In re A.M.F.

• Decision Date: 08 August 2022
• Docket Number: 83210-7-I
• Citation: 514 P.3d 755
• Parties: In the MATTER OF the DEPENDENCY OF A.M.F., a minor child.
• Court: Washington Court of Appeals

514 P.3d 755

In the MATTER OF the DEPENDENCY OF A.M.F., a minor child.

NO. 83210-7-I

Court of Appeals of Washington, Division 1.

FILED August 8, 2022

Washington Appellate Project, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, for Appellant.

Kelly L. Taylor, Ofc. of the Atty. General, 800 5th Ave. Ste. 2000, Seattle, WA, for Respondent.

Dependency Casa Program King County, Kathleen Carney Martin Dependency CASA Program, 401 4th Ave. N Rm. 3081, Kent, WA, for Guardian(s) Ad Litem.

PUBLISHED OPINION

Smith, A.C.J.

¶1 The trial court terminated Y.R.’s parental rights to her son, A.M.F. She contends on appeal that the court erred by drawing a negative inference from her invocation of her Fifth Amendment¹ rights, as well as by finding that A.M.F.’s prospects of integration into a stable and permanent home were diminished by her parental rights and that termination was in his best interest. We conclude that the trial court acted in accordance with Fifth Amendment jurisprudence in drawing negative inferences in the context of this civil case. We also conclude that substantial evidence supports both of the court's challenged findings. We therefore affirm.

FACTS

¶2 A.M.F. was born to Y.R. and presumed father P.F. on May 8, 2019. At birth, A.M.F. tested positive for amphetamines

and opiates and soon went into withdrawal. Y.R. reported to hospital staff having long-standing substance abuse and mental health issues. P.F. reported daily use of methamphetamine.

¶3 The Department of Children, Youth, and Families (DCYF) petitioned to establish dependency under RCW 13.34.180, asserting that A.M.F. had no parent capable of adequately caring for him. Both parents eventually entered into agreed dependency orders. A.M.F. was placed with his maternal grandparents. The court ordered chemical dependency evaluation, mental health assessment, and parenting assessments for Y.R. It permitted three three-hour visitations a week supervised by DCYF or his maternal grandparents.

¶4 Because the dependency orders were not followed, DCYF petitioned for termination of the parent-child relationship between A.M.F. and both parents in December, 2020. Both parents attended the fact-finding trial in August, 2021. P.F., who was not represented by counsel, did not engage past the morning of the first day. Trial consisted of testimony from Y.R., her father, the social worker who had been assigned the case, and the Court Appointed Special Advocate (CASA) representing A.M.F.’s interests. The CASA supported termination.

¶5 The trial court terminated Y.R. and P.F.’s parental interest in A.M.F. and issued a number of findings, both oral and written, explaining its order. Many of those findings are relevant on appeal. Finding of Fact 2.12 states:

The Court gives credit to the mother for participating in services to a certain degree. [Y.R.] testified that there was no clear road map for reunification, however, with each evaluation she completed, there were recommendations. [DCYF] made referrals and diligently followed up to assist the mother in engaging in the services recommended in the initial evaluations. [Y.R.] never followed through with the recommendations, including the recommendation for inpatient treatment. [Y.R.] reported for inpatient treatment, then left five days later against medical advice. The record contains several instances where the mother began to engage in some of the recommended services, but she never followed through, so the court concludes that all services were offered to the mother and [Y.R.] was aware. [Y.R.] just did not want to, or was unable to complete the recommended services.

Finding of Fact 2.13 states:

There is little likelihood that conditions will be remedied so that the child can be returned to the mother or alleged father within the near future.

Based on this child's age, needs and developmental level, Social Worker Cortez testified that [A.M.F.]’s near future is one month to six months. Regardless, the Court concludes that conditions will be not remedied within that amount of time. The evidence is clear that the mother is an active user of illicit substances. During trial, when asked by the CASA about her last use, [Y.R.] asserted her Fifth Amendment privilege, and a negative inference was made. [Y.R.] admitted that she is an active user. She has repeatedly shown that she cannot follow through with services. She is inconsistent with visits and unavailable to parent [A.M.F]. There was no evidence that this will change in one month or within six months.

Finding of Fact 2.14 states:

Continuation of the parent-child relationship between the above-named minor child and the mother clearly diminishes the child's prospects for early integration into a stable and permanent home.

