In re Dependency of Dm

• Court: Washington Court of Appeals
• Writing for the Court: Hunt
• Citation: In re Dependency of Dm, 149 P.3d 433, 136 Wn. App. 387 (Wash. App. 2006)
• Decision Date: 20 December 2006
• Docket Number: No. 33611-1-II.,No. 33621-9-II.
• Parties: In re the DEPENDENCY OF DM & SR. Janice M. and Charles B., Appellant, v. Department of Social & Health Services, Respondent.

149 P.3d 433

136 Wn. App. 387

In re the DEPENDENCY OF DM & SR Janice M. and Charles B., Appellant, v. Department of Social & Health Services, Respondent.

No. 33611-1-II.

No. 33621-9-II.

Court of Appeals of Washington, Division 2.

December 20, 2006.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Stephen H. Hassett, Office of the Attorney General, Olympia, WA, for Respondent.

OPINION PUBLISHED IN PART

HUNT, J.

¶ 1 Janice M. and Charles B.¹ appeal superior court orders vacating their non-parental custody of children SR and DM. They argue that (1) because they were de facto parents and legal custodians of SR and DM, the trial court wrongly denied their rights to participate in the proceeding to terminate the children's biological parents' rights; and (2) the trial court erroneously vacated their non-parental custody status. Holding that (1) Janice and Charles were not de facto parents under In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161 (2005), and (2) that they were no longer the children's legal custodians when the biological parental rights were terminated, we affirm.

FACTS

¶ 2 DM, born May 15, 1996, and SR, born March 22, 1998, are the biological children of "Jane" M.² In early 1999, Jane left DM and SR with her domestic partner. When Jane failed to return for the children, her domestic partner contacted Jane's sister, Janice, who picked up the children. Thereafter, the children lived with Janice and her long-time live-in partner, Charles, who is not related to either SR or DM.

¶ 3 Janice and Charles petitioned the superior court for non-parental custody of SR and DM. The children had contact with a Child Protective Services (CPS) social worker, who supported Janice and Charles' petition.³ On July 12, 1999, the superior court entered a non-parental custody decree,⁴ awarding custody of DM and SR to Janice and Charles under former RCW 26.10.030 and 26.10.040 (1998).⁵ DM and SR continued to live with Janice and Charles.

I. DEPENDENCY PROCEEDINGS

¶ 4 Sometime after the decree was entered, CPS started receiving referrals alleging physical and emotional abuse of SR and DM while in Janice and Charles' care. Between April 1999 and March 2003, CPS received 14 separate referrals, most of which CPS determined were unfounded or inconclusive.⁶

¶ 5 On March 24, 2003, the Department of Social and Health Services (Department) filed dependency petitions for SR and DM in juvenile court. The juvenile court appointed an attorney for Janice and Charles, who participated as full parties in these dependency proceedings. The juvenile court entered a shelter order removing SR and DM from Janice and Charles' custody.

¶ 6 On April 29, 2003, Janice, Charles, and their attorney signed agreed orders of dependency for both children. In this order Janice and Charles agreed that (1) they had abused and neglected the children under RCW 13.34.030(5)(b); and (2) the children had no parent or custodian capable of adequately caring for them, such that their circumstances constituted a danger of substantial damage to their psychological or physical development under RCW 13.34.030(5)(c). These agreed orders expressly incorporated as established facts all of the dependency petitions' abuse and neglect allegations.⁷

¶ 7 Janice and Charles also agreed to a RCW 13.34.130 disposition order that required their participation in Department services, including psychological evaluations, anger management assessment, and parenting classes. The Department's permanent plan was to offer services to Janice and Charles while it assessed the possibility of returning the children to their custody. Concurrently contemplating the possibility of vacating Janice and Charles' non-parental custody decree, the Department also searched for other prospective relatives and explored alternative placement plans for the children.

¶ 8 On September 23, 2003, the juvenile court held a dependency review hearing and entered a Permanency Planning Order, signed and acknowledged by Janice and Charles' attorney. This permanency planning order (1) adopted the Department's Individual Service and Safety Plan (ISSP), which included reviews of the children, Janice and Charles; (2) continued the permanent plan to reunite the children with Janice and Charles; and (3) specified adoption by someone other than Janice and Charles as the alternative plan. The Department expressed concern because neither Janice nor Charles had made substantial efforts to complete the required services and neither had shown progress in problematic areas.⁸

¶ 9 From September through May 2004, the children continued to live and to thrive in foster care. Meanwhile, Janice and Charles continued Department services. Around November 11, 2003, the juvenile court entered an order allowing Janice and Charles weekly supervised visits with SR and DM.

