C.R.B., In re
| Decision Date | 26 August 1991 |
| Docket Number | No. 26345-5-1,26345-5-1 |
| Citation | 62 Wn.App. 608,814 P.2d 1197 |
| Parties | In re the Dependency of C.R.B. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. Tina BROWN, Appellant. |
| Court | Washington Court of Appeals |
Eric Broman, Washington Appellate Defender, Seattle, for appellant.
D. Peterson, Asst. Atty. Gen., Seattle, for respondent.
Tina Brown appeals from the superior court, asserting that the court erred in (1) entering an order finding her in default, (2) terminating her parental rights to her son, C.R.B., and (3) denying her motion for revision. We reverse.
C.R.B. was born on August 25, 1989. When he was 3 days old, the State petitioned the court to find that he was a dependent child under RCW 13.34.030(2)(c) 1 based on the following facts:
1. On 8/25/89, the child was born at the University of Washington Hospital to a nineteen (19) year old mother, Tina Merriweather, who is without housing and has been homeless and residing in various shelters in Seattle.
2. The North King County District Office of Public Health unsuccessfully attempted to work with the mother during pregnancy in that she failed to maintain regular prenatal care appointments.
3. The mother has named Charles Brown as the father of the infant. Mr. Brown has previously assaulted the mother and is currently incarcerated at King County Jail on assault charges.
4. Public Health Nurse Christina Litchfield states that the mother is suspected to be using drugs and has a history at usage that resulted in a previous infant's death three (3) days after birth, with drug related congenital anomalies.
5. On 8/25/8, the University of Washington Hospital placed an Administrative Hospital Hold on the baby.
The court ordered that the baby be taken into the custody of DSHS pursuant to RCW 13.34.050. Initially DSHS arranged to have C.R.B. and Brown reside at Brown's mother's house, but when Brown did not abide by the ordered arrangement, DSHS obtained an order to place the child in foster care. On October 16, 1989, the court granted a finding of dependency pursuant to RCW 13.34.030(2)(c) and entered a dispositional order pursuant to RCW 13.34.130.
On January 31, 1990, the Department filed a "Petition for Termination of Parent-Child Relationship", alleging in part:
I. There is little likelihood that conditions will be remedied so that the child can be returned to the parents in the near future.
. . . . .
* * *
J. Continuation of the parent-child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
The Petition requested the court to permanently terminate Brown's parental rights to C.R.B. and to commit him to the custody of DSHS. Along with the Petition, DSHS filed an "Affidavit and Notice of Contested Hearing", which stated that
The changes in circumstances and issues to be contested are:
To take the testimony of caseworker on record to support the Department's findings of fact, conclusions of law, and order terminating parent-child relationship.
In addition, DSHS filed a "Certification in Support of Notice by Publication", indicating that the sheriff was unable to find Brown after a diligent search and that no forwarding address was left at the last known address. DSHS also filed a "Motion and Order of Publication and Setting Termination of Publication Hearing" by which the court ordered the clerk's office to issue notice to Brown by publication, and set a "termination of publication hearing" for May 9, 1990.
On February 20, 1990, the court held a dependency review hearing. The resulting order indicated that Brown "had not followed through with services", had visited the child only occasionally, and had not kept visitation appointments. On March 21, 1990, DSHS filed a notice and summons for the May 9, 1990, hearing. Brown's husband accepted service for her by certified mail on March 23, 1990. It is unclear whether Brown actually received notice of the upcoming hearing. 2
Brown was not present at the May 9, 1990, hearing; however, her attorney, Virginia Marshall, appeared in her behalf. Marshall informed the court that she had not had contact with Brown since February of 1990, at which time Brown expressed an interest in having the child returned to her care and her willingness to participate in court-ordered services. Brown also indicated she wanted her mother to be considered as a placement alternative.
