Dependency of J.B.S., In re

• Decision Date: 16 December 1993
• Docket Number: No. 60084-8,60084-8
• Citation: 863 P.2d 1344,123 Wn.2d 1
• Court: Washington Supreme Court
• Parties: In re the DEPENDENCY OF J.B.S. En Banc

Page 1

123 Wn.2d 1

863 P.2d 1344

In re the DEPENDENCY OF J.B.S.

No. 60084-8.

Supreme Court of Washington,

En Banc.

Dec. 16, 1993.

Speidel Law Firm, Earl W. Murdock, Wenatchee, for petitioner Teresa Scott.

Bogle & Gates, Evan L. Schwab, David R. Goodnight, Douglas R. Davis, Seattle, Stansfield & Schuler, Mark E. Stansfield, Quincy, for petitioner J.B.S Christine O. Gregoire, Atty. Gen., Lesley A. Allan, Jill B. Keller, Assts., Wenatchee, for respondent State.

Daniel M. Arnold, of Central Washington Legal Defenders, Wenatchee, for respondent Blas Beltran.

Evergreen Legal Services, Deborah Perluss, Seattle, Puget Sound Legal Assistance Foundation, Mary Jenner, Tacoma, Evergreen Legal Services, Gillian Dutton, Yakima, Jay W. Stansell, Robert Pauw, Seattle, amici curiae, for respondent on behalf of Northwest Immigrant Rights Project.

UTTER, Justice.

This is an appeal from a Superior Court refusal to reconsider a juvenile court order changing placement of a dependent child from his foster family in Washington to the custody of his father who resides in Mexico. We reverse the Superior Court and remand for a review hearing pursuant to RCW 13.34.130(5).

J.B.S., a minor child and citizen of the United States, is the son of Teresa Scott (the mother) and Blas Benicio Beltran (the father). J.B.S. was born in the United States on April 16, 1989, when his mother was 15 years old and his father approximately 19. Report of Proceedings (October 16, 1992), at 57. The father left the home two months after the child's birth. Order on Motion for Change of Placement, at 3; Clerk's Papers, vol. I at 36. The mother, a minor, continued to care for J.B.S. until he was over a year old. Clerk's Papers, vol. II at 137. She then left him to be cared for by a friend. Clerk's Papers, vol. II at 137.

Shortly thereafter, in January 1991, a petition was filed in the Chelan County Juvenile Court alleging J.B.S. was a dependent child. Clerk's Papers, vol. III at 269. Mr. Beltran, whose whereabouts were unknown, was identified by the mother as J.B.S.'s father. Clerk's Papers, vol. III at 269. Following a contested hearing, a dependency order was entered on May 2, 1991, finding J.B.S. dependent pursuant to RCW 13.34.030(2)(a) and (c). Clerk's Papers, vol. III at 257-59. Pursuant to that order, the court required the mother to attend parenting classes, submit to a psychological evaluation attend school, participate in counseling and establish a suitable home for J.B.S. Clerk's Papers, vol. III at 235.

From January to November 1991, the mother complied with the recommendations of the Department of Social and Health Services (Department). Clerk's Papers, vol. I at 35; Clerk's Papers, vol. III at 229. She underwent a psychological evaluation, took parenting classes, received counseling and visited J.B.S. regularly. Clerk's Papers, vol. III at 229. Because she was a minor with no home of her own, the Department offered to find her a foster home.

In November 1991, the mother disappeared for two months. Report of Proceedings (October 9, 1992), at 23. Contact between the Department caseworker and the mother was reestablished when the mother was sent to a juvenile detention facility in Wenatchee pursuant to a theft charge. Report of Proceedings (October 9, 1992), at 23.

Upon learning of the mother's return to the area, the caseworker contacted her in the detention facility in January of 1992. Clerk's Papers, vol. I at 35. Report of Proceedings (October 9, 1992), at 23. At that time, the mother, still a minor, indicated she wished J.B.S. to be adopted by the foster family because she thought it was a better home for J.B.S. than she could provide at that time. ¹ Report of Proceedings (October 9, 1992), at 24-25.

The Department appears to have treated the mother's decision to permit J.B.S. to be adopted by his foster parents as a final decision to abandon him. Apparently because it believed the dependency statute required it to do so, the Department sought a blood relative with whom the child could be placed instead.

The Department located the biological father, who at the time was incarcerated on a conviction for possession and delivery of cocaine. Clerk's Papers, vol. I at 36. Until the Department contacted him, J.B.S.'s father had had no contact whatsoever with J.B.S. since leaving the child and his mother when J.B.S. was 2 months old. The Department inquired whether he would be interested in forming a bond with J.B.S. so that J.B.S. ultimately might be placed with him. The father agreed.

