Petition for Writ of Certiorari — Swenson v. Washington Department of Social & Health Services
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\ } 4 Supreme Court, U *
—— F | L i ,
No.________. 99 3 BY JAN 26 2000
INTHE . OFFICE O& IHE CLERK
Supreme Court of the United States
October Term, 1999
IN RE THE WELFARE OF HANNAH S.
B.S. and L.S.,
Petitioners,
V.
THE WASHINGTON DEPARTMENT OF
SOCIAL AND HEALTH SERVICES,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF WASHINGTON
*TIMOTHY K. FORD
KATRIN E. FRANK
MacDONALD, HOAGUE & BAYLESS
705 2nd Avenue, Suite 1500
- Seattle, WA 98104
(206) 622-1604
ATTORNEYS FOR PETITIONERS
*Counsel of Record
DG
eer ee, oe ae
QUESTIONS PRESENTED
This petition presents the following questions
regarding the Fourteenth Amendment standards governing
state proceedings to permanently terminate parental rights,
see MLB. v. S.L.J., 519 U.S. 102 (1996), Santosky v.
Kramer, 455 U.S. 745 (1982):
1. Whether the constitutional requirement that the
State must establish the basis for a parental rights
termination by clear and convincing evidence can be
satisfied by proof of the fact that the parents did not
prevail in separate child welfare proceedings in which they
bore the burden of proving that there was no reason for the
continued removal of their child from their home.
2. Whether the constitutional requirement that the
basis for a parental rights termination be established by
clear and convincing evidence can be satisfied by an
“implicit” determination of current parental unfitness.
3. Whether the constitutional requirement that the
basis for a parental rights termination be established by
clear and convincing evidence applies to a statutory
requirement that termination be shown to be in the child’s
best interests.
4. Whether a state can utilize statutory criteria
governing parental rights termination decisions which are
SO vague as to permit wholly arbitrary enforcement.
— ee ers
i
TABLE OF CONTENTS
OPINIONS BELOW ..,...................
ION Sg sk oo es eben iawn.
CONSTITUTIONAL PROVISIONS AND
oe jl ige D4 8 By ) ea
SrAToMeen OF Tie CASE .... 2.2 csccesee
A. The Law Governing Parental Termination
Proceedings in the State of Washington ....
B. The Proceedings Below ...............
l. The Dependency Proceedings ......
& The Termination Proceedings ......
3. The Decision of the Court of Appeals . .
REASONS FOR GRANTING THE WRIT.......
I. CERTIORARI SHOULD BE GRANTED IN
THIS CASE TO ENFORCE AND CLARIFY
THE STANDARDS OF DUE PROCESS
APPLICABLE TO STATE PROCEEDINGS
LEADING TO THE TERMINATION OF
ae tt ee
A. The Decisions Below Directly Conflict With
a ee ee ee ee ee
il
5 Washington Law Requires Parents to
Prove Their Fitness to Keep Their
fe ee ae eo eee 21
2. Washington Law Does Not Require
"Clear and Convincing" Proof That
Termination Is In The Child’s
Best Interest, a Statutory Element ..... 23
B. The Decisions Below Raise Unresolved
Questions Regarding the Due Process
Limits on Vagueness in Parental Termination
re ire ee rer eee ear ar 25
CREE 6k os os och a RESO Fee we es 28
Det a ik Der Abs
ar eee ee See ee, ee |
2 ee eee
lil
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Alsager v. District Court of Polk County, lowa,
406 F. Supp. 10 (S.D.lowa 1975)
aff'd per curiam, 545 F.2d 1137
(SOE <5 coke Cera aians Sen eee 27
Government of Virgin Islands v. Ayala,
853 F. Supp. 160 (D.V.I. 1993) ........... 28
Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 26
Joint Antifascist Refugee Committee v. McGrath,
it U4. HIS. oo oe 19
M.L.B. v. S.LJ., 519 U.S. 102 (1996) ....... 2,19,27
Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976)... 27
Santosky v. Kramer, 455 U.S. 745 (1982) . 2,18,19,24,27
STATE CASES
In re A.V.D., 62 Wn. App. 562, 815 P.2d 277 (1991) . 24
In re A.W., 53 Wash. App. 22, 765 P.2d 307
(1988), review denied, 112 Wash. 2d
NTT Clee. 5 cowed eae 6
Adoption of Kimberly, 609 N.E.2d 73 (Mass. 1993) .. 24
Davis v. Smith, 583 S.W.2d 37 (Ark.1979) ........ 27
In re Dependency of J.C., 130 Wash. 2d 418,
ee el. | rr rarer ere 6,7
iv
In re Dependency of K.R., 128 Wash. 2d 129,
ee Rit ei err er Se eee 7
In re Elijah R., 620 A.2d 282 (Maine 1993) ....... 25
In re Gonzales v. Department of Human Resources,
933 P.26 196 (lev. TORT). 8 6 ee 25
In re J.C., 130 Wn.2d 418, 924 P.2d 21 (1996) ...... 5
In re K.R., 128 Wn.2d 129, 904 P.2d 1132 (1995) ....7
In Re Maricopa County Juvenile Action
No. JS-5209, 143 Ariz. 178, 692 P.2d
MET CASE ss kee eee eG eee eee eee 24
Matter of M.G.M., 654 P.2d 994 (Mont. 1982) ..... 25
In re Ramquist, 52 Wn. App. 854, 860,
TOs Fae OCR 8 a eee See 24
In re the Welfare of H.S., 94 Wn. App. 511,
793 P.2d 474 (1999) .......... ee re a 2
FEDERAL STATUTES
28 USL. SURG sk eh ee ae be eee eee 2
STATE STATUTES
SOW 1534 Sa oes ee 5
oO OMIM Ae ee 5
ROW SAIS co ice g
om Bee fe | wreerrre Pree ree ers 5,22
i Ren ne eer arena Smee grar on 6,7,
Be A ei a0 eee
Rie Se nk lee eee kee ee
Ee EF A ok oc ees ee Se eee
Pe AOE cc rhs eee ene 6,
Be COON ess eh ke eee eee 16,
te Bee, | rere neers crs"
Bk a8 | er re ere earn ee aes 5,
WO TE brea Ca abs ca ne ee ea er
MISCELLANEOUS
Annotation, Validity of State Statute Providing
for Termination of Parental Rights,
22 A.L.R. 4th 774 (1981 and Supp. 1998)
oar
In The
Supreme Court of the United States
October Term, 1999
IN RE THE WELFARE OF HANNAH S.
B.S. and L.S.,
Petitioners,
Vv.
THE WASHINGTON DEPARTMENT OF
SOCIAL AND HEALTH SERVICES,
Respondent’.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF WASHINGTON
Petitioners Brent and Lorilei Swenson pray that a
writ of certiorari issue to review the judgment of the Court
of Appeals for the State of Washington, which affirmed a
trial court’s order terminating their relationship with their
only child, their daughter Hannah.
\The parties to the proceedings below included
petitioners Brent and Lorilei Swenson, their daughter Hannah,
Hannah’s guardian ad litem Mildred Staley, and Hannah’s foster
parents Mitch and Laura Swenson.
2
OPINIONS BELOW
The opinion of the Court of Appeals below is
reported at Jn re the Welfare of H.S., 94 Wn. App. 511,
793 P.2d 474 (1999) and is set forth as Appendix A to this
petition. The order of the Supreme Court of Washington
denying petitioners’ timely-filed petition for review of the
Court of Appeals decision appears at Appendix B. The
Findings of Fact, Conclusions of Law and Order of
Termination of Parent-Child Relationship entered by the
Superior Court of the State of Washington for Spokane
County which was affirmed by the Court of Appeals, is
reproduced as Appendix C.
JURISDICTION
The order of the Supreme Court of Washington
denying petitioners’ petition for review of the decision of
the Court of Appeals was entered on September 28, 1999.
App. B 1. The time for filing this petition was extended
by Justice O’Connor on December 16, 1999.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1257(a), as petitioners are claiming a violation of
their rights, privileges and immunities guaranteed by the
Constitution of the United States.
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
This case involves the Fourteenth Amendment to
the Constitution of the United States, which provides in
pertinent part:
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
3
person of life, liberty, or property, without due
process of law; nor deny any person within its
jurisdiction the equal protection of the laws.
This case also involves several Washington statutes,
which are lengthy and are therefore set forth in Appendix
E to this petition.
STATEMENT OF THE CASE
This petition seeks review of the judgment of the
Court of Appeals of the State of Washington terminating
the parent-child relationship between petitioners Brent and
Lorilei Swenson and their daughter, Hannah.
Petitioners were forever deprived of all rights with
respect to their daughter because the Washington courts
found their parenting skills showed “deficiencies that are
manifestations of mental illness.” App. A 1. These
deficiencies involved what the State deemed the child’s
“emotional and developmental needs.” App. A 15. There
was no claim Hannah was beaten, abused or abandoned.
The decision below acknowledged that petitioners
“unquestionably love” their daughter (App. A 1) and it was
undisputed that--when the State would let them--they fed
and clothed her, kept her clean, provided her a home and
medical care, read to her, played with her, and took her
places.
The decisions below also acknowledged that
petitioners made their “best and sincerest efforts to resolve
their parental deficiencies.” App. A 2. In fact, the courts
below found that the specific problems that originally led
the State to intervene in the Swensons’ life were resolved
before the termination proceedings even began. See App.
A 9-10. However, the juvenile court denied petitioners’
requests to have Hannah returned to them--which under
4
Washington law led to the termination of their relationship
with her--because petitioners could not show that no other
“valid reason for removal of this child from the parents’
home still exists ....” See App. D 1.
The termination decision was ultimately based on
conclusions regarding petitioners’ inability to provide
“proper care” and the unlikelihood that “conditions” would
change--statutory terms the lower courts refused to define
except by reference to all the facts in this case. See App.
A 11-12. The termination was ordered and upheld despite
the trial court’s failure to find by clear and convincing
evidence that it was in Hannah’s best interest. See App..A
17. To the contrary, announcing its termination decision,
the trial court said that it would be a “travesty” if
petitioners were not allowed “continued involvement ... in
the life of their daughter”--but its order unequivocally put
an end to that involvement. See App. C 16.
An understanding of how this “travesty” occurred,
and the federal constitutional questions it raises, requires
some familiarity with Washington’s child dependency and
parental termination laws. We turn to that subject first,
before describing in more detail how those laws were
applied and upheld in petitioners’ case.
A. The Law Governing Parental Termination
Proceedings In the State of Washington.
Parental termination proceedings in the State of
Washington are governed by two basic statutes, RCW
13.34.180 and 13.34.190. See Appendix E 4-6.
Under these statutes, an order permanently
terminating a parent-child relationship often follows from a
“dependency” or child welfare action, as it did in
petitioners’ case. A dependency action involves temporary
—
5
state intervention and can be based on proof of one of
several statutory grounds--abandonment, some form of
abuse or neglect, or the absence of a “parent, guardian, or
custodian capable of adequately caring for the child.” See
RCW 13.34.030(2), App. E 1. Because this deprivation is
not permanent, the State needs to establish the grounds for
dependency only by a preponderance of the evidence.
RCW 13.34.130; see In re J.C., 130 Wn.2d 418, 421n.3,
924 P.2d 21 (1996). If a child is found dependent and
removed from her parents’ custody, she cannot be returned
to the parents’ home “unless the court finds that a reason
for removal ... no longer exists” RCW 13.34.130(5), App.
E 2; see App. D 1.
The fact that a child has been found dependent,
removed from the home, and not returned to her parents’
custody for more than six months, constitute the first three
elements which the State must prove in order to
permanently terminate the parent-child relationship. RCW
13.34.180(1)-(3), App. E 4. These elements must be
proved by “clear, cogent and convincing evidence.” See
RCW 13.34.190(1), App. E 7. The other three elements
that must be proved by this standard? in a termination
hearing are: that all “reasonably available” services have
been provided, 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 that “continuation of the
parent and child relationship clearly diminishes the child’s
prospects for early integration into a stable and permanent
home.” RCW 13.34.180(4)-(6), App. E 4.
2In addition, to enter a termination order the trial court
must find that “such an order is in the best interests of the
child.” RCW 13.34.190(4), App. E 7. However, under
Washington law this factor need not be proved by “clear, cogent
and convincing evidence”. Ibid.
6
Neither the statute nor Washington caselaw defines
the crucial word “conditions” in the fifth of these
elements.? In fact, as reflected in the decision of the Court
of Appeals below, the Washington courts have refused to
hold even that “the ‘conditions’ of RCW 13.34.180(5) are
limited to the facts of the original dependency.” App. A 9.
At the same time, as the Court of Appeals below
emphasized, the Washington cases have held that
[i]t is not necessary to re-establish the original
dependency at termination. Jn re Dependency of
J.C., 130 Wash.2d 418, 428, 924 P.2d 21 (1996).
The review process results in repeated, updated
findings of the dependency. Former RCW
13.34.130(5); In re A.W., 53 Wash.App. 22, 28,
765 P.2d 307 (1988), review denied, 112 Wash.2d
1017 (1989). .
App. A 10. Rejecting arguments that these rules and the
lower standard of proof at dependency proceedings
undermine the constitutionally required burden of proof at
termination, the Washington courts have declared that "if
the state proves the allegations [required by RCW
13.34.180] ... an implicit finding of current parental
34 subsection of that section which was relied upon by
the trial court in this case provides that “[i]n determining
whether the conditions will be remedied the court may consider,
but is not limited to” “[p]sychological incapacity or mental
deficiency of the parent that is so severe and chronic as to
render the parent incapable of providing proper care for the
child for extended periods of time, and ... documentation that
there is no treatment that can render the parent capable of
providing proper care for the child in the near future.” RCW
13.34.180(5)(b), App. E 4; see App. C 15. No statute or
Washington case defines the phrase “proper care” as it appears
in this subsection.
7
unfitness has been made," Jn re K.R., 128 Wn.2d 129, 142,
904 P.2d 1132 (1995). As the Court of Appeals’ decision
below put it:
[T]ermination proceedings are not a relitigation of
the dependency issues, and the accuracy of the facts
underlying the original dependency adjudication is.
not deemed critical. Krause [v. Catholic
Community Services,| 47 Wash.App. [734] at 743,
737 P.2d 280 [(1987)]. The issue at termination is
current unfitness. Jn re Dependency of K.R., 128
Wash.2d 129, 142, 904 P.2d 1132 (1995). If the
elements of RCW 13.34.180 are proved, current
parental unfitness is implicitly established. J.C.,
130 Wash.2d at 428, 924 P.2d 21; K.R., 128
Wash.2d at 142, 904 P.2d 1132.
App. A 10.
B. The Proceedings Below.
The contradictions of this statutory system
manifested themselves with a vengeance in this case.
