Petition for Writ of Certiorari — Sunderland v. Washington (No. 07-1384)

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Supreme Court, U.S.

071384 MAY n> 2008

_ OFFICE OF THE CLERK

No.

In the Supreme Court of the Gnited States

MONESA SUNDERLAND,

Petitioner,

STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND

HEALTH SERVICES, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Washington State Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

LEONARD J. FELDMAN*

MALAIKA M. EATON

PAUL RUGANI

Heller Ehrman LLP

701 Fifth Ave., Suite 6100

Seattle, WA 98104

(206) 447-0900

Counsel for Petitioner

May 2, 2008 *Counsel of Record

QUESTION PRESENTED

Whether the Due Process Clause of the

Fourteenth Amendment to the Constitution and this

Court’s case law—-including Armstrong v. Manzo,

380 U.S. 545 (1965), Mathews v. Eldridge, 424 U.S.

319 (1976), and Hamdi v. Rumsfeld, 542 U.S. 507

(2004)—require that a party who is Anown to have

asserted a parental relationship with a child and is

known to have initiated an adoption proceeding

regarding that child be given adequate notice and a

meaningful opportunity to participate in a competing

adoption proceeding before the child can be adopted

by another individual?

PARTIES

In addition to the parties listed in the caption,

the following parties were defendants below and are

respondents in this case:

Adoptive Parents

Guardian ad Litem

~A3LE OF CONTENTS

Page

QUESTION PRESENTED ........cccccccsssseesese Rrra i

U2 TNE REA Stilts i Oh aa ye aD iaRec Sete ii

PARLE OF AUTHORITIES ooococccccscscccccccoccescccceccoccocscosees v

PETITION FOR A WRIT OF CERTIORARI................ l

NN oa ciocccsccscsstctecssiccosasyccepcoscntonsecees [

JURISDICTION ...oceccssoccssssoocs- ed aaah Ee oe 1

CONSTITUTIONAL AND STATUTORY

EEE ERS CNC athe Aa mena eas 1

STATEMENT OF THE CASE ooceccccscsssccsscosssscssseoccetescescee 3

I. MS. SUNDERLAND’S RELATIONSHIP

WITH RLM. AND HER INITIAL

EFFORTS TO ADOPT BoU.M oo occccccccccsscscsosssccscsssssees. 4

Il. THE ADOPTIVE PARENTS’ COMPETING

PETITION TO ADOPT R.L.M.ooccccccccccccccsccscecsecceeee 6

III. APPELLATE PROCEEDINGS. ......-ccccccccccccccsccsseeoses 9

REASONS FOR GRANTING THE PETITION ......... 13

I. THE STATE COURT DECIDED AN

IMPORTANT QUESTION OF FEDERAL

LAW REGARDING FUNDAMENTAL DUE

PROCESS PGS... cc... 15

Il. THE STATE COURTS OPINION

CONFLICTS WITH THIS COURT'S

DECISIONS IN ARMSTRONG v. MANZO

AND MATHEWS v. ELDRIDGE. .........csccccssee 20

TABLE OF CONTENTS

Page

ll. THE STATE COURT'S OPINION ALSO

CONFLICTS WITH THIS COURTS

DECISION IN HAMDI v. RUMSFELD................ 25

MEN oo aessisiccdicieusnioicdsidsiadiccotcmvioninsbaciaumeiess 27

APPENDIX

Court of Appeals of Washington, Division

1 Opinion (April 30, 2007) ........................ App. 1-17

Superior Court of Washington, County of

Snohomish Order (Dec. 7, 2008)............. App. 18-23

Supreme Court of Washington Order

a 6 OO. a. App. 24

State Uases Recognizing De _ Facto,

Psychological, or Other’ Parental

RSI IIE fo dpaccctossunrvvcunssaseonreensewetamiecaes App. 25-26

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Armstrong v. Manzo, 380 U.S. 545 (1965) ........ passim

Fuentes v. Shevin, 407 U.S. 67 (1972) ............ec-sceeees 10

Hamdi v. Rumsfeld, 542.U.S. 507 (2004) .......... passim

Heller v. Doe by Doe, 509 U.S. 312 (1998)................ 10

Mathews v. Eldridge, 424 U.S. 319 (1976)........ passim

McKesson Corp. v. Div. of Alcoholic

Beverages & Tobacco, 496 U.S. 18 (1990)............. 10

Mullane v. Cent. Hanover Bank & Trust

i SO Te ee CD ova casas ccs sciveecscscnscscsstoasesess 18

Prince v. Mass., 321 U.S. 158 (1944)......................... 15

Robb v. Connolly, 111 U.S. 624 (1884)... 27

_ Smith v. Organization of Foster Families

for Equality & Reform, 431 U.S. 816

sega ee ac Deca ee 15, 16, 18, 21

Swickler v. Koota, 389 U.S. 241 (1967) ................cee 27

Troxel v. Granville, 530 U.S. 57 (2000)

NI os ah. ic cnisingticininck ouangudgnouserepaetane 15

STATE CASES

In re B. G., 523 P.2d 244 (Cal. 1974)................ App. 25

Carter v. Brodrick, 644 P.2d 850 (Ak. 1982).... App. 25

CE.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)... App. 25

TABLE OF AUTHORITIES—Continued

In re Custody of H.S.H.-K., 583 N.W.2d 419

(Wis. 1995), cert. denied, 516 U.S. 975

III oi sari inchs sp pud panne venkendapresepsaineHeseiuns App. 26

In re Dependency of J.H., 815 P.2d 1380

Oe as i soca d ahs slau ce av oeopheaocsooies 23

Doe v. Doe, 399 N.Y.S.2d 977 (N.Y. App.

EO RT Peels dissesapinsancdnccceaucncioas ee ies App. 25

E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass.),

cert. denied, 528 U.S. 1005 (1999) ......... 17, App. 25

In re Hart, 806 A.2d 1179 (Del. Fam. Ct.

MRR iii Beas ds tica dct ca pidesieicaiestsVesscavacaertasaceuss App. 25

Johnson v. Sullivan, 545 So. 2d 1169 (La.

PR I ROU isc docs piiivcsdicbiccdcaaschudeadedusdseseacen App. 25

In re Marriage of Martin, 42 P.3d 75 (Colo.

PRS MR ss Ao vac dain cdvadeaceasdcadcapadnbuausnecenseackis App. 25

Matter of Adoption of J.J.B., 894 P.2d 994

(N.M. 1995), cert. denied, 516 U.S. 860

a SERRE RE HERE atbentic sip tps tae Oy tye si niea BE App. 25

Middleton v. Johnson, 633 S.E.2d 162 (S.C.

Ry cic sas csc scosaddssnasaoasalavecediceie suck App. 26

In re Nelson, 825 A.2d 501 (N.H. 2003) ........... App. 25

In re Parentage of L.B., 122 P.3d 161 (Wash.

2005), cert. denied sub nom. Britain v.

Carvin, 547 U.S. 1143 (2006) ..... 16, 17, 19, App. 26

Vil

TABLE OF AUTHORITIES—Continued

Page

Patzer v. Glaser, 396 N.W.2d 740 (N.D.

Petition of D.I.S., 494 A.2d 1316 (D.C. 1985)... App. 25

Rubano v. DiCenzo, 759 A.2d 959 (RI.

2+ EEREERIR ESR OMe meet ew Ue aire RUC Ree 17, App. 26

In re S's Adoption, 538 P.2d 947 (Or. Ct.

yo a gf) Se alert Cae SES ert anyon EOE STIR App. 26

S.F. v. M_D., 751 A.2d 9 (Md. Ct. Spec. App.

EE Gay ios ares conasipocsirdpeqnensdanehmbasiuctbaneibedecans App. 25

Smith v. Barbour, 571 S.E.2d 872 (N.C. Ct.

I cai visas ndvscbcceicsgptvassnelecniewasecsesicess App. 26

State, Dep’t of Social & Health Servs. v.

Hileman (In re Dependency of R.H.), 117

P.G0 1179 (Waal: App. 2006) oio65.52 cies

Temple v. Meyer, 544 A.2d 629 (Conn. 1988) ..App. 25

VC. v. MJB, 748 A.2d 539 (N.J.), cert.

denied, 531 U.S. 926 (2000)...........00.0000.. 17, App. 25

In re Welfare of Maurer, 530 P.3d 1338

PR BO oss saiacivinsycdicevancnccpencyssacscicnecel sacs 22

Wills v. Wills, 399 So. 2d 1130 (Fla. Dist. Ct.

I Ici lass csucsicctricviesaiedssassaicsaasions« App. 25

FEDERAL STATUTES

ey io sac ns acsss nb kcosccbscath coneseceesascnavaccavbes 1

2 Er va ~~ ete ~

4 +

ee haat

vill

TABLE OF AUTHORITIES—Continued

7 a. es aaa

ya) ute ar Rasa

Page

STATE STATUTES

Wash. Rev. Code § 26.33.080 .0..........cceeeeeeeeeeeeeeeeeeeees 3

Wash. Rev. Code $ 26.33.160 .0..............cccccsssscsssccecsscosee

Wash. Rev. Code § 26.33.160(1)........csessessssesseseesseesee 2

Wash. Rev: Code © 26.95.170 «...........cccccccccccesesesescnvecses 2

Wash. Rev. Code § 26.33.190..............ccccececceeeeeees ence

| Wash. Rev. Code § 26.33.2000 ...........ececssssseessnneeeeeeees 2

Wash. Rev. Code § 26.33.240(1)..............ccccc00e 2,11, 19

Wash. Rev. Code § 26.33.310........csssccscsssssssescscsesseesees 2

OTHER AUTHORITIES

U.S. Const. amend. XIV, § 1.0... eeccceeee cee passim

U.S. Children’s Bureau, Administration for

Children, Youth & Families, Trends in

Foster Care & Adoption—FY 2002—-FY .

FOI sa oh iescvnes squdchecadacavenasqunorinsiacbcesdedaeweoniciaceoareaniiaas 14

PETITION FOR A WRIT OF CERTIORARI

Petitioner Monesa Sunderland respectfully peti-—

tions for a writ of certiorari to review the judgment

of the Washington State Court of Appeals in this

case.