In January 1992, the father was deported to Mexico and, as a controlled substance trafficker, is an "excludable" alien pursuant to 8 U.S.C.A. § 1182(a)(2)(C). Clerk's Papers, vol. I at 36. Report of Proceedings (November 19, 1992). The father maintained contact with the caseworker after his return to Mexico. Report of Proceedings (October 9, 1992), at 28. On learning of the review hearing set for February 26, 1992, the father illegally returned to Washington. Report of Proceedings (October 9, 1992), at 30.

At a hearing on February 27, 1992, the Juvenile Court Commissioner adopted the Department's recommendation that J.B.S. continue to reside with his foster family until he could be placed with his father. Clerk's Papers, vol. II at 161; Clerk's Papers, vol. III at 191; see Report of Proceedings (December 1, 1992), at 7.

Before his second deportation a few months later, the father completed parenting classes, a psychological examination, a substance abuse evaluation and a drug and alcohol awareness program. Clerk's Papers, vol. II at 155. Report of Proceedings (November 19, 1992), at 21-22. He also visited J.B.S. twice a week under Department supervision. Clerk's Papers, vol. I at 61.

In December 1992, the Department filed a Motion for an Order Changing Placement from the foster family to the father. Clerk's Papers, vol. I at 47-49. Hearings were held before the Juvenile Court Commissioner on October 9, 16 and 20, 1992.

At those hearings the mother told the court that she now had a home and wished to have J.B.S. return to live with her. See Report of Proceedings (October 9, 1992), at 8. The foster mother testified the child was very attached to his mother, that "[h]e is always glad to see her. He's always wanting to be around her. He talks about her when she's not there. Wants to call her on the phone." Report of Proceedings (October 16, 1992), at 72. The guardian ad litem reported the foster parents were providing an exceptional home for the child, and also indicated the child was attached to his mother. Report of Proceedings (October 20, 1992), at 31-32. The guardian later expressed grave concern about placing J.B.S. in a country whose language he did not speak, to live among virtual strangers. Report of Proceedings (December 30, 1992), at 93.

The Juvenile Court Commissioner entered an order on November 19, 1992. Clerk's Papers, vol. II at 128. The court found the mother was not capable of caring for J.B.S. "at this time", indicating she had not cooperated with the Department and had visited J.B.S. without Department approval. Clerk's Papers, vol. II at 129-30. Shortly thereafter, the trial court commissioner ordered the child placed with the father in Mexico. Clerk's Papers (Order on Motion for Change of Placement), vol. I at 47-49. Report of Proceedings (December 17, 1992).

The mother sought to stay the juvenile court's order in Superior Court. Clerk's Papers, vol. I at 56. The guardian ad litem also filed a motion to revise the juvenile court's decision. Clerk's Papers, vol. I at 42.

Superior Court Judge Carol Wardell upheld the juvenile court's decision by written order on December 31, 1992. Report of Proceedings (December 30, 1992); Report of Proceedings (December 31, 1992); Clerk's Papers, vol. I at 34-41. She relied on the Commissioner's finding that the mother had not been found to be a suitable placement option "at this time." Clerk's Papers, vol. I at 36. She also reasoned that she could not make the placement determination according to the child's best interests. See Report of Proceedings (December 30, 1992), at 86-87. The mother filed a notice of discretionary review with the Court of Appeals, Division Three. Review was granted and the case certified to this court.

The mother's parental rights were never terminated, and there is no evidence she ever abused or neglected J.B.S. It is uncontested that she has established a home, and has been caring for her eldest, a 5-year-old girl, in that home since October 1992. See Clerk's Papers (Order on Motion for Change of Placement), vol. I at 47-49; Clerk's Papers, vol. II at 129. The Department social worker testified the mother has complied with the psychological evaluation and has entered counseling. She has regularly visited J.B.S. at the foster parents' house, albeit without Department approval, except for the brief 2-month period she was in juvenile detention. Report of Proceedings (October 9, 1992), at 54-56. The Department has resisted her requests for increased visitation, although there is no indication in the record that such visits would harm J.B.S. See Department's Motion for Partial Relief from Stay and Response to Mother's Motion for Partial Relief from Stay.

J.B.S.'s entire contact with his father, aside from the first two months of his life, consists of weekly visits arranged by the Department over a 6-month period. The Department's plan is for J.B.S. to reside in Comala, Mexico, with his father. Clerk's Papers, vol. I at 59. J.B.S. would live with his father's relatives and would be cared for by his father's mother, who speaks no English, during the day. Clerk's Papers, vol. I at 61; Report of Proceedings (October 9, 1992), at 37-38. The Department recognizes that J.B.S. does not know these relatives, and does not speak Spanish.

Because we reverse this case on statutory grounds, we do not reach the constitutional issues the parties raise. These include whether ...