1. The Dependency Proceedings.
The judicial intervention in the Swensons’ family
life began with the filing of a dependency action in March,
1993, when Hannah was four months old. Petitioners
agreed to the orders of dependency and complied with the
conditions imposed upon them to deal with the specific
problems identified in the dependency action: a concern
that Hannah was not gaining weight and could be at risk
for “failure to thrive”; and fear, arising from a statement
8
Lorilei Swenson had volunteered to a social worker, that
Hannah might be at risk of sexual abuse.‘
Under treatment and supervision by State selected
examiners, petitioners successfully addressed these original
concerns. However, as they did, in the trial court’s words,
“(t]he circumstances of the dependency evolved” and the
“focus ... shifted.” App. C 11.
When the case came back to court for review in
early October, 1993, the Juvenile Court Commissioner
found that "a reason for removal of the child from his/her
home as set forth in RCW 13.34.130(1)(b) ... continues to
exist," which it explained as follows:
The parents visit regularly and have participated in
services. No reports have documented that they
have been able to make the changes necessary to be
able to parent this child or that progress has been
made.
Three weeks later--without waiting the statutorily required
six months after the dependency and removal, see RCW
13.34.180(3)--the State filed its first petition for the
termination of petitioners’ relationship with Hannah. In
February, 1994, this termination petition was dismissed,
and the dependency went on.
In June, 1994, the doctor who Lorilei Swenson had
been ordered to see for a psychosexual evaluation reported
that "Lori has made considerable strides in the past year,"
and found her "credible in stating that she no longer had
4Mrs. Swenson told the social worker in January 1993,
when Hannah was two months old, "I’m afraid to change the
baby’s diaper, because I feel like 1 want to kiss her on the
labia.”
acre
9
sexual impulses involving Hannah." He also found Mrs.
Swenson’s "[c]oncentration and attention appeared to be
within normal limits" and "no indications of hallucinations
or delusions." Yet the dependency went on.
Petitioners’ visitation was increased in the spring of
1995 to the point where Hannah was staying with them for
40 hours a week, unsupervised. However, a dependency
review in July, 1995, again found that "a reason for
removal of the child from his/her home ... continues to
exist". This time, the reason was that "[t]he parents
continue to require significant support during visits
regarding judgment concerning the child and stress levels."
In September, 1995, petitioners were ordered to
submit to yet another psychiatric evaluation. This
examiner, Dr. Michael Manz--to whom petitioners objected
as biased--reported that he found no "evidence ... which
would conclude [sic] that they [petitioners] could
adequately parent their daughter" and recommended that
the State reduce visitation and seek termination.
The Juvenile Court accordingly reduced petitioners’
visitation schedule and, citing court congestion, put off
their pending Motion to have Hannah returned to them.
That Motion was finally heard and denied--after a new
termination petition was filed--in April, 1996.
In denying the motion to return Hannah to her
parents, the Juvenile Court Commissioner said expressly
that he was doing so although the factual basis for the
original dependency and removal no longer existed.
Are things the same now as they were when the
dependency started and the child was originally
removed? I think the answer to that is no. ... There
were issues about the mother having thoughts of
10
placing the child at risk for sexual abuse. Frankly,
that, at present, does not constitute a risk tq this
child. And frankly, | don’t see the case as being
about that issue. There was initially question about
failure to thrive of a three-month-old child. And I
think the issues have completely changed there,
also.
App. D 1. The Commissioner noted that under
Washington’s dependency and removal statutes the fact
things had "completely changed" with regard to the original
grounds for the dependency did not end the matter.
In dealing with the applicable statute, 13.34.130, in
a context of a review hearing, the legislature has
shifted the focus. Initially, in a dependency, the
focus is, in terms of language, that the child shall, .
essentially, not be removed from the home unless
the state shows (a), (b) and (c). In the context of a
review hearing, that focus switches, and it says the
child shall not be returned unless the court finds a
valid reason for removal no longer exists. So, the
question at this point is whether, simply stated, a
valid reason for removal of this child from the
parents’ home still exists today.
Ibid. (emphasis added). The Commissioner found none of
the usual "valid reasons" for dependency or removal.
There’s never been any claim of intentional
abuse of this child, and that certainly is not
an issue in this case. No one would
anticipate or expect that either of these
parents would do anything to damage this
child on an intentional basis. To the
contrary, they have, in most respects,
complied with the requests of the court
2 ________eGC"O
1]
along the way, and engaged in and benefited
from services to the extent that they have
been able.
App. D 3.
If we look at just the basic parenting functions, if
we break this down into its component parts in
terms of simple things -- preparing meals, cleaning
a house, doing laundry, reading books to a child --
in many respects the parents, having stabilized their
mental conditions, have made dramatic progress.
The parents are now able to meet the basic day-to-
day needs of this child in this respect. They can
keep a home. They can clean a house. They can
provide meals. They can do that within acceptable
standards, at least to the level that it would not pose
a serious risk of harm to this child.
Ibid. However, the new "focus of the case," the
Commissioner said, was "where would we go from here in
terms of parenting.” Ibid.
At this point the court would find that rather
than being in danger of physical needs going unmet,
that the real risk to this child would be to the
child’s emotional development if returned home.
App. D 5. The Commissioner’s written order reflected
similar considerations.
In light of the Commissioner’s finding that the
original grounds for dependency and removal no longer
existed, petitioners moved to dismiss the dependency. In
support of this motion, they argued that they were denied
due process by the failure to provide notice and a hearing
on specific allegations of grounds for continued
12
dependency. The Commissioner denied that motion and
petitioners sought appellate review. That review was
pending in October, 1996, when the trial court held a
hearing on the State’s second petition to permanently
terminate petitioners’ relationship with their daughter.
2. The Termination Proceedings.
The termination hearing was conducted before a
different trial judge, and went on for several days.
The testimony at the termination resembled that
before the Juvenile Court Commissioner. There was
general agreement that any danger that Lorilei Swenson
might have inappropriate sexual contact with Hannah had
disappeared, if it ever existed. Although Hannah was still
quite thin, there was no doubt she was healthy. There was
no testimony that petitioners had ever deprived Hannah of
clothing, shelter, or medical care or food--to the contrary,
the State at one point argued they tried to feed her too
much. There were absurd descriptions of scenes where
more evaluators than family members were present in the
petitioners’ small apartment, documenting the family’s
every movement and word. There were detailed logs of
years of visits and observations, and no testimony from
anyone that the Swensons had done anything that had
actually harmed or endangered their daughter.°
5The closest thing to a "danger" was testimony that
petitioners had failed to tape the cord of an electrical crockpot in
their kitchen to the wall. Although petitioners testified that they
had dealt with the problem by moving the crockpot away from
the edge of the shelf, some of the State social workers did not
believe their response was adequate.
13
At the end of the testimony, the trial court
announced its decision, which echoed the decision of the
Juvenile Court Commissioner six months earlier:
I would mention that I re-read Commissioner
Valente’s April, ‘96, Oral Decision several times,
and it would appear to this Court that his
observations at that time are very similar to this
Court’s observation at the present time. We have a
diagnosis of schizophrenia. There are some
questions about the legitimacy about that. There is
no question, however, that both Brent and LoriLei
suffer from mental illness of some kind. ...
Testimony is that Brent still suffers from stress that
can be overwhelming and that he takes steps to
avoid that stress when he feels it oncoming, such as
when Hannah becomes too difficult to handle, will
leave the room, et cetera; that LoriLei sometimes is
rigid, concrete, inflexible, and hasn’t overcome
those problems....
There are two common themes that run
through the testimony. One is that this matter
needs some finality. Number two, that change for
Hannah would be traumatic. There’s a third theme
that was developed, that there should be ongoing
contact between Hannah and both the birth parents
and the foster parents...
As I have indicated previously, if I didn’t
make a decision today, it would just extend that for
a longer period of time, and the evidence before
this Court does not give this Court any assurance
that it would ever result in reunification.
Consequently, the Court grants the Petition for
Termination.
14
_ The court then went on to add two "suggestions:"
However, the Court wants to add two things, and I
don’t know if it can be made part of the Order, but
I want it in there, at least as a suggestion from this
Court, that there be continued involvement by Brent
and LoriLei in the life of their daughter, Hannah. |
think it would be a travesty if they were not
allowed that opportunity. And the other thing is
that the foster parents should continue to use the
name of Hannah...
The written Termination Order similarly
acknowledged that the original bases for these dependency
no longer existed® but said that "[t]he circumstances of the
dependency evolved" and "the focus has shifted to inability
of the parents to meet the child’s needs." App. C 11.
However, it said that "the parents are unable to parent this
child with little or no likelihood of change in the near and
foreseeable future" because "[c]hronic mental health issues
interfere with the parents’ abilities to meet the child’s
physical, emotional and developmental needs." App. C 7.
The Order also held that termination was in the
child’s “best interests”. App. C 16. However,
inconsistently, it said that "some contact between the child
and her biological parents may be in her best interests."
App. C 14. In an apparent effort to resolve this dilemma,
the Termination Order repeated the trial court’s
"recommendation" that, after termination, petitioners be
6The Termination Order referred only to testimony "that
Lorilei Swenson has worked her way through any issues
concerning her sexual abuse as a teenager and that issue is not a
matter of concern now or in the future." App. C 7. It made no
mention of any danger Hannah would "fail to thrive."
15
allowed to "maintain contact" with their daughter. Ann. C
14.
The Termination Order did not identify any specific
"findings of fact" as having been made pursuant to the
"clear, cogent and convincing evidence" standard.
However, responding to an objection on this score from
petitioners’ counsel, the court added those words to this
summary statement in its conclusions of law:
The elements of RCW 13.34.180(1), (2), (3),
(4), (5) and (6) have been met by clear,
cogent and convincing evidence. The
elements of RCW 13.34.190 are also met.
Therefore, pursuant to RCW 13.34.180 and
13.34.190, the parent-child relationship
between the minor child and Brent Swenson
and Lorilei Swenson should be terminated.
App. C 15.
Although the trial court was provided with a copy
of the then-recent decision in M.L.B. v. S.L.J., and a brief
on the Fourteenth Amendment standards applicable to
termination proceedings, it made no mention of them in
either its oral or written decision. It denied petitioners’
counsel’s request that it specify the factual findings it was
making under the “clear, cogent and convincing evidence”
standard, and refused to define the “conditions” it found
unlikely to change and the “proper care” it found
petitioners unable to provide, in reaching its conclusion
that “the elements” of RCW 13.34.180(5) were “met.”
Report of Proceedings at 1745-1747. It specifically
declined to hold that those terms referred to “conditions”
and a lack of “proper care” that would, themselves, support
a dependency order filed in the first instance. Ibid.
16
3. The Decision of the Court of Appeals.
Petitioners’ appeal challenged the termination order
on both statutory and constitutional grounds.
Citing Santosky and M.L.B., petitioners argued that °
the trial court had denied them due process in two major
respects. First, they argued that “The State Was Not
Required To Prove Its Case For Termination By “Clear,
Cogent and Convincing” Evidence,” because “The Trial
Court Did Not Find The Factual Basis For Termination
Proved By [That Standard]," “The Trial Court’s Reliance
on a Dependency Whose Basis No Longer Existed
Reversed the Constitutional Burden Of Proof,” and “The
Trial Court Did Not Apply the “Clear, Cogent and
Convincing” Standard To The Issue Of The Child’s Best
Interests.” Appellant’s Opening Brief, Jn re Hannah S., at
51-63. In addition, analogizing to “void for vagueness”
precedents from criminal law, petitioners argued that the
trial court’s refusal to define the crucial terms “conditions”
and “proper care” denied them due process by allowing
selective enforcement. Id. at 51-56; see also Appellant’s
Reply Brief at 27-32.
The Court of Appeals paid little attention to these
constitutional arguments. It rejected the argument that the
burden of proof had been misapplied, saying that this claim
“misinterpret[ed] the dependency statute.” App. A 10. In
termination proceedings, it said, it is “not necessary to
re-establish the original dependency at termination” and
“the accuracy of the facts underlying the original
dependency adjudication is not deemed critical” since
“(t]he issue at termination is current unfitness” which is
“implicitly established” if the statutory elements are found.
Ibid. Regarding the burden of proof on the element of
child’s best interests, the Court of Appeals said it found no
inconsistency between the trial court’s ultimate conclusion
17
and its “expressed opinion that ‘some contact between the
child and her biological parents may be in her best interests
as she continues to grow older’” App. A 17. Rejecting
petitioners’ vagueness arguments, it said a “statute is
unconstitutional as applied only if the record shows the
decision was arbitrary,” and that the statutory “term
‘conditions’ clearly refers to present and continuing
objective deficits in [petitioners’] parenting skills.” App. A
12.
Petitioners moved for rehearing, which was denied
without comment. Petitioners then petitioned the
Washington Supreme Court for review, reiterating their
federal due process challenges to the placement of the
burden of proof and the vagueness of the statutory terms
upon which the termination was based. The Petition for
Review was denied. App. B.
REASONS FOR GRANTING THE WRIT
I. CERTIORARI SHOULD BE GRANTED IN
THIS CASE TO ENFORCE AND CLARIFY
THE STANDARDS OF DUE PROCESS
APPLICABLE TO STATE PROCEEDINGS
LEADING TO THE TERMINATION OF
PARENTAL RIGHTS.
Santosky v. Kramer, 455 U.S. 745 (1982) held that
“Tbjefore a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires
that the State support its allegations by at least clear and
convincing evidence.” Jd. at 748. The Court in Santosky
based that holding on a recognition of the extent to which
a parent faced with a termination proceeding “may be
“condemned to suffer a grievous loss.’" Santosky v.
Kramer, 455 U.S. at 758, quoting Joint Antifascist Refugee
Committee v. McGrath, 341 U.S. 123, 168 (1951).
18
The Court has since expanded upon Santosky’s rule
and held that, because of the stakes involved, a parent
_ facing termination proceedings is due procedural
protections greater than those required in any other type of
civil proceeding.
The object of the proceeding is "not simply to
infringe upon [the parent’s] interest ...but to end it";
thus, a decision against the parent "work(s] a unique
kind of deprivation." Lassiter [v. Department of
Social Servs. of Durham Cty.,] 452 U.S. [18], at 27
((1981)] .... For that reason, "(a] parent’s interest in
the accuracy and justice of the decision ... iS ...
commanding one." Ibid. ...
... [A] termination decree is "final and irrevocable."
[Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982) (emphasis in original).
"Eew forms of state action ... are both so severe and
so irreversible." Jbid. [In Santosky,] {a}s in
Lassiter, the Court characterized the parent’s
interest as "commanding," indeed, "far more
precious than any property right." 455 U:S., at
758-759, 102 S.Ct., at 1397.
ML.B. v. S.L.J., 519 US. at 118-19 (footnotes omitted).
Santosky’s due process rule was also grounded in an
understanding of the practical realities of parental
termination proceedings (or, as they were called in New
York at the time, “permanent neglect proceedings”).