The mother argued that even if the Court were to deny the termination petition, [A.M.F.]’s life would not change. This argument was, at times, persuasive, however, the problem is that [A.M.F.]’s current home with his maternal grandparents is not permanent. So long as [P.F.] and [Y.R.]’s parental deficiencies persist, and they are not willing to not remedy those deficiencies, [A.M.F.] continues to be denied a permanent home. While [A.M.F.] may be too young to understand, this knowledge will become more salient with age. [A.M.F.] is adoptable. The existence of the parent-child relationship with [P.F.] and [Y.R.] prevents [A.M.F.] from attaining that permanence.

And the latter part of Finding of Fact 2.17 states:

[Y.R.] is unfit to parent for similar reasons. She is unavailable, actively using, and in denial of [P.F.]’ drug use after he admitted active use himself. This poses a risk to the child because the alleged father is in the mother's life.

Y.R. appeals.

ANALYSIS

¶6 Y.R. raises three issues on appeal. First, she contests the constitutionality of the negative inference the trial court drew from her invocation of the Fifth Amendment when asked about her drug use. Second, she asserts that substantial evidence did not support the trial court's conclusion that DCYF had met its burden to show that continuation of the parent-child relationship clearly diminished A.M.F.’s prospects for early integration into a stable and permanent home. Finally, she contends that substantial evidence does not support the trial court's conclusion that DCYF met its burden to show by a preponderance of the evidence that termination was in A.M.F.’s best interest.

¶7 Finding no error, we affirm.

Standard of Review

¶8 "We review legal questions de novo." Tomlinson v. Puget Sound Freight Lines, Inc., 166 Wash.2d 105, 109, 206 P.3d 657 (2009). We review findings of fact under a substantial evidence standard. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wash.2d 873, 879, 73 P.3d 369 (2003). Substantial evidence is that "quantum of evidence sufficient to persuade a rational fair-minded person the premise is true." Dickie, 149 Wash.2d at 879, 73 P.3d 369. Where the fact at issue must be shown by clear, cogent, and convincing evidence, substantial evidence must demonstrate that fact is " ‘highly probable.’ "

In re Welfare of Sego, 82 Wash.2d 736, 739, 513 P.2d 831 (1973) (quoting Supove v. Densmoor, 225 Or. 365, 372, 358 P.2d 510 (1961) ).

¶9 We defer to the trial court's advantage in viewing the proceedings and do not reweigh evidence or determine the credibility of witnesses. In re Welfare of A.W., 182 Wash.2d 689, 711, 344 P.3d 1186 (2015). Finally, we view the evidence and reasonable inferences drawn from it in the light most favorable to the prevailing party. In re Termination of M.J., 187 Wash. App. 399, 407, 348 P.3d 1265 (2015).

Negative Inference Drawn from Fifth Amendment Statements

¶10 The Fifth Amendment to the United States Constitution guarantees that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." Not only may a person not be compelled to testify, but the Fifth Amendment also prohibits juries in criminal cases from drawing inferences of guilt because of its invocation. Griffin v. California, 380 U.S. 609, 614-15, 85 S. Ct. 1229, 14 L. Ed.2d 106 (1965).

¶11 Phrased to apply only to criminal proceedings, the amendment can nonetheless be invoked in civil proceedings to ensure that the State cannot tactically acquire incriminating testimony in a civil matter and later use it in criminal proceedings. To this end, it "privileges [individuals] not to answer official questions put to [them] in any other proceeding, civil or criminal, formal or informal, where the answer might incriminate [them] in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).

¶12 Diverging from its application in criminal cases, the exercise in civil litigation of a party's Fifth Amendment privilege "does not protect the invoking party from adverse inferences that may logically be drawn from its exercise." Compare Diaz v. Wash. State Migrant Council, 165 Wash. App. 59, 85-86, 265 P.3d 956, 970 (2011) (inference acceptable in civil context) with Baxter v. Palmigiano, 425 U.S. 308, 317, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) (prohibiting instructing criminal jury that it may draw inference of guilt from defendant's Fifth Amendment invocation). This difference is because of the underlying purpose of the Fifth Amendment: "to protect the witness from compulsory disclosure of criminal liability." Ikeda v. Curtis, 43 Wash.2d 449, 457-58, 261 P.2d 684 (1953). That purpose is fulfilled when a witness in a civil suit refuses to give an answer that may be incriminating because the refusal cannot be used in a subsequent criminal proceeding. Ikeda, 43 Wash.2d at 458, 261 P.2d 684.

¶13 Here, there was no Fifth Amendment violation. Y.R., in a civil proceeding, invoked her Fifth Amendment protections twice, both times in response to questions about drug use. In both instances, the court warned that it would draw a negative inference from her refusal to answer. It did so. Because her invocations cannot be...