II. VACATION OF NON-PARENTAL CUSTODY DECREE

¶ 10 Janice and Charles' service providers, including those who had performed psychological evaluations, psychosexual evaluations, polygraph, and anger management/domestic violence evaluations, recommended that the children not be returned to Janice and Charles. Based on these recommendations, the Department began efforts to set aside the non-parental custody decree and to terminate "Jane's" parental rights so the children would be available for adoption. In May 2004, the juvenile court granted the Department's motion to intervene in Janice and Charles' non-parental custody proceedings and to consolidate those proceedings with the children's dependency proceedings.⁹

¶ 11 In preparation for a dependency review hearing, the Department filed an updated ISSP. This ISSP (1) changed the permanent plan to prepare the children for adoption by someone other than Janice and Charles; (2) stated that the Department was taking steps to vacate the non-parental custody decree and to terminate the biological mother's parental rights; (3) noted Janice's myriad deep-rooted psychological problems,¹⁰ which had caused the service providers to recommend that SR and DM not return to Janice and Charles. On October 19, 2004, Janice, Charles, and their attorney appeared at the dependency review. The juvenile court entered a permanency planning order, adopting the Department's revised ISSP in its entirety, including changing the children's primary permanent plan to adoption instead of returning them to Janice and Charles.

¶ 12 Meanwhile, the Department moved to set aside Janice and Charles' non-parental custody decree, and gave them notice that a hearing was set for December 7, 2004. At the hearing, Dr. David Hawkins, clinical psychologist, testified that, based on his evaluations performed over a year earlier, both Janice and Charles had significant parenting problems and would not be able to change their behavior. The Department called several other witnesses. Janice and Charles called Kathy Drape, Head Start supervisor, other friends and neighbors familiar with their household, and the court-appointed special advocate (CASA) who opined that the children should be returned to Janice and Charles under supervision. At the conclusion of the hearing, the juvenile court (1) reserved ruling because of conflicting evidence, (2) requested an updated evaluation of Janice and Charles by Dr. Hawkins and greater evidence, and (3) continued the matter for six months for further review.

¶ 13 On June 21, 2005, the hearing resumed. Again, Dr. Hawkins testified, opining that, although both Janice and Charles had made significant strides in their parenting skills, Janice still lacked responsibility for her prior abusive actions and she "slipped into playing the victim." Nonetheless, Dr. Hawkins cautiously recommended that the Department continue providing services to Janice and Charles for six to twelve months to see whether the children could be returned to them.

¶ 14 Noting the instances of bed-wetting, and Janice and Charles' abuse, neglect, slapping, and using belts on the children, "the whole nine yards,"¹¹ the juvenile court vacated the non-parental custody decree. On August 8, 2005, the juvenile court entered an order, including findings of fact and conclusions of law, vacating the non-parental custody decree and dismissing Janice and Charles from SR and DM's dependency proceedings.

III. TERMINATION OF BIOLOGICAL PARENTAL RIGHTS

¶ 15 Sometime after vacating Janice and Charles' non-parental custody of SR and DM, the juvenile court held a separate hearing terminating the parental rights of the children's biological mother, "Jane," based on a finding of aggravated circumstances.¹² The juvenile court did not allow Janice and Charles to participate in the termination proceeding.

IV. APPEAL

¶ 16 Janice and Charles appeal the juvenile court's order vacating their non-parental custody decree. They also challenge their exclusion from the biological mother's parental termination proceedings. We consolidated their appeals.

ANALYSIS

I. EXCLUSION FROM BIOLOGICAL MOTHER'S PARENTAL TERMINATION

¶ 17 Janice and Charles contend that (1) they are the children's de facto parents under the doctrine recognized in L.B., 155 Wash.2d 679, 122 P.3d 161; (2) therefore, as "parents," they were entitled to participate in the children's biological mother's parental termination proceedings under RCW 13.34.180 and RCW 13.34.190; and (3) the trial court erred in excluding them from those proceedings.

¶ 18 The Department responds that (1) Janice and Charles cannot raise this argument for the first time on appeal because they did not raise it at the hearing vacating their non-parental custody decree; and (2) Janice and Charles do not qualify as de facto parents. Agreeing with the Department's second point and finding it dispositive, we do not address the first.

A. Janice and Charles Are Not De facto Parents

¶ 19 In L.B., two long-time female partners decided to have a child by artificial insemination. One woman gave birth to a child...