Permanent neglect proceedings employ imprecise
substantive standards that leave determinations
unusually open to the subjective values of the
judge. See Smith v. Organization of Foster
Families, 431 U.S., at 835, n. 36. In appraising the
, —
19
nature and quality of a complex series of encounters
among the agency, the parents, and the child, the
court possesses unusual discretion to underweigh
probative facts that might favor the parent.
Because parents subject to termination proceedings
are often poor, uneducated, or members of minority
groups, id., at 833-835, such proceedings are often
vulnerable to judgments based on cultural or class
bias. The State’s ability to assemble its case almost
inevitably dwarfs the parents’ ability to mount a
defense. Furthermore, the primary witnesses at the
hearing will be the agency’s own professional
caseworkers whom the State has empowered both to
investigate the family situation and to testify against
the parents. Indeed, because the child is already in
agency custody, the State even has the power to
shape the historical events that form the basis for
termination. ,
The disparity between the adversaries’
litigation resources is matched by a striking
asymmetry in their litigation options. Unlike
criminal defendants, natural parents have no "double
jeopardy" defense against repeated state termination
efforts. If the State initially fails to win termination,
as New York did here ... it always can try once
again to cut off the parents’ rights after gathering
more or better evidence. Yet even when the parents
have attained the level of fitness required by the
State, they have no similar means by which they
can forestall future termination efforts.
Santosky v. Kramer, 455 U.S. 462-64 (footnotes omitted).
The facts and procedural history of this case suggest things
have changed little since Santosky, at least in Washington
State.
20
A. The Decision Below Directly Conflicts With
Santosky v. Kramer.
The Washington termination statute and caselaw
treats Santosky 's constitutional proof standard as a
meaningless incantation. Although the Washington statute
recites the words “clear, cogent and convincing evidence,”
it limits and applies those words in a fashion that
undermines and even reverses the constitutional burden of
proof this Court has mandated in. termination proceedings.
1. Washington Law Requires Parents to
Prove Their Fitness to Keep Their Child.
By law in Washington, the threshhold “facts” which
must be proved by “clear, cogent and convincing evidence”
to terminate parents’ rights to their children are matters of
procedural history: that the child has been found
dependent and has been removed from the parents’ home
for more than six months. See RCW 13.34.180(1)-(3),
App. E 4. This presents a conundrum, because a
dependency finding can be based on a mere preponderance
of the evidence, and once removed from her home a child
cannot be returned unless it is shown that “a valid reason
for removal no longer exists.” See RCW 13.34.130(5)(4),
App. E 2.-
Thus, in Washington, parents’ rights can be
terminated, as petitioners’ were, by “clear and convincing”
proof that they previously have been unable to prove that
there is no reason to keep their child from them. This
convoluted standard places the ultimate burden of
persuasion on the parent; the requirement of "clear and
convincing evidence" is mere window dressing. ]t would
make no difference if the State’s nominal burden of proof
were absolute certainty: to say that it is “certain” or
“clear” that another court has earlier found that a parent
21
failed to prove there was no “valid reason” for his child’s
continued removal does not change the fact the burden of
proof was on the parent with respect to the only real
factual determination made in the case.’
That is where the burden was clearly and quite
explicitly placed in this case. By its terms and under the
law, the termination order was based on the fact Hannah
had not been returned home for more than six months and
would not likely be anytime soon. See App. C 15; page
14, above. The fact Hannah had not been and would not
soon be returned home was the result of her parents
inability to disprove any “valid reason” for her continued
removal. See App. D-1.
7The Washington courts have tried to make the
contradictions built into this statutory scheme disappear with the
by declaring that the elements of RCW 13.34.180(1)}-(6) add up
to an where we said that RCW 13.34.180. “an implicit finding
of current parental unfitness. " Jn re K.R, 128 Wn.2d 129,
141-42, 904 P.2d 1132 (1995); see In re J.C., 130 Wn.2d 418,
428, 924 P.2d 21 (1996); App A 10. This fiction cannot
eliminate the real constitutional problems with this statute. For
one thing, the presumption that present unfitness has been
clearly established simply does not logically follow from the
“fact” of a previous dependency adjudication made under a
lower evidentiary standard and on facts that may well have
changed. Cf. Leary v. United States, 395 U.S. 6 (1969)
(presumption can be utilized in criminal law only if presumed
facts more likely than not follow from proven facts). Second, a
finding cannot both be “clear and convincing” and “implicit,” at
the very least, afinding required to be made under an elevated
standard of proof the finding must be stated directly. In the
absence of a direct statement by the trial court that he found
“present unfitness” at all, it can hardly be said that he found
such unfitness “clearly and convincingly” proved, as Santosky
requires.
22
If, as Santosky held, the Due Process Clause does
not permit States to terminate parents’ rights on the basis
of a mere preponderance of the evidence, a fortiorari it
cannot permit the burden to be placed on the parents to
disprove all "valid reasons" their child might be kept from
them. This aspect of Washington’s law and the
proceedings below thus conflict directly with Santosky
itself to an extent that warrants this Court’s intervention.
y a Washington Law Does Not Require
“Clear and Convincing” Proof That
Termination Is In The Child’s Best
Interest, A Statutory Element.
The law of Washington also ignores Santosky with
respect to a key statutory prerequisite to an order
terminating parental rights: a showing that “[s]uch an
order is in the best interests of the child.” See RCW
13.34.190(4), App. E 6. The Washington statute makes it
clear that, unlike the procedural “facts” delineated in RCW
13.34.180(1)-(6), this element need not be proved by
“clear, cogent and convincing evidence” or any particular
standard of proof. Compare RCW 13.34.190(1)-(3), App.
E 6.
The termination order in petitioner's case followed
that distinction, reciting:
The elements of RCW 13.34.180(1), (2), (3), (4),
(5) and (6) have been met and proven by clear,
cogent and convincing evidence. The elements of
RCW 13.34.190 are also met.
App. C 15. This was no accident: the trial judge plainly
had doubts about whether termination was in Hannah’s best
interests. one. As noted above, in his oral opinion the
judge said it would be a “travesty” for petitioners not to
23
continue to be involved in their daughter’s life. The
written termination order added that "some contact between
the child and her biological parents may be in her best
interests as she continues to grow older...” App. C 14.
Having said that, the trial court would have been hard
pressed to find by “clear and convincing evidence” that it
would be best for Hannah to have her birth parents
permanently and completely excluded from her life; and it
did not so find, because Washington law did not require it
to do so.
The Court of Appeals below was presented with all
this but cast it aside, saying only that the trial court
“unequivocally recogniz[ed] that termination of parental
rights is in the best interests of this child.” App. A20. In
light of the above, that is debatable; but more importantly
it is irrelevant. A finding made by a preponderance of the
evidence is not “equivocal”; but under Santosky, neither is
it constitutional.
There is no apparent justification for Washington’s
statutory exclusion of this element from the “clear, cogent
and convincing” evidence standard, which dates from the
enactment of this statutory scheme in 1977, five years
before Santosky was decided. See Wash. Laws 1977,
Chap. 291 sec. 47. The Washington cases have never
attempted to explain this disparity. None of the principles
underlying the decision in Santosky would explain it; in
fact, the child’s best interests would appear to be an issue
particularly subject to “judgments based on cultural or
class bias” and the influence of the State’s “power to
8The Washington cases have simply applied the lower
standard of proof to this issue without comment. See Jn re
Ramquist, 52 Wn. App. 854, 860, 765 P.2d 30 (1988); In re
A.V.D., 62 Wn. App. 562, 571, 815 P.2d 277 (1991).
24
shape the historical events that form the basis for
termination.” Santosky v. Kramer, 455 U.S. at 463.
Apparently recognizing this, other states which
make a finding regarding the child’s best interests a |
prerequisite to termination require that finding to be made
under Santosky’s heightened proof standard. See In Re
Maricopa County Juvenile Action No. JS-5209, 143 Ariz.
178, 692 P.2d 1027, 1038 (1984); Adoption of Kimberly,
609 N.E.2d 73, 75 (Mass. 1993); Jn re Elijah R., 620
A.2d 282, 284 (Maine 1993); Matter of M.G.M., 654 P.2d
994, 997 (Mont. 1982);; In re Gonzales v. Dept. of Human
Resources, 933 P.2d 198, 202 (Nev. 1997). Washington
appears to be alone in its assumption that this factor is
exempt from Santosky’s constitutional rule.
The inconsistency between the law of Washington
and other states in this regard, and the lack of any apparent
justification for the exemption of this issue from Santosky's
constitutional rule, are additional reasons review is called
for here. Rule 10(c).
B. The Decisions Below Raise Important Unresolved
Questions Regarding the Due Process Limits on
Vagueness in Parental Termination Statutes.
Apart from the burden of proof issues directly
controlled by Santosky, this case presents a question about
the application of another type of due process rule to
parental termination proceedings: the limits on statutory
vagueness required to prevent arbitrary enforcement of
laws impacting on fundamental rights.
The record of this case presents that issue clearly.
Under the Washington statute, once the State proved the
undeniable fact that Hannah had been found dependent and
removed from petitioners’ home, the crucial remaining
alana blintaieiiaamaamaallal
25
issue was the likelihood “the conditions” would soon be
remedied. RCW 13.34.180(5), App. E 4. The trial court
found they would not be, applying a statutory presumption
"conditions" will not change if they stem from
psychological problems which render a parent incapable of
providing “proper care." RCW 13.34.180(5)(b), App. E 4;
see App. C 15.
The Court of Appeals decision below rejected
petitioners’ challenge to the trial court’s refusal to provide
any definition of these vague statutory terms, saying that
the trial court’s decision could be challenged on this
ground “only if the record shows the decision was
arbitrary,” holding that it was not because “[t]he term
"conditions" clearly refers to present and continuing
objective deficits in B.S.’s and L.S.’s parenting skills.”
App. A 12.!2
*Because of the "evolution" of the State’s allegations
regarding petitioners’ parental deficiencies, their counsel asked
the trial court to define or specify what "conditions" it was
considering in this regard and the "proper care" petitioners had
to show themselves capable of providing; the trial court refused
to do so. RP 1758-60. The trial court refused even to say
whether it considered "proper care” to be a level of care
sufficient to avoid a finding the child was dependent. Ibid.
‘OThe Respondent Attorney General of the State of
Washington similarly answered in its Brief below that the
word “conditions”had no general definition but simply
referred to "parental deficiencies viewed in the context of
the care for the child at issue." Brief of Respondent at 24,
In re Hannah S.
26
This, of course, misses a basic point of the
constitutional requirement of reasonable statutory
specificity: the need to protect against arbitrary and
unequal judicial enforcement of statutes impinging on
fundamental constitutional rights. Even where it gives
adequate notice, a statute may be “impermissibly vague
because it fails to establish standards for the police and
public that are sufficient to guard against the arbitrary
deprivation of liberty interests. Kolender v. Lawson, 461
U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).”
Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 1857
(1999) (plurality opinion). “[I)f arbitrary and
discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc
and subjective basis...” See Grayned v. City of Rockford,
408 U.S. 104. 108-09 (1972).
This Court has not had occasion to address directly
the extent to which the constitutional prohibition of
vagueness, which has largely developed in the context of
the criminal law, applies to parental termination
proceedings. In light of the Court’s recent reiteration that
such proceedings most closely resemble criminal
prosecutions in the magnitude of their impact on individual
liberty, M.L.B. v. S.L.J., 519 U.S. at 120, and its
recognition of particular risks of unequal enforcement such
proceedings involve, Santosky v. Kramer, 455 U.S. at 463,
it would appear clear that it does.
Lower courts generally have recognized that the
vagueness principle does extend to termination
proceedings. See Annotation, Validity of State Statute
Providing for Termination of Parental Rights § 3(c)-(f),
22 A.L.R. 4th 774 (1981 and Supp. 1998), and cases there
cited. The majority of these case have upheld necessarily
27
general statutory provisions governing termination issues
against such challenges; yet a number, examining
unadorned terms similar to those involved in this case,
have held otherwise. See, e.g., Alsager v. District Court,
406 F.Supp. 10, 18 (S.D. Iowa 1975) aff'd per curiam, 545
F.2d 1137 (8th Cir.1976) (statute unconstitutionally vague
for allowing termination where the parent "substantially
and continuously or repeatedly refused to give the child
necessary parental care and protection," or for "conduct ...
detrimental to the physical or mental health or morals of
the child"); Roe v. Conn, 417 F.Supp. 769, 780 (M.D.
Ala. 1976) (finding that statutory definition of neglect
circular and couched in terms such as "unfit" and
"improper" that have no common meaning). Davis v.
Smith, 583 S.W.2d 37, 42-44 (Ark.1979) (finding lack of
adequate judicial guidelines in statute allowing termination
where parents were unable to provide "proper home" for
children).
The cases that have upheld termination laws against
vagueness challenges, unlike the decision below, have
recognized that due process requires a minimum level of
control against arbitrariness as well as fair notice and have
provided that control by construing general statutory terms
to require actual harm or a threat of harm to the child’s
physical as well as emotional well being. See, e.g., Jn re
Maricopa County Juvenile Action No. JS-5209, 692 P.2d at
1035; In Re Doe, 123 N.H. 634, 641-42, 465 A.2d 924,
929 (1983).
It was just such a construction petitioners’ counsel
asked the trial court to apply in this case--defining the
unacceptable “conditions” and absence of “proper care”
that justify termination under RCW 13.34.180(5) to include
at least the level of “danger of substantial damage to the
child’s psychological or physical development” required to
establish a dependency in the first place under RCW
28
13.34.030(4)(c). Report of Proceedings 1758-1760. The
trial court refused to define these critical terms in this or
any other fashion. As a result, it could terminate
petitioners’ relationship with their daughter without finding
any danger that they would “damage” her, but only that
they could not meet “her needs,” “her emotional
requirements” and give her “the best chance she can have
of healthy maturation.” See App. C 9-11. And also as a
result, the Court of Appeals below could brush off
petitioners’ vagueness objections by saying that what the
statutory language meant was nothing more or less than
whatever the State had proved about the “deficits in [their]
parenting skills.” App. A 12.
If, as this Court has suggested, the liberty interests
involved in parental termination actions are analogous to
those in criminal prosecutions, see MLB. v. S.L.J., 519
U.S. at 120, the constitution cannot permit this. See
Government of Virgin Islands v. Ayala, 853 F.Supp. 160
(D.V.1. 1993) (striking down law making it a crime to
create "situation where it is reasonably foreseeable that a
child may suffer ... mental or emotional injury").
Certiorari should be granted here to determine whether
parents’ rights to a relationship with their natural children
is a matter that can be delegated to judges “for resolution
on an ad hoc and subjective basis.” Grayned v. City of
Rockford, 408 U.S. at 109.
29
CONCLUSION
The petition for certiorari should be granted and the
judgment below reversed.
Respectfully submitted,
*TIMOTHY K. FORD
KATRIN E. FRANK
MacDONALD, HOAGUE &
BAYLESS
705 2nd Avenue, Suite 1500
Seattle, WA 98104
(206) 622-1604
ATTORNEYS FOR
PETITIONERS
*Counsel of Record
January 26, 2000
APPENDIX A
In re the WELFARE OF H.S., A Minor.
