Clark, In re

• Decision Date: 17 July 1980
• Docket Number: No. 3586-III-7,3586-III-7
• Citation: 611 P.2d 1343,26 Wn.App. 832
• Parties: In re the Matter of Eva Ada CLARK, A Minor Child. *
• Court: Washington Court of Appeals

Page 832

26 Wn.App. 832

611 P.2d 1343

In re the Matter of Eva Ada CLARK, A Minor Child.^*

No. 3586-III-7.

Court of Appeals of Washington, Division 3, Panel Three.

July 17, 1980.

Reconsideration Denied Aug. 7, 1980.

Chancey Crowell, Whitmore, Warren, Bromiley & Crowell, Wenatchee, for appellant.

Judith McCauley, Pros. Atty., Waterville, for respondent.

ROE, Judge.

Jerry D. Clark appeals a trial court order permanently terminating his relationship with his 6-year-old daughter, Eva Ada Clark, thus making her eligible for adoption. We affirm.

On October 7, 1977, in Washington, Eva Ada's natural mother relinquished all of her parental rights and duties. The natural father could not be found. On December 11 1978, Eva Ada was declared to be a dependent child. Mr. Clark was eventually located in Minneapolis, Minnesota, and, upon being contacted by the State, expressed a desire to gain custody of his then 4-year-old daughter, whom he had not supported, seen, or contacted in the previous 2 years. An interstate compact for home study was initiated, but it was unsuccessful because of Mr. Clark's nonparticipation. He lost contact with the juvenile department and failed to respond for several months to letters from the Department of Social and Health Services. He was later discovered to be in prison in Minnesota where he is serving a sentence of 3 to 20 years on two charges of aggravated robbery. He has no chance of parole until 1982. He had previously served time at McNeil prison in Washington, and there is a federal hold on him effective at the time he is released from the Minnesota prison.

In May of 1979, Clark was served in prison with a petition for termination of the parent-child relationship. At the hearing, his court-appointed attorney asked for a continuance until Clark could be present to confront witnesses and to have an expert appointed to testify as to his ability to fulfill his parental responsibilities. There was no motion for discovery process such as interrogatories or a deposition which might have assisted the court in resolution of this problem. The motion was denied, and on August 3, 1979, the court entered an order terminating the parent-child relationship.

Clark first challenges the sufficiency of the evidence. Clear, cogent and convincing evidence is necessary to sustain an order permanently depriving a parent of the care, custody and control of his children, the equivalent of the "highly probable" test. In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831 (1973). The duty of this court on review is to determine if there is the necessary quantum of proof to support the trial court's findings. From a review of the record, we are convinced that there is "substantial evidence" to support the findings in light of the "highly probable" test.

Clark also challenges both of the court's findings that the termination of the parent-child relationship is in Eva Ada's best interests, and that it is supported by clear, cogent and convincing evidence. This is at least partly a conclusion of law, and such findings will be treated as conclusions of law. State v. Reader's Digest Ass'n, Inc., 81 Wash.2d 259, 266-67, 501 P.2d 290 (1972).

The court further found that Eva Ada had been declared a dependent child because her father was incarcerated in a reformatory in Minnesota and was not available to take care of her, that he was not available to be offered services as provided by statute to facilitate a reunion between himself and Eva Ada, and that he remained in prison and has made no contact with the Department of Social and Health Services to inquire concerning the child's welfare.

Finally, the court found that a continuation of the parent-child relationship would clearly diminish Eva Ada's prospects for early "immigration" (sic integration?) into a stable and permanent home. In deprivation hearings, the child's welfare is the primary consideration. In re Sego, supra. The father has been imprisoned for convictions for at least two felonies. Mere imprisonment of the father is not sufficient of itself for an order of deprivation, but it is not a factor to be ignored. In re Tarango, 23 Wash.App. 126, 595 P.2d 552 (1979). Continued criminal activity on the part of the father, resulting in his absence and inability to care for his child, may be the equivalent of his abandonment of her, with his conduct expressing disregard for the child's welfare. He has had no contact with the child since she was 2 years old. Mr. Clark has remarried and his present wife is on welfare. Eva Ada has been in several foster homes, was thought to be hyperactive, and had been a difficult child with a previous family, so she was removed from it. She is now secure in her new home and is considered part of the family. Multiple foster home placements of these children with the inference of rejection can be devastating. This young child needs care and needs it now.

In evidence is a letter from Warren J. Kraft, M. D., of the Department of Pediatrics, Wenatchee Valley Clinic, directed to Betty B. Johnson in reference to Eva Ada, which states in part as follows:

Eva was seen here again in May of 1979. Her weight was 43 pounds. Her height was 42 inches. The foster parents think she may be hyperactive. After observing her behavior in the office and on examining her neurologically, I could not comfortably diagnose hyperactivity in this youngster. To me, the last five months in the present foster home have shown a remarkable improvement in Eva's appearance and overall behavior. I believe that her sometimes aberrant behavior is probably due to earlier emotional trauma and suspect that if she has reasonable stable surroundings for a while, she will continue to improve rapidly.

Typical of the concern shown for Eva Ada is a question asked of Mrs. Betty Johnson, a social worker:

McCAULEY: Betty, you are aware that this is a hearing to deprive Mr. Clark of his paternal rights as to Eva Ada Clark?

JOHNSON: Yes.

McCAULEY: What would be your recommendation, considering your long association with this child, to the Court?

JOHNSON: I almost panic at the thought of a little child who has been two years without a family and without any security. It's almost impossible to deal with a child's behavior problem or feelings of insecurity, to build ego strength in them, to make them feel like worthwhile people when they don't have a secure home and a family, and you can tell them that you do have. I feel that Eva is not only deserving, but certainly entitled, in that we all have a responsibility to get her in a permanent home. And we've been two years and haven't done that. I feel very badly about it.

McCAULEY: So your recommendation would be to deprive Mr. Clark?

JOHNSON: Yes.

These findings and the evidence adequately support the conclusion that the termination of the parent-child relationship will be in Eva Ada's best interests.

Clark next asserts that he was denied effective assistance of counsel because the trial court refused to continue the proceedings until he, Clark, could be present or until an expert could be appointed. Procedural due process requires that Clark be given notice and an opportunity to be heard or defend, and to have the assistance of counsel. In re Martin, 3 Wash.App. 405, 410, 476 P.2d 134 (1970); see In re Sego, supra. Clark does not contend that notice was not adequate and he was represented by court-appointed counsel at all stages of the proceedings.

We find the trial court has done everything it could in this matter. Clark had the opportunity to appear both by a pro se brief and through his counsel. The court was apparently of the opinion that Clark could not be brought into the state because of his incarceration in Minnesota and because of the detainer placed on him by federal probation authorities. There is no evidence in the record that Clark made any attempts to be present at the hearing.

In In re Coggins, 13 Wash.App. 736,...