OPINIONS BELOW

The decision of the Superior Court of Washington

is unpublished and is reproduced in the appendix

“Pet. App.”) at 18-23. The Washington Court of

Appeals’ opinion is published at 156 P.34 940 (Wash.

Ct. App. 2007), and is reproduced at Pet. App. 1-17.

The Washington Supreme Court’s order denying

discretionary review of the Washington Court of

Appeals’ opinion is reported at 178 P.3d 1033 (Wash.

2008), and is reproduced at Pet. App. 24.

JURISDICTION

The Washington Court of Appeals filed its

opinion on April 30, 2007, and the Washington

Supreme Court denied discretionary review on

February 6, 2008. This Court has jurisdiction under

28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Section 1 of the Fourteenth Amendment to the

United States Constitution provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of citi-

zens of the United States; nor shall any state

deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

Section 26.33.240(1) of the Revised Code of

Washington provides:

After the reports required by RCW 26.33.190

and 26.33.200 have been filed, the court shall

schedule a hearing on the petition for adop-

tion upon request of the petitioner for

adoption. Notice of the date, time, and place

of hearing shall be given to the petitioner

and any person or agency whose consent to

adoption is required under RCW 26.33.160,

unless the person or agency has waived in

writing the right to receive notice of the

hearing. If the child is an Indian child, no-

tice shall also be given to the child’s tribe.

Notice shall be given in the manner pre-

scribed by RCW 26.33.310.

Section 26.33.160(1) of the Revised Code of

Washington provides:

Except as otherwise provided in RCW

26.33.170, consent to an adoption shall be

required of the following if applicable:

(a) The adoptee, if fourteen years of age or

older; (b) The parents and any alleged father

of an adoptee under cighteen years of age;

adoptee has been relinquished pursuant to

RCW 26.33.080; and (d) The legal guardian

of the adoptee.

STATEMENT OF THE CASE

This petition arises out of the efforts of Monesa

Sunderland to adopt her niece, R.L.M., a child with

whom Ms. Sunderland had established a deep and

caring relationship. Despite knowing that Ms. Sun-

derland claimed to have developed a parental rela-

tionship with R.L.M., and despite knowing that she

had initiated an adoption proceeding regarding

R.L.M., the state court allowed two other individu-

als—referred to as “Adoptive Parents”—to adopt

R.L.M. without providing to Ms. Sunderland ade-

quate notice of or a meaningful opportunity to

participate in the competing adoption proceeding.

The deprivation of the basic requirements of ade-

quate notice and a meaningful opportunity to

participate violated Ms. Sunderland’s procedural due

process rights under the Fourteenth Amendment to

the United States Constitution.

That deprivation also conflicts with this Court’s

opinions in Armstrong v. Manzo, 380 U.S. 545

(1965), Mathews v. Eldridge, 424 U.S. 319 (1976),

and Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Those

cases, as set forth below, require that a party who is

known to have asserted a parental relationship with

a child and is Anown to have initiated an adoption

proceeding regarding that child be given adequate

notice and a meaningful opportunity to participate in

a competing adoption proceeding before the child can

be adopted by another individual. The state court

conditioned Ms. Sunderland’s due process rights on a

factual showing that she was precluded from

making. As the foregoing cases establish, the state

court’s analysis conflicts with this Court’s estab-

lished framework for deciding such issues.

I. MS. SUNDERLAND’S RELATIONSHIP WITH

R.L.M. AND HER INITIAL EFFORTS TO

ADOPT R.L.M.

Ms. Sunderland is the paternal aunt of R.L.M.

and served for most of the child’s life as one of her

primary caregivers. R.L.M.’s biological parents

struggled with drug probiems, and they often left

R.L.M. in Ms. Sunderland’s care. As the state court

acknowledged, Ms. Sunderland could have presented

evidence to the state courts that she took on the

duties and responsibilities of a parent during

R.L.M.’s formative years. Pet. App. 2-3, 15. It was

Ms. Sunderland who planned R.L.M.’s_ birthday

parties. Jd. at 15. It was Ms. Sunderland who

brought R.L.M. to her first day of school. Jd. Indeed,

Ms. Sunderland “regularly cared for [R.L.M.] for

days at a time.” Jd. Through this challenging time,

Ms. Sunderland developed a strong emotional and

psychological bond with R.L.M.—in other words, a

“parental relationship”’—-precisely like that between

a biological parent and child.

The Washington Department of Social and

Health Services (“DSHS”) eventually intervened due

to R.L.M.’s parents’ inability to care for R.L.M. them-

selves. See id. 2-3. DSHS removed R.L.M. from the

care of her biological parents on March 3, 2004. See

id. at 2. The same day, DSHS initiated a

dependency petition in Washington juvenile court

(the “Dependency Action”), to place R.L.M. in the

formal care of the state. See id. at 3. As a result of

the Dependency Action, DSHS became R.L.M.’s legal

guardian. Jd. When DSHS takes over legal guard-

ianship of a child, the agency is obligated to make

placement decisions consistent with the best interest

of the child. Cf State, Dep’t of Social & Health

Servs. v. Hileman (In re Dependency of R.H.), 117

P.3d 1179, 1181 (Wash. App. 2005) (acknowledging

that “the State, through [DSHS], has a compelling

interest in protecting” the fundamental rights of

children to health and safety and that the “right to

parent [a] child is a fundamental constitutional

right,” and stating that, “the more important the

substantive rights, the more important. the

procedural protections”). Because of the existing

relationship between Ms. Sunderland and R.L.M..,

DSHS concluded that placing R.L.M. in Ms. Sun-

derland’s care was consistent with R.L.M.’s best

interest.

In March 2005, DSHS removed R.L.M. from

Ms. Sunderland’s home due to drug issues prompted

by the separation of Ms. Sunderland and her

longtime partner. Pet. App. 3. Ms. Sunderland im-

mediately agreed to complete a drug recovery

program as well as parenting classes, id., and also

committed in writing to compliance with all

necessary procedures in order to once again become

a viable placement option for R.L.M. Ms. Sun-

derland successfully completed the drug treatment

and parenting classes, zd., and has remained clean

and sober since.

In September 2005, “l[ajfter completing her drug

rehabilitation program and parenting classes, ...

[Ms.] Sunderland moved to intervene” in the

Dependency Action, which remained pending in

juvenile court. Pet. App. 3. On September 28, 2005,

the court commissioner granted Ms. Sunderland’s

motion to intervene. DSHS thereafter filed a motion

to revise, which was granted on October 26, 2005,

thereby excluding Ms.Sunderland from _ the

Dependency Action. See id. at 3—4.

fl. THE ADOPTIVE PARENTS’ COMPETING

PETITION TO ADOPT R.L.M.

After DSHS removed R.L.M. from Ms. Sunder-

land’s home in March 2005, DSHS placed R.L.M. in

a foster home with the Adoptive Parents. Becase of

the Dependency Action described above, the Adop-

tive Parents were well aware of Ms. Sunderland’s

relationship with R.L.M. and knew that Ms. Sunder-

land wanted to adopt R.L.M. Yet as discussed below,

the Adoptive Parents filed a competing petition to

adopt R.L.M. (“the Adoption Proceeding”) and con-

sistently failed to provide Ms. Sunderland with any

notice of that proceeding. The state court failed in

that regard as well, thus depriving Ms. Sunderland

of any meaningful opportunity to be heard before her

parental rights were permanently extinguished.

The Adoptive Parents filed a petition to adopt

R.L.M. on October 13, 2005. Pet. App. 3. When they

filed this petition, Ms. Sunderland had already been

granted intervenor status in the Dependency Action,

which was pending. Jd. at 3, 10. The Adoptive

Parents, as the current placement for R.L.M., were

aware of the pendency of the Dependency Action and

knew Ms. Sunderland had been granted intervenor

status. DSHS, too, was aware of both the Depen-

dency Action, including the fact that Ms. Sunderland

had been granted intervenor status, and the

Adoption Proceeding filed by the Adoptive Parents.

The Guardian ad Litem (“GAL”) also knew that

Ms. Sunderland had been granted intervenor status

in the Dependency Action and that the Adoptive

Parents had commenced the Adoption Proceeding.

Yet, none of these parties—not the Adoptive Parents,

not DSHS, not the GAL, and not the state court—

provided any notice to Ms. Sunderland of the

Adoption Proceeding.

This fundamental deficiency in the Adoption Pro-

ceeding was repeated over and over as the Adoption

Proceeding and the Dependency Action proceeded

simultaneously. Indeed, it was compounded: DSHS

and the GAL appeared at a hearing in the

Dependency Action on October 25, 2006, but neither

one informed the trial court or Ms. Sunderland that

the Adoptive Parents had already filed an adoption

petition. And then the same constitutional defi-

clency was compounded again: when Ms. Sunder-

land’s attorney specifically asked whether any com-

peting adoption petition had been filed, the lawyer

representing DSHS falsely told him that no such

petition had been filed.

The Adoptive Parents pushed along the Adoption

Proceeding, all the while disregarding Ms. Sunder- -

land’s interest in the proceedings. On November 10,

2005, the Adoptive Parents and DSHS filed various

materials in support of the Adoptive Parents’

adoption petition and noted the petition for a

hearing on November 21, 2005. Pet. App. 4. They

again provided no notice to Ms. Sunderland that

they had petitioned to adopt R.L.M., id., and that the

petition—if granted—would preclude Ms. Sunder-

land from adopting R.L.M. and permanently ex-

tinguish Ms. Sunderland’s parental rights.

When the hearing on the adoption petition

convened on November 21, 2005, the Adoptive

Parents finally disclosed to the court that

Ms. Sunderland had filed a competing adoption peti-

tion. See Pet. App. 4—5. The court ordered a recess

at 11:40 a.m. It asked the Adoptive Parents to

inform Ms. Sunderland’s counsel—for the first

time—that a hearing to decide the competing

adoption petition would be held at 3:20 p.m. that

same day. See id.