B.S. and L.S., Appellants,
Vv.
Department of Social and Health Services, Respondent.
No. 17264-3-III.
Court of Appeals of Washington,
Division 3, Panel Nine.
March 9, 1999.
The Washington juvenile dependency statutory scheme
permits termination of parental rights for deficiencies that are
manifestations of chronic mental illness. B.S. and L.S.
appeal the termination of their parental rights; both suffer
from chronic mental illness. Their child H.S., now six years
old, was removed from their home under an agreed order of
dependency at the age of three months. The State sought
termination when she was still in foster care after three and
a half years. The court was persuaded that B.S. and L.S.
unquestionably love H.S. But despite their best and sincerest
efforts to resolve their parental deficiencies, B.S. and L.S.
remained incapable of meeting the child’s needs. They were
unlikely to benefit’ from further services. And the child’s
need for a stable and permanent home required an end to the
dependency.
In challenging whether clear, cogent and convincing
evidence supports the court’s findings of fact, B.S. and L.S.
contend that necessary services failed to accommodate their
handicap and their parental rights were terminated solely
because of their disability, in violation of state and federal
handicap- discrimination statutes. They also direct several
due process challenges to basing the termination on facts
Appendix A-1
different than those in the original dependency. First, they
contend that RCW 13.34.180(5)(b), which permits
consideration of chronic, severe mental illness in termination
proceedings, 1s unconstitutionally vague as applied. Second,
they contend they were effectively deprived of notice of the
State’s allegations, and that the burden of proof was shifted
by requiring them to prove that undefined "conditions" had
improved. Finally, they contend that secondary interests of
the child were erroneously given precedence over their
primary constitutional parental rights.
Clear, cogent and convincing evidence supports the requisite
statutory elements, so we affirm the decision of the court. —
FACTS
H.S. was born on November 25, 1992. When she was three
weeks old, her parents requested that she be placed in
voluntary care, and in March 1993 she was placed in shelter
care. She was made dependent in May 1993 as to B.S., and
in June 1993 as to L.S. H.S. has not lived with her parents
since that time. H.S. was placed in foster care with B.S.’s
cousins, where she remains. They offer H.S. a permanent
home.
B.S. and L.S. both suffer from chronic mental illness. Both
were hospitalized with acute symptoms in October 1992,
right before HS.’s birth. L.S. is diagnosed as paranoid
schizophrenic, and B.S. has been treated for severe
Jepression. L.S. was hospitalized again shortly after H.S.
was born. Both parents are currently diagnosed with
schizophrenia, although L.S. disputes her diagnosis. Both
parents are presently stabilized on medication as to acute
symptoms.
The dependency arose primarily from concerns about lack of
parent-child bonding and the baby’s failure to thrive. The
Appendix A-2
dependency court found there was no parent capable of
providing adequate care. The underlying findings were that
L.S.’s rigid and obsessive thinking endangered the baby’s
health, her thinking was confused, and she could not respond
to questions about the baby’s daily care. She was
uncooperative and resistant to support. The baby was below
the fifth weight-for-length percentile. L.S. also experienced,
but did not act on, strong sexual urges toward the infant.
The records of the final dependency review and termination
hearings contain exhaustive expert testimony that the
problems giving rise to the dependency remain unresolved.
Ongoing problems include B.S.’s and L.S.’s inability to
handle the stress of H.S.’s visits; rigid and concrete
application of suggested parenting techniques resulting in
inappropriate feeding, putting the child to bed too much and
waking her up too soon; inability or unwillingness to
respond to safety concerns; unwillingness or inability to
accept suggested parenting skills; failure to pick up on the
child’s cues, or understand or address her needs; continued
absence of bonding; and the father’s tendency to remove
himself, either physically or mentally. Throughout, B.S. and
L.S. had regular supervised or monitored visitation. In May
1995, in an effort to reunite the family, visitation was up to
40 hours per week in B.S. and L.S.’s home. As on previous
occasions, however, the length and frequency of the visits
had to be reduced because of stress to both the parents and
the child. At the recommendation of H.S.’s psychiatrist, the
court limited visits to three hours a week at the visitation
center.
B.S. and L.S. complied with services to the best of their
ability, in spite of delaying or rejecting some services. They
were referred to the Child Abuse Project (CAP), but were
denied admission because the program was not deemed
appropriate to their needs. B.S. and L.S. declined a second
CAP referral.
Appendix A-3
The record includes extensive expert testimony that while
the parents’ capacity for improvement had reached a plateu,
the child’s condition was disintegrating. H.S.’s
court-appointed guardian ad litem, after spending over 1,500
hours with the family, strongly urged termination for H.S.’s
sake. Pamela Aden, engaged by B.S. and L.S. to facilitate
reunification, also recommended termination. There was
testimony throughout that the child’s need for resolution,
permanence and stability had become urgent. The
recommendation was for permanent placement with the foster
parents.
The court entered extensive written findings in the
termination order of February 3, 1997. B.S. and L.S.’s
petition for direct review to the Supreme Court was referred
to this court.
DISCUSSION
The trial court has broad discretion to terminate parental
rights if it finds that the elements of RCW 13.34.180(1)
through (6) are established by clear, cogent, and convincing
evidence and that termination is in the best interests of the
child. Former RCW 13.34.190(1), (4); In re Welfare of
A.J.R., 78 Wash.App. 222, 228, 896 P.2d 1298, review
denied, 127 Wash.2d 1025, 904 P.2d 1157 (1995). There are
no more specific criteria because the facts of each case are
unique. In re Welfare of Aschauer, 93 Wash.2d 689, 695,
611 P.2d 1245 (1980).
Former RCW 13.34.180 provides in part:
(1) That the child has been found to be a dependent child
under RCW 13.34.030(2); and
(2) That the court has entered a dispositional order pursuant
to RCW 13.34.130; and
(3) That the child has been removed or will, at the time of
the hearing, have been removed from the custody of the
Appendix A-4
Mr) Bt regi A NN Arte BREE The BS Dic ht on DE
Sie ie SR BAK
FM Bact bonabbaralh WAS a
parent for a period of at least six months pursuant to a
finding of dependency under RCW 13.34.030(2); and
(4) That the services ordered under RCW 13.34.130 ‘have
been offered or provided and all necessary services,
reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been offered
or provided; and
(5) That there is little likelihood that conditions will be
remedied so that the child can be returned to the parent in
the near future. In determining whether the conditions will
be remedied the court may consider ...
(b) Psychological incapacity or mental deficiency of the
parent that is so severe and chronic as to render the parent
incapable of providing proper care for the child for
extended periods of time, and documented unwillingness of
the parent to receive and complete treatment or
documentation that there is no treatment that can render the
parent capable of providing proper care for the child in the
near future; and
(6) That continuation of the parent and child relationship
clearly diminishes the child’s prospects for early integration
into a stable and permanent home{.]}
Clear, cogent and convincing evidence means that the
ultimate fact in issue must be shown by substantial evidence
to be "highly probable." Krause v. Catholic Community
Servs., 47 Wash.App. 734, 746, 737 P.2d 280, review denied,
108 Wash.2d 1035 (1987). We determine sufficiency of the
evidence based on the record as a whole. Jn re Dependency
of C.R.B., 62 Wash.App. 608, 618, 814 P.2d 1197 (1991).
B.S. and L.S. do not dispute the first three elements the
child was found dependent, the court entered a dispositional
order, and the child has been removed for six months. The
disputed elements are that all necessary and reasonably
available services capable of correcting the parental
Appendix A-5
deficiencies within the foreseeable future have been offered
or provided (RCW 13.34.180(4)); that there is little
likelihood that conditions will be remedied in the near future
because of severe and chronic psychological incapacity, and
that there is no treatment that can render the parents capable
of providing proper care for the child in the near future
(RCW 13.34.180(5) and (5)(b)): that continuation of the
parent-child relationship clearly diminishes the child’s
prospects for early integration into a stable and permanent
home (RCW 13.34.180(6)); and that termination is in the
best interests of the child (former RCW 13.34.190(4)).
Findings: B.S. and L.S. contend generally that the court did
not base its findings of fact on clear, cogent and convincing
evidence. They assign error to all the substantive findings.
Although the court states in its conclusions of Jaw that RCW
13.34.180(1) through (6) were established by clear, cogent
and convincing evidence, the order does not use the language
"clear, cogent and convincing” in its findings. B.S. and L.S.
argue that the findings merely parrot the statute and are not
specific enough to support the conclusions. They do not
assign error to particular findings or set forth the portions of
findings which they assign error to as required by RAP
10.3(g) and RAP 10.4(c).
Assignments of error as to findings of fact must comply
with RAP 10.3(g) and 10.4(c). We need not review
challenged findings without citation to the record showing
why the findings are not supported by the record. In re
Haskell, 136 Wash.2d 300, 310-11, 962 P.2d 813 (1998).
Given the extensive findings and the size of the record, it is
impossible to review a blanket assignment of error to
findings. Morris v. Woodside, 101 Wash.2d 812, 815, 682
P.2d 905 (1984). We therefore review only findings argued
in the brief. Valley View Indus. Park v. City of Redmond,
107 Wash.2d 621, 630, 733 P.2d 182 (1987).
Appendix A-6
RA PS Re SEES AIT:
Services: RCW 13.34.180(4) requires that all reasonably
available services ordered under RCW 13.34.130 (dependency
review provisions) have been offered and provided. B.S. and
L.S. contend this element was not established, because they
were denied participation in CAP based solely on their
mental illness, contrary to the Americans with Disabilities
Act(ADA), 42 U.S.C. sec. 12132. [FN1]
FN1. 42 U.S.C. sec. 12132 provides: "[N]o qualified
individual with a disability shall, by reason of such
disability be excluded from participation in or be
denied the benefits of the services, programs, or
activities of a public entity, or be subjected to
discrimination by any such entity."
Pursuant to former RCW 13.34.130(5)(b)(vii), the court
ordered that CAP be offered. This order was conditional on
the CAP program at some point deeming these parents
‘eligible. CAP is a service of Spokane Mental Health, an
independent, outside agency with its own eligibility criteria,
which exists solely for the purpose of providing services to
the mentally ill. The Department complied with the order
and referred B.S. and L.S. to CAP twice.
The ADA was not violated. The ADA requires public
entities to make reasonable accommodation for disabled
persons. A.J.R., 78 Wash.App. at 230, 896 P.2d 1298. The
Act does not require public entities to provide the disabled
with services not offered to others. 42 U.S.C. sec. 12132.
In addition to the denial by both B.S. and L.S. of the
existence of any parenting problems, which is incompatible
with successful treatment, CAP rejected B.S. and L.S.
because of their long-term therapeutic needs and the length
of time H.S. had already been out of the home. The
admissions evaluator felt CAP would be able to recommend
reunification only after longterm treatment. In the event H.S.
Appendix A-7
were returned, reintegration would require individual therapy
and ongoing monitoring. CAP could provide neither.
Because of their mental illness, ongoing treatment with Adult
Outpatient Services was perceived as more beneficial than the
"insight oriented group psychotherapy" offered through CAP.
% S. and L.S. refused the second CAP referral.
B.S. and L.S. are contending that they should be immunized
from termination because the unavailability of a single
offered service makes it impossible to prove RCW
13.34.180(4). But this case has been saturated with services
from the beginning, [FN2] establishing RCW 13.34.1 80(4) by
clear, cogent and convincing evidence. It would defeat the
purpose of the entire dependency and termination scheme if
a single unsuccessful referral were sufficient to preclude a
finding that all necessary and available services had been
offered.
FN2. Before the dependency: Mental health services;
First Stepps, Public Health Nurse; Spokane County
Health Department social work services; Division of
Children and Family Services (DCFS) social worker
services; Paul Wert, Ph.D. (parents delayed); Vanessa
Behan Crisis Nursery (parents refused); Spokane
Child Abuse and Neglect Prevention Services
(resisted); Parenting aide; Parenting classes; Edwina
Skinner, in-home social worker; Bonnie Johnson,
public health nurse. After dependency: Sex Offender
Counseling; Carol Thomas, MA; Kathy Seeley of
Spokane Consultants in Family Living; Parenting
classes; Deborah Kelly, parenting/visitation training;
Mildred Staley, guardian ad litem; James Mahoney,
parent-child evaluation and visitation
assessment/supervision; supervised visitation; Dr.
Wert; Michael Manz, MD, psychiatrist;
pharmaceutical, medical, transportation, financial
services; Pam Aden (terminated by the parents when
Appendix A-8
she concluded reunification was not feasible); Joe
Reeves, DCFS (services refiised); Cerena Lauren;
Pat James, MA, Spokane Mental Health Adult
Services. Most of these providers had experience in
working with the mentally ill.
Little likelihood conditions will be remedied: If all
necessary services reasonably capable of correcting the
parental deficiencies within the foreseeable future are offered
or provided and the parental deficiencies are not substantially
improved within 12 months of the dependency order, a
rebuttable presumption arises that there is little likelihood that
conditions will be remedied so that the child can be returned
to the parents. RCW 13.34.180.
B.S. and L.S. mistakenly believe the "conditions" of RCW
13.34.180(5) are limited to the facts of the original
dependency, and if termination is not based on these precise
facts, it must be reversed. They argue that the only grounds
for H.S.’s dependency were the baby’s failure to thrive, the
mother’s inappropriate sexual impulses, and the acute nature
of the mother’s mental illness at that time. Because RCW
13.34.040 limits the court’s jurisdiction to these grounds, they
contend that when the court found all of these conditions had
been resolved, it lost jurisdiction. Jn re Welfare of Boatman,
73 Wash.2d 364, 367, 438 P.2d 600 (1968). A proceeding
begun on one ground and continued on another, without any
opportunity to define and contest the new allegations,
constitutes a fundamental deprivation of due process. Cole v.
Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948);
In re Detention of Cross, 99 Wash.2d 373, 384-85, 662 P.2d
828 (1983).
In the termination proceedings, they contend the "conditions"
shifted to the alleged incapacity of the parents to provide for
H.S.’s emotional and developmental needs. A dependency
petition based on these "conditions," they argue, would have
Appendix A-9
failed. They urge that they were wrongfully deprived of
rights to their child without a showing that they are currently
sufficiently "unfit" to permit a declaration of dependency
under RCW 13.34.130.
B.S. and L.S. misinterpret the dependency statute. It is not
necessary to re-establish the original dependency at
termination. Jn re Dependency of J.C., 130 Wash.2d 418,
428, 924 P.2d 21 (1996). The review process results in
repeated, updated findings of the dependency. Former RCW
13.34.130(5); In re A.W., 53 Wash.App. 22, 28, 765 P.2d
307 (1988), review denied, 112 Wash.2d 1017 (1989). The
language of the statute contemplates that circumstances will
evolve between the dependency of an infant and termination
involving a four-year-old child. For instance, RCW
13.34.145(1)(b) provides that "identified outcomes and goals
of the permanency plan may change over time based upon
the circumstances of the particular case." RCW 13.34.150
provides for changes to court orders "upon a showing of a
change in circumstances[.]" Changed circumstances do not
necessarily reflect resolution of the parental deficiencies
giving rise to the dependency, even though the manifestations
of the problems necessarily change over time.
