Dependency of C.B., In re

• Citation: 810 P.2d 518,61 Wn.App. 280
• Decision Date: 13 May 1991
• Docket Number: No. 13779-8-II,13779-8-II
• Parties: In re the Dependency of C.B. and D.B., Minors.
• Court: Court of Appeals of Washington

Page 280

61 Wn.App. 280

810 P.2d 518

In re the Dependency of C.B. and D.B., Minors.

No. 13779-8-II.

Court of Appeals of Washington Division 2.

May 13, 1991.

David G. Skeen, Court Appointed Counsel, Port Townsend, for appellant.

DeFawn Gaskell, Sequim, guardian ad litem.

Stephen H. Hassett, Asst. Atty. Gen., Seattle, for respondent.

MORGAN, Judge.

Appellant is the mother of D.B., born March 31, 1979, and C.B., born November 6, 1981. On November 21, 1988, the State alleged that both children were dependent. In summary form, its allegations were as follows: (1) The mother failed to provide adequate food. (2) The two bedroom home was filthy and was occupied by the mother, the two children and four other adults. (3) The mother left the children with inappropriate caretakers. (4) Friends of the mother used up D.B.'s medication and she failed to replace it. (5) The mother had a history of cocaine addiction. She had not been in treatment and had failed or refused to attend counseling. (6) The mother had allowed the children to observe drug use by her friends and physical abuse of her by her boyfriend. In addition, she had "failed to protect" C.B. from the boyfriend. ¹ (7) The mother failed to insure that the children attended school, and that they were dressed appropriately for school.

On February 16, 1989, an agreed order was entered. It provided that the mother did not dispute the above allegations, and that the children would be placed in foster care under supervision of the Department of Social and Health Services (DSHS). It also specified the corrective actions that the mother would be expected to take. In summary form, those were as follows: (1) Obtain a drug/alcohol evaluation, comply with its recommendations, and submit to random urinalysis. (2) Establish a safe and stable home environment, and work with a homemaker in order to develop the skills needed to maintain it. (3) Participate in a support group for battered women, and obtain an order of protection against the boyfriend. (4) Participate in weekly supervised visits with the children.

On October 28, 1989, the State filed a petition for termination of the mother's parental rights. After a one-day hearing held on January 3, 1990, the trial court terminated the mother's parental rights on the basis of findings that can be paraphrased and summarized as follows: (1) On April 10, 1989, the mother underwent drug/alcohol evaluation. The evaluator recommended complete abstention, plus intensive outpatient treatment beginning April 17, 1989. (2) On or about April 15, 1989, the mother was arrested in a drug raid on the house where she was then residing, and shortly thereafter, she moved to California without telling DSHS. (3) In early September, 1989, the mother returned to Washington with the intent to enter drug/alcohol treatment. On December 15, 1989, she entered a 90-day in-patient treatment program, and on December 17, 1989, she voluntarily left it. (4) Between February 16, 1989, the date of the agreed dispositional order, and January 3, 1990, the date of the termination hearing, the mother failed to comply with any of the services ordered, although all reasonably available services had been offered to her. In addition, she failed to establish a safe and stable home environment. (5) As of the date of the hearing, January 3, 1990, there was little likelihood that the conditions generating the dependencies could be remedied, and continuation of the mother-child relationships clearly diminished the prospects of integrating the children into a stable and permanent home.

On appeal, the mother makes two major contentions. First, she argues that various findings were not supported by substantial evidence. Second, she argues that she did not have the effective assistance of counsel.

I. SUBSTANTIAL EVIDENCE

In every case, there is both a burden of persuasion and a burden of production. See E. Cleary, McCormick on Evidence 946-52 (3d ed. 1984). The burden of persuasion is applied by the trier of fact. Its function is to define how certain the trier of fact must be before resolving an issue of fact in favor of the party having the burden of proof. Thus, depending on the type of case, the trier of fact must find that there is proof beyond a reasonable doubt, proof by clear, cogent and convincing evidence, or proof by a preponderance of the evidence. McCormick, 956-64 (3d ed. 1984).

The burden of production is applied by the judge. Its function is to identify whether there is an issue of fact to be submitted to the trier of fact for its decision. McCormick, 952-56. If there is, the issue is deferred to the trier of fact for decision. Deferral is accomplished by taking the evidence and the reasonable inferences therefrom in the light most favorable to the non-moving party.

