding is to allow courts to order remedial measures to preserve and mend family
ties. Schermer, 161 Wn.2d at 943. If the court finds the State proves the child is
dependent under RCW 13.34.030(6) by a preponderance of the evidence, the court
must then determine placement of the child and the services to be provided. Schermer,
161 Wn.2d at 942 (citing RCW 13.34.130).
3 Alteration in original.
4 Alteration in original.
No. 72498-3-1 (Consol. with No. 72499-1-l)/10
There is no federal due process right under the Fourteenth Amendment to
appointed counsel. U.S. Const, amend. XIV; Lassiter v. Department of Social Services
of Durham County, 452 U.S. 18, 32-34, 101 S. Ct. 2153, 68 L Ed. 2d 640 (1981). "[A]n
indigent litigant has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty." Lassiter, 452 U.S. at 26-27.5
In Washington, parents have a statutory right to counsel at all stages of a
dependency proceeding, including on appeal. RCW 13.34.090; RCW 10.101.005; In re
Dependency of Grove. 127 Wn.2d 221, 226, 897 P.2d 1252 (1995).6 But the right to
appeal is governed by the Rules of Appellate Procedure.7 Consistent with the "strong
interest in the speedy resolution" of dependency proceedings "to ensure that children do
not remain in legal limbo—with the mental and emotional strain that entails—for any
longer than is necessary," the Rules of Appellate Procedure give parents the right to
appeal and the right to an accelerated appeal of an order of dependency and
disposition. In re Dependency of M.H.P., No. 90468-5, slip op. at 17-18 (Wash. Dec.
10, 2015); RAP 18.13A(a); see RCW 13.34.020.
5 Emphasis added.
6 RCW 13.34.090 states, in pertinent part:
(1) Any party has a right to be represented by an attorney in all proceedings under this
chapter, to introduce evidence, to be heard in his or her own behalf, to examine
witnesses, to receive a decision based solely on the evidence adduced at the hearing,
and to an unbiased fact finder.
(2) 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.
RCW 10.101.005 states:
The legislature finds that effective legal representation must be provided for indigent
persons and persons who are indigent and able to contribute, consistent with the
constitutional requirements of fairness, equal protection, and due process in all cases
where the right to counsel attaches.
7 Fox does not suggest the Rules of Appellate Procedure violate a parent's right to due process.
10
No. 72498-3-1 (Consol. with No. 72499-1-l)/11
RAP 2.2(a)(5) gives a parent the right to appeal a dependency and disposition
order. RAP 2.2(a)(5) states:
Generally. Unless otherwise prohibited by statute or court rule and
except as provided in sections (b) and (c), a party may appeal from only
the following superior court decisions:
(5) Juvenile Court Disposition. The disposition decision following a
finding of dependency by a juvenile court, or a disposition decision
following a finding of guilt in a juvenile offense proceeding.
RAP 18.13A(a) states that appeals from orders of dependency and disposition
"shall be heard as expeditiously as possible" and "[t]he provisions of this rule supersede
all other provisions of the Rules of Appellate Procedure to the contrary."
We hold that because a parent has no constitutional right to appeal, the standard
that applies to a criminal defendant does not apply to a parent's motion to enlarge time
under RAP 18.8(b) to file an appeal of a dependency and disposition order.
In the alternative, Fox asserts that even if the Department does not have to show
waiver, extraordinary circumstances justify granting the motion to enlarge time under
RAP 18.8(b) to file an appeal of a dependency and disposition order.
Under RAP 18.8(b), the time for filing a notice of appeal will be extended only in
extraordinary circumstances and to prevent a gross miscarriage of justice. The rule will
not be waived. RAP 1.2(c). "Extraordinary circumstances" include instances where "the
filing, despite reasonable diligence, was defective due to excusable error or
circumstances beyond the party's control." Reicheltv. Ravmark Indus., Inc., 52 Wn.
App. 763, 765, 764 P.2d 653 (1988); Shumway, 136 Wn.2d at 395. Negligence, or lack
of reasonable diligence, does not amount to extraordinary circumstances. Beckman v.
Dep't of Social & Health Servs., 102 Wn. App. 687, 695, 11 P.3d 313 (2000).
11
No. 72498-3-1 (Consol. with No. 72499-1-l)/12
The application of RAP 18.8(b) does not turn on prejudice to the opposing party.
Reichelt, 52 Wn. App. at 766. And even if the appeal raises important issues, it would
be improper to consider those issues absent sufficient grounds for granting an
extension of time. Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366,
368, 849 P.2d 1225 (1993).
Fox claims his appeal presents important issues. As an example, Fox points to
the argument that the juvenile court did not have jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), chapter 26.27 RCW. We
conclude neither compliance with the UCCJEA nor the other issues raised in the appeal
establish extraordinary circumstances.8 Because Fox fails to show extraordinary
circumstances justify an extension of time, we dismiss the appeal.
.ft4lM#Q^ 1
WE CONCUR:
)•£/!/ /NA""^ (_ v1.,
8After oral argument, the Department filed a "Motion to Dismiss UCCJEA Issue as Moot and to
Supplement Record with UCCJEA Order." Fox opposed the motion. Fox claims even though "an Oregon
court has now purportedly declared jurisdiction," the dependency order does not comply with the
UCCJEA. Fox can raise the argument of compliance with the UCCJEA with the dependency court. We
deny the motion to supplement the record.
12