Darrow, In Interest of, 10690-2-I

• Decision Date: 16 August 1982
• Docket Number: No. 10690-2-I,10690-2-I
• Citation: 649 P.2d 858,32 Wn.App. 803
• Parties: In the Interest of DARROW, Leeanne a person under the age of eighteen. Montgomery W. DARROW, Appellant, v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
• Court: Washington Court of Appeals

Page 803

32 Wn.App. 803

649 P.2d 858

In the Interest of DARROW, Leeanne a person under the age of eighteen Montgomery W. DARROW, Appellant, v.WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 10690-2-I.

Court of Appeals of Washington, Division 1.

Aug. 16, 1982.

Rehearing Denied Sept. 15, 1982.

Washington Appellate Defender Nancy Talner, Seattle (Court-appointed), for appellant.

Kenneth Eikenberry, Atty. Gen., Eric Wathess, Asst. Atty. Gen., Seattle, for respondent.

Katherine Hershey, Seattle, Guardian ad Litem.

CALLOW, Judge.

Montgomery Darrow appeals from a trial court order permanently terminating his parental rights in his daughter Leeanne.The issue presented is whether a parent incarcerated at an out-of-state prison is entitled to appear at a parental termination hearing to oppose the permanent termination.

While living with his girlfriend in Phoenix, Darrow fathered a child born April 14, 1975.The father and mother quarrelled 6 months later, causing the mother and child to move out and come to Seattle.There has been no contact between Darrow and his daughter since 1975.The mother voluntarily submitted to an order of dependency and termination of her parental rights in 1980.At that time it was learned that Darrow had been convicted of rape in 1978 and was serving a 10-year prison term in Arizona.

After the mother's parental rights were terminated, Washington State sought to terminate Darrow's rights in Leeanne.Darrow opposed the action and suggested placement of his daughter with his sister in Phoenix.This alternative was found inappropriate in a report submitted by the Arizona Department of Economic Security at the request of Washington State.

Through his appointed counsel, Darrow moved to arrange for his presence at the termination proceeding in Seattle.Arizona prison officials were apparently willing to return Darrow to Seattle for the purpose of the hearing.Washington expressed no objection to Darrow's presence but refused to assume the expenses associated with his transport, care, and custody.The trial court refused to issue the order and the termination hearing was conducted without Darrow's presence but with the representation of counsel.

Evidence of Darrow's unfitness included the fact of his imprisonment, his neglect of the child since late 1975, and the report of a Seattle psychologist who had not met Darrow but had reviewed a psychological report prepared by Arizona corrections officials for vocational counseling purposes.Based upon that report, the psychologist concluded that Darrow exhibited "paranoid schizophrenic traits" and was an unfit parent.The trial court entered an order permanently depriving Darrow of all parental rights.

Darrow contends that he was denied the right to be heard and to confront witnesses.He asserts that his attorney could only assist him in protecting his rights and that his presence was essential to his effective representation by counsel.He asserts that the State of Washington should be compelled to arrange for his attendance and bear the financial expense.The State of Washington agrees that where a parent is completely prevented from presenting or rebutting evidence, due process is violated but asserts that Darrow did have meaningful access to the court through alternative methods such as letters, photographs, depositions, or a possible continuance after the State's case in chief to provide additional information.

We turn to a discussion of the issues.Preservation of the family unit is a fundamental constitutional right protected by the Fourteenth Amendment.Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511(1978).Parental termination proceedings are accorded strict due process protections.Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972).

(T)he nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893 (903)47 L.Ed.2d 18(1976): the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.

Santosky v. Kramer, 453 U.S. ----, ----, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 607(1982).

The due process protections afforded parents in a termination hearing include a strict burden of proof.In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831(1973)("clear, cogent and convincing evidence"); the right to notice and an opportunity to be heard and defend, In re Martin, 3 Wash.App. 405, 476 P.2d 134(1970); and the right to the assistance of counsel.In re Martin, supra;RCW 13.34.090;but seeLassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640(1981)(appointment of counsel for indigent parents not compelled by the Fourteenth Amendment).

The effect of imprisonment upon a parental termination proceeding was addressed in In re Sego, supra82 Wash.2d at 740, 513 P.2d 831 (A) parent's misconduct, even if criminal in nature, does not automatically support permanent child deprivation.By the same token, imprisonment, alone, does not necessarily justify an order of permanent deprivation.In re Staat, 287 Minn. 501, 178 N.W.2d 709(1970).On the other hand, a parent's inability to perform his parental obligations because of imprisonment, the nature of the crime committed, as well as the person against whom the criminal act was perpetrated are all relevant to the issue of parental fitness and child welfare, as are the parent's conduct prior to imprisonment and during the period of incarceration.

See alsoState v. LaCaze, 95 Wash.2d 760, 630 P.2d 436(1981).In re Clark, 26 Wash.App. 832, 837, 611 P.2d 1343(1980), upheld the termination of parental rights of a prisoner held in Minnesota, noting, however, that "(t)here is no evidence in the record that (the appellant) made any attempts to be present at the hearing."

The identical issue presented here was confronted in In re F. H., 283 N.W.2d 202(N.D.1979).In F. H. the natural mother placed her child for adoption and consented to the termination of her parental rights.The father, incarcerated in Oregon, objected to the termination of his parental rights and announced his intention to assume custody of the child when he was released from prison.Counsel was appointed, who appeared and defended on the father's behalf....