In re Dependency of A.K.I., 65439-0-I
| Decision Date | 29 August 2011 |
| Docket Number | 65439-0-I |
| Parties | In the Matter of the Dependency of: A.K.I., DOB: 3/29/2005, A minor child. v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND, HEALTH SERVICES, Respondent. RANDY JUAREZ, Appellant, |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Randy Juarez appeals from the superior court's order terminating her parental rights to her child A.K.I.[1] Juarez contends that the trial court, in determining that her parental rights should be terminated relied on conditions causing parental unfitness that had not been alleged in the termination petition, thus denying her due process of law. Because a parent must be notified of the reasons for which his or her parental rights may be terminated, where termination results from conditions causing parental deficiencies that the parent was not notified would be litigated, the parent's due process rights are violated. Here, Juarez never received notice that her mental health issues would be considered a factor in terminating her parental rights. Accordingly, we reverse.
A.K.I was born in March 2005. She was removed from her parents' care almost two years later, when her parents were arrested for car prowling. Since that time, A.K.I. has lived in out-of-home placements.
Juarez A.K.I.'s mother, "has a long difficult history of drug usage." Clerk's Papers (CP) at 13. Juarez has used methamphetamines since at least January 2000 and is a victim of domestic violence. In 2007, Juarez stipulated to dependency of A.K.I., admitting that she had a substance abuse problem. The dispositional order that was entered required that Juarez accomplish the following: complete a drug and alcohol treatment program, participate in random urinalysis (UA) testing, complete a dependency process workshop, attend weekly domestic violence victim's support groups, establish and maintain appropriate housing, and complete parenting classes.
For the next two years, Juarez embarked on a series of failed outpatient and inpatient treatment programs. She continued to have UAs that were positive for amphetamines. During this time, Juarez moved to Yakima and met Lloyd Calvert II, who was also a methamphetamine user. In February 2009, Juarez became pregnant with Calvert's child. She then reentered inpatient treatment. Although she completed that program, she relapsed into methamphetamine use shortly thereafter. Evidence in this case is that Juarez last used methamphetamines in May 2009.
Prior to leaving one of her treatment programs, Juarez was evaluated by a psychiatric nurse specialist who diagnosed her with post-traumatic stress disorder, major depression, and anxiety with panic attacks.[2] Juarez was later prescribed medications. By March 2010, when the termination trial commenced, Juarez was involved in mental health counseling with Central Washington Comprehensive Mental Health and was taking anti-anxiety, anti-depression, and mood stabilization medications.
In June 2009, the State petitioned for termination of Juarez's parental rights.[3] The termination petition alleged that CP at 202.
Before trial, Juarez once again entered and successfully completed intensive inpatient treatment.[4] While in treatment, she accessed mental health, domestic violence, and parenting education services. During the eight months that Juarez participated in this treatment program, staff expressed concerns with her parenting skills and her honesty. Moreover, shortly before Juarez was discharged from treatment, drug paraphernalia was discovered in her belongings. Juarez moved immediately into an intensive outpatient treatment program, which provided a structured environment and transitional housing. She had been in this program for only a short time when the termination trial began.
At the termination trial, numerous service providers and social workers testified over the course of three days. The trial court, in its oral ruling, expressed its grave concern that Juarez was likely to relapse. This concern was, in large part, based on the fact that Juarez had previously relapsed after leaving the structured environment of a different inpatient treatment program and based on a substance abuse treatment counselor's testimony that Juarez's prognosis was "fair to poor" unless she learned to be honest and to develop a support system. Report of Proceedings at 372. The trial court terminated Juarez's parental rights to A.K.I, finding that "[t]he mother has not remedied her parental deficiencies related to her substance abuse and mental health." CP at 25 ( of Fact 2.52).
Juarez appeals.
Juarez contends that her constitutional due process right to adequate notice was violated because the trial court terminated her parental rights based, in part, on her mental health deficiencies despite the fact that she was not notified that her mental health would be considered a basis for termination.[5] We agree.
A termination proceeding is a civil proceeding.[6] In re Welfare of S.E., 63 Wn.App. 244, 249, 820 P.2d 47 (1991). It is well established that parents have a fundamental liberty and property interest in the care and custody of their children. U.S. Const. amends. V, XIV; Wash. Const. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct 1388, 71 L.Ed.2d 599 (1982); In re Custody of Smith, 137 Wn.2d 1, 13-14, 969 P.2d 21 (1998). "The due process clause of the Fourteenth Amendment protects a parent's right to the custody, care, and companionship of [his or] her children."[7] In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); In re Welfare of Luscier, 84 Wn.2d 135, 139, 524 P.2d 906 (1974)). That right cannot be abridged without due process of law. U.S. Const. amend. XIV. Thus, "[p]arental termination proceedings are accorded strict due process protections." In re Interest of Darrow, 32 Wn.App. 803, 806, 649 P.2d 858 (1982).
"Due process requires that parents have notice, an opportunity to be heard, and the right to be represented by counsel."[8] Key, 119 Wn.2d at 611 (citing In re Welfare of Myricks, 85 Wn.2d 252, 254, 533 P.2d 841 (1975); In re Welfare of Messmer, 52 Wn.2d 510, 514, 326 P.2d 1004 (1958)). More specifically, "the due process protections afforded parents in a termination hearing [include] . . . '[n]otice, open testimony, time to prepare and respond to charges, and a meaningful hearing before a competent tribunal in an orderly proceeding.'" In re Dependency of H.W., 70 Wn.App. 552, 555 n.1, 854 P.2d 1100 (1993) (quoting In re Moseley, 34 Wn.App. 179, 184, 660 P.2d 315 (1983)); see also Darrow, 32 Wn.App. at 809 (). Importantly, "[a] proceeding begun on one ground and continued on another, without any opportunity to define and contest the new allegations, constitutes a fundamental deprivation of due process." In re Welfare of H.S., 94 Wn.App. 511, 522, 973 P.2d 474 (1999) (citing Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); In re Det. of Cross, 99 Wn.2d 373, 384-85, 662 P.2d 828 (1983)).
In re Welfare of Martin, 3 Wn.App. 405, 410, 476 P.2d 134 (1970) (emphasis added). A parent must be informed not only that a proceeding is pending concerning his or her child, but also if, and how, the proceeding potentially will affect his or her parental rights. Such notice informs the parent of the possible dire consequences of his or her derelictions and, thus, provides the parent with the opportunity to demonstrate a resolve to undertake parental responsibility. In re Adoption of J.D., 42 Wn.App. 345, 350, 711 P.2d 368 (1985). Generally, the parent must be notified of the requirements that the parent must meet in order to resume custody and of the importance of his or her participation in the dependency program in order to prevent termination. In re Welfare of Kevin L., 45 Wn.App. 489, 491-92, 726 P.2d 479 (1986) (discussing former RCW 13.34.130(2) (1985)); see also RCW 13.34.136(2)(i).
Here the dependency petition specifies only that substance abuse and domestic violence are conditions affecting Juarez's ability to parent A.K.I. Similarly, the termination petition specifies only that substance abuse renders Juarez unable to care for A.K.I.[9] The ...
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