In re Dependency of K.N.J.†michael Jenkins

• Decision Date: 02 August 2011
• Docket Number: No. 83516–1.,83516–1.
• Citation: 257 P.3d 522,171 Wash.2d 568
• Court: Washington Supreme Court
• Parties: In re DEPENDENCY OF K.N.J.†Michael Jenkins, Petitioner,v.Department of Social & Health Services, Respondent.

171 Wash.2d 568

257 P.3d 522

In re DEPENDENCY OF K.N.J.†Michael Jenkins, Petitioner,

v.Department of Social & Health Services, Respondent.

No. 83516–1.

Supreme Court of Washington, En Banc.

May 26, 2011.As Modified on Denial of Reconsideration Aug. 2, 2011.

Jennifer L. Dobson, Attorney at Law, Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.Sarah Reyes, Melissa Lynn Nelson, Office of the Attorney General, Bellingham, WA, Michael Scott Majors, Office of Attorney General, Everett, WA, for Respondent.WIGGINS, J.

[171 Wash.2d 571] ¶ 1 The legislature has provided that before a trial court terminates a parent-child relationship, the court must find, among other things, that the child has been found to be a dependent child. In this case, the order finding the child K.N.J. dependent as to her father, petitioner Michael Jenkins, was void because the order was entered by a pro tempore judge without Jenkins' consent. Nonetheless, we hold that K.N.J.'s dependency was amply proved at the termination trial, where Jenkins was present and represented by counsel, and supported by findings of fact made by a constitutionally valid judge. The trial court's findings also support all other proof required by statute before termination of the parent-child relationship. We affirm the Court of Appeals, which affirmed the trial court's termination of Jenkins' parent-child relationship with K.N.J., but on the alternative ground that dependency was proved at the termination trial.

FACTS AND PROCEDURAL HISTORY

¶ 2 K.N.J. was born September 19, 2005. Her biological parents are Marquesha Everett and Michael Jenkins. The mother had sole custody of K.N.J. after her birth. K.N.J. suffered extreme abuse at the hands of her mother.¹ After discovery of the abuse, K.N.J. was immediately removed from her mother's care and placed in foster care; K.N.J. has resided there ever since.

¶ 3 Jenkins was served with a summons and petition for a dependency hearing held on April 19, 2006. Judge pro tempore Kathryn Trumbull presided. K.N.J.'s mother was present and consented to having the matter heard by a pro tempore judge. The mother stipulated the facts necessary to support the child's dependency as to her. The dependency petition stated, “The whereabouts, willingness and ability to parent by the biological father is not known. The Department will continue to investigate.” Clerk's Papers (CP) at 266. Jenkins did not appear and was not represented by counsel. The State moved to have Trumbull enter a default dependency order against Jenkins. Trumbull entered a default order despite her pro tempore status and Jenkins' lack of consent.

¶ 4 Subsequent dependency review hearings were held on January 25, 2007 and July 5, 2007; an elected judge presided over these hearings. Jenkins was not present at these hearings nor was he represented by counsel. The court issued dependency review orders referencing the original default dependency order and continuing the status quo.

¶ 5 The State filed a termination petition on February 12, 2007. From January through September 2007 Jenkins' location was unknown.² Jenkins obtained counsel on September 10, 2007 and was served with the termination petition on September 25, 2007. A permanency planning hearing was held on November 21, 2007 where Jenkins was represented by his lawyer.

¶ 6 The trial court presiding over the termination proceedings relied solely on the default order as establishing the basis for dependency. Jenkins moved to dismiss the termination case, asserting that the original dependency order was void for lack of consent to a judge pro tempore and that, as a matter of law, the State could not prove all the required elements of RCW 13.34.180(1). The trial court denied Jenkins' motion to dismiss and terminated his parental rights on August 6, 2008.

¶ 7 Jenkins appealed. The Court of Appeals held the dependency order was void. However, it concluded that any jurisdictional defect was remedied by the dependency review orders, which amounted to an implicit dependency finding. In re Dependency of K.N.J., 151 Wash.App. 306, 312–15, 211 P.3d 483 (2009). We granted review. 167 Wash.2d 1013, 223 P.3d 1157 (2009).

