In re Dependency of TR

• Court: Washington Court of Appeals
• Writing for the Court: ELLINGTON, J.
• Citation: In re Dependency of TR, 29 P.3d 1275, 108 Wn. App. 149, 108 Wash. App. 149 (Wash. App. 2001)
• Decision Date: 27 August 2001
• Docket Number: No. 46767-1-I.
• Parties: In re the DEPENDENCY OF T.R., State of Washington, Department of Social and Health Services, Respondent, v. Velma Rhyne, Appellant.

29 P.3d 1275

108 Wn. App. 149

108 Wash. App. 149

In re the DEPENDENCY OF T.R.,

State of Washington, Department of Social and Health Services, Respondent, v. Velma Rhyne, Appellant.

No. 46767-1-I.

Court of Appeals of Washington, Division 1.

August 27, 2001.

Oliver Davis, Washington Appellate Project, Seattle, for Appellant.

Catherine Cruikshank, Assistant Attorney General, Seattle, for Respondent.

Lori Larcom Irwin, Seattle, Guardian Ad Litem.

ELLINGTON, J.

In proceedings to terminate parental rights, the trial court made the statutory findings required for termination but determined a guardianship, rather than termination, was in the best interests of the child. Some 14 months later, after the guardianship proved impossible, the court ordered termination. Although the court held no additional evidentiary hearing before ordering termination, due process was satisfied under the circumstances here. Substantial evidence supports the court's findings, and we affirm.

BACKGROUND

When Velma Rhyne's third child, T.R., was born in February, 1993, both mother and child tested positive for cocaine. T.R. was immediately placed in foster care, and dependency was established in May 1993.¹ Although T.R. has never lived with her mother, there is no question of Ms. Rhyne's love and affection for T.R.

Between the age of six months and six years, T.R. resided in foster care with Cassandra Clemons. T.R.'s older sister also resided there, and Clemons became the older sister's guardian. T.R.'s younger brother lived with Ms. Rhyne until January 2000, when he was removed from her home by the Department of Social and Health Services (DSHS). Ms. Rhyne's parental rights as to T.R. were terminated in May 2000.

DISCUSSION

Procedural Due Process Implications of 14-Month Delay

Because termination of parental rights must be predicated upon current parental unfitness,² and the termination order was entered 14 months after the fact-finding hearing without another evidentiary hearing, Ms. Rhyne argues the termination violated her procedural due process rights.³

Freedom of personal choice in matters of family life is a fundamental liberty interest protected by the due process clause of the Fourteenth Amendment.⁴ This interest is not diminished just because the State has temporary custody of a child: "If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs."⁵ On the other hand, a child has the right to basic nurturing, which includes the right to a safe, stable, and permanent home and the speedy resolution of dependency and termination proceedings.⁶ When the rights of a child conflict with the rights of a parent, the rights of the child prevail.⁷

The process due to parents at risk of deprivation of parental rights is determined by balancing the three factors enumerated by the United States Supreme Court in Mathews v. Eldridge: (1) the private interest affected by the proceeding; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the State's interest.⁸

The procedure here was as follows. Trial on the petition for termination of Ms. Rhyne's parental rights took place over three days in March 1999. The court orally ruled that the six statutory factors were proven by clear, cogent, and convincing evidence, and that the seventh factor—the best interests of the child—was also proven by the applicable standard. But the judge reserved the right to consider a guardianship instead of termination if guardianship was a legally available option: "I'm finding that a termination order would be appropriate in this case unless the Court decides that a guardianship is appropriate under the law as I understand it to be."⁹

A week later, the judge issued a memorandum decision in which he reiterated that the six statutory elements were proved by clear, cogent, and convincing evidence. He then stated, "[I]t is clear, absent guardianship as an alternative, the best interests of the child would be for a termination rather than a continuation of parental rights."¹⁰ The judge found that three circumstances favored guardianship: overwhelming evidence that continued contact with her mother would benefit T.R.; the fact that T.R.'s sister resided in the proposed guardianship home as a ward of the same guardian; and the fact that the potential adoptive mother was willing to cooperate in a guardianship rather than an adoption. Specifically because of these three circumstances, the court concluded that guardianship rather than termination was in T.R.'s best interests.