This last minute scramble was wholly inadequate

and was too late to provide Ms. Sunderland with a

meaningful opportunity to participate. Counsel for

the Adoptive Parents telephoned Ms. Sunderland’s

attorney, Richard Okrent, at 12:10 p.m. and merely

left a voicemail regarding the hearing three hours

later. Jd. at 5. Because Mr. Okrent was on vacation,

his office arranged for his associate, Ruth

Westbrook, to appear on his behalf via telephone.

Id. Ms. Sunderland, due to the lack of timely notice,

was unable to attend. Jd.

Thus, Ms. Westbrook had to attend a hearing to

resolve competing claims to adopt R.L.M. with only a

few hours to prepare on a case on which she had

never worked. Sensibly, Ms. Westbrook requested a

reasonable opportunity to present Ms. Sunderland’s

claim: she requested a continuance and an oppor-

tunity to present Ms. Sunderland’s case in a joined

proceeding. /d. Ms. Westbrook also moved to permit

Ms. Sunderland to intervene in the Adoption Pro-

ceeding. Jd.

Despite the lack of timely notice and the

significance of the rights involved, the court denied

Ms. Sunderland’s request for a continuance, ruling

that “[ijt is not in the child’s best interests” to allow

intervention because doing so would delay the

Adoption Proceeding. See id. at 19. The court then

granted the Adoptive Parents’ competing adoption

petition and scheduled a hearing to consider an

order drafted by counsel for Adoptive Parents. See

id. at 5.

Upon his return from vacation, Ms. Sunderland’s

attorney received a copy of the proposed order and

immediately filed objections and moved for reconsid-

eration. The court made minor modifications to the

proposed order, but otherwise denied all the relief

Ms. Sunderland requested. In so doing, the court re-

fused Ms. Sunderland’s request that it at least

consider her interest in adopting R.L.M. before per-

mitting Adoptive Parents to do so. Having been

effectively shut out of the Adoption Proceeding,

Ms. Sunderland timely filed her notice of appeal in

the Washington Court of Appeals.

Il. APPELLATE PROCEEDINGS

On appeal, Ms. Sunderland argued that the

denial of notice and a meaningful opportunity to be

heard violated her due process rights under the

Fourteenth Amendment to the United States

Constitution (as well as the state constitution). Jd.

at 8. Addressing the federal constitutional issues,

Ms. Sunderland began with a specific reference to

this Court’s decision in Armstrong v. Manzo, 380

U.S. 545 (1965), and argued—as the Court held in

Armstrong, id. at 552—that notice is insufficient if

. not provided at a meaningful time and in a mean-

ingful manner.

Ms. Sunderland also emphasized in her brief the

interests served by these fundamental due process

requirements. Citing this Court’s opinion in Hel/er

v. Doe by Doe, 509 U.S. 312, 332 (1993), Ms. Sun-

derland explained that under the Due Process

Clause of the Constitution “the interest of a person

subject to governmental action is in the accurate

determination of the matters before the court, not in

a result more favorable to him.” Quoting McKesson

Corp. v. Division of Alcoholic Beverages & Tobacco,

496 U.S. 18, 50 (1990), and Fuentes v. Shevin, 407

U.S. 67, 97 (1972), Ms. Sunderland further explained

that the procedural safeguards that are guaranteed

by the United States Constitution exist to “ensure

the accuracy” of legal determinations and “prevent

unfair and mistaken deprivations.”

DSHS, on the other hand, argued that Ms. Sun-

derland was entitled to no notice whatsoever of the

Adoption Proceeding despite her relationship with

R.L.M. and despite the parties’ knowledge of

Ms. Sunderland’s efforts to adopt R.L.M. On reply,

Ms. Sunderland specifically pointed out that DSHS’s

argument—if accepted—would eliminate the ability

of Washington courts “to ensure that adoption

proceedings comply with procedural due process

protections of the State and Federal Constitutions.”

The Washington Court of Appeals rejected

Ms. Sunderland’s due process arguments. The court

correctly noted that Ms. Sunderland had asserted

“that she was denied procedural due process, which

is guaranteed by both our federal and our state

‘he

‘aa

SAN

constitutions,” and it specifically referenced the

Fourteenth Amendment to the United States Con-

stitution. Pet. App. 8 & n.7. The court also correctly

acknowledged that a state legislature “cannot hmit

the constitutional rights of its citizens by statute.”

Id. at 8. Based on this premise, the court rightly

concluded that Ms. Sunderland could present her

constitutional challenge to the Adoption Proceeding

on appeal despite the limits placed on such appeals

by the Washington legislature. Jd. at 8-9.

Although the Court of Appeals began by

appropriately acknowledging that the Fourteenth

Amendment prohibits a state legislature from de-

priving individuals of their federal due process

rights, the court quickly departed from that funda-

mental premise. It concluded that Ms. Sunderland

was entitled to neither adequate notice nor a mean-

ingful opportunity to be heard in the Adoption Pro-

ceeding because (1) she did not fall within the class

of persons the state legislature determined were

entitled to notice under Washington’s adoption

statutes (id. at 9-10 (citing Wash. Rev. Code

§ 26.33.240(1))), and (2) she had not established that

she was R.L.M.’s de facto or psychological parent (zd.

at 14—16).

This holding violates deeply rooted due process

principles. The Washington Court of Appeals ac-

knowledged that Ms. Sunderland “would be entitled

to due process ...if she could show that she was

R.L.M.’s de facto parent,” id. at 14, but concluded

that Ms. Sunderland had not made an adequate

showing that she was such a parent. /d. at 15 (“The

record does not support considering Sunderland

R.L.M.’s de facto parent.” (emphasis added)). The

eam

een

Bile.

oat

critical flaw in the court’s analysis is obvious: with-

out adequate notice and a meaningful opportunity to

participate in the Adoption Proceeding, Ms. Sun-

derland was denied the ability to develop the record

to support her claim. By creating such an insur-

mountable hurdle, the state court’s decision renders

meaningless the due process rights of individuals

like Ms. Sunderland, thus violating longstanding

due process principles.

Recognizing that the court had decided an

important question of federal law in a way that

conflicts with this Court’s constitutional jurispru-

dence, Ms. Sunderland filed a timely petition for

review by the Washington Supreme Court. As in her

briefs before the Washington Court of Appeals,

Ms. Sunderland sought to vindicate her due process

rights under both the United States Constitution

and the Washington Constitution. Relying on

Armstrong and other relevant cases, Ms. Sunderland

specifically argued that the Court of Appeals’ de-

cision conflicted with this Court’s case law. She

therefore asked the Washington Supreme Court to

grant review and reverse the Court of Appeals’

erroneous decision.

The Washington Supreme Court’ denied

Ms. Sunderland’s petition for review on February 6,

2008. Pet. App. 24. Ms. Sunderland now asks this

Court to review the state court’s decision and

provide appropriate guidance to lower courts regard-

ing the due process rights of individuals who—like

Ms. Sunderland—are known or believed to have

developed a parental relationship with a child who is

subject to adoption in a state-court proceeding.

ONES Cee eae

REASONS FOR GRANTING THE PETITION

Ms. Sunderland’s petition raises an important

question of federal law: namely, what process is due

to an individual who claims to have formed a

parental bond with a child before her parental rights

may be permanently extinguished by placing the

child with another individual in an adoption

proceeding? As shown in Section I below, the liberty

interest at issue in this case—the interest of

parental figures in the care, custody, and control of

their children—is among the oldest and most funda-

mental liberty interests recognized by this Court. In

recent years, states have recognized that individuals

who are not parents by birth or legal decree nonethe-

less acquire this interest by forming a parental bond

with a child. The constitutional and practical signifi-

cance of a state’s recognition of such parental rights

is an important question that has not been, but

should be, settled by this Court.

Although this Court has not specifically ad-

dressed the constitutional significance of evolving

parental rights under the Due Process Clause, it has

of course provided a framework by which to decide

whether individuals like Ms. Sunderland are en-

titled to adequate notice and a meaningful opportu-

nity to be heard. That framework is set forth in a

long line of cases, including Armstrong, Mathews,

and Hamdi. As discussed in Sections II and III

below, the state court failed to-apply this Court’s

constitutional framework. The state court’s conclu-

sion, therefore, conflicts with applicable decisions of

this Court regarding these fundamental due process

principles.

The significance of this matter is profound and

directly affects some of the most vulnerable in

society: children in adoption proceedings whose pa-

rents are no longer willing or able to care for them

properly. Over 50,000 children are adopted every

year in proceedings that involve public child welfare

agencies like DSHS. See U.S. Children’s Bureau,

Administration for Children, Youth & Families,

Trends in Foster Care & Adoption—FY. 2002—-FY

2006, http://www.acf.hhs.gov/programs/cb/stats_

research/afcars/trends_02-06.pdf. Nearly 80,000

children each year lose their legal connection to their

parents through termination of parental rights. Jd.

These children, and the adults with whom they have

formed significant and profound relationships, are

the ones placed most at risk by the state court’s

decision here.

As traditional notices of “parent” and “family”

continue to evolve, states will continue to struggle—

as they have already—to define the due process

rights of individuals who, like Ms. Sunderland, have

a parental relationship with a child but are not

parents by birth or legal decree. If states are to con-

dition an individual’s parental rights on establishing

that the individual is a de facto parent, a psych-

ological parent, or some other similar legal con-

struct, then the Due Process Clause of the Four-

teenth Amendment requires that the individual be

given the opportunity to make that showing. The

Court should grant this petition, among other

reasons, to provide adequate guidance on this novel

and important question of federal law.

I. THE STATE COURT DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW

REGARDING FUNDAMENTAL DUE PROCESS

RIGHTS.

The Court has long recognized the importance of

the fundamental liberty interest involved here. In

Troxel v. Granville, 530 U.S. 57 (2000) (plurality

op.), for example, the Court observed: “The liberty

in-terest at issue in this case—the interest of

parents in the care, custody, and control of their

children—is perhaps the oldest of the fundamental

liberty interests recognized by this Court.” Jd. at 65.