In Washington parental termination cases, the burden of persuasion is well established. The state must prove its case by clear, cogent and convincing evidence. RCW 13.34.190(1).

In such cases, however, the burden of production is not clear. Speaking of the burden of production, ² the Washington Supreme Court said in In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831 (1973):

We are firmly committed to the rule that a trial court's findings of fact will not be disturbed on appeal if they are supported by "substantial evidence." Sylvester v. Imhoff, 81 Wn.2d 637, 503 P.2d 734 (1972). Nevertheless, evidence that may be sufficiently "substantial" to support an ultimate fact in issue based upon a "preponderance of the evidence" [footnote omitted] may not be sufficient to support an ultimate fact in issue, proof of which must be established by clear, cogent and convincing evidence. See In re Estate of Reilly, 78 Wn.2d 623, 640, 479 P.2d 1 (1970). Thus, the question to be resolved is not merely whether there is "substantial evidence" to support the trial court's ultimate determination of the factual issue but whether there is "substantial evidence" to support such findings in light of the "highly probable" test.

And in In re Hall, 99 Wash.2d 842, 849, 664 P.2d 1245 (1983), the court said:

The sole issue suggested by Mr. Hall's counsel is insufficiency of the evidence to support the trial court's findings. We will not disturb the findings of the trial court as long as they are supported by "substantial evidence". In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). This deference to the trial court is particularly important in deprivation proceedings. In re Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). On the other hand, since the State must prove its case by clear, cogent, and convincing evidence, the evidence must be more substantial than in the ordinary civil case in which proof need only be by a preponderance of the evidence. In re Sego, supra at 739 .

Later cases to the same effect include In re Pawling, 101 Wash.2d 392, 399, 679 P.2d 916 (1984) (parental termination in the context of an adoption proceeding); In re LaBelle, 107 Wash.2d 196, 209, 728 P.2d 138 (1986) (mental illness case ³); In re H.J.P., 114 Wash.2d 522, 532, 789 P.2d 96 (1990) (parental termination in the context of an adoption proceeding ⁴); In re Churape, 43 Wash.App. 634, 638, 719 P.2d 127 (1986) (parental termination case); Krause v. Catholic Community Servs., 47 Wash.App. 734, 746, 737 P.2d 280, review denied 108 Wash.2d 1035 (1987) (parental termination case); In re P.D., 58 Wash.App. 18, 25, 792 P.2d 159, review denied, 115 Wash.2d 1019, 802 P.2d 125 (1990).

Sego's "highly probable" test has caused confusion. In In re Ott, 37 Wash.App. 234, 237 n. 2, 679 P.2d 372 (1984), the Court of Appeals said:

A threshold question concerns the appropriate standard of review in this case. Mr. Ott contends that the usual substantial evidence test does not apply when findings of fact must be proven by clear, cogent, and convincing evidence:

[E]vidence that may be sufficiently "substantial" to support an ultimate fact in issue based upon a "preponderance of the evidence" may not be sufficient to support an ultimate fact in issue, proof of which must be established by clear, cogent and convincing evidence. Thus, the question to be resolved is not merely whether there is "substantial evidence" to support the trial court's ultimate determination of the factual issue but whether there is "substantial evidence" to support such findings in light of the "highly probable" test.

(Footnote and citation omitted.) In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). Accord, In re Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). However, this court has declined to follow the Sego standard of review, in a case involving the termination of parental rights:

The Sego court goes on to say, however, that an appellate court may not evaluate credibility or weight of evidence. Sego, [82 Wash.2d] at 737-40 . Because we cannot envision any means of applying the Sego "high probability test" without inexorably passing upon the quality of the evidence, we have chosen to follow the traditional substantial evidence quantitative rule as clearly supported by the rationale of the opinion.

In re Kier, 21 Wn.App. 836, 839 n. 1, 587 P.2d 592 (1978).

. . . . .

See also, In re Ramquist, 52 Wash.App. 854, 860, 765 P.2d 30, review denied, 112 Wash.2d 1006 (1988).

Sego becomes clear, however, if its "highly probable" test is reworded so as to parallel the way in which the burden of production is described in other types of cases. In criminal cases, the state meets its burden of production by introducing evidence from which a rational trier of fact could find beyond a reasonable doubt the facts required by the substantive criminal statute. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576-77 (1979); State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980). By analogy, the non-moving party in an ordinary civil case meets its burden of production by introducing evidence from which a rational trier of fact could find by a...