For this reason, termination proceedings are not a relitigation
of the dependency issues, and the accuracy of the facts
underlying the original dependency adjudication is not
deemed critical. Krause, 47 Wash.App. at 743, 737 P.2d
280. The issue at termination is current unfitness. In re
Dependency of K.R., 128 Wash.2d 129, 142, 904 P.2d 1132
(1995). If the elements of RCW 13.34.180 are proved,
current parental unfitness is implicitly established. J.C., 130
Wash.2d at 428, 924 P.2d 21; KR., 128 Wash.2d at 142, 904
P.2d 1132.
Jurisdiction: Insofar as B.S. and L.S.’s argument amounts
to a challenge of subject matter jurisdiction, their contention
Appendix A-10
is without merit. The superior court has broad and
comprehensive original jurisdiction unless jurisdiction is
vested exclusively in some other court. Wash. Const. art. IV,
sec. 6. Because of this broad constitutional grant of
jurisdiction, exceptions are read narrowly. Orwick v. City of
Seattle, 103 Wash.2d 249, 251, 692 P.2d 793 (1984). Unless
the Legislature demonstrates an intent to limit jurisdiction, an
act should be construed as imposing no limitation. Burnside
v. Simpson Paper Co., 66 Wash.App. 510, 517, 832 P.2d 537
(1992), aff'd, 123 Wash.2d 93, 864 P.2d 937 (1994).
Under the statutory dependency scheme, once dependency is
established, the court retains jurisdiction until the child has
been returned to the parents for six months. RCW
13.34.145(7). The court had subject matter jurisdiction.
Due process: Based on their misplaced insistence on identity
of dependency and termination facts, B.S. and L.S. challenge
the constitutionality of the statute, raising several due process
issues.
Vagueness: B.S. and L.S. first contend that RCW
13.34.180(5) is unconstitutionally vague as applied. They
contend the court refused to define the crucial statutory terms
"conditions" and "proper care." Therefore, it was never
specified what precise "conditions" had to change and what
B.S. and L.S. could do to provide "proper care" so as to
avoid termination. Because the conditions that led to the
original dependency no longer existed and no other
conditions justifying the dependency were ever alleged or
found, B.S. and L.S. argue, the terms are unconstitutionally
vague.
We presume statutes are constitutional. K.R., 128 Wash.2d
at 142, 904 P.2d 1132. The challenging party has the burden
to prove otherwise beyond a reasonable doubt. Jn re
Dependency of C.B., 79 Wash.App. 686, 689, 904 P.2d 1171
Appendix A-11
(1995), review denied, 128 Wash.2d 1023 (1996). Since First
Amendment freedoms are not involved, we consider only
whether the statute is constitutional as applied. I
Wash.App. at 689, 904 P.2d 1171. In reviewing a vagueness
challenge to a provision of RCW 13.34, the statute is
unconstitutional as applied only if the record shows the
decision was arbitrary. In re Welfare of Aschauer, 93
Wash.2d 689, 697-98, 611 P.2d 1245(1980) (vagueness
challenge to the terms "proper parental care" and "proper
maintenance"). The provisions of the statute are taken as a
whole. Jd. at 697, 611 P.2d 1245.
The court’s written findings include specific language
describing the nature of the parents’ impairments and the
effect on their parenting capabilities. The oral ruling
discusses the specific testimony on which the decision relies.
The term "conditions" clearly refers to present and continuing
objective deficits in B.S.’s and L.S.’s parenting skills. The
termination was based on present inability to correct the
parenting problems that were litigated throughout the
dependency. See A.W., 53 Wash.App. at 29, 765 P.2d 307.
As the court observed in denying B.S. and L.S.’s motion to
dismiss, B.S. and L.S. were at all times informed of the
nature of the issues and the Department’s position thereon.
Notice: Due process requires notice that is "reasonably
calculated, under all the circumstances," to apprise the parties
of the pendency of the action and enable them to present a
defense. Duskin v. Carlson, 136 Wash.2d 550, 557, 965 P.2d
611 (1998). B.S. and L.S. contend that they were denied due
process because they did not have notice of the specific
issues to be considered. In re Welfare of Martin, 3
Wash.App. 405, 410, 476 P.2d 134 (1970).
Notice must permit adequate preparation for the hearing.
Cross, 99 Wash.2d at 384, 662 P.2d 828. The State
complied with LJuCR 3.9 provisions governing notice for
Appendix A-12
€
ra
«
"
+
review hearings. B.S. and L.S. had the Individual Service
Plans which provided notice of the agency’s position and
plans with regard to developing issues. B.S. and L.S. do not
dispute that these were filed, served and received. The issues
underlying the termination are the same issues that were
repeatedly litigated throughout: inability to meet the child’s
emotional and developmental needs, inability to respond
outside the concrete, lack of flexibility and inability to react
to new scenarios, and poor judgment.
Even if defective notice does implicate due process, it is
harmless beyond a reasonable doubt when the complaining
party subsequently participates in dependency review hearings
and the termination adjudication. A.W., 53 Wash.App. at 27,
765 P.2d 307.
Notice is a matter of personal jurisdiction, objection to
which was waived when B.S. and L.S. repeatedly appeared
and litigated these issues. A.W., 53 Wash.App. at 26-28, 765
P.2d 307. Collateral attacks based on notice are disfavored,
and CR 12(h)(1) waiver provisions are applied a fortiori to
dependency proceedings. A.W., 53 Wash.App. at 26, 765
P.2d 307. Moreover, failure to seek review of the resulting
orders waives notice for all but the April 16, 1996 review
proceedings.
In the hearing, B.S. and L.S. were apprised of and litigated
the issues underlying the termination. The court was satisfied
that B.S. and L.S. knew at every stage of the proceeding
what the State’s position was. Due process was satisfied by
notice and an opportunity to be heard. Jn re Welfare of Key,
119 Wash.2d 600, 611, 836 P.2d 200 (1992), cert. denied,
507 U.S. 927, 113 S.Ct. 1302, 122 L.Ed.2d 691 (1993).
Burden of proof: B.S. and L.S. next contend that the court’s
reliance on a dependency whose basis no longer existed
violated due process by reversing the constitutional burden of
Appendix A-13
proof, shifting the burden of persuasion with respect to facts
the State is required to prove. State v. Dault, 19 Wash.App.
709, 713-14, 578 P.2d 43 (1978).
Termination must be based on current unfitness, as
established by RCW 13.34.180(1) through (6). KR. 128
Wash.2d at 142, 904 P.2d 1132. The burden of proof is
clear, cogent and convincing evidence. Santosky v. Kramer,
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). B.S.
and L.S. argue that after determining that the grounds for the
dependency were resolved, the court improperly required
them to prove the absence of continuing grounds and
impermissibly presumed they were unfit when they could not.
The record does not support this contention. The State
presented extensive evidence of current deficiencies. The
court expressly found that the State established RCW
13.34.180(1) through (6) by clear, cogent and convincing
evidence. The court also expressly states the appropriate
burdens of proof were applied. The findings recite in detail
the affirmative evidence on which the court relied in
establishing current unfitness.
RCW 26.44.015(3): B.S. and L.S. next contend the State
failed to establish RCW 13.34.180(5)(b), the presence of
severe and chronic psychological incapacity or mental
deficiency rendering them incapable of providing proper care
with foreseeably available remedial treatments. They assert
that they were found neglectful solely because of their mental
illness in violation of RCW 26.44.015(3), which provides that
no parent may be deemed abusive or neglectful solely by
reason of handicap.
RCW 26.44.015(3) does not preclude termination. Mental
‘lIness or no mental illness, parental rights can be terminated
if the parents lack the capacity to adequately nurture and care
for the child. Aschauer, 93 Wash.2d at 694, 611 P.2d 1245.
Appendix A-14
DE
The Swensons read RCW 26.44.015(3) as _ prohibiting
consideration of any parental deficiency that might be a
manifestation of mental illness. This is contrary to the intent
of the statutory framework.
That RCW 26.44.015(3) does not supersede RCW
13.34.180(5)(b) to prevent termination of parental rights in
the face of a parent’s chronic, severe mental illness is evident
from the fact that RCW 26.44.015(3) and RCW
13.34.180(5)(b) were enacted in the same legislation. Laws
of 1993, ch. 412, sec. 11, enacted RCW 26.44.015(3). This
same chapter at sec. 2 amended RCW 13.34, specifically
adding RCW 13.34.180(5)(b) and expressly authorizing the
courts to consider severe and chronic mental illness in
termination proceedings. We construe original acts and
amendments as one law passed at the same time. Jn re
Dependency of Ramquist, 52 Wash.App. 854, 859, 765 P.2d
30 (1988), review denied, 112 Wash.2d 1006 (1989). The
provisions of RCW 13.34.180(5)(b) were properly applied in
these proceedings.
B.S. and L.S. argue that the court simply ignored RCW
26.44.015(3) and based both dependency and termination
explicitly on their mental illness. This is simply not
supported by the record. While the State is barred from
arbitrarily removing children merely because the parents are
mentally ill, the mentally ill are not immune from having
their children removed if they are unfit. The court considers
behavior manifesting mental illness within the totality of the
circumstances. Jn re Welfare of Hauser, 15 Wash.App. 231,
235, 548 P.2d 333 (1976). A child should not be left in the
custody of a parent whose mental illness renders the parent
unable to understand or meet the needs of the child. Jn re
Welfare of Frederiksen, 25 Wash.App. 726, 733, 610 P.2d
371 (1979), review denied, 94 Wash.2d 1002 (1980);
Aschauer, 93 Wash.2d 689, 611 P.2d 1245. This is so even
though the parent is stabilized on medication, if there is no
Appendix A-15
foreseeable likelihood of further improvement. In re
Moseley, 34 Wash.App. 179, 186, 660 P.2d 315, review
denied, 99 Wash.2d 1018 (1983). The parents’ lack of
insight into their condition may be considered. Krause v.
Catholic Community Servs., 47 Wash.App. 734, 747, 737
P.2d 280, review denied, 108 Wash.2d 1035 (1987).
There was conflicting testimony about the precise diagnosis,
but it was not disputed that both parents were severely and
chronically mentally ill. The court reminded the parties
numerous times that not the label but the behavior was of
concern.
The record is replete with testimony that B.S. and L.S. have
not benefited from the available parenting services and are
unlikely to improve in the foreseeable future. One recurring
theme throughout the record is the mother’s unwillingness to
accept advice or suggestions. Even when willing, both
parents are unable to adapt instructions given in a particular
situation to analogous situations. They therefore remain
inadequate to deal with everyday parenting challenges. They
exhibit an inflexibility that leaves them unable to deviate
from a planned activity when changing circumstances made
it inappropriate. This is a common manifestation of
schizophrenia. In re Dependency of P.D., 58 Wash.App. 18,
23-24, 792 P.2d 159, review denied, 115 Wash.2d 1019, 802
P.2d 125 (1990). In P.D., as in this case, the parent was
unable to understand or pick up on a child’s cues as to basic
needs, and unable to generalize from specific instructions.
Although the specific instances were minor, they added up to
an inability to understand and respond to the child’s basic
needs. Id.
It was B.S.’s and L.S.’s behavior and H.S.’s reaction to
them that were the conditions the court identified as parental
deficiencies. Suicidal tendencies in the mother, extreme
passivity in the father, rigid thinking, inability to put the
Appendix A-16
ee ee a
a
‘
child’s needs before their own, and inability to generalize
information in both parents may be manifestations of mental
illness. However, the cumulative testimony presented clear,
cogent and convincing evidence of the inability of these
parents to recognize and respond to their child’s needs. These
deficiencies are aggravated, not ameliorated, by medication.
Even though the positive symptoms of hallucinations and
delusions are controlled, their disease continues to have
significant impact on these parents’ daily functioning and
capacity to tolerate stress.
The child: RCW 13.34.180(6) and former RCW
13.34.190(4) require that the record must support the
conclusion that continuation of the parent and child
relationship clearly diminishes the child’s prospects for early
integration into a stable and permanent home and that
termination is in the best interests of the child.
B.S. and L.S. contend that the court did not find by clear,
cogent and convincing evidence that termination was in
H.S.’s best interests. In support of this, they point to the
court’s expressed opinion that "some contact between the
child and her biological parents may be in her best interests
as she continues to grow older..."
The child’s anticipated permanent placement is within B.S.’s
extended family. The court did express the hope that there
_would be contact. Psychiatrist Michael Manz also expressed
this hope. However, both expressed this sentiment in the
context of unequivocally recognizing that termination of
parental rights is in the best interests of this child.
B.S. and L.S. believe their most sacred rights have been
subordinated to the State’s shifting and amorphous view of
the child’s best interests, and that the length of H.S.’s
dependency is the fault of the State. They argue that
advocacy in the best interests of the child does not permit
Appendix A-17
any interest of the child to outweigh all rights of the parents.
They contend that termination is justified only when the child
is treated with cruelty or exposed to immoral or debasing
conditions. In re Welfare of Hudson, 13 Wash.2d 673, 693,
126 P.2d 765 (1942).
Parents do have a fundamental liberty and privacy interest
in the care and custody of their children, and termination
should be allowed only for the most powerful reasons. In re
Welfare of Sego, 82 Wash.2d 736, 738, 513 P.2d 831 (1973);
In re Welfare of A.J.R., 78 Wash.App. 222, 229, 896 P.2d
1298, review denied, 127 Wash.2d 1025, 904 P.2d 1157
(1995). But the court may not accommodate the parents’
rights when to do so would ignore the basic needs of the
child. Jn re Welfare of Aschauer, 93 Wash.2d 689, 695, 611
P.2d 1245 (1980). The child’s right to basic nurturing
includes "the right to a safe, stable, and permanent home and
a speedy resolution of [dependency] proceedings." RCW
13.34.020; In re Dependency of C.R.B., 62 Wash.App. 608,
615, 814 P.2d 1197 (1991). H.S. has been dependent and in
foster care since she was three months old. She is now six
years old. The alternative to termination is not to return H.S.
permanently to B.S. and L.S., but to continue her dependency
indefinitely. No child should languish for years in foster
care. H.S. should be freed to move on with her life.
‘
The termination orders are affirmed.
KURTZ, A.C.J., and KATO, J., concur.
Appendix A-18
is erence i ES NO st OLE SEIN EO OE SET
a
APPENDIX B
SUPREME COURT OF WASHINGTON
In re the Welfare of )
) NO. 68087-6
H.S., )
A Minor. ) ORDER
)
B.S. and L.S., ) C/A NO. 17264-3-III
)
Petitioner, )
V. )
)
DEPARTMENT OF )
SOCIAL AND HEALTH _)
SERVICES, )
)
Respondent. )
)
Department II of the Court considered this matter at
its September 28, 1999, Motion Calendar, and unanimously
agreed that the following order be entered.