In Prince v. Massachusetts, 321 U.S. 158 (1944), the

Court similarly noted: “It is cardinal... that the

custody, care and nurture of the child reside first in

the parents, whose primary function and freedom

include preparation for obligations the state can

neither supply nor hinder.” Jd. at 166. These cases,

and others like them, consistently recognize a

fundamental constitutional dimension to the rights

of parents to direct the upbringing of their children.

This Court has likewise recognized that

conceptions of parent and family have evolved over

time: “The demographic changes of the past century

make it difficult to speak of an average American

family. The composition of families varies greatly

from household to household.” Troxe/, 530 U.S. at

63. Accordingly, this Court has held that the family

bonds entitled to constitutional protection are not

limited to biological ones; instead, the constitution

similarly protects emotional and psychological fam-

ily bonds as well. In Smith v. Organization of Foster

Families for Equality & Reform, 431 U.S. 816 (1977),

for example, the Court explained that “the impor-

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tance of the familial relationship . . . stems from the

emotional attachments that derive from the intimacy

of daily association.” Jd. at 844. The Court added:

“No one would seriously dispute that a deeply loving

and interdependent relationship between an adult

and a child in his or her care may exist even in the

absence of blood relationship.” Jd.

This Court's recognition of the constitutional

protections to Wifich these sorts of relationships are

entitled reflects the fact that, over the last 30—40

years, states have granted legal recognition to these

nonbiological familial relationships. In Washington,

such an adult is often referred to as a “de facto”

parent. According to the Washington Supreme

Court, such a relationship exists if (1) the child’s

legal parent “consented to and fostered the parent-

like relationship” between the child and the alleged

de facto parent; (2) the child lived with the person

claiming de facto parent status; (3) the person as-

sumed parental obligations without expectation of

financial compensation; and (4) the person has “been

in a parental role for a length of time sufficient to

have established ...a bonded, dependent relation-

ship” with the child. Jn re Parentage of L.B., 122

P.3d 161, 176 (Wash. 2005), cert. denied sub nom.

Britain v. Carvin, 547 U.S. 1143 (2006). A “de facto

parent stands in legal parity with an otherwise legal

parent, whether biological, adoptive, or otherwise.”

Id. at 177.

Nor is Washington alone in recognizing that a

legally significant relationship between an adult and

a child may exist in the absence of a biological

relationship. At least 22 other states and the Dis-

trict of Columbia have similarly done so. See Pet.

App. 25-26 (collecting citations to relevant opinions

in those other states). Some state courts, like the

Washington Supreme Court in Parentage of L.B.,

refer to such individuals as “de facto parents.” See,

e.g., E.N.O. v. L.M.M,, 711 N.E.2d 886, 891 (Mass.),

cert. denied, 528 U.S. 1005 (1999). Other state

courts refer to such individuals as “psychological

parents.” See, e.g. V.C. v. MJB, 748 A.2d 539,

551-52 (N.J.), cert. denied, 531 U.S. 926 (2000). In

some cases, like this one, courts use “de facto parent”

and “psychological parent” interchangeably. See,

e.g., Pet. App. 11; Rubano v. DiCenzo, 759 A.2d 959,

974 (R.I. 2000). But regardless of what legal con-

struct a state court adopts, the result is the same:

an individual who is not a parent by birth or legal

decree nonetheless can have a liberty interest that is

protected by state law.

Because that liberty interest is necessarily estab-

lished by state law, a de facto parent in Washington,

like a parent by birth or legal decree, enjoys a funda-

mental constitutional interest in the care and

custody of his or her children. Where an individual

claims to be a de facto parent, that individual neces-

sarily has the same rights and privileges this Court

has afforded to parents by birth or legal decree

under the Due Process Clause of the Fourteenth

Amendment to the Constitution. This includes the

guarantee to due process, in the form of notice and a

meaningful opportunity to be heard, prior to any

state-sanctioned dissolution of the de facto family.

The significance of these rights are at their

zenith when a child is the subject of an adoption pro-

ceeding. Only in an adoption proceeding is it pos-

sible that the type of “deeply loving and, inter-

dependent relationship between an adult and a

child” that this Court acknowledged in Smith, 431

U.S. at 844, may be terminated in favor of an

outsider. As noted on page 14 above, nearly 80,000

children each year lose their legal connection to their

parents through termination of parental rights.

Thus, protecting the due process rights of such indi-

viduals—parent and child alike—is clearly a matter

of profound importance.

Addressing the due process claims of parents by

birth, the Court has appropriately recognized the

significance of due process protections in adoption

proceedings, confirming that due process _pro-

tection—including adequate notice and a meaningful

opportunity to be heard—is paramount in this con-

text. In Armstrong, a case on which Ms. Sunderland

heavily relied, the Court found that failure to give a

parent adequate notice of an adoption proceeding

“violated the most rudimentary demands of due

process of law.” 380 U.S. at 550. The Court de-

scribed such notice as a “basic requirement” because

“the result of the judicial proceeding was per-

manently to deprive a legitimate parent of all that

parenthood implies.” Jd. (emphasis added). As the

Court in Armstrong held, a state may not, consistent

with due process, take such an action without

providing notice “reasonably calculated, under all

the circumstances, to apprise interested parties of

the pendency of the action and afford them an

opportunity to present their objections [before the

court considers the merits of a party’s arguments].”

Id. at 550 (quoting Mul/ane v. Cent. Hanover Bank

& Trust Co., 339 U.S. 306, 314 (1950)). Thus, with

respect to parents by birth, Armstrong requires

notice to that parent of an adoption proceeding

before—not after—the proceeding commences.

If Ms. Sunderland were R.L.M.’s parent by birth

or legal decree, the Court’s opinion in Armstrong

would clearly require reversal of the state court’s

adoption decree on due process grounds. The state

court reached a contrary conclusion only because

Ms. Sunderland is not R.L.M.’s biological parent and

because Ms. Sunderland had not been given an

opportunity to establish that she is R.L.M.’s de facto

parent and therefore entitled to notice under Section

26.33.240(1) of the Revised Code of Washington. See

Parentage of L.B., 122 P.3d at 177 (recognizing that

de facto parents have the same rights as parents by

birth or legal decree). Without proper guidance from

this Court, lower courts will continue to struggle

with such issues, fracturing on these critical due

process issues and continuing to allow individuals

like Ms. Sunderland to lose their parental rights

without even the basic opportunity to present their

claims. Such a result is contrary to fundamental due

process principles and this Court’s Fourteenth

Amendment jurisprudence.

This petition presents an opportunity for this

Court to prevent such widespread injustice by

providing needed legal principles to protect the due

process rights of de facto parents, psychological

parents, and other like individuals. Where, as here,

a participant in an adoption proceeding knows or

believes that another individual has asserted a

parental relationship with the child (and, indeed,

that individual is known to have initiated an

adoption proceeding regarding that child), the Due

Process Clause of the Fourteenth Amendment to the

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Constitution requires that the individual be given

adequate notice and a meaningful opportunity to be

heard. As in Armstrong, anything less would

“violate[}] the most rudimentary demands of due

process of law.” 380 U.S. at 550.

Il. THE STATE COURT'S OPINION CONFLICTS

WITH THIS COURTS DECISIONS IN

ARMSTRONG v. MANZO AND MATHEWS v.

ELDRIDGE.

At bottom, the state court in this matter

sanctioned a result that is both unconstitutional and

untenable under this Court’s case law. The result is

substantially similar to the result this Court struck

down in Armstrong, where a divorced father, like

Ms. Sunderland, was not given adequate notice and

a meaningful opportunity to participate in an

adoption proceeding affecting his child. 380 U.S. at

548. By allowing a similar deprivation of parental

rights—without adequate notice or a meaningful

opportunity to be heard in the Adoption Pro-

ceeding—the state court plainly decided an im-

portant question of federal law that has not been,

but should be, settled by this Court and it did so ina

way that conflicts with relevant decisions of this

Court, including Armstrong.

The state court’s opinion likewise conflicts with

the due process principles that this Court

established in Mathews. The Court in Mathews

established a framework for determining “the

process due in any given instance.” Hamdi, 542 U.S.

at 529. That framework has three distinct prongs:

PY tt Vas ae ed

Waar

First, the private interest that will be af-

fected by the official action; second, the risk

of an erroneous deprivation of such interest

through the procedures used, and the

probable value, if any, of additional or sub-

stitute procedural safeguards; and finally,

the Government’s interest, including the

function involved and the fiscal and admin-

istrative burdens that the additional or sub-

stitute procedural requirement would entail.

Mathews, 424 U.S. at 335. Although Ms. Sunder-

land addressed all three prongs in her briefing

before the state court, the court did not address any

of these prongs in its opinion. Nor did it mention or

purport to apply this constitutional analysis. See

generally Pet. App. 1—17.

Had the state court properly applied this three-

part test, it would have concluded that Ms. Sunder-

land--like Mr. Armstrong—should have been pro-

vided adequate notice and a meaningful opportunity

to participate in the Adoption Proceeding. With

regard to the first prong of the Mathews test, the

private interest at issue here is Ms. Sunderland’s

parental interest in participating in decisions

involving the care and custody of R.L.M. Without

adequate notice of the Adoption Proceeding, the type

of “deeply loving and interdependent relationship

between an adult and a child” that this Court

recognized in Smith, 431 U.S. at 844, would be

shattered without Ms. Sunderland’s participation—

and even without her knowledge.

Turning to the second prong of the Mathews test,

the risk of erroneously terminating Ms. Sunderland’s

parental rights is self-evident. At the time the trial

court ruled in the Adoption Proceeding, Ms. Sunder-

land had not been given an adequate opportunity to

present evidence regarding her parental relationship

with R.L.M. Thus, the trial court was in no position

to evaluate Ms. Sunderland’s parental relationship

to R.L.M.—including the strong emotional and

psychological bond that had developed between

Ms. Sunderland and R.L.M.—in deciding whether or

not to place R.L.M. with the Adoptive Parents.

