Dependency of G.C.B., In re

• Decision Date: 11 April 1994
• Docket Number: No. 33815-3-I,33815-3-I
• Citation: 870 P.2d 1037,73 Wn.App. 708
• Parties: In re the DEPENDENCY OF G.C.B. Megan and Wade LUCAS, Respondents. v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Petitioner.
• Court: Washington Court of Appeals

Page 708

73 Wn.App. 708

870 P.2d 1037

In re the DEPENDENCY OF G.C.B. Megan and Wade LUCAS, Respondents. v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Petitioner.

No. 33815-3-I.

Court of Appeals of Washington Division 1.

April 11, 1994.

Christine O. Gregoire, Atty. Gen., and Dennis Adrian Kole, Asst. Atty. Gen., Bellingham, for respondents.

Richard Charles Kimberly, Bellingham, for appellant.

PEKELIS, Judge.

The State of Washington Department of Social and Health Services (DSHS or Department) appeals the trial court's order requiring a minor in its care to be placed with Megan and Wade Lucas for a post-placement adoption study. A commissioner of this court granted the Department's emergency motion for discretionary review and stayed the trial court's order pending review by this court. We reverse and dismiss the petition for adoption.

I

G.C.B. was born to Megan B. (now Megan Lucas) on May 6, 1990. In November of 1990, DSHS initiated a dependency proceeding concerning G.C.B. on the grounds that G.C.B. had been abandoned. The action was precipitated when Megan left the state, leaving G.C.B. in the care of her fiance, Wade Lucas, and her 16-year-old sister. ¹ In support of the dependency petition, the State alleged that Megan had a history of mental instability, substance abuse, suicide attempts, and juvenile offenses. The allegations were uncontested, and on January 24, 1991 dependency was established by an agreed order signed by Megan and her attorney.

At the time, G.C.B. was in foster care; the dependency order provided that he should remain in licensed care under the supervision of DSHS. Following a series of dependency review hearings, G.C.B. was returned to Megan's home on June 18, 1992. In the interim, Megan had married Wade Lucas and, on April 8, 1992, given birth to a second child.

On July 13, 1992, Megan advised the Department that she wished to return G.C.B. to foster care. According to Megan, she had separated from Wade Lucas and she "had a baby that was two months old and the pressure of dealing with the split and the child was too much." G.C.B. was returned to foster care, and shortly thereafter Megan and Department caseworkers began to discuss relinquishment of parental rights.

The parties disagree about the events surrounding Megan's relinquishment decision. ² It is undisputed, however, that on August 12, 1992, Megan signed a "Relinquishment of Custody [and] Consent to Termination/Adoption", which was witnessed by the attorney who had represented her throughout the dependency proceedings. The relinquishment and consent was approved by court order on September 8, 1992.

In late August and early September, however, the Department began to receive telephone calls from Megan Lucas's grandmother, Margaret McSpadden, complaining about the relinquishment process. In response, the Department requested a hearing in order to make a full record establishing that the relinquishment was voluntary. At the September 17 hearing, Megan testified about her decision to relinquish as follows:

I just believe that [G.C.B.] is a hyperactive child and I have a small daughter and he was too much for me to care for ... being a single parent and I really believe that he could be better cared for by a two parent family and someone who has more financial means than I do and I just really think that would be best for him.

In response to questions by the court, Megan acknowledged that she had signed the relinquishment papers, that no threats or promises had been made to her regarding the relinquishment, that she had told the DSHS caseworkers she wanted to relinquish, and that her decision was made freely and voluntarily after consultation with her attorney.

Following this hearing, the juvenile court entered an "Order Terminating Parent-Child Relationship" on December 22, 1992. DSHS was granted permanent legal custody of G.C.B.

with the right to place the child in a prospective adoptive home; the power to consent to the adoption of the child; the power to place the child in temporary care; ... and the authority to consent to such other matters as might normally be required of the parents of the child pending the finalization of the child's adoption[ ].

During the course of the dependency and following the termination of parental rights, G.C.B. was placed in several foster homes that had potential for adoptive placement, but which did not work out. ³ In September 1993, the Department planned to place G.C.B. in foster care with a same sex couple considered by the Department to be a prospective adoptive home. G.C.B. was scheduled to be placed in the new foster home on September 9, 1993.

