In re J.D.P.

• Decision Date: 01 June 2021
• Docket Number: No. 80490-1-I,80490-1-I
• Citation: 487 P.3d 960,17 Wash.App.2d 744
• Parties: In the MATTER OF the DEPENDENCY OF J.D.P. and J.D.P., Minor Children.
• Court: Washington Court of Appeals

17 Wash.App.2d 744

487 P.3d 960

In the MATTER OF the DEPENDENCY OF J.D.P. and J.D.P., Minor Children.

No. 80490-1-I

Court of Appeals of Washington, Division 1.

FILED June 1, 2021

Nielsen Koch PLLC, Attorney at Law, Jennifer J. Sweigert, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, Abra Jean Conitz, Attorney at Law, 15600 Redmond Way Ste. 101, Redmond, WA, 98052-3862, Maureen Marie Cyr, Kate Huber, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647 for Appellant.

Soc. & Hlth. Svcs. A.g. Office, Attorney at Law, 800 Fifth Ave, Suite 2000, Ms-tb-14, Seattle, WA, 98104, Joel Jacob Delman, Attorney at Law, 6837 39th Ave. Ne, Seattle, WA, 98115-7442, Laura Jan Dryden Baird, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, Kelly L. Taylor, Ofc. of the Atty. General, Patricia Lee Allen, WA State Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

Dependency Casa Program King County, Mrjc-401 4th Avenue N, Suite 3081, Kent, WA, 98032, Jennie Mayberry Cowan, Attorney at Law, 401 4th Ave. N, Kent, WA, 98032-4429, Lori Larcom Irwin, King Co. Superior Ct./Dependency Casa, 1211 E Alder St., Seattle, WA, 98122-5553, Kathleen Carney Martin, Dependency CASA Program, 401 4th Ave. N Rm. 3081, Kent, WA, 98032-4429, for Guardian(s) Ad Litem.

Tara Urs, La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of KC Dept. of Public Defense.

D'Adre Beth Cunningham, Washington Defender Association, 110 Prefontaine Pl. S Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Wa Defender Assoc.

Julie C. Kellogg-Mortensen, Law Office of Julie Kellogg-Mortensen, 325 S. Washington Ave., #129, Kent, WA, 98032, Sungah Annie Chung, Legal Counsel For Youth and Children, P.O. Box 28629, Seattle, WA, 98118-8629, for Other Parties.

PUBLISHED OPINION

Mann, C.J. ¶1 Amber Heilman-Blanton and Anthony Parker, the biological parents of Jae and Jav, appeal the trial court's order terminating their parent-child relationships with their two youngest children.¹ They argue that the court violated their right to due process by excluding evidence of the sibling relationships as part of the termination trial, that the Department of Children, Youth, and Families (Department) failed to provide Heilman-Blanton with all the necessary services required in a termination proceeding, and that the best interests of the child statute is unconstitutionally vague as applied to the facts of the case. We affirm.

FACTS

¶2 Heilman-Blanton and Parker were married and have four children together: J.A. A.E., Jae, and Jav. At the time of the termination trial, the children were 14 years old, 10 years old, 3 years and 7 months, and 1 year and 9 months, respectively.

¶3 The parents first became involved with the Department in connection with the older siblings. J.A. was dependent from October 2007 to May 2008 and then returned home. A.E. was dependent from March 2012 to March 2015 and then returned home. In July 2015, the older siblings were living with their paternal grandmother; the parents’ whereabouts were unknown. The older siblings were taken into protective custody in late July 2015 after they reported abuse by their grandmother.

¶4 Jae was born exposed to opiates in October 2015. The mother used heroin two days prior to Jae's birth and was hospitalized for drug-withdrawal several times during her pregnancy. Although the court originally placed Jae with his father, he was arrested two days later for drug possession, theft, and counterfeiting. The father was arrested again a month later on multiple warrants, a new drug charge, and forgery. The mother also had a lengthy criminal history, including convictions for drug use and delivery, counterfeiting, drug possession, prostitution, and identity theft. The mother agreed to an order of dependency on August 22, 2016, and the father agreed to an order of dependency on March 2, 2016. Both parents were in custody at the time the dependency orders were entered. Except for the brief time he was with the father prior to his arrest, Jae has never lived with his parents.

¶5 While the parents did not visit A.E., J.A., or Jae, for almost a year, they had progressed in services and resumed visitation by the summer of 2016. The court placed J.A. with the parents in May 2017. The parents had overnight unsupervised visits with A.E. and Jae during this time.