Without this information, the loss of Ms. Sunder-

land’s parental rights was a fait accompli. The state

court’s opinion confirms this point: it determined |

that the “record” did not support Ms. Sunderland’s

argument that she had a parental relationshiy, with

R.L.M. even though Ms. Sunderland was deprived of

the opportunity to develop such a record. Pet. App.

15. Conversely, with proper procedural safeguards,

including adequate notice to Ms. Sunderland, the

trial court’s ability to properly resolve the Adoption

Proceeding is improved immeasurably.

Finally, the Government’s interest in the correct

resolution of an adoption proceeding is equally pro-

found. The most significant aspect of that interest is

not simply expediting the proceedings, but in deter-

mining whether the potential adoption is truly in the

best interests of the child. See Jn re Welfare of

Maurer, 530 P.3d 1338, 1339 (Wash. App. 1975).

Where, as here, a participant in an adoption pro-

ceeding knows or believes that another individual

has a parent-like relationship to the child (and,

indeed, has initiated an adoption proceeding re-

garding that child), no significant administrative

burden would be required in order to provide ade-

quate notice of the pending adoption proceeding.

Thus, the third Mathews prong, like the others,

requires that individuals like Ms. Sunderland re-

ceive adequate notice and a meaningful opportunity

to be heard before their parental rights are effec-

tively terminated.

The state court failed to apply or even mention

this framework. Nor does its analysis reflect any of

the considerations that Mathews engrained in due

process jurisprudence more than thirty years ago.

But even more troubling, the state court injected a

precondition to the constitutional right to due pro-

cess that conflicts with Mathews. The state court

held as follows:

Procedural due process applies only in sit-

uations where a person is being deprived of

something to which she has a right. Because

Sunderland had no legally[]recognized inter-

est in the custody of R.L.M. and no right to

intervene in the adoption proceedings, she

would be entitled to due process only if she

could show that she was R.L.M.’s de facto

parent.

Pet. App. 14 (footnote omitted, emphasis added).

This holding was based only on state law. Jd. at 14

n.27 (citing Jn re Dependency of J.H., 815 P.2d 1380,

1387—88 (Wash. 1991)). The state court, in other

words, held that a state law requirement that

Ms. Sunderland present proof that she was a de

facto parent—evidence that she was precluded from

offering—precluded Ms. Sunderland from being en-

titled to adequate notice or a meaningful opportunity

to be heard in the Adoption Proceeding.

The state court’s analysis effectively renders the

due process rights of such persons utterly meaning-

less. Individuals who are not parents by birth or

legal decree cannot participate in an adoption pro-

ceeding unless they establish that they are de facto

parents. But without any ability to participate at a

meaningful time and in a meaningful manner (as

required by federal due process principles), such

individuals cannot possibly make that showing. The

state court’s holding thus ensures that individuals

who are known to have asserted a parental rela-

tionship with a child will be denied the consti-

tutional right to notice and an opportunity to be

heard and thereby demonstrate the existence of that

parental relationship. This rule is wholly untenable.

The fundamental flaw in the state court’s analysis

is that it misapplies Mathews. The first prong in

Mathews examines “the private interest that will be

affected by the official action.” Mathews, 424 U.S. at

335. Here, that interest is Ms. Sunderland’s paren-

tal interest in participating in decisions involving

the care and custody of R.L.M.—a child with whom

Ms. Sunderland had established a deeply loving and

interdependent relationship. If states are to condi-

tion such participation on satisfying a specific legal

standard, such as that set forth in the state court’s

opinion (quoted on page 23 above), then the Due

Process Clause requires that such individuals be

given adequate notice and a meaningful opportunity

to be heard on that point.

In short, the state court’s analysis has broad impli-

cations, not only in light of the ever-changing nature

of parental relationships but also as it relates to the

constitutional right to adequate notice and a mean-

ingful opportunity to be heard. While states have

ett Se Ar a8 ¥% et ee ae ae gteeer SS * # CN SER ey ns OR te OL EP a, RE Rat ge POMS ETE UN TR SOT ee EP A Ree Reet EIS aes

; eA ae. i eagaay ee Mee Re he Bee the 2 “ , tas Hg ON wis ea AE eh Ly Pes ne eee Men

some power to define what constitutes a protected li-

berty interest under state law, they cannot condition

due process protection on an individual’s ability to

establish such a liberty interest and then deny those

same individuals any meaningful opportunity to

make that showing. The Court should grant this pe-

tition, among other reasons, to provide adequate

guidance on this novel and important question of

federal law.

Il. THE STATE COURTS OPINION ALSO

CONFLICTS WITH THIS COURTS DECISION

IN HAMDI v. RUMSFELD.

In addition to conflicting with Mathews, the state

court’s decision conflicts with this Court’s opinion in

Hamdi. In Hamdi, this Court rejected an analogous

rule that permitted the deprivation of rights to hinge

on a classification without providing the individual a

meaningful opportunity to challenge the classifica-

tion. Here too, the state court’s opinion conditions

an individual’s entitlement to due process rights on

his or her classification as a de facto parent, while at

the same time it effectively prevents individuals

from making that showing.

Hamdi involved the due process rights of indivi-

duals who are classified as “enemy combatants.” If

an individual is so classified, he or she may be de-

tained by the government without charges until the

cessation of military hostilities, subject only to mili-

tary process. 542 U.S. at 518-19; see also id. at 560-

61 (Scalia, J., dissenting). Individuals not classified

as enemy combatants, are entitled to the full

panoply of procedural protections from ordinary

criminal proceedings. See id. at 560-61 (Scalia, J.,

. Pieer et OO PRE OP aR BES SS. CS, ag RS al iat Ree Zh cad Aon mea

eS Oe eR ES Be SCS a PLP Ee omg! fee an eae Ra SSN rm

dissenting). Thus, just as an individual's classifica-

tion as a de facto parent is determinative under the

state court’s analysis in this case, the classification

as an enemy combatant was likewise determinative

under Hamdi.

Addressing the due process rights of such

individuals, the Court in Hamd held that “a citizen-

detainee seeking to challenge his classification as an

enemy combatant must receive notice of the factual

basis for his classification, and a fair opportunity to

rebut the Government's factual assertions before a

neutral decisionmaker.” Id. at 533 (emphasis

added). The Court reached this conclusion based on

the three-part test in Mathews, which it recognized

as the framework for determining “the process due

in any given instance.” Jd. at 529. In discussing the

appropriate level of process, the Court noted that

“fajny process in which...factual assertions go

wholly unchallenged or are simply presumed correct

without any opportunity for the [petitioner] to

demonstrate otherwise falls constitutionally short.”

Id. at 5387. At a bare minimum, a combatant must be

permitted “to present his own factual case to rebut”

his classification. Jd. at 538.

The state court’s analysis here conflicts with

Hamad. Like the petitioner in Hamad, whose rights

were dependant on his classification as an enemy

combatant, Ms. Sunderland’s parental rights (ac-

cording to the state court’s holding) were dependant

on her classification as a de facto parent under

Washington law. Also like the petitioner in Hamad,

Ms. Sunderland was denied a meaningful oppor-

tunity to challenge the state court’s determination

that she was not a de facto parent. The state court

ei,

“a

“am

faulted Ms. Sunderland for failing to make such a

showing even though she had been excluded from

the proceeding and prevented from submitting that

evidence. If the state court is to require such evi-

dence, then Hamdi (like Mathews) requires that

individuals be given notice and a meaningful oppor-

tunity to present relevant evidence. The state

court’s analysis conflicts with that holding.

Lastly, the state court’s holding also raises an

important issue regarding the proper role of state

courts in enforcing the United States Constitution.

The state court concluded its opinion by noting:

“While we understand the difficult position in which

this decision places family members seeking to

adopt, this is an issue that must be resolved by the

legislature, not the appellate court.” Pet. App. 16.

Contrary to state court’s conclusion, this Court has

repeatedly recognized that state courts are equally

responsible for enforcing the United States Consti-

tution and protecting the constitutional rights of citi-

zens. See, e.g., Robb v. Connolly, 111 U.S. 624, 637

(1884); Swickler v. Koota, 389 U.S. 241, 245 (1967)

(“During most of the Nation’s first century, Congress

relied on the state courts to vindicate essential

rights arising under the Constitution and federal

laws.”). The state court’s failure to properly protect

the due process rights of individuals like Ms. Sun-

derland—like its other failings—warrants this

Court’s review.

CONCLUSION

For each of these reasons, this Court should

grant a writ of certiorari to review the judgment of

the Washington State Court of Appeals.

Respectfully submitted,

LEONARD J. FELDMAN*

MALAIKA M. EATON

PAUL RUGANI

Heller Ehrman LLP

701 Fifth Avenue, Suite 6100

Seattle, WA 98104

(206) 447-0900

Counsel for Petitioner

* Counsel of Record

App. 1

156 P.3d 940

Court of Appeals of Washington, Division 1.

In the Matter of the ADOPTION OF R.L.M..,

a minor, DOB: 10/18/99. Monesa Sunderland,

Appellant,

State of Washington, Department of Social

and Health Services, and Adoptive Parents,

Respondents.

No. 57557-1-I.

April 30, 2007.

Leonard J. Feldman, Matthew Aaron Carvalho,

Heller Ehrman LLP, Seattle, WA, for Appellant.

Monesa Sunderland, Everett, WA, (Appearing

Pro Se).

Christian Williams, Attorney Generals Office,

Seattle, WA, Michael Scott Majors, Office of Attorney

General, Everett, WA, for Respondents.

Kirsten Jensen Haugen, Everett, for Minor.

Linda Eileen Passey, Law Office of Linda Passey,

Marysville, for Other Parties.

AGID, J.

