Aschauer's Welfare, In re

• Decision Date: 29 May 1980
• Docket Number: No. 46705,46705
• Citation: 93 Wn.2d 689,611 P.2d 1245
• Parties: In re the Welfare of Marcus Jacob ASCHAUER, and David Leo Aschauer. Appeal of Victoria TAYLOR, the mother.
• Court: Washington Supreme Court

Page 689

93 Wn.2d 689

611 P.2d 1245

In re the Welfare of Marcus Jacob ASCHAUER, and David Leo Aschauer Appeal of Victoria TAYLOR, the mother.

No. 46705.

Supreme Court of Washington, En Banc.

May 29, 1980.

Slade Gorton, Atty. Gen., Philip G. Hubbard, Asst. Atty. Gen., Seattle, for appellant.

Tim O. Fogh, Seattle, for respondent.

Mark T. Patterson, Everett, amicus curiae.

ROSELLINI, Justice.

David and Marcus Aschauer (then 4 and 3 years of age, now 6 and 5) were abandoned by their father in a motel where they had been living with him in a filthy room for several months. They were clothed only in diapers when they were observed in the parking lot, which opened upon a busy arterial. Police rescued them, and they were placed in a foster home by the Department of Social and Health Services. Both had diaper rash and cradle cap ¹ at that time. On June 1, 1977, upon the department's petition, an order of dependency was entered.

Efforts to locate the father, Peter Aschauer, were unsuccessful, but the mother was found residing in Portland, Oregon, also in a single room. She came to Seattle for a hearing on July 18, 1977, at the conclusion of which it was ordered that the children should remain wards of the court.

Although she had relatives in Seattle, and although she was not employed or attending school in Portland, the mother was unwilling to move to Seattle during the pendency of the proceedings. She did, however, visit the children on several occasions. These visits were conducted in the office of the social worker in charge of the case, who testified at the deprivation hearing held in December 1977, that the children had not appeared to recognize their mother.

The development of these two children was severely retarded, as was apparent to the witnesses who had seen or examined them. A pediatrician from the Children's Orthopedic Hospital testified that they were both afflicted with a condition known as "psycho-social dwarfism." ² They exhibited symptoms including retarded physical, emotional, language, and social development. The evidence was that they had been healthy normal babies at birth and that their severe retardation was due to neglect beginning in their first year. The prognosis for their future was not optimistic, but it was thought that if they were provided a stable home environment with persons who would give them proper nurturing, the damage from prior deprivation hopefully could be remedied.

The mother's testimony showed that the family had lived a nomadic life, with no stable base, and one fraught with much dissension between the parents. Their final separation had occurred 12 months before the children were found in the parking lot. A court-appointed psychiatrist who examined her found the mother suffering from mental or emotional disorder involving disorientation and inability to relate to reality. He did not purport to make a specific diagnosis but when her own attorney, questioning him, referred to her condition as schizophrenia, the doctor did not correct him. He was certain that she was not capable of providing adequate parental care to children having the developmental problems exhibited by David and Marcus. He also testified that the mother's own problems were of long duration and could not be readily corrected, if they were correctable at all.

When testifying, the mother revealed that she had taken no meaningful steps to provide a home for the children should she be given their custody, or to improve her own prospects for caring for them. She had been involved in vocational rehabilitation and mental health programs in Portland since 1976, but had evidently received no significant benefit from them. At the time of trial she was still unable to support herself financially, and her problems in coping with her environment persisted. She had talked of going to school to learn some means of supporting herself and the children, but her stated goals were vague and generally unrealistic, as were her plans for caring for the children.

Upon this and other like evidence, the trial court found that the children displayed the impact of parental deprivation in their early years of development and are threatened with significant emotional problems in the future; that the mother lacks the ability to meet the physical and emotional needs of the children, and that her emotional problems have taken years to develop and realistically will take years to reverse, if they are reversible. The court found that both parents were unfit to care for these children.