On the morning of September 9, seeking to "block the transfer," Megan Lucas filed a "Petition to Revoke Consent" in juvenile court in order to undo the termination of her parental rights. The petition alleged that when her consent to relinquishment was obtained, Lucas "was not mentally competent to fully understand and execute the same as her free and voluntary act", and that her agreement had been "obtained through duress and fraud on the part of the [DSHS]". In her accompanying declaration, Megan Lucas averred that following her relinquishment, her "worst nightmare" came true when she learned that "a homosexual couple out of Seattle ... seeks to adopt the child...." The court granted Lucas's ex-parte motion for a temporary restraining order preventing "transfer of the minor child to a prospective adoptive parent."

Following a show cause hearing on September 20, 1993, a court commissioner found that there was "not a significant likelihood of Ms. Lucas prevailing on the merits of her petition," and that there was "no well grounded fear of immediate invasion of her rights." Hence, on September 23, the commissioner denied Lucas's request for a preliminary injunction against the transfer, denied Lucas's motion for an order reinstating the original ex parte restraining order, and reaffirmed that "[t]he Department is the legal custodian of the child and has sole and discretionary authority to place the child in any licensed foster home." G.C.B. was transferred to the new foster placement on September 21, 1993.

On October 7, the juvenile court heard a motion for revision of the order denying Lucas's request for a preliminary injunction. The court determined that Lucas had no standing to challenge G.C.B.'s placement, finding that "[t]he Department is the valid custodian of the child and has the legal authority and right to place the child in any licensed foster home on a temporary basis." Hence, on October 26, the court found an insufficient basis to issue an injunction against G.C.B.'s temporary placement in a foster home. However, the court found that Lucas did have standing "to prevent an adoption of her child until such time as there is a trial on the merits on her underlying Petition to Revoke Consent."

On November 1, 1993, while the petition to revoke consent was pending, Megan and Wade Lucas jointly filed a petition for adoption in superior court. A "Pre-Placement Adoption Study" prepared by Ann McGee Moody, "Adoption Specialist," was also filed. The report concluded that "Megan and Wade Lucas are able to provide adequately for this child's needs and it is recommended that their petition to adopt Megan's birth son, [G.C.B.], be granted."

The Lucases also noted a motion for an order that G.C.B. be placed in their care as prospective adoptive parents for the purpose of obtaining a post-placement report as required by RCW 26.33.200. The Department opposed the motion, arguing that it did not consent to G.C.B.'s placement with or adoption by the petitioners and that placement with them would not be in the best interests of G.C.B. ⁴

Because it did not consent, the Department contended that under RCW 26.33.170 "a full fact finding hearing" was required, and that the court was authorized to dispense with the Department's consent only if it determined by clear, cogent and convincing evidence that the proposed adoption is in the best interests of the child. The Department further argued that because Megan Lucas had already invoked the jurisdiction of the juvenile court by filing the petition to revoke her consent to the termination of her parental rights, the superior court should stay the adoption proceedings until the juvenile court proceedings were concluded.

Following oral argument heard on November 12, the court ordered G.C.B. placed with the Lucases, finding "no reason why the adoption action should be stayed." In its oral opinion, the court reasoned as follows:

Contrary to the argument presented by the agency ..., this court reads the adoption statutes in such a manner that they are mandatory on the court.... [U]nder the law any person has a right to petition to adopt....

The statute makes it clear that when a pre-placement report is filed with a petition to adopt, it isn't discretionary language, the statute makes it clear it's mandatory language on the court that the court shall order a post-placement report. This court doesn't see any way that a post-placement report can be prepared unless there's placement. Once the court has the benefit of a pre- and post-placement report, it's then in a position to determine whether there's clear, cogent, and convincing evidence that the child's best interests is in going through the adoption or not going through with the adoption.

The court was then advised that G.C.B.'s current foster care providers intended to adopt, but had not yet filed a petition because they were awaiting the outcome of Megan Lucas's petition to revoke her consent to termination of her parental rights. Anticipating competing adoption petitions, the court sought to minimize the "turmoil and trauma to this child by being floated around from home to home," and found it in G.C.B.'s best interest to remain in foster care for 30 days so that the foster parents would have an opportunity to obtain a...