91 R.L.M. is a seven year old girl. Monesa

Sunderland is her paternal aunt. When R.L.M. was

four years old, the Department of Social and Health

Services (DSHS) removed her from her parents and

placed her with Sunderland. DSHS later removed

R.L.M. from Sunderland because of her drug use and

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App. 2

placed the child with a foster-adopt family. Sunder-

land completed a drug recovery program and parent-

ing classes and sought to adopt R.L.M. R.L.M.’s

foster parents also petitioned for adoption. Sunder-

land was given only three hours notice of the compet-

ing adoption hearing and neither she nor her

attorney could attend the hearing. An associate of her

attorney asked that Sunderland be given an opportu-

nity to present evidence that it was in R.L.M.’s best

interests to be adopted by her rather than the foster

parents. The superior court denied this request and

granted the other adoption petition. Sunderland

argues that the court erred by denying her right to

notice and a hearing and by denying permissive

intervention under CR 24(b). We hold that Sunder-

land had no statutory or due process right to notice

and a hearing because she was not R.L.M.’s parent,

legal guardian, or de facto parent. We decline to

consider Sunderland’s permissive intervention argu-

ment because a mere procedural error is an insuffi-

cient basis for challenging a finalized adoption decree

under RCW 26.33.260(3).

FACTS

q 2 R.L.M. was born on October 18, 1999. DSHS

removed her from her mother based on allegations of

drug use and neglect. At the time, her father was

incarcerated on drug charges. Monesa Sunderland is

R.L.M.’s paternal aunt and claims she helped to raise

the child from birth. In March 2004, DSHS placed

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App. 3

R.L.M. with Sunderland after removing her from her

mother. On February 22, 2005, R.L.M.’s parents’

parental rights were terminated, and DSHS became

her legal guardian. Around January 2005, Sunder-

land began using methamphetamine after she and ~~

her longtime partner separated. When DSHS found

out about the drug use, it required her to sign an

agreement to stop using drugs and submit to random

drug testing. She signed the agreement, but later

tested positive for drugs. On March 1, 2005, DSHS

removed R.L.M. from Sunderland because of her drug

use and placed R.L.M. with a foster-adopt family.

Sunderland immediately entered a drug treatment

program. She completed the intensive out-patient

phase in May 2005 and continued her recovery with

aftercare and support groups. She also took parenting

classes because she hoped to regain custody of R.L.M.

Competing Adoption Petitions

43 After completing her drug rehabilitation

program and parenting classes, Sunderland sought to

become R.L.M.’s permanent placement. On Septem-

ber 28, 2005, Sunderland moved to intervene in

R.L.M.’s pending dependency case. A commissioner

granted her intervenor status and set a non-contested

adoption review for October 31, 2005. On October 13,

2005, R.L.M.’s foster parents filed a petition to adopt

R.L.M. They did not serve Sunderland with their

petition. On October 17, Sunderland completed a pre- 7

placement adoption report in preparation to petition a

to adopt R.L.M. On October 26, 2005, the superior

App. 4

court entered an order reversing the commissioner's

decision and denying Sunderland intervention be-

cause it found that allowing her party status in the

dependency was not in R.L.M.’s best interests.

4 4 On November 9, 2005, Sunderland also filed

a petition to adopt R.L.M., without the necessary

DSHS consent required under RCW 26.33.160. She

included her pre-placement report with this filing.

The report conditionally recommended Sunderland as

an adoptive parent, stating that she would be a

suitable permanent placement for R.L.M: provided 7

that she “continue in the recovery lifestyle she has ©

applied since her treatment seven months ago, in-

cluding parenting work, counseling and relocating out

of her neighborhood.” Sunderland was unable to file

the necessary post-placement report because R.L.M.

had not lived with her since March 2005.

75 On November 10, 2005, DSHS filed its

consent to adoption by the foster family, waiver of

right to notice of any further hearings related to the

adoption, and pre-placement and _ post-placement

reports recommending R.L.M.’s foster family adopt

her. That same day, R.L.M.’s foster-adopt parents

filed a calendar note setting the adoption hearing for

November 21, 2005. They did not serve Sunderland

with notice of this hearing.

{6 On the morning of November 21, 2005, the

hearing on the foster parents’ adoption petition

began. At the hearing, the court became aware of the

competing adoption petition Sunderland had filed and

App. 5

decided to set the hearing over until 3:20 p.m. to give

Sunderland a chance to appear before the court.

Counsel for the foster parents called Sunderland’s

attorney at 12:10 p.m. and left a message about the

afternoon hearing. Sunderland’s attorney was on

vacation but his associate, Ruth Westbrook, arranged

to appear by telephone. Neither Sunderland nor her

attorney was able to attend the afternoon hearing. At

that hearing, Westbrook asked for a continuance and

joinder of the two adoption proceedings. She also

asked the court to permit Sunderland to intervene in

the competing adoption proceeding.’ Tne court denied

Sunderland’s requests and granted the foster parents’

adoption petition. On December 6, 2005, Sunderland

moved for reconsideration of the adoption decision

and submitted a memorandum about her objections

to the proposed order. On December 7, 2005, the trial

court entered its final order granting the adoption.

Sunderland appeals.

DISCUSSION

I. Motion to Correct Sunderland’s Brief Under

RAP 10.7

{7 We must initially determine whether to

grant DSHS’ motion to correct Sunderland’s brief

under RAP 10.7, requesting that all references in her

‘ DSHS and the adoptive parents contest this finding,

claiming that the reference to intervention in the minute entry

is a scrivener’s error.

;

PN gia e Ue

aie ad a iia ac

App. 6

brief to material not in the record be stricken. Sun-

derland’s brief repeatedly references the transcript

from the dependency hearing, at which the superior

court denied Sunderland’s motion for permissive

intervention in R.L.M.’s dependency proceedings.

This transcript is not part of the record. RAP 10.3(5)

requires that all factual statements must be sup-

ported by reference to the record. Sunderland’s refer-

ence to a document not in the record violates this

rule.

4 8 Sunderland argues that we should consider

the additional dependency proceeding evidence under

RAP 9.11, but did not formally move to add the

evidence under the rule. RAP 9.11 allows this court to

consider additional evidence if it is necessary to

“fairly resolve the issues on review.” Here, the trial

court was aware that the superior court denied

intervention on revision. In fact, the trial court explic-

itly based its decision not to join the two adoption

petitions partly on the order in the dependency case

denying Sunderland intervention. Because the addi-

tional evidence offered is not necessary to the resolu-

tion of this case, we need not decide whether it could

be considered under RAP 9.11.

{9 Sunderland also contends that this court

should take judicial notice of the dependency tran-

script because the dependency proceeding is “en-

gra‘ted, ancillary, or supplementary” to the adoption

led to

a ee ee eS ee ee Pm a

> Pa Me aS eee =

App. 7

proceeding.” The Supreme Court rejected this argu-

ment in In re Adoption of B.T.* It refused to take

judicial notice of the records from B.T.’s earlier de-

pendency proceedings because an adoption and a

dependency action are “two separate judicial proceed-

ings.” We decline to take judicial notice of the de-

pendency transcript.

410 RAP 10.7 grants this court the discretion

to order correction of a brief or accept it without

considering the erroneous references. We deny DSHS’

motion to correct appellant’s brief. We have not

considered and do not need to consider the errone-

ously-cited dependency proceeding transcript because

there is ample evidence of what occurred at that

proceeding in the record properly before us, and

further consideration of the dependency proceedings

is net necessary to resolve the issues on appeal.

II. Procedural Challenge to the Adoption Decree

911 DSHS argues that Sunderland cannot

appeal the decree of adoption based on the issues she

raises. The legislature intended that an adoption decree

“provide finality for adoptive placements and stable

homes for children.” To that end, the legislature has

* See Swak v. Dep’t of Labor & Indus., 40 Wash.2d 51, 53,

240 P.2d 560 (1952).

* 150 Wash.2d 409, 78 P.3d 634 (2003).

* Id. at 415, 78 P.3d 634.

* RCW 26.33.260(4).

App. 8

limited the grounds for challenging an adoption on

appeal.” RCW 26.33.260(3) states that:

(3) Except as otherwise provided in RCW

26.33.160(3) and (4)(h), no person may chal-

lenge an adoption decree on the grounds of:

(a) A person claiming or alleging pa-

ternity subsequently appears and alleges

lack of prior notice of the proceeding; or

(b) The adoption proceedings were in

any other manner defective.

There is no case law .nterpreting RCW 26.33.260(3),

but no interpretation is necessary to conclude that it

prohibits challenges to finalized adoptions based on a

procedural error. We therefore hold that Sunderland’s

claim that the superior court erred by denying per-

missive intervention is insufficient to challenge the

adoption, and we decline to consider it.

III. Due Process Challenge to the Adoption Decree

4 12 Sunderland’s other claim is that she was

denied procedural due process, which is guaranteed

by both our federal and state constitutions.’ The

legislature cannot limit the constitutional rights of its

citizens by statute.° We hold that a party alleging a

* RCW 26.33.260.

’ U.S. Const. amend. XIV, § 1; WasH. Const. art. 1 § 3.

* See Seattle Sch. Di-t. v. State, 90 Wash.2d 476, 503, 585

P.2d 71 (1978).

App. 9

constitutional violation necessarily presents sufficient

grounds for challenging an adoption decree under

RCW 26.33.260.

413 “Because the process of adoption is a

creature of statute, the adoption statutes must be

strictly followed.” Under RCW 26.33.240, the only

people or agencies entitled to notice of an adoption

hearing are those whose consent to the adoption is

required under RCW 26.33.160, those who prepared

the pre-placement report, and, if the child falls within

the definition of an Indian child, her tribe. Under ,

RCW 26.33.160(1), the only relatives whose consent is

required for adoption, and who are consequently

entitled to notice, are the child’s parents, the alleged

father of a minor child, or a relative who is also the

child’s legal guardian.

4 14 But adoption is not so technical that the

trial court is left without the power to allow interven-

tion of interested parties or to conduct an evidentiary

hearing before granting or denving an adoption

petition.” In B.T., the Washington Supreme Court

held that grandparents who had properly obtained

intervenor status in their grandchild’s dependency

action were entitled to notice and an opportunity to

° B.T., 150 Wash.2d at 416, 78 P.3d 634 (citing In re

Adoption of Henderson, 97 Wash.2d 356, 358, 644 P.2d 1178

(1982)). |

Id. (citing In re Adoption of Doe, 45 Wash.2d 644, 649,

277 P.2d 321 (1954)).

App. 10

be heard on a competing adoption petition. The court

alsc observed in a footnote that non-parental rela-

tives are not entitled to notice of an adoption proceed-

ing solely by virtue of their biological ties to the

adoptee.” This court and the Supreme Court have

also recognized limited situations where a person in a

quasi-parental relationship to a child is entitled to

procedural due process.”