IT IS ORDERED:
That the Petition for Review is denied.
DATED at Olympia, Washington this 28th day of
September, 1999.
/s/ Richard P. Guy
CHIEF JUSTICE
Appendix B-1
APPENDIX C
IN THE SUPERIOR COURT OF THE STATE OF
WASHINGTON
IN AND FOR THE COUNTY OF SPOKANE
JUVENILE DIVISION
In re Termination of: ) NO. 96-7-002225-8
)
HANNAH SWENSON ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW
(DOB: 11/25/92) ) AND ORDER OF
) TERMINATION OF PARENT-
) CHILD RELATIONSHIP
) [x] CLERK’S ACTION
) REQUIRED
THIS MATTER came on for hearing before the
undersigned Judge of the Superior Court of Spokane County,
Juvenile Division, on October 21, 1996, following the filing
of a Petition for Termination of Parent-Child Relationship
filed herein. Present before the court at the hearing were:
Brent Swenson, the child’s father; Lorilei Swenson, the
child’s mother; Tom May, the parents’ attorney; Joseph
Reeves, social worker on behalf of the Division of Children
and Family Services (DCFS), Department of Social and
Health Services (DSHS); Sylvia Glover, Assistant Attorney
General, representing DSHS/DCFS; Mildred Staley, the
child’s court-appointed guardian ad litem; and Frank Hoover,
the GAL’s attorney.
Appendix C-1
The court having reviewed the file and records herein,
the testimony and documentary evidence admitted, and
having heard argument of counsel, now, therefore, makes the
following:
FINDINGS OF FACT
]
Hannah Swenson is a minor child born on November
25, 1992. The child currently resides in Spokane County.
II
The mother of the minor child is Lorilei Swenson.
She currently resides at Spokane, WA.
Ill
The father of the minor child is Brent Swenson. He
currently resides at Spokane, WA.
IV
The child, Hannah Swenson, was found to be
dependent under RCW 1 3.34.030(2)(now RCW 13.34.030(4])
(b) and (c) on May 3, 1993 as to the father and on June 16,
1993 as to the mother, under Spokane County Juvenile Court
Cause No. 93-7-00117-0. The court entered a dispositional
order pursuant to RCW 13.34.130 on May 3, 1993 as to the
father and on June 16, 1993 as to the mother, under the same
cause number. Subsequent review orders were entered, some
contested and some stipulated.
The child has been removed from the custody of the
natural parents for a period of at least six months pursuant to
a finding of dependency under RCW 13.34.030(2). She has
not been returned home since removal from the parents’
home.
Vv
Services ordered under RCW 13.34.130 and all
necessary services, reasonably available, capable of correcting
parental deficiencies within the foreseeable future have been
offered or provided. The services were appropriate to the
parents’ needs and consistent with any disabilities they
suffered from mental disorders. Further, the Department in
this case was willing to accept providers proposed by the
Appendix C-2
parents in several instances. The parents terminated services
with some providers; this occurred prior to dependency when
they wished to avoid intrusion or intervention and after
dependency when they disagreed with the provider opinions.
The parents have had the opportunity to engage in services
over the course of more than 3% years; there is little or no
likelihood that further observation, assessment, services and
litigation will result in any benefit to the parents, much less
the child.
From June 1993 to June 1994 the DCFS case plan
called for termination and adoption. Reunification did not
become the case plan until June 1994, at which time DCFS
adopted a concurrent plan. Always, the Department has in
mind reunification/ concurrent planning regardless of
permanent plan. Ms. Caryl Ann Herman became the social
worker in June 1994. She had the Swensons’ case considered
at a Child Protective Team (an independent organization used
for the purpose of assisting the State in making its
determinations and decisions). CPT notes indicate that the
direction of the people making comments was toward
termination of parental rights [and no suggestion was made
as to how reunification could be accomplished].
VI
A. The following services were offered or
provided prior to the dependency in efforts to avoid removal
of the child from the parents’ home: Mental health services;.
First Stepps; Public
Health Nurse services in the home; Spokane County Health
social work services in the home; DCFS social work services
in the home; evaluation by Paul Wert, Ph.D.; Vanessa Behan
Crisis Nursery Services; and Spokane Child Abuse and
Neglect Prevention (SCAN) services including evaluation, a
parenting aid, and parenting classes.
Edweena Skinner, social worker from Spokane Public
Health, testified that she contacted the family before
Hannah’s birth upon referral from Sacred Heart Medical
Center where both parents had been voluntarily hospitalized
Appendix C-3
in October 1992 for mental health problems. After working
with the family in the home for several months, Ms. Skinner
observed failure to thrive on the infant’s part and was
concerned regarding the mother’s comments about sexual
feelings toward Hannah. She reported her observations and
concerns to Child Protective Services as a mandated reporter
of child abuse and neglect.
Ms. Skinner found the family only able or willing to
cooperate intermittently. In February 1993, the father
instructed her not to return to the home.
Bonnie Johnson, Public Health Nurse, worked with
the family before and after Hannah’s birth. As she testified,
the parents were stressed to a point where they could not
provide adequate care for the infant. Both the public health
nurse and Dr. Tomeo (the baby’s pediatrician with whom Ms.
Johnson was in contact) concluded that the baby suffered
from failure to thrive in that her weight to height ratio
dropped below the 5th percentile.
Lorelei and Brent Swenson both have cooperated
extensively in what the court believes was the best of their
ability in trying to resolve their problems so that they could
have Hannah back on a permanent basis. However, the
mother delayed engagement with Dr. Wert, canceling her first
appointment, failing to show at her second appointment and
appearing finally at her third appointment.. The family
resisted services with SCAN and requested that it close their
file. The parents refused Vanessa Behan Crisis Nursery
services. The DCFS social worker testified that the parents
were only marginally amenable to her services.
B. The following services were offered or
provided during the dependency: Parenting assessment and
services at PAIR; parenting assessment and treatment with
Pam Aden, MSW; counseling with a certified sex offender
treatment provider, assessment and services from Carol
Thomas, MA; assessment and services from Kathy Seeley,
MSW, Consultants in Family Living; parenting classes; in-
home _parenting/visitation training from Deborah Kelley,
Appendix C-4
Mildred Staley (the child’s guardian ad litem) and DCFS
social workers; visitation assessment and supervision by
James Mahoney, MSW; visitation supervision and services at
The Visitation Center; updated psychological assessment with
Dr. Wert for the mother; psychiatric assessment of the
parents and child by Michael Manz, M.D.; updated
psychiatric assessment; pharmaceutical assistance;
transportation services; medical assistance; financial
assistance; and DCFS social services.
G Cerena Lauren (formerly Mary Lou Meckel)
referred the parents to the Child Abuse Project (CAP)
pursuant to their request via review hearing and on behalf of
DCFS. She hoped that the intensive program would admit
the parents and that it would be the answer to their service
issues. The program did not admit the parents, noting that
their issues made them inappropriate to the program and that
they would need intervention more long-term than CAP
provides because of their mental illnesses.
The parents proposed Pam Aden, MS, as a provider.
She has extensive experience working with parents and
children; her goal was to facilitate reunification. Although
Ms. Aden was intent on facilitating reunification, she
concluded after ten to twelve sessions that the parents could
not fulfill Hannah’s needs then or in the future. The parents
terminated her involvement.
Deborah Kelley also provided an independent
approach. She observed some parenting problems, including
inappropriate use of naps and wake-ups, too much use of
food to placate the child, and tendency to overstimulate the
child even after she worked with the parents on the issue.
Ms. Kelley, a mental health counselor and a foster parent,
testified as follows: As a volunteer for DSHS, Ms. Kelley
was asked by the DCFS social worker to observe Lorilei and
Brent Swenson with their daughter, Hannah, during July 1994
for one time a week for three hours. Her job was to observe
their parenting techniques, to observe their judgment, and to
see if they were following through with parenting skills. She
Appendix C-5
again observed and assisted with parenting tips in 1995. She
observed that both parents tended to seek each other’s
~ approval, verbal and nonverbal.
Ms. Kelley testified that both parents seemed to show
good judgment around safety issues concerning Hannah.
Overall, Ms. Kelley felt that the Swensons were competent in
keeping Hannah safe and following through with parenting
techniques they had learned.
Ms. Kelley’s opinion at one time was that the
Swensons could adequately parent with services. Although
Ms. Kelley is sympathetic to Mr. and Mrs. Swenson and
wanted reunification, she testified that the case should be put
to rest and that it was not in Hannah’s best interests to return
her to her parents’ custody.
DCFS social workers provided direct services. The
parents at least twice directly refused these services from Joe
Reeves, DCFS social worker. The parents were again
referred to the Child Abuse Project by Joe Reeves pursuant
to agreed review order. They did not choose to engage in the
program. The parents did not accept an updated psychiatric
assessment with a provider agreeable to all parties.
Spokane Mental Health Adult Services remain
available to the parents. The parents are consistent (with a
few minor exceptions) in attending medication monitoring.
According to Faye Stephenson, LPN and case manager at the
Evergreen Club (a day program for the chronically mentally
ill at Spokane Mental Health) who testified as an advocate
for the parents, they have failed to take advantage of
Evergreen Program as much as they should over the last year.
They have not taken as much advantage of the Evergreen
Club in the last year, but they have had other things they
were dealing with also, and they have not shown the
symptoms of mental illness that they had in the past.
Pat James, MA, at Spokane Mental Health, Adult
Services, has worked with the mother regarding issues of sex
abuse. She testified that the mother has worked through
these issues. Ms. James concluded that Lorilei Swenson has
Appendix C-6
worked her way through any issues concerning her sexual
abuse as a teenager and that the issue is not a matter of
concern now or in the future.
D. The child has received the following services:
Medical/dental care; mental health services including weekly
psychiatric services with Michael Manz, M.D., since mid-
1996; relative care; and guardian ad litem services.
VII
The parents are unable to parent this child with little
or no likelihood of change in the near and foreseeable future.
There is little likelihood that conditions will be remedied so
that the child could be returned to the parents in the near
future.
A. Chronic mental health issues interfere with the
parents’ abilities to meet the child’s physical, emotional and
developmental needs. As William Bennett, M.D., (a
psychiatrist who monitors the parents’ medications at
Spokane Mental Health and who was a witness for both the
parents and the DCFS), testified, the parents maintain
diagnoses of schizophrenia in adult services at Spokane
Mental Health. He has some doubts about the diagnoses, but
has not seen fit to change them or the parents’ medication.
The mother does not believe she suffers from schizophrenia.
The parents remain medicated with substantial
amounts of Mellaril, an antipsychotic medication used in
adults for control of the symptoms of schizophrenia; although
some schizophrenics take larger doses of the drug than do the
Swensons, the amount that they take would make a person
without mental illness unable to function.
Mr. Swenson has also suffered from depression and
has been treated with electroconvulsive therapy (ECT).
Stress is a significant problem for both parents, and it
becomes overwhelming at times for Mr. Swenson. He also
appeared to have difficulty recalling incidents upon
examination before this court. Mr. Swenson is a person who
is “laid back." He is not one who pushes himself into
conversations or activities and is content to sit back and
Appendix C-7
observe. However, the testimony (of Joe Reeves, DCFS
social worker) also was that, as far as parenting is concerned,
he seemed to have the ability to pick up on Hannah’s cues,
possibly better than Mrs. Swenson and either step in and take
some action or suggest that Lorilei take some action.
Michael Manz, M.D., the psychiatrist ordered by the
court to evaluate the parents and child, is medical director of
the Child and Adolescent Department (psychiatric) at Sacred
Heart Medical Center. He diagnosed both parents as
schizophrenic based on history and presentation. Dr. Manz
opined with reference to texts and treatises read into evidence
that a child of two schizophrenic parents has a 37-40%
chance of developing the disease. The parents own
limitations will hinder them in addressing Hannah’s
developmental needs as she matures whether or not she
develops schizophrenia, and their limitations will make
recognition of and response to Hannah’s emotional needs
particularly difficult.
The parents pursued assessment with E. Clay
Jorgensen, Ph.D., and Donovan Clark, M.D. Neither
questions that the parents suffer from mental disorders,
although both question the diagnoses of schizophrenia. Like
Dr. Manz and Dr. Bennett, neither Dr. Jorgensen nor Dr.
Clark has seen the parents in acute phases of their mental
illnesses.
Although the parents’ expert, E. Clay Jorgensen,
Ph.D., opined that he was unsure that the parents’ were
properly diagnosed as schizophrenic he did not provide any
certain alternative diagnoses.
Donovan Clark, M.D., is a board certified psychiatrist
retained by the parents. He has had limited contact with
Hannah but testified that he saw no distress during visits with
the parents. Although he believes that the parents do not
suffer from schizophrenia, he offered no differential or
alternative diagnoses. He conceded that Mellaril is used in
adults to treat psychotic symptoms. Dr. Clark was unaware
or unaccepting of the statistic cited by other providers herein
Appendix C-8
and set forth in the psychiatric literature/learned treatises that
children of two schizophrenic parents have a 37-40% chance
of inheriting the disease. This calls into question his
credibility with the court, causing the court to wonder why
he made this statement or whether he is simply unaware.
Dr. Wert is the only evaluator herein to have seen the
mother during an acute exacerbation of her mental illness.
As set forth in his reports entered as evidence, Dr. Wert
diagnosed the mother as suffering from major depression,
recurrent, with psychotic features, and schizophrenia, residual
type.
As family members, professionals and the parents
testified, the parents have long histories of mental illness
including psychiatric hospitalizations. The parents have taken
psychotropic medications for the last several years.
Based on differences of opinion among the experts,
the court does not find by clear and convincing evidence that
either parent does or does not suffer from schizophrenia. The
pragmatic implications of the parents’ mental illnesses rather
than the precise label applied are of concern here. Here, the
parents’ impairments preclude them from meeting the child’s
emotional and developmental needs to such an extent that no
court would return the child to her parents’ home throughout
the course of the dependency. These inabilities continue to
exist. Although the parents try to follow scripts they learn
via parenting instruction, their mental illnesses manifest in a
concrete inflexible approach to dealing with new scenarios.
The parents lack problem-solving abilities and abilities to
respond to new, unforeseen, unscripted problems. These are
the daily course of parenthood, as scripts for each situation
that will confront the parents do not exist.
B. Despite extensive visitation opportunities,
reunification has not proved possible during the course of the
dependency. The child suffers confusion in having parents
who cannot meet her emotional requirements or establish
clear boundaries. During the course of the dependency,
expansions of visitation in duration and frequency could not
Appendix C-9
be tolerated by the child; visits had to be reduced by the
court for the child’s health, safety and welfare.