Reluctantly, the court entered an order of permanent deprivation, making the children available for adoption.

Two judges of the Court of Appeals, Division One, reversed the court's judgment, holding that there was no evidence to support the trial court's finding that the mother "has emotional problems which can best be described as a schizophrenic disorder." It was evidently the opinion of the Court of Appeals majority that unless the mother was suffering from schizophrenia, she was capable of caring for the children, or could become capable with some assistance from the Department of Social and Health Services.

We cannot agree with that conclusion. The record is replete with evidence that the persons who had the care and custody of the children from the time of their infancy had not had the ability to meet their physical and emotional needs. There was no contention in this case that the parents deliberately neglected the children, that they had no parental feelings toward them, or that they were actively cruel to them. It was the evident assumption of all concerned that the parents did their best to care for the children. Adopting that assumption, the condition of the children when they were found, as explained by the pediatrician who examined them, was sufficient in itself to demonstrate that both parents were incapable of giving them the care that they needed.

The evidence further showed that the father had, at the time of trial, abandoned his parental rights. Not only did he leave the children alone in a motel to which he did not return, but he failed to respond to published notice of the deprivation hearing. He was aware that the children were in the custody of the Department of Social and Health Services, for he sent the social worker a note, giving the children's names and asking that they be told that he loved them, but at the same time acknowledging his inability to care for them.

The mother, while she undoubtedly loves the children also and desires to have them with her, has been found, upon substantial evidence, to be likewise incapable of nurturing them. As the trial court found, she is unable to cope with her own problems, much less those of two retarded children. Whether her condition can best be described as schizophrenic, as the trial court found, or can better be described in other diagnostic terms, the fact remains that she lacks the necessary capacity for giving parental care. The evidence was also clear that the prospects for correction of her problems in the near future are very poor, if they exist at all.

We are advised that, in accordance with the court's order, the children were placed in the home of persons who desire to adopt them and who are giving them the nurturing which they sorely need. According to the testimony, stability and attention to their physical and emotional needs are essential if they are to recover from the effects of past neglect. To postpone their access to stability in the hope that the mother will be able to correct deep-seated emotional problems and assume the obligations of parenthood when all the evidence shows that she lacks the capacity to do so, is to ignore the desperate needs of the children.

This court has repeatedly said that the goal of a dependency hearing is to determine the welfare of the child and his best interests. In re Becker, 87 Wash.2d 470, 553 P.2d 1339 (1976); In re Sego, 82 Wash.2d 736, 513 P.2d 831 (1973). While the criteria for establishing the best interests of the child are not capable of specification, each case being largely dependent upon its own facts and circumstances (see In re Becker, supra ), the proof necessary in order to deprive a person of his or her parental rights must be clear, cogent and convincing. Sego, 82 Wash.2d at 739, 513 P.2d 831. If there is substantial evidence which the lower court could reasonably have found to be clear, cogent and convincing, an appellate court should not disturb the trial court's findings. Deference paid to the trial judge's advantage in having the witnesses before him is particularly important in deprivation proceedings, when it is borne in mind that continuity in the parent-child relationship, whether the parent figure be the natural parent or not, is increasingly recognized as a significant factor in a child's normal development. See J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child (1973), pp. 31 et seq., and articles cited in Becker, 87 Wash.2d at 477, 553 P.2d 1339. For this reason, multiple changes in custody as a result of judicial proceedings are to be avoided if this is possible without harm to the child.

Here, there was ample evidence that the best interests of the children required that they be placed in a home where stability and proper nurturing would be assured, insofar as assurance is possible. Courts are always reluctant to deprive parents of rights with respect to their children, and it is particularly sad when the parent cares for the child and desires to be a good parent, as appears to be the case here. However, it is the court's duty to see that those rights yield, when to accord them dominance would be to ignore the needs of the child.

The Court of Appeals majority erred in holding that the findings were unsupported by substantial evidence.

Two further contentions were raised in that court which were not treated in the opinion. The first is that RCW...