At the hearing, DSHS presented a "Motion, Certification, and Order of Default" and "Findings of Fact, Conclusions of Law, and Order for Termination of Parent-Child Relationship". The motion and proposed orders were not served on Marshall in advance of the hearing. Brown's caseworker, Nancy Diaz, offered the following testimony in support of the order to terminate Brown's parental rights:
Q. How long have you served as a Caseworker on this particular case?
A. Since December of 1989.
Q. Has this child been found to be dependent?
A. Yes, he has.
Q. Has the Court entered a Dispositional Order?
A. Yes, [it has].
Q. Has the child been removed, or will at the time of this hearing have been removed from the custody of the parent for a period of at least six months, pursuant to a Dependency Finding?
A. Yes, he has.
Q. Have the services ordered been offered or provided and all necessary services reasonably available and capable of correcting the parental deficiencies within the foreseeable future have been offered or provided?
A. Yes, they have.
Q. Would you say there's little likelihood the conditions will be remedied so that the child can be returned to the parent in the near future?
A. I believe there's little likelihood as the parents have not accepted any services at this time.
Q. Would continuation of this parent-child relationship clearly diminish the child's prospects for early integration into a stable, permanent home?
A. They would.
Q. Would termination of the parent-child relationship be in the best interest of this child?
A. I believe it would. Marshall did not cross-examine the caseworker or offer any testimony. Marshall asserted that she wanted to proceed to October 15, 1990, which she understood to be the trial date to terminate Brown's parental rights. She indicated she would withdraw as Brown's attorney if she had not had any contact with Brown at that time. The superior court commissioner responded:
I'm inclined to sign the Order. The mother has been served, you've lost contact with her and you aren't able to contact the grandmother. I think that if we didn't sign it and continued it to the trial date, then we'd probably be in the same position then.
The findings of fact set forth in the proposed order simply restated the testimony given by Brown's caseworker. The commissioner signed the order of default and the order terminating Brown's parental rights. 3
On May 21, 1990, Marshall filed a motion and affidavit to revise the commissioner's rulings, in which she stated:
1. That I am the assigned counsel of record for Tina Brown, mother of the above-mentioned child, and I am familiar with the files and records herein.
2. On May 9, 1990, I represented Tina Brown at a termination of publication hearing at King County Juvenile Court before Commissioner Jack Richey. Prior to that hearing Tina Brown had been published for and personally served with notice of the above hearing regarding termination of her parental rights to [C.R.B.].
3. Tina Brown did appear at a dependency review hearing on February 20, 1990. I did have contact with her on that date at which time she expressed an interest in having her child returned to her care or to her mother's care. She expressed a desire to follow through with court ordered services and assistance in doing so.
4. She did not appear at the hearing regarding termination of publication on May 9, 1990. I appeared as her counsel of record. I attempted to [locate] her at past addresses given to me by my client, Tina Brown, but was not able to do so. 5. A termination of parental rights trial date had been set by DSHS for October 15, 1990. I requested that the court proceed to that trial date in regards to my client, Tina Brown.
6. Instead, the court not only terminated the publication as to my client, but also permanently terminated Tina Brown's parental rights to her child.
7. As a result the mother's rights to due process and protection of her parental rights at a trial where she is represented by counsel were denied her.
8. Therefore, the Commissioner's decision on May 9, 1990 terminating Tina Brown's parental rights to [C.R.B.] should be revised and the trial previously scheduled for October 15, 1990 regarding termination of those rights should proceed.
9. Although the mother was not present at the May 9, 1990 hearing, she was represented by counsel. She had contact with her attorney as recently as February 1990 and could very possibly re-establish contact prior to the October 15, 1990 trial date.
On June 5, 1990, the superior court denied the motion for revision, struck the October 15, 1990 trial date, and affirmed the May 9 order of default and termination. The court reasoned that the findings of fact, conclusions of law, and record provided a sufficient basis for the order of default since the mother was served by publication, had no contact with her attorney since February 20, and failed to take part in any of the court-ordered services. Brown and Marshall were in contact at the end of May 1990, and Brown's counsel on appeal contends that he had at least eight contacts with Brown before her brief was filed.
Brown claims that terminating her parental rights by means of a default proceeding violated her right to due process. The essential requirements of procedural due process are notice and an opportunity for a hearing appropriate to the nature of the case. Burman v. State, 50 Wash.App. 433, 440, 749 P.2d 708, review den'd, 110 Wash.2d 1029 (1988). Three...
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