For the next 12 months, DSHS attempted to implement the court's decision and establish a guardianship for T.R., first with the proposed guardian, Cassandra Clemons, and when that proved impossible, with T.R.'s aunt. These efforts proved unsuccessful, and T.R. was placed in a new foster home. Because the new foster home appeared to be a positive adoptive resource, the State asked the court to finalize termination of Ms. Rhyne's parental rights. The State informed the court that the "mother's inability to care for [T.R.] has since been reviewed and reaffirmed by the Juvenile Court in review hearings. Additionally, the mother's situation has deteriorated over the last year. There have been reports of strange behavior by the mother, which appears indicative of mentally [sic] illness."¹¹

Counsel for Ms. Rhyne filed a written response, arguing her rights should not be terminated without a resumption of trial, and alleging that she had continued to receive services and that her relationship with T.R. had improved dramatically. Counsel also informed the court, however, that Ms. Rhyne had lost her housing and moved into a friend's house with her son, and that her son had been removed from her custody "primarily because of [his] behavior."¹² Counsel asserted Ms. Rhyne was "ready to resume custody of [her son], and to care for T.R. as soon as she gets more permanent housing."¹³

The guardian ad litem submitted a report¹⁴ and testified at the hearing to the effect that T.R. liked living with her new foster parent, where she received one-on-one attention, and that T.R.'s school attendance and behavior had been good. The guardian ad litem expressed her hope that "the placement would be one this time that she can stay and become a mature woman."¹⁵ Ms. Rhyne did not attend the hearing, although the record contains declarations from her friends attesting to her qualities as a parent.

At the hearing, counsel for Ms. Rhyne argued:

[S]ince we were last here there has been a tremendous change in terms of what has occurred.

The mother has continued her treatment, she has additional home base[d] services. She ... has been in a group counseling at Central Area Mental Health. The girls were removed from the foster mother ... I think around December and then they.... were with the aunt an extended period of time and the aunt lived in the neighborhood of Ms. Rhyne and the children and [T.R.] visited regularly and on some weeks it was almost daily, she did develop a relationship with her mother.

The other child ... ran away and she is currently on the run, her whereabouts are not known. She did not—she went back to a foster home and then left.

I think that the due process considerations would require us to determine whether or not the same findings really would still hold because enough time has gone by and there's been a change of many different things that have occurred since that time.¹⁶

The court disagreed: "I have made my findings and there is no law that I'm aware of, due process, constitutional or otherwise, that requires the Court to revisit Findings of Fact that have previously been made."¹⁷ The court reaffirmed its earlier findings, and characterized the issue as whether to order a new guardianship or revert to termination. Because two of the three factors warranting guardianship were no longer present and the third—the likely benefit to T.R. from contact with her mother—was overcome in the court's view by the passage of time and T.R.'s need for stability, the court ordered termination.

We examine the Mathews factors in light of this history.

1. Private Interest

Ms. Rhyne's interest in the companionship, care, custody, and management of T.R. is "commanding" and "more precious than any property right."¹⁸ This interest "`undeniably warrants deference and, absent a powerful countervailing interest, protection.'"¹⁹ Ms. Rhyne also has an interest in an accurate and just decision.²⁰

2. Risk of Erroneous Deprivation

The second Mathews factor requires us to determine whether Ms. Rhyne was erroneously deprived of her parental rights because of the delay between the termination fact-finding hearing and entry of a final order terminating those rights. Termination of parental rights can be ordered only after the statutory factors are proved by the required standard of proof at a fact-finding hearing in which the parent is afforded the right to be represented by counsel, to introduce evidence, to be heard, and to examine witnesses.²¹

Ms. Rhyne does not dispute that such a hearing occurred, with all findings adverse to her. Rather, she contends the effect of those findings was nullified by the 14-month delay between the fact-finding hearing and the termination order, because termination must be predicated upon current parental unfitness.²² But the statute does not require that termination orders be entered within a specified period after the fact-finding hearing, and the trial evidence does not evaporate with the passage of time. Whether delay requires reopening the evidence on the issue of current unfitness is an inquiry into what (if anything) has meaningfully changed. Here, therefore, the risk of erroneous deprivation depends upon the likelihood that parental...