VIII
The continuation of the parent-child relationship
clearly diminishes the child’s prospects for early integration
into a stable and permanent home. The child is entitled to a
safe, stable, permanent home. She is entitled speedy
resolution of these proceedings. Although resolution of this
matter has not been speedy, the court does not fault either
party in this regard because development of the case over
time required further investigation and opportunities for
participation by the parents.
The child cannot exist forever in the limbo of
temporary care, however. As here, when the rights of the
parents and the child conflict, the child’s rights are
paramount. She requires finality at this time.
A. The parents have not progressed sufficiently
during the course of the dependency that they can meet the
child’s developmental and emotional needs over time. As
Ms. Aden testified, the parents could not fulfill Hannah’s
needs vvhen she worked with them with the intent to reunify
and will be unable to do so as she gets older. Kathy Seeley,
MSW, did not find the parents minimally adequate,
particularly in that they would not be able to meet Hannah’s
increasingly sophisticated needs as she grew older.
B. As Caryl Ann Herman (DCFS social worker)
and other witnesses testified, the parents are too concrete to
cope with changing situations or needs on Hannah’s part.
They can learn a response to one situation but cannot apply
it to anew one. The mother is unrealistic in her expectations
of Hannah. The father tends to be overly passive and too
placid to parent effectively. As Ms. Herman testified, the
father expressed concern about having permanent placement
of Hannah, recognizing problems he and the mother had in
dealing with the difficulties of raising a child; Mrs. Swenson
has been singular, however, in seeking return of the child
home and does not express such doubts.
Appendix C-10
Bi sees STA LOSES LLCS ETSI AT
NNN nne
id As testified by Cerena Lauren (formerly Mary
Lou Meckel), now a professor at Eastern Washington
University and previously the Swensons’ DCFS social worker
from June 1993 to July 1994, Mrs. Swenson was unduly rigid
in a manner that interfered with her ability to meet Hannah’s
needs. Mr. Swenson expressed concern to her about his
ability to parent and meet Hannah’s needs; Mrs. Swenson did
not.
D. As Joe Reeves, the current DCFS social
worker since March 1995, testified, the father is so passive
that he fails to push himself into conversations or activities
with the child. He could pick up on Hannah’s cues better
than did the mother, however. Visits were not beneficial to
the child’s health, safety and welfare, in Mr. Reeves’ opinion.
E. Finally, assuming that both parents are
schizophrenic, the child has a 37-40% chance of developing
schizophrenia as she gets older (with onset of symptoms
typically in the late teens or into the twenties). She suffers
from insecurity and anxiety now that require psychiatric
intervention, in the opinion of Joe Reeves, social worker, and
Michael Manz, M.D., the child’s psychiatrist. A stable home
is necessary to give Hannah the best chance she can have of
healthy maturation.
IX
Based on the evidence adduced at the termination
proceedings, this court agrees with the dependency court in
its August 2, 1996 and April 26, 1996 findings and observes
that Commissioner Valente’s observations at that time are
similar to the court’s present observations.
The child was found dependent originally because she
was abused and/or neglected and because no parent was
capable of meeting her needs. The circumstances of the
dependency evolved, as is the case in any dependency.
Here, the focus has shifted to inability of the parents
to meet the child’s needs. Reasons for removal continued to
exist throughout the dependency, as adjudicated by various
Appendix C-11
judicial officers of this county’s Superior Court. Although
the parents have progressed in comparison to their issues at
the time dependency was established, they appear to have
reached a plateau of significant duration, have not made
ongoing progress for the last year or more, and are unlikely
to do so.
X
It is in the child’s best interests that an order of
termination be entered terminating the parent-child
relationship between the child and her parents.
As Carol Thomas, MA, testified, the child is deeply
stressed by involvement in two homes. She requires a single
base and one caregiving environment rather than two families
claiming her. According to Ms. Thomas, Hannah would be
severely traumatized if she were removed from her current
placement. Hannah’s best interests require that she remain
where she is primarily attached in the relatives’ home.
As Dr. Manz testified, Hannah was deeply stressed
when she had lengthy visits with her parents in their home.
The ongoing stress of having no permanent home has resulted
in somatic complaints and stuttering on Hannah’s part. Dr.
Manz testified that Hannah needs to settle now. He opined
that Hannah’s needs and the deficiencies of the parents taken
together require that parental rights be terminated and Hannah
be freed for adoption.
Mildred Staley, the child’s court-appointed guardian
ad litem, spent many hours with the birth parents, relative
caretakers and Hannah (alone and in combination with her
parents and relative caretakers). She has been the child’s
guardian ad litem for more than two years. Although reports
indicate that the first guardian ad litem for the child was
more inclined to recommend reunification, Ms. Staley did not
share that opinion. She saw little or no progress in the
parents during the time she has been appointed to the case.
Rather, having observed for many hours during visits and
having consulted with the professionals involved in the case,
Ms. Staley recommended that the court grant termination of
Appendix C-12
in cement SNE SBCA AU BIR OIRO IEEE NSE ROADS AE TI NI SS
NN e aa
parental rights. She opined that such was in Hannah’s best
interests as the parents were unable to meet Hannah’s
emotional, developmental or physical needs.
Clay Jorgensen, Ph.D., is a clinical psychologist who
over the years has substantial and continuing involvement
with children and parents of those children who are in need.
He met with Lorilei and Brent Swenson. He reviewed files
and reports as reflected in his testimony. He did an MMPI
on the parents in 1993. He had contact with the parents at
two different points during the process.
In 1993, Dr. Jorgensen’s opinion was that the parents
were rehabilitated; however, he felt they still would need a
lot of help. On or about February 7, 1994, he suggested
more visits. Visits were expanded. However, that did not
work out and the visitations were substantially cut back
again.
Dr. Jorgensen testified that removal of Hannah from
her relatives’ home would be traumatic to her and suggested
alternatives including open adoption. Dr. Jorgensen opined
that while Ms. Swenson was rigid, she had potential to parent
with extensive services, but he noted the passage of time and
opined that return would be difficult for Hannah. Dr.
Jorgensen testified that it was of import that this matter not
drag on. Dr. Jorgensen declined to opine in detail as to the
child, as he has not been a proyider for her and has not had
extensive contact with her.
Dr. Clark was not in a position to opine about the
child’s best interests or the appropriateness of termination of
parental rights in that he has not had adequate contact with
the child to do so.
Mitch Swenson, Mr. Swenson’s relative and one of
Hannah’s foster parents, testified the he has known Brent
Swenson since childhood. He acknowledged that conflicts
have arisen in the family since Brent Swenson’s marriage to
Lorilei Swenson and during Hannah’s placement. Mitch
Swenson testified as well that the family is close and that
Brent Swenson will always be a part of it. He noted that
Appendix C-13
Hannah has been doing better since the visits have been
reduced. Although recognizing that it does not have
authority to order ongoing contact between the biological
parents and Hannah, this court recommends that the family
relationship be healed to an extent that Hannah can have
ongoing, occasional contac: with the biological parents and
that she be called by her given name (Hannah).
XI
The court considered alternatives to termination of
parental rights.
Open adoption is a matter requiring agreement of the
parties (parents, prospective adoptive parents, guardian ad
litem on behalf of the child, and agency). The fact that this
matter (a contested proceeding on the State’s petition. to
terminate parental rights) is before the court indicates that no
such agreement has been reached. While the court
recommends that the adoptive parents maintain contact
between the child and her biological parents, it has no
authority to order the parents or prospective adoptive parents
to accept an open adoption. Further, although some contact
between the child and her biological parents may be in her
best interests as she continues to grow older, this factor
cannot be used to delay permanence for the child indefinitely.
This is especially the case given that reunification with the
parents is not possible in the foreseeable future.
Guardianship is not appropriate for this child in that
she needs a stable, permanent home; guardianship is by its
nature impermanent. It is not appropriate for a child of this
young age, especially in that her special needs make finality
and permanence of pivotal importance for her.
XIl
The child is not a member of a federally recognized
Indian Tribe, thus, no notice is required.
XII
The Soldier’s and Sailor’s Relief Act, 50 U.S.C. Sec.
501 et seq. does not apply to this proceeding.
Appendix C-14
Ey ica A Rn 2 Rs A ON
a
From the foregoing Findings of Fact, the court makes
the following:
CONCLUSIONS OF LAW
I
The court has jurisdiction of the parties and subject
matter of this action.
II
All parties were properly served with notice pursuant
to statute and are properly before the court.
I]
The elements of RCW 13.34.180(1), (2), (3), (4), (5)
and (6) have been met and proven by clear, cogent and
convincing evidence. The elements of RCW 13.34.190 are
also met. Therefore, pursuant to RCW 13.34.180 and
13.34.190, the parent-child relationship between the minor
child and Brent Swenson and Lorilei Swenson should be
terminated.
IV
The presumption set forth in RCW 13.34.180(5)(a) is
not herein alleged or established.
The presumption set forth in RCW 13.34.180(5)(b) is
established.
V
The court has taken into consideration the applicable
burdens of proof in making its determinations. Further, the
court has considered the presumptions set forth under RCW
13.34 as well as references in the parents’ brief to RCW
74.14 and to the Americans with Disabilities Act.
DATED this 3rd day of February, 1997.
/s/
JUDGE RICHARD SCHROEDER
ORDER
The court having made its Findings of Fact and
Conclusions of Law and having found that the elements of
RCW 13.34.180 and 13.34.190 have been met, and that the
order of termination of the parental rights of Brent Swenson
Appendix C-15
and Lorilei Swenson is in the child’s best interests, now,
therefore, it is hereby
ORDERED, ADJUDGED AND DECREED that all
parental rights, powers, privileges, immunities, duties, and
obligations, including any rights to custody, control,
visitation, or support existing between the child and all
parental interests of the above-named parents, shall be
severed and terminated and Brent Swenson and Lorilei
Swenson shall have no standing to appear at any further legal
proceeding concerning the child.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the child is committed to the permanent legal
custody, control and supervision of the Department of Social
and Health Services, and thus, making the Department of
Social and Health Services permanent legal custodian of the
child. The Department shall have the authority to consent to
the adoption of the child, the marriage of the child, the
enlistment of the child in the Armed Forces of the United
States, necessary surgical and all other medical treatment for
the child and to consent to such other matters as might
normally be required of the parent of the child.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the dependency review hearings for Hannah
Swenson, Cause No. 93-700117-0, be stricken and that a
permanent ward review hearing be set for April 22, 1997,
1:30 p.m., Spokane County Superior Court, Juvenile
Division.
DATED this 3rd day of February, 1997.
/s/
JUDGE RICHARD SCHROEDER
Presented by:
/s/
SYLVIA GLOVER
Assistant Attorney General
WSBA #18285
Appendix C-16
a _eeeeeeeeeeeeeeeeee
{ ] Approved as to Form;
{ ] Notice of Presentment Waived:
/s/
FRANK HOOVER #10791
Attorney for Guardian ad Litem
Copy Received only T.P. May
TOM MAY ~ #10798
Attorney for the Parents
Appendix C-17
APPENDIX D
Oral Decision of the Juvenile Court Commissioner
April 17, 1996
THE COURT: This is been a vigorously contested
case. The case itself has created a problem, significant
problem, for the health and welfare of this child, simply by
virtue of its duration. It probably would have been better for
both the child and the parents -- and the foster parents, for
that matter -- to have reached closure on these issues a long
time ago.
In dealing with the applicable statute, 13.34.130, ina
context of a review hearing, the legislature has shifted the
focus. Initially, in a dependency, the focus is, in terms of
language, that the child shall, essentially, not be removed
from the home unless the state shows (a), (b) and (c). In the
context of a review hearing, that focus switches, and it says
the child shall not be returned unless the court finds a valid
reason for removal no longer exists. So, the question at this
point is whether, simply stated, a valid reason for removal of
this child from the parents’ home still exists today.
Are things the same now as they were when the
dependency started and the child was originally removed? |
think the answer to that is no. Perhaps, initially, there were
some questions that precipitated removal of the child. We
haven’t really focused on some of them. There were issues
about the mother having thoughts of placing the child at risk
for sexual abuse. Frankly, that, at present, does not
constitute a risk to this child. And frankly, I don’t see the
case as being about that issue. There was initially question
about failure to thrive of a three-month-old child. And I
think the issues have completely changed there, also.
At the time the dependency started I think the parents
were in acute distress in terms of their mental illness. There
had been hospitalizations, and psychotic symptoms, and
delusions, and hallucinations, and depression, such that the
Appendix D-1
household was in chaos, and the parents were seriously
impaired in their ability to provide care for a young child.
Initially, they were having trouble with the simplest of things;
setting up a schedule to have three meals a day, to do the
laundry on a regular basis, to clean the house; simple, day-to-
day functions were overwhelming, and unable to be carried
out. And the child could not be responsibly cared for under
those circumstances. And I don’t think there’s any real
question that the correct thing was done at the initial removal
of the child from the parents’ home.
Again, are the parents in the same situation they were
at the beginning of this case? And the answer to that -
question is no. The experts, through this hearing today and
yesterday, have been in conflict over their respective -
diagnoses and prognoses as to both the mother and the father.
They both -- Well, each of the experts have agreed, however,
that the parents each have a mental illness which affects their
life, has affected their functioning seriously in the past, and
potentially will impact their ability to function in the future.
There are certainly different degrees and different
prognoses over the future years, depending on which analysis
you subscribe to, Dr. Manz versus Dr. Clark. I think the
parents have shown that there is serious reason to question
some of the specific details of Dr. Manz’ diagnosis of each
of their mental conditions. It appears that Dr. Manz may
have accepted uncritically a previous diagnosis of
schizophrenia, and projected from that diagnosis a number of
observations. It is certainly within the realm of possibility
that Dr. Manz’ observations were colored by this initial
diagnosis. However, this does not negate Dr. Manz’ analysis
in any significant respect. It does indicate that this is not --
and by that, I mean, psychiatry is not an exact science. And
there is room for reasonable trained professionals to disagree.
Neither Dr. Manz nor Dr. Clark has seen either of the
parents in the acute phases of their distress. Both, are, in a
sense, forced to rely on historical information that’s provided
to them. Dr. Bennett also indicates that the mother, in
Appendix D-2
particular, has improved over time in her functioning, and the
diagnosis of schizophrenia initially arrived at by the Mental
Health Center may in fact be a misdiagnosis.
The real issue, however, is not the label which we
attach to either of the parents. Perhaps, looking at this from
a more pragmatic standpoint, it’s more important to
determine how the mental iliness manifests itself, and how it
impacts each of the parents in their day-to-day functioning
with regard to this child. The experts may continue to argue
about their respective opinions and labels.
The court does find that the parenting skills and the
parenting practices of the parents were initially impaired
through their mental illness. There’s never been any claim
of intentional abuse of this child, and that certainly is not an
issue in this case. No one would anticipate or expect that
either of these parents would do anything to damage this
child on an intentional basis. To the contrary, they have, in
most respects, complied with the requests of the court along
the way, and engaged in and benefited from services to the
extent that they have been able.