415 Sunderland argues that she should have

received more than three hours notice of the compet-

ing adoption hearing and should have been given a

chance to present evidence that adoption by her,

rather than R.L.M.’s foster parents, was in R.L.M.’s

best interests. Clearly, Sunderland is not entitled to

statutory notice under RCW 26.33.240, since she is

not R.L.M.’s parent or legal guardian. And her famil-

ial tie to R.L.M. grants her no special legal status.”

Sunderland had intervenor status at the time

R.L.M.’s foster parents filed their adoption petition

and, therefore, should have received notice of the

petition. But, because the superior court later de-

nied intervention on revision, Sunderland was no

longer entitled to notice when the court set the date

for the foster parents’ adoption hearing.

" Td. at 419 n. 5, 78 P.3d 634.

“ In re Dependency of J.W.H., 147 Wash.2d 687, 701, 57

P.3d 266 (2002); In re Welfare of Hansen, 24 Wash.App. 27, 36,

599 P.2d 1304 (1979).

" B.T., 150 Wash.2d at 419 n. 5, 78 P.3d 634.

* See id.

TS Te PI ee Pe ee ne ee, | PR, See ge Le ES Ee ae oe ee Ne oer ee ee eee

App. 11

416 Sunderland’s argument hinges on her

claim that she is entitled to procedural due process as

R.L.M’s psychological parent. She relies on several

decisions granting non-parents procedural due proc-

ess in actions involving the custody of children based

on their quasi-parental relationships to the affected

children. In In re Welfare of Hansen, we held that due

process considerations require courts to give parties

who stand in loco parentis to a child a full and mean-

ingful opportunity to present evidence at a hearing to

determine the child’s stztus as a dependent child.” In

In re Dependency of J.W.H., the Supreme Court held

that temporary custodians who were petitioning for

permanent custody of the children and had obtained

intervenor status in the dependency action were

entitled to due process. Most recently, in In re

Parentage of L:B., the Supreme Court held that a “de

facto parent” has a fundamental right, equal to that

of a biological or adoptive parent, in the care and

custody of a child.” |

* 24 Wash.App. 27, 36, 599 P.2d 1304 (1979).

155 Wash.2d 679, 710, 122 P.3d 161 (2005), cert. denied

sub nom. Britain v. Carvin, __ U.S. __, 126 S.Ct. 2021, 164

L.Ed.2d 806 (2006). Appellant does not claim de facto parent

status. Instead she claims she is entitled to procedural due

process because she is R.L.M.’s psychological parent. She cites

L.B. solely for its statement that Washington courts have recog-

nized that psychological parent status exists, but the case grants

no special legal rights to psychological parents. 155 Wash.2d at

691-92, 122 P.3d 161.

App. 12

4 17 Sunderland’s situation is factually and

legally distinguishable from all of the cases granting

procedural due process rights to non-parents. In

Hansen, the appellants had cared for the child since

she was less than one year old and had been her legal

guardians for eight years before the child’s biological

mother sought to regain custody by petitioning for

termination of the guardianship.” And it was they

who filed the petition to declare the child dependent,

in an effort to thwart the mother’s efforts to regain

custody.” Thus, they were only seeking the right to

present evidence, at the proceedings they instituted,

to ensure that the child they raised was not placed

with the mother who abandoned her. In J.W.H., the

children’s parents voluntarily placed them with their

aunt and uncle while the parents participated in a

drug rehabilitation program.” When the aunt and

uncle found out about the sexual abuse the children

had suffered, they petitioned for non-parental custody

of the children and were granted temporary custody

before the state instituted dependency proceedings.”

They successfully sought intervention of right in the

dependency action.” The trial court later refused to

allow them to present evidence against the depend-

ency which they asserted would result in reunifying

* 24 Wash.App. at 29-30, 599 P.2d 1304.

° Id. at 30-31, 599 P.2d 1304.

* 147 Wash.2d at 690, 57 P.3d 266.

” Td. at 693, 57 P.3d 266.

* id.

OE ST ee TNS tet ee eee

App. 13

the children with the parents who abused them.”

Thus, they were already parties to the proceeding

when they appealed. In L.B., the person seeking

custody was the partner of the child’s biological

mother, with whom she had jointly decided to con-

ceive and raise L.B.“ And the appellant had raised

L.B. as her daughter for six years before she and

L.B.’s biological mother separated.”

718 Clearly, the appellants in J.W.H. and

Hansen were in much better positions procedurally

than Sunderland, having both been granted legal

custodial rights to the children in whose proceedings

they were seeking to participate. And, in both cases,

the children were still living with the appellants. In

contrast, Sunderland has never been R.L.M.’s legal

guardian or custodian, and DSHS removed R.L.M.

from her care eight months before the adoption

hearing. No court has determined that placement

with Sunderland was in R.L.M.’s best interests.”

DSHS initially placed R.L.M. with Sunderland as a

relative foster care placement. Foster parents have no

due process right to participate in proceedings deter-

mining the custody of children placed in their care,

* Id. at 693-94, 57 P.3d 266.

* 155 Wash.2d at 682, 122 P.3d 161.

* Id.

** See RCW 26.10.100 (Non-parental custody is determined

based on the best interests of the child.); see also RCW

13.34.231(6) (Guardianship is determined based on the best

interests of the child.).

App. 14

even if they have become a child’s psychological

parent.” While the trial court could have allowed

Sunderland to intervene,” thus giving her the right to

notice and an opportunity to participate under B.T.,

she was ultimately unsuccessful in her attempt to

intervene in R.L.M.’s dependency.

4119 Procedural due process applies only in

situations where a person is being deprived of some-

thing to which she has a right.” Because Sunderland

had no legally-recognized interest in the custody of

R.L.M. and no right to intervene in the adoption

proceedings, she would be entitled to due process only

if she could show that she was R.L.M.’s de facto

parent.

{20 L.B. lays out a four part test for determin-

ing whether someone is a child’s de facto parent:

(1) the child’s legal parent “consented to and fostered

the parent-like relationship” between the child and

the alleged de facto parent; (2) the child lived with

the person claiming de facto parent status; (3) the

person assumed parental obligations without expec-

tation of financial compensation; and (4) the person

has “been in a parental role for a length of time

* In re Dependency of J.H., 117 Wash.2d 460, 476-77, 815

P.2d 1380 (1991).

* 150 Wash.2d at 419 n. 5, 78 P.3d 634.

*® J.H., 117 Wash.2d at 472-73, 815 P.2d 1380.

App. 15

sufficient to have established . . . a bonded, dependent

relationship” with the child.”

4 21 The record does not support considering

Sunderland R.L.M.’s de facto parent. Although Sun-

derland claims to have been involved in R.L.M.’s life

from birth, the child lived with her for only one year.

There is no evidence to suggest that R.L.M.’s biologi-

cal parents intentionally fostered a parent-like rela-

tionship between R.L.M. and Sunderland. Despite

two declarants’ statements that Sunderland regularly

checked up on R.L.M., bought her clothes and toys,

planned her birthday parties, took her to her first day

of school, and regularly czred for her for days at a

time, there is no evidence that Sunderland lived with

R.L.M. before she was declared a dependent child. On

the contrary, DSHS removed R.L.M. from her

mother’s home. In In re Dependency of D.M., we

recently held that an aunt and uncle who were adju-

dicated non-parental custodians of two children after

their mother abandoned them, but later lost custody

of the children based on allegations of abuse, had no

right to participate in the hearing to terminate the

children’s mother’s parental rights because they were

not de facto parents.”’ We explained that mere “pas-

sive acquiescence” by the biological parent is insuffi-

cient to meet the first prong of the de facto parent

test, which requires that the parent consent to and

* 155 Wash.2d at 708, 122 P.3d 161.

* 136 Wash.App. 387, 398, 149 P.3d 433 (2006).

App. 16

foster the parent-like relationship.” Similarly, Sun-

derland cannot show that her occasional care of

R.L.M. was the result of the child’s parents actively

fostering a parent-like relationship rather than them

merely permitting Sunderland to help out with

R.L.M. because their drug problems prevented them

from properly caring for her. We hold that Sunder-

land is not R.L.M.’s de facto parent and, therefore,

had no procedural due process right to participate in

the competing adoption hearing.

4% 22 We recognize that the current statutes and

case law leave family members seeking to adopt

children with whom they may have strong biological

and social ties without a remedy in the face of a

competing adoption petition by a non-family member

who has received consent from DSHS. Under the

current law, in the absence of a formal court order

granting them custody or guardianship of the child,

these non-parental relatives must either have de

facto parent status or successfully obtain permissive

intervention in the dependency proceedings in order

to get notice and an ability to meaningfully partici-

pate in a hearing that will forever foreclose their

ability to adopt the child. While we understand the

difficult position in which this decision places family

members seeking to adopt, this is an issue that must

be resolved by the legislature, not the appellate court.

* Id. at 397, 149 P.3d 433.

App. 17

¥ 23 We affirm. 3

WE CONCUR: BAKER, J., and ELLINGTON,

AC.J.

App. 18

{Bar Code]

CL11187799

SUPERIOR COURT

OF WASHINGTON

COUNTY OF SNCHOMISH

Dependeney-of: NO: [05-5-00418-4 /s/ MD)

[In re Adoption of: /s/ MD] ORDER

M., R.L.

b.d. 10/18/99 (Filed Dec. 7, 2005)

This matter was set for finalization of a petition

for adoption at 9:30 this morning, November 21, 2005.

After being notified by counsel for the petitioners

under Snohomish County Cause No. 05-[5-00418-4

/s/ MD] that another petition for adoption had been

filed with regard to this child, the court sought to

obtain copies of that petition and court file for review.

