In re the Welfare of R.H.
In re the Welfare of R.H.
Opinion of the Court
¶1 In this case, we address how RCW 13.36.040, the guardianship statute the legislature enacted in 2010, influences parental termination actions under RCW 13.34.180(1). The juvenile court entered orders terminating Bobby Adolphus’s parental rights to his three sons, R.H., T.A., and R.A. Adolphus appeals the termination orders, arguing that the juvenile court erred by denying his timely motion for a continuance to allow him to present evidence of the availability of a relative guardianship
FACTS
¶2 Winter Howland has six children: T.H., R.H., T.A., R.A., N.R., and Z.R. In March 2009, the Department of Social and Health Services (DSHS) removed all six children from Howland’s care. Adolphus is R.H., T.A., and R.A.’s father.
¶3 More than two years later, DSHS petitioned for the termination of Adolphus’s parental rights on October 21,
¶4 After trial, the juvenile court granted DSHS’ petition to terminate Adolphus’s parental rights. Adolphus and Howland appealed. A commissioner of this court considered the appeal on an accelerated basis under RAP 18.13A, affirmed the termination of Howland’s parental rights, and referred Adolphus’s appeal to a panel of judges.
ANALYSIS
¶5 Adolphus argues that the trial court erred by failing to grant his motion to continue the termination trial until after the aunt’s home study could be completed and DSHS determined whether the aunt was available as an appropriate guardianship placement for the children. In 2010, the legislature created a “more flexible alternative to parental termination — guardianship under RCW 13.36.040.” In re Guardianship of K.B.F., 175 Wn. App. 140, 146, 304 P.3d 909 (2013). In this case, we must determine how the new guardianship statute influences the potential termination of parental rights under RCW 13.34.180(1): specifically, whether the availability of a guardianship placement is material to the trial court’s finding that the State proved that continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home. We hold that an identified guardianship is material to this determination. There
¶6 In January 2012, the aunt came forward as a potential guardianship placement for the children. Approximately a month before trial, Adolphus filed a motion to expedite the aunt’s home study or to continue the termination trial.
¶7 Adolphus argued that without the results of the home study, the record before the juvenile court would be incomplete because “[placement with the maternal [sic] aunt presents the option of permanency for the children that does not sever the children’s relationship with their father.” Clerk’s Papers at 118. At the time of the motion, the aunt’s background checks had been completed and DSHS had initiated the home study process. The aunt still had to complete a Parents Resources for Information Development Education class and the home study process before the State could consider her as a guardianship placement for any of the children. The State told the trial court that whether the children would be able to be placed with the aunt was immaterial to whether it could prove all of the elements of termination at trial. The juvenile court agreed with the State and denied Adolphus’s motion to continue the termination trial.
¶8 We review a decision to deny a continuance for manifest abuse of discretion. In re Dependency of V.R.R., 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006). The juvenile court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The juvenile court “takes into account a number of factors,
f 9 Parents have a fundamental liberty and privacy interest in the care and custody of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because of the constitutional interests at stake in a termination proceeding, parents are afforded greater due process rights than in dependency proceedings or other proceedings to determine the custody or placement of children (i.e., dissolutions, parent plan modifications, etc.). See In re Dependency of R.W., 143 Wn. App. 219, 223, 177 P.3d 186 (2008) (when determining placement under a dependency, the best interests of the children is the primary factor to be considered by the court); RCW 26.09.260(1) (allowing modification of a parenting plan if there has been a substantial change in circumstances, modification is in the best interests of the child, and modification is necessary to serve the best interests of the child). In contrast, the juvenile court may terminate parental rights only when the State has proved the six statutory factors in RCW 13.34-.180(l)(a)-(f) by clear, cogent, and convincing evidence.
¶10 Although In re Dependency of A.C., 123 Wn. App. 244, 98 P.3d 89 (2004), was decided based on the dependency guardianship statutes that existed prior to the legislative change in 2010, its analysis of the relationship between guardianship and termination is helpful here. In A.C., the juvenile court considered competing petitions for dependency guardianship (under former RCW 13.34.231 (2000)) and termination of parental rights. The juvenile court found that termination was in the children’s best interests, and the parents appealed. A.C., 123 Wn. App. at 248. Division One of this court addressed whether the juvenile court erred by deciding that termination was in the children’s best interests and, to that end, examined the effect of guardianship versus termination. A.C., 123 Wn. App. at 250.