If we look at just the basic parenting functions, if we
break this down into its component parts in terms simple
things -- preparing meals, cleaning a house, doing laundry,
reading books to a child -- in many respects the parents,
having stabilized their mental conditions, have made dramatic
progress. The parents are now able to meet the basic day-to-
day needs of this child in this respect. They can keep a
home. They can clean a house. They can provide meals.
They can do that within acceptable standards, at least to the
level that it would not pose a serious risk of harm to this
child.
The focus of the case, then, has really shifted from
meeting basic, concrete physical needs of a child, to a rather
complex emotional dilemma that confronts the court and the
parties. Looking forward, serious questions are raised about
where would we go from here in terms of parenting.
Appendix D-3
Parenting classes have been offered; the parents have
attended; they’ve benefited: they’ve learned parenting skills.
A particular problem that the court has in this area is
that -- I think the best way I could describe it would be to
say that the parents, in good faith, will follow a parenting
script that is provided for them by a specialist. They act in
good faith. They -- Provided information on how to deal
with a particular situation, they follow the script, and can get
through a scripted scenario successfully. The difficulty is
that one of the manifestations of the mental illness seems to
be a sort of concrete, inflexible approach to dealing with new
scenarios. There seems to be a lack of what I would have to
describe as problem-solving, kind of spontaneous problem-
solving ability. There is not a demonstrated ability to
respond to unforeseen or new situations that have not been
previously scripted for the parents. If you can identify a
problem, you can give the parent the solution and they will
implement it. On their own, the court does not see them
encountering a new problem and, on their own, being able to
arrive, necessarily, at the solution to that problem.
This is of particular concern because the course of
parenting involves, on a day-to-day basis, constantly dealing
with new scenarios and situations that a child confronts their
parents with. No one knows with a child what is going to
happen next. And it is impossible to prepare the parents with
a script for every imaginable situation. Life is somewhat
simpler at age three, and the court is particularly concerned,
as time goes on, when life becomes more complex and more
sophisticated, whether the parents can adapt and respond with
answers to those more complex questions.
Another manifestation of the mental illness seems to
be in the area, simply, of judgment, for lack of a better
description, that the mother, in particular, seems to blur the
boundaries between her role as a parent and a playmate to the
child. And certainly acting in good faith, trying to do the
right thing, engaging the child in activities, seems to
inadvertently end up either monopolizing the activity, or
Appendix D-4
intruding on the child’s activity, or reducing herself to more
of a playmate for the child, and controlling a child activity to
the point where it irritates the child and frustrates the child.
There seems to be a lack of insight into the need of the child
to have clear boundaries between who the parent is and who
the child is, and what their respective roles are.
Another area that seems to be a manifestation of the
illness of the parents is their inability to empathize with the
child, and to adequately perceive the cues given off by the
child and the specific needs of the child. There’s a tendency
to over-simplify things, and to be somewhat naive, about
what has turned into very complex emotional issues
confronting this child. The suggestion on the part of the
parents that if the child is turned over to them that it would
be a good idea to leave town and move to Ellensburg or
Wenatchee, is, in my opinion, a dramatic disregard of the
need of this child, to somehow come to terms with the fact
that the child is attached to another family, essentially as her
-- in her mind, her parents.
The court, in other contexts, in disputes over
placement of a child, recognizes the concept of psychological
parent. And one would have to conclude, in this case, that
the foster parents are the psychological parents to this child.
Remarkably, the biological parents seem to have no real
understanding of this, and conceivably, if the child were
placed with them, would create a serious risk, from an
emotional standpoint, of not accommodating this child’s
needs for some sort of transition.
At this point the court would find that rather being in
danger of physical needs going unmet, that the real risk to
this child would be to the child’s emotional development if
returned home. There’s been testimony that the parents
cannot fully educate this child in terms of modeling behavior
in the problem-solving area; that they can’t necessarily
educate this child in terms of abstract or complex thought.
A child, even at age three, I think, is on a steep learning
curve, and is learning things day by day at a furious pace,
Appendix D-5
and is very dependent upon the individuals that are providing
care for them to be stimulated in the full range of human
activities, emotional and intellectual. And there are serious
concerns that, in this area, the parents may not be really up
to fulfilling the child’s needs for stimulation.
If returned home there would be potential confusion,
and a risk to this child of, I think, developing very unclear
boundaries about the role of parent and child. There’s the
potential for this child to become, in a sense, parentified, and
to a certain extent this dynamic seems to already be
manifesting itself, even with the visitation schedule that we
have; that the child reverses roles with the parents, and
essentially dictates -- improperly, in my opinion -- the
outcome of certain decisions within the family. And it may
be simple things like whether the family has waffles. or
pancakes, but there seems to be a reluctance on the part of
the parents to draw firm lines about who decides what, and
what a parent’s role is and what the child’s role is.
Perhaps the most serious issue is really the potential
trauma of separation from the primary and psychological
parents. If this case has been going on over three years, --
well, if there were 36 months, 33 of those would have been
in placement with this other family. Everyone would agree
that the child will be bonded to these foster parents. And
uprooting this child would create a high risk special needs
child, after all this litigation.
The special needs and risks to this child are of grave
concern to the court. In order for this child to be returned
home, it would have to successfully negotiate its way through
this very serious trauma. It would need assistance from
caregiving adults to do that. It would be a very sophisticated
process. The parents have not shown to the court the
sensitivity to the cues and needs of this child that would be
required to assist the child in negotiating through this
complex process. If it is not successfully negotiated, the
entire, you know, future emotional development of this child
could be seriously derailed and impaired.
Appendix D-6
At this point I think everyone would agree that the
primary need is for finality. And perhaps it’s correct at this
point that the case proceed to a termination hearing and we
get a decision one way other the other, you know, which way
this case is going to go. In the meantime, it would make no
sense to this court to uproot the child, and given all the
impending risks, and return the child to the parents at this
stage.
As indicated, the department has provided reasonable
services. This case has been saturated with services from the
beginning. I think they’ve been itemized correctly by Ms.
Glover. I think the department has acted correctly in placing
the child in the least restrictive placement, in a relative
placement, in a family that has a history with this child,
where if this placement needs to be permanent, the parents
and child will still have access to one another. At present
there’s a continuing need for placement. 1 think the
department has complied with the case plan. I think the
parents have made substantial compliance in terms of
participating in the various assessments and evaluations,
numerous as they are. The visits have been attended on a
very regular basis, with minor few exceptions.
The parents, as | indicated, have made dramatic
progress since the filing of the dependency case, in terms of
stabilizing their mental health situation. They have, however,
reached a plateau, and we are no longer seeing continued
progress. In terms of a target date, we would see, I suppose,
the termination trial as an ultimate decision point as far as
implementation of the state’s proposed plan.
Assuming we maintain the dependency, we maintain
the current placement, we need to arrive at a visitation
arrangement. The court is concerned with the manifestations
of stress on the part of the child, the child’s expressed
resistance to visitation on a regular basis, the observations of
acting out on the child’s part, of becoming irritable and
petulant. And we even have furies of possible weight loss
related to this stress. The court would set the visits at this
Appendix D-7
point, this late stage in the case, at twice per week, with one
visit being longer -- a minimum of two hours -- and the other
visit being shorter, up to one hour. The visits can take place
at a location which would provide a maximum sense of
security for the child, which apparently could be the
visitation center. The court really can’t order the foster
parents to open their home. The parties are free to enter into
negotiations to see if that would be workable; the court
would have no objection to that location.
The parents should be required to continue in
individual treatment at the Mental Health Center, to maintain
on their medication. The department should offer services
through the CAP program, if at some point the program
deems these parents eligible. The only additional service,
other than what has been previously ordered, would be the --
It may be helpful for the parents to have a more specific
focus on their mental illness diagnosis and their medication
regimen. It seems that the Mental Health Center has taken
the path of least resistance, and not wanted to, as it was said,
fix something that isn’t broken. The parents are functioning
at a -- on a reasonable plateau; they’re not having any acute
problems. Maybe everyone should be satisfied with that. It’s
possible that the parents might reach an even higher plateau
if a psychiatrist approached the situation with an open mind
and was willing to reconsider the medication regimen, and
reevaluate their diagnosis. Dr. Bennett seemed to have an
open mind toward that, and I wouldn’t exclude him. But
seems to me that that should be a directive, to examine
closely the mental status, and their future treatment and
medication regimen.
All right. That would seem to address most of the
issues that have been raised. I assume, Ms. Glover, you’d be
in charge of preparing an order?
Appendix D-8
APPENDIX E
Relevant Washington Statutes'
RCW_13.34.030(2) (1993)
"Dependent child" means any child:
(a) Who has been abandoned; that is, where the child's
parent, guardian, or other custodian has evidenced either by
siatement or conduct, a settled intent to forego, for an extended
period, all parental rights or all parental responsibilities despite
an ability to do so;
(b) Who is abused or neglected as defined in chapter 26.44
RCW by a person legally responsible for the care of the child;
(c) Who has no parent, guardian, or custodian capable of
adequately caring for the child, such that the child is in
circumstances which constitute a danger of substantial damage
to the child's psychological or physical development; or
(d) Who has a developmental disability, as defined in RCW
71A.10.020 and whose parent, guardian, or legal custodian
together with the department determines that services
appropriate to the child's needs can not be provided in the
home. However, (a), (b), and (c) of this subsection may still
be applied if other reasons for removal of the child from the
home exist.
'Washington's child dependency and parental
termination statutes have been amended several times since the
proceedings in this case--though not in any respect relevant to
the questions presented. The versions of the statutes in this
appendix are those in effect at the time of the relevant
proceedings below.
Appendix E-1
RCW_13.34.130 (5) (1993)
Except for children whose cases are reviewed by a citizen
review board under chapter 13.70 RCW, the status of all
children found to be dependent shall be reviewed by the court
at least every six months from the beginning date of the
placement episode or the date dependency is established,
whichever is first, at a hearing in which it shall be determined
whether court supervision should continue. The review shall
include findings regarding the agency and parental completion
of disposition plan requirements, and if necessary, revised
permanency time limits.
(a) A child shall not be returned home at the review hearing
unless the court finds that a reason for removal as set forth in
this section no longer exists. The parents, guardian, or legal
custodian shall report to the court the efforts they have made
to correct the conditions which led to removal. If a child is
returned, casework supervision shall continue for a period of
six months, at which time there shall be a hearing on the need
for continued intervention.
(b) If the child is not returned home, the court shall establish
in writing:
(i) Whether reasonable services have been provided to or
offered to the parties to facilitate reunion, specifying the
services provided or offered;
(ii) Whether the child has been placed in the least-restrictive
setting appropriate to the child’s needs, including whether
consideration and preference has been given to placement with
the child’s relatives;
(iii) Whether there is a continuing need for placement and
whether the placement is appropriate,
(iv) Whether there has been compliance with the case plan by
the child, the child’s parents, and the agency supervising the
placement;
(v) Whether progress has been made toward correcting the
problems that necessitated the child’s placement in out-of-
home care;
Appendix E-2
(vi) Whether the parents have visited the child and any
reasons why visitation has not occurred or has been infrequent;
(vii) Whether additional services are needed to facilitate the
return of the child to the child’s parents; if so, the court shall
order that reasonable services be offered specifying such
services; and
(viii) The projected date by which the child will be returned
home or other permanent plan of care will be implemented.
(c) The court at the review hearing may order that a petition
seeking termination of the parent and child relationship be
filed.
Appendix E-3
RCW_13.34.180 (1996)
A petition seeking termination of a parent and child
relationship may be filed in juvenile court by any party to the
dependency proceedings concerning that child. Such petition
shall conform to the requirements of RCW 13.34.040, shall be
served upon the parties as provided in RCW 13.34.070(8), and
shall allege:
(1) That the child has been found to be a dependent child
under RCW 13.34.030[(2)]; and
(2) That the court has entered a dispositional order pursuant
to RCW 13.34.130; and
(3) 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 under RCW 13.34.030(2); and
(4) That the services ordered under RCW 13.34.130 have
been offered or provided and all necessary services, reasonably
available, capable of correcting the parental deficiencies within
the foreseeable future have been offered or provided; and
(5) That there is little likelihood that conditions will be
remedied so that the child can be returned to the parent in the
near future. In determining whether the conditions will be
remedied the court may consider, but is not limited to, the
following factors:
(a) Use of intoxicating or controlled substances so as to
render the parent incapable of providing proper care for the
child for extended periods of time and documented
unwillingness of the parent to receive and complete treatment
or documented multiple failed treatment attempts; or
(b) Psychological incapacity or mental deficiency of the
parent that is so severe and chronic as to render the parent
incapable of providing proper care for the child for extended
periods of time, and documented unwillingness of the parent
to receive and complete treatment or documentation that there
is no treatment that can render the parent capable of providing
proper care for the child in the near future; and
Appendix E-4
aii ai iin rele
(6) That continuation of the parent and child relationship
clearly diminishes the child's prospects for early integration
into a stable and permanent home; or
(7) In lieu of the allegations in subsections (1) through (6) of
this section, the petition may allege that the child was found
under such circumstances that the whereabouts of the child's
parent are unknown and no person has acknowledged paternity
or maternity and requested custody of the child within two
months after the child was found.
A parent's failure to 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 offered or provided.
Notice of rights shall be served upon the parent, guardian, or
legal custodian with the petition and shall be in substantially
the following form:
"NOTICE
A petition for termination of parental rights has been filed
against you. You have important legal rights and you must
take steps to protect your interests. This petition could result
in permanent loss of your parental rights.
1. You have the right to a fact-finding hearing before a
judge.
2. You have the right to have a lawyer represent you at the
hearing. A lawyer can look at the files in your case, talk to
the department of social and health services and other agencies,
tell you about the law, help you understand your rights, and
help you at hearings. If you cannot afford a lawyer, the court
will appoint one to represent you. To get a court-appointed
lawyer you must contact: (explain local procedure).
Appendix E-5
3. At the hearing, you have the right to speak on your own
behalf, to introduce evidence, to examine witnesses, and to
receive a decision based solely on the evidence presented to the
judge.
You should be present at this hearing. You may call (insert
agency) for more information about your child. The agency's
name and telephone number are (insert name and telephone
number)."
RCW_13.34.190 (1996)
After hearings pursuant to RCW 13.34.110, the court may
enter an order terminating all parental rights to a child if the
court finds that:
(1) The allegations contained in the petition as provided in
RCW 13.34.180 (1) through (6) are established by clear,
cogent, and convincing evidence; or
(2) RCW 13.34.180 (3) and (4) may be waived because the
allegations under RCW 13.34.180 (1), (2), (5), and (6) are
established beyond a reasonable doubt; or
(3) The allegation under RCW 13.34.180(7) is established
beyond a reasonable doubt. In determining whether RCW
13.34.180 (5) and (6) are established beyond a reasonable
doubt, the court shall consider whether one or more of the
aggravated circumstances listed in RCW 13.34.130(2) exist;
and :
(4) Such an order is in the best interests of the child.
Appendix E-6
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.