At 11:15 AM this morning, the court reconvened to

consider argument on the issue of proceeding with the

adoption under Cause No. 05-[5-00418-4 /s/ MD] in

light of the competing petition filed on behalf of

Monesa Sunderland under Snohomish County Cause

No. 05-5-00457-5. The Court then directed Linda

Passey, attorney for the Petitioners seeking to adopt

this child today (under Cause No. 05-[5-00418-4

/s/ MD}) to seek to give notice to counsel for the

competing petitioner. At 3:30 PM, the Court heard

from counsel for both petitioners for adoption (Ruth

Westbrook appeared on behalf of Richard Okrent via

telephone) and the Department of Social and Health

App. 19

Service (DSHS), through Chris Williams, Assistant

Attorney General. Also present in court were the peti-

tioners for adoption under Cause No. 05-[5-00418-4

/s/ MD], Joanna Blanford, Supervisor and Katherine

Graff, Social Worker on behalf of DSHS; Nina Taylor,

VGAL Coordinator; Ken Young, VGAL for the child;

the child, R.M., and her prospective adoptive sister

under 05-[5-00418-4 /s/ MD].

AFTER REVIEWING the testimony and records

provided to the court, both competing petitions for

adoption of this child, the file in the underlying

dependency (Snohomish County Cause No. 04-7-

U0458-2), letters from three Cherokee Tribes, and

HEARING FROM the attorneys for both petitioners

for adoption, and DSHS, IT IS HEREBY FOUND

that:

1. It is not in this particular child’s best interests to

delay her adoption any longer and, for the follow-

ing reasons, the court refuses to exercise its

discretion to joim Ms. Sunderland’s petition

for adoption with the present action or to delay

finalization of the petition to adopt under Cause

No. 05-[5-00418-4 /s/ MD] any longer.

2. The child is strongly and positively bonded with

her current placement and is observed to be

openly affectionate with those caretakers as well

as her prospective adoptive sister in that home.

3. The child has been in her current placement over

8 months as of today’s date and delaying her

Ee ES IT rN RI REE OE GAMA RR AES ig OE OR NER AE Pg UU AY GEE RENE Sempre ET SER aR SAS UP RAST St

reg tig Sa yaa se Hi tit iy > : “ J . rats pik

App. 20

adoption any longer, or threatening its finaliza-

tion by delaying these proceedings, is very likely 4

to be emotionally devastating to this child. 2

4. DSHS supports and consents to the adoption of

the child by her current placement and opposes

her adoption by Ms. Sunderland.

5. There are insufficient allegations in Ms. Sunder- ¥

land’s petition for adoption to provide the Court

with reasonable cause to believe that she would

be able to prevail on that petition without the

consent of DSHS, in whose custody the child cur-

rently remains. Ms. Sunderland’s adoption peti-

tion does not allege that DSHS made any

mistake, or in any way e~ted arbitrarily and ca-

priciously in removing the child from her care or

in placing the child in her current home with the

petitioners for adoption.

6. There is not reasonable cause to believe that a

sufficient factual basis exists, or will exist soon

enough, upon which Ms. Sunderland would be

able to overcome DSHS’ refusal to consent to her

petition to adopt this child to justify delaying this

child’s adoption in order to join the competing pe-

titions. The pre-placement report submitted by

Ms. Sunderland in support of her petition for

adoption, completed by Don Layton MSW, indi-

cates that, among other things, she would only be 3

a suitable candidate for adoption of this child “if” 7

she continues to engage in active efforts to re- 4

cover from a longstanding substance abuse prob-

lem, moves from her current neighborhood, and

engages in parenting classes and counseling. The

report specifically indicates that the substance

App. 21

abuse issues will not be adequately addressed

“for at least another six months.” That much

delay is not in this child’s best interests.

Furthermore, there are factual assertions in

Ms. Sunderland’s pre-placement report indicat-

ing that the child has been put at risk while in

her care.

Sts Sandloriond. este here state ae eft te)

re lepti lisse Sitt did Ld

car BR

[did not

attempt to stay this adoption proceeding /s/ MD].

The Juvenile Court, through Cause No. 04-7-

00458-2, has reviewed the decision by DSHS to

remove the child from Ms. Sunderland’s care and

approved it. Furthermore, the Juvenile Court,

by order filed on October 26, 2005, decided that

Ms. Sunderland was not a legal relative to this

child and should not be allowed party status in

the Dependency because: (1) it was not in the

child’s best interests to allow her to be a party to

that proceeding, (2) Ms. Sunderland is not a le-

gal relative to the child, (3) Ms. Sunderland has

previously been determined to be an inappropri-

ate placement for the child and did not appear

before the Juvenile Court to challenge or dispute

her removal from Ms. Sunderland’s care.

(4) Ms. Sunderland’s motion to intervene was not

timely, (5) further delay would jeopardize the

child’s right to a speedy resolution of the depend-

ency proceeding, because (6) Ms. Sunderland’s in-

tervention was likely to inject collateral and/or

extrinsic issues into the matter, which would

App. 22

take time to resolve and adjudicate, . thereby

causing delay to the original parties to the action.

The child is not an Indian child as defined in 25

U.S.C. 1903 as has already been decided by the

Snohomish County Court under Cause No. 05-7-

00381-9, by order filed on February 23, 2005. De-

spite this finding, DSHS has re-contacted the

Cherokee Tribes to confirm if this child may be

enrollable, based on Ms. Sunderland’s allega-

tions, and all three Tribes have indicated that

the child is not eligible to be registered as a

member of those Tribes. [This issue is res judi-

cata. /s/ MD]

It is hereby ORDERED that there shall be no fur-

ther delay to this child’s adoption with a fit and

proper home and the court shall proceed with the

process of finalizing the adoption that is before it

today.

DONE IN OPEN COURT this [7 29 /s/_ MD] day of

[December Nevemrer /s/ MD], 2005.

/s/ Michael T. Downes

JUDGE MICHAEL T. DOWNES

App. 23

Presented by:

/s/ Linda Passey

LINDA PASSEY #16186

Attorney ter the Petitioners for Adoption,

Petitioner for Adoption Petitioner for Adoption

Approved for Entry: [As to form

[-As to form) for VGAL

/s/ Chris Williams Kirsten Haugen #8462]

CHRIS WILLIAMS, ;.; Martin Hodges #21818

WSBA #34521 [for] KIRSTEN HAUGEN,

Assistant Attorney General WSBA #8462

Attorney for VGALs

KEN YOUNG

Guardian ad Litem JOANNA BLANFORD

DSHS Social Worker

LINDA RICHARDSON — Supervisor

DSHS Social Worker lal Ticked Olerent

RICHARD OKRENT,

MONESA WSBA #15851

SUNDERLAND Attorney for

Competing Petitioner Monesa Sunderland

for Adoption

Se Re ee LR ey EE Nag Re AE DAE ET EY BOD MB Cee paet EM RY PAE eek AN ee SERRE ERIN ep OND TREES OCD att PRS OMA Re nO EE TNE SRT CR BL She A ee Oe ie ae eae

App. 24

THE SUPREME COURT OF WASHINGTON

In re the Adoption of R.L.M., ) No. 80272-6

a child under the age of ) ORDER

)

eighteen.

) C/A NO. 57557-1-I

(Filed Feb. 6, 2008)

Department II of the Court, composed of Chief

Justice Alexander and Justices Madsen, Chambers,

Fairhurst and Stephens, at its February 5, 2008,

Motion Calendar, considered whether review should

be granted pursuant to RAP 13.4(b), and unani-

mously agreed that the following order be entered.

IT IS ORDERED:

That the Petition for Review is denied.

DATED at Olympia, Washington this 6th day of

February, 2008.

For the Court

/s/ Gerry L. Alexander

CHIEF JUSTICE

App. 25

Appendix of State Cases

Alaska: Carter v. Brodrick, 644 P.2d 850 (Ak. 1982)

California: In re B. G., 523 P.2d 244 (Cal. 1974)

Colorado: In re Marriage of Martin, 42 P.3d 75

(Colo. App. 2002)

Connecticut: Temple v. Meyer, 544 A.2d 629 (Conn.

1988)

Delaware: | In re Hart, 806 A.2d 1179 (Del. Fam. Ct.

2001)

District of Columbia: Petition of D.I.S., 494 A.2d

1316 (D.C. 1985)

Florida: Wills v. Wills, 399 So. 2d 1130 (Fla. Dist.

Ct. App. 1981)

Louisiana: Johnson v. Sullivan, 545 So. 2d 1169

(La. Ct. App. 1989)

Maine: C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)

Maryland: S.F v. M.D., 751 A.2d 9 (Md. Ct. Spec.

App. 2000)

Massachusetts: E.N.O. v. L.M.M., 711 N.E.2d 886

(Mass. 1996), cert. denied, 528 U.S. 1005 (1999)

New Hampshire: In re Nelson, 825 A.2d 501 (N.H.

2003)

New Jersey: V.C. v. M.J.B., 748 A.2d 539 (NJ.

2000), cert. denied, 531 U.S. 926 (2000)

New Mexico: Matter of Adoption of J.J.B., 894 P.2d

994 (N.M. 1995), cert. denied, 516 U.S. 860 (1995)

New York: Doe v. Doe, 399 N.Y.S.2d 977 (N.Y. App.

Div. 1977)

App. 26

North Carolina: Smith v. Barbour, 571 S.E.2d 872

(N.C. Ct. App. 2002)

North Dakota: Paizer v. Glaser, 396 N.W.2d 740

(N.D. 1986)

Oregon: In re S’s Adoption, 538 P.2d 947 (Or. Ct.

App. 1975)

Rhode Island: Rubano v. DiCenzo, 759 A.2d state

(R.I. 2000)

South Carolina: Middleton v. Johnson, 633 S.E.2d

162 (S.C. Ct. App. 2006)

Washington: In re Parentage of L.B., 122 P.3d 161

(Wash. 2005)

West Virginia: In re Clifford K., 619 S.E.2d 138 (W.

Va. 2005)

Wisconsin: In re Custody of H.S.H.-K., 533 N.W.2d

419 (Wis. 1995), cert. denied, 516 U.S. 975 (1995)

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.