ANALYSIS

¶ 8 Jenkins argues the trial court failed to satisfy all of the mandatory elements of RCW 13.34.180(1) before terminating his parental rights, namely dependency as to him was never established. Whether a termination order satisfies statutory requirements is a question of law. We review questions of law de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

I. Parental Rights in Custody of Children

¶ 9 “A parent's right to control and to have the custody of his children is a fundamental civil right which may not be interfered with without the complete protection of due process safeguards.” Halsted v. Sallee, 31 Wash.App. 193, 195, 639 P.2d 877 (1982); see Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); see also In re Welfare of Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974). Jenkins, “as a natural parent, has a fundamental liberty interest in his custody and care of” K.N.J. In re Custody of C.C.M., 149 Wash.App. 184, 203, 202 P.3d 971 (2009) (citing In re Custody of Smith, 137 Wash.2d 1, 13–14, 969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)); accord Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

¶ 10 Procedures used to terminate the relationship between parent and child must meet the requisites of the due process clause of the Fourteenth Amendment to the United States Constitution. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24–32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Although “due process” cannot be precisely defined, the phrase requires “fundamental fairness.” In re Pers. Restraint Petition of Blackburn, 168 Wash.2d 881, 885, 232 P.3d 1091 (2010). Before the State may completely sever the rights of parents to their natural child, due process requires the State support its allegations by at least clear and convincing evidence. Santosky, 455 U.S. at 748, 102 S.Ct. 1388.

II. Washington's Statutory Scheme for Termination of Parental Rights

¶ 11 Before the early 1800s, homeless or neglected children were incarcerated in adult prisons because of the absence of any alternatives. Mary Kay Becker, ³ Washington State's New Juvenile Code: An Introduction, 14 Gonz. L.Rev.. 289, 289 (1978–1979). The social reform movement of the 19th century “responded by establishing refuge houses and reform schools” for children without adequate parental custodians. Id. Operating under the “doctrine of parens patriae,⁴ the courts could and did sever parental ties, and routinely committed children found to be in unsound environments to reform schools ...—all without legal process and safeguards.” Id. at 290 (footnote omitted). In 1905 and 1909, the Washington Legislature created a separate juvenile court and added neglected children to the court's jurisdiction. Id. In 1913, chapter 13.04 RCW became effective, establishing a wide range of powers, duties, and procedural guidelines and giving courts the authority to intervene in cases where a child was found to be dependent. Becker, supra, at 290. It “remained substantially unchanged until the enactment of House bill 371 in 1977.” Id.

¶ 12 The policy rationale behind House Bill 371 first emerged in a 1976 House Senate concurrent resolution. Becker, supra, at 298. The joint resolution stated that “[m]aintaining the family unit should be the first consideration in all cases of state intervention into childrens' lives.” Comm. on Soc. and Health Servs., Substitute H. Concurrent Res. 46, at 1, 44th Leg., 2d Ex.Sess. (Wash. Feb. 6, 1976). It also emphasized “keeping the family unit together.” Id. at 5. These policy statements were adopted into House Bill 371, the legislation that established our current termination statute. Becker, supra, at 304–05.

¶ 13 Termination of parental rights in Washington State is a three-step process.⁵ First, the State may take a child into shelter care and hold a hearing to determine if the child is dependent within the meaning of RCW 13.34.030(6). If the child is found to be dependent, the court may return the child to the home under specific conditions or place the child in the care of a suitable person.

¶ 14 Second, the State must hold a review hearing every six months “to review the progress of the parties and determine whether court supervision should continue.” RCW 13.34.138(1). The goal during this phase is “to order remedial measures to preserve and mend family ties, and to alleviate the problems which prompted the State's initial intervention.” In re Dependency of A.W., 53 Wash.App. 22, 27, 765 P.2d 307 (1988). If the efforts prove unsuccessful, the State may proceed to the third step, termination of the parent-child relationship.

¶ 15 In order to terminate the parent-child relationship, the third step requires the State to satisfy two prongs. The first prong focuses on the adequacy of the parents and requires proof of the six elements set out in RCW 13.34.180(1).⁶ Each of the six statutory elements must be proved by clear, cogent, and convincing evidence before the State may terminate parental rights. In re Welfare of C.S., 168 Wash.2d 51, 55, 225 P.3d 953 (2010); RCW 13.34.180(1). This court has held satisfaction of the six statutory elements of subsection .180(1) is an implicit finding of unfitness, satisfying the due process requirement that a court must find parents currently unfit before terminating the parent-child relationship. In re Dependency of K.R., 128 Wash.2d 129, 141–42, 904 P.2d 1132 (1995).

¶ 16 If the State satisfies the first prong by proving the six statutory factors, the court proceeds to the second prong, determining if termination is in the best interest of the child. RCW 13.34.190(1)(b). Only if the first prong is satisfied may the court reach the...