¶11 Under the prior statutes, “Washington courts are said to ‘look at dependency guardianship as a less restrictive alternative to termination.’ ” A.C., 123 Wn. App. at 252 (quoting 3 Wash. State Bar Ass’n, Washington Family Law Deskbook § 59.7(1) cmt. (2d ed. 2000)). The primary consideration for the courts when deciding between dependency guardianship and termination is permanency for the child. A.C., 123 Wn. App. at 251. The A.C. court noted that “[dependency guardianships now offer sufficient perma
¶12 In A.C., members of the children’s extended family petitioned for a dependency guardianship and DSHS petitioned for termination because the children were currently placed with a family that wanted to adopt them. The juvenile court found that because the children did not have established emotional ties with their extended family and had actual prospects for adoption, termination was in the children’s best interests. A.C., 123 Wn. App. at 255. The appellate court agreed, noting that in this case termination offered the children more permanency than guardianship. A.C., 123 Wn. App. at 255-56. However, the A.C. court held that any case considering guardianship and termination must consider “case-specific factors relevant to the best interests of the child.” 123 Wn. App. at 255.
¶13 Here, as below, the State argued that under our Supreme Court’s recent ruling in In re Dependency of K.D.S., 176 Wn.2d 644, 294 P.3d 695 (2013), the juvenile court does not consider the nature of a potential placement when determining whether the State has met its burden to prove RCW 13.34.180(l)(f). We disagree with the State’s characterization of K.D.S. In K.D.S., our Supreme Court expressly held that “[p]roof of the element codified in RCW 13.34.180(l)(e) does not necessarily prove the element codified in RCW 13.34.180(1)(f).” 176 Wn.2d at 656. The court also rejected the argument that a prospect for a permanent placement was necessary to prove RCW 13.34.180(l)(f) and noted,
We have repeatedly stated that RCW 13.34.180(l)(f) focuses on “the parent-child relationship and whether it impedes the child’s prospects for integration, not what constitutes a stable and permanent home. The State does not have to prove that a stable and permanent home is available at the time of termination.”
¶14 The State can prove RCW 13.34.180(l)(f) 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. See, e.g., A.C., 123 Wn. App. at 250 (“While a detrimental personal relationship would not be irrelevant, [RCW 13.34.180(l)(f)] 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.”). 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. See, e.g., K.D.S., 176 Wn.2d at 659 (continuation of the harmful parent-child relationship “diminishes the likelihood K.D.S. will be emotionally and psychologically prepared to integrate into a stable and permanent home should one become available”). The availability of a guardianship placement is material to determining whether the State can prove either of these means of satisfying RCW 13.34.180(l)(f).
¶15 Although evidence of the availability of a guardianship is material to whether the State can meet its burden to prove RCW 13.34.180(l)(f), it is not necessary for the State to disprove the availability of a guardianship placement. Just as the State is not required to prove that the child has a prospect for adoption, the State is not required to prove that the child does not have a prospective guardianship placement. K.D.S., 176 Wn.2d at 657. But the availability of a guardianship is evidence that the trial court should consider when determining whether the State has met its
¶16 Here, the potential for a guardianship placement had been established for four months prior to the termination trial and the State had completed the necessary background check and was in the process of approving the aunt for guardianship placement. At the termination hearing, DSHS expressed optimism about being able to permanently place the children with the aunt. The juvenile court should have considered the availability of guardianship placement with the aunt when determining whether the State had met its burden to prove RCW 13.34.180(l)(f). Therefore, the juvenile court abused its discretion by denying Adolphus’s timely motion to continue the trial and, as a result, prevented Adolphus from being able to present material evidence. Furthermore, Adolphus was prejudiced when the juvenile court denied his motion to continue until DSHS could determine whether a guardianship could be established because without this information, the juvenile court could not properly decide whether the State had met its burden to prove that his continued relationship with his children diminished his children’s prospects for early integration into a stable and permanent home as required under RCW 13.34.180(l)(f). Accordingly, the juvenile court improperly denied Adolphus’s motion to continue, and we reverse and remand for a new trial.
SANCTIONS
¶17 Under RAP 18.9(a), we may impose sanctions on counsel who violate court rules. RPC 3.3(a)(1) prohibits a
¶18 We reverse the juvenile court’s order terminating Adolphus’s parental rights and remand for further proceed
Adolphus raises several other constitutional and evidentiary arguments. Because we reverse and remand based on the juvenile court’s error denying Adolphus’s motion for a continuance, we do not address Adolphus’s other arguments.
T.H.’s and N.R. and Z.R.’s fathers failed to respond to notice regarding the pending termination, and their parental rights were terminated prior to trial and are not a part of this appeal.
We do not address the portion of Adolphus’s motion requesting that the juvenile court order the State to expedite the aunt’s home study. However, we note that it will rarely, if ever, be the trial court’s place to dictate how the State should manage its time or resources.
RCW 13.34.180(1) requires the State to prove
(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;
(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. A parent’s failure to*426 substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided . . . ;
(f) That continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home.
Reference
- Full Case Name
- In the Matter of the Welfare of R.H.
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