¶6 Jav was born in September 2017 and resided with his parents for the first two-and-a-half months of his life, as the parents were complying with the required services under the dependencies of the older children. On November 15, 2017, U.S. Marshals executed federal arrest warrants on the parents for failure to comply with their conditions of release. J.A. and Jav were at the home. The Marshals discovered Jav in a bedroom with a plastic bag containing a black, sticky, tar-like substance, later identified as heroin. Both parents were incarcerated, and the Department subsequently filed a dependency petition for Jav. The court declared Jav dependent as to the mother on March 2, 2018, and declared Jav dependent as to the father on April 3, 2018.

¶7 While the parents had periods of compliance with services, they have been unable to maintain sobriety, be free from criminal activity, or keep a stable home. In the dependency cases of Jae and Jav, the mother agreed to 90 days of weekly urinalysis (UA) tests, to complete a new drug and alcohol evaluation and to follow the treatment recommendations, to attend parenting classes, to complete a psychological evaluation with a parenting component, and to continue to follow the treatment recommendations in place in the dependencies of the older siblings.

¶8 The mother received multiple referrals to conduct the UAs, but failed to show up three times. The mother's probation was revoked for violations including missed treatments and UAs and cocaine use. A warrant was issued for her in October 2018 and March 2019. She was further found not in compliance based on the allegations of possession of heroin and reckless endangerment of a child from the execution of the warrant. The mother violated her federal probation when she used methamphetamine in January 2017 and consumed alcohol in July 2017. The Department offered her parenting classes, bus tokens, and ORCA cards throughout the dependencies.

¶9 The State referred the mother to three different providers to complete her psychological evaluation. The State referred her to Dr. Dana Harmon but the mother terminated the visit. The State referred her to an evaluation with Dr. Lauren McCollom but she refused to complete the required re-testing. The State also referred her to Dr. Steve Tutty and she completed the initial testing, but she did not complete the parent-child observation prior to being remanded into custody.

¶10 Additionally, Family Treatment Court (FTC) accepted the mother in August 2018. She agreed to remain drug and alcohol free, to engage in random drug tests, and to attend two sober support meetings a week. FTC discharged her in April 2019 after she missed UAs, failed to obtain a drug and alcohol assessment, was not in treatment, and did not sign releases of information.

¶11 Jae and Jav were placed together with foster parents and have never been returned to the biological parents’ care. After the parents’ arrests, the older siblings were placed with the mother's fictive aunt, Dayna Hicks, in Philadelphia. After a year living with Hicks, J.A. disrupted his placement and returned to Washington, where he lacked a permanent placement. A.E. remained in Philadelphia with Hicks. The older siblings remain dependent and have had periods of infrequent contact with Jae and Jav.

¶12 The Department filed for termination of parental rights to Jae and Jav in December 2018. Prior to trial, the parents subpoenaed Jae and Jav's foster parents for depositions. They argued that "the foster parents’ testimony is relevant to inform the court about the siblings’ prospects for continued communication and relationships if the court determines that severing the sibling relationship via termination of the parent-child relationship should occur." The Department and the children's Court Appointed Special Advocate (CASA), Eddie Hill, moved to quash the subpoenas, arguing that sibling relationships were not at issue in the termination. On January 8, 2019, the trial court agreed and quashed the subpoenas after finding that the foster parents were not "likely to have information that is likely to lead to any relevant information to the pending termination matters or dependency review cases, even under the liberal discovery rules outlined in CR 26."

¶13 In May 2019, the older siblings moved to intervene in the termination proceeding. The parents supported these motions and argued that the trial court should hear evidence about the sibling bonds when determining whether termination of parental rights was in the best interests of Jae and Jav. The Department and CASA opposed intervention. On May 26, 2019, the trial court denied the motions to intervene, after weighing the requirements for permissive intervention under CR 24, and finding that "the siblings have failed to articulate a common question of law or fact that would support intervention." The court further explained that "concerns about ongoing sibling contact are best addressed in other proceedings, namely the dependency."

¶14 The mother identified Dr. JoAnne Solchany as a potential expert witness who would testify about the best interests of the children, their relationship with their parents and their siblings, as well as their current bond and current placements. The court excluded the testimony, finding that "[a]ny evidence about the longevity and future of the sibling communication, visits or relationship is not relevant in determining whether the Department has met its burden of proving...