In re Marriage of Furrow

• Decision Date: 18 February 2003
• Docket Number: No. 48227-1-I.,48227-1-I.
• Citation: 115 Wash.App. 661,63 P.3d 821
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Rene L. FURROW, n/k/a Taylor, Appellant, and William D. Furrow, Respondent.

63 P.3d 821
115 Wash.App. 661

In re the MARRIAGE OF Rene L. FURROW, n/k/a Taylor, Appellant, and
William D. Furrow, Respondent

No. 48227-1-I.

Court of Appeals of Washington, Division 1.

February 18, 2003.

63 P.3d 822

G. Olaf Hansen, Redmond, WA, for Appellant

63 P.3d 823

William D. Furrow, Redmond, WA, Thomas James Alexiou, Seattle, WA, for Respondent

Stephen H. Hassett, Office of Attorney General, Michelle Lyn Ressa Weber, Asst. Attorney General, Olympia, WA, Robert Dean Welden, Seattle, WA, Peter S. Lineberger, Spokane, WA, for Amicus Curiae.

KENNEDY, J.

In the course of a parenting plan modification action brought some three years after the marriage of the parties to this appeal had been dissolved, appellant Rene L. Taylor signed a voluntary relinquishment of her parental rights with respect to the children born of her marriage to respondent William D. Furrow. On March 5, 1999, the trial court entered an order terminating Ms. Taylor's parental rights.¹ No appeal was taken from the order. In January 2001, Ms. Taylor filed a motion seeking to vacate the order, contending that the order is void and should be vacated under CR 60(b)(5), or in the alternative that the irregularity of the proceedings requires vacation of the order under CR 60(b)(11). The trial court denied the motion to vacate, and Ms. Taylor appeals. We reverse and remand for entry of an order vacating the order terminating Ms. Taylor's parental rights for irregularity in the proceedings, as authorized by CR 60(b)(11).

The modification court did not lack subject matter jurisdiction; thus, the order terminating Ms. Taylor's parental rights was not void. But notwithstanding the fact that Ms. Taylor signed a voluntary relinquishment of her parental rights, the modification court's departure from statutory procedures that are designed to serve the best interests of children, and not as a means for parents to avoid responsibility for their children, requires that the order be vacated under CR 60(b)(11). The parties' children were not represented by a guardian ad litem with respect to the relinquishment and termination of their mother's parental rights, Family Court Services was not consulted with respect to termination of the mother's parental rights, and the report that was prepared by Family Court Services for the modification action shows that the children loved their mother dearly and wanted to have a relationship with her.

An order terminating parental rights does far more than merely terminate the rights of a relinquishing parent. It deprives the children of their right to financial support from that parent, their right to the companionship and guidance of that parent, their right of inheritance from that parent, and their right to social security benefits in the event of that parent's death or disability. It is fundamentally wrong, and statutorily impermissible, to permit voluntary relinquishment of parental rights to serve as a means of resolving parenting disputes in a parenting plan modification action, even at the request of a relinquishing parent or by agreement of the parents, when none of the procedural safeguards of the dependency or adoption statutes intended to serve the best interests of children are in place. The procedural irregularity here is more substantial than a mere error of law that can only be remedied by a timely appeal of a party to the litigation. Vacation of the order under CR 60(b)(11) is an appropriate remedy in this case; indeed, it is the only remedy that will protect the rights of the children in this case, who have not been adopted by a stepparent in the interim.

FACTS

On July 19, 1996, the marriage of Rene Taylor and William Furrow was dissolved by decree of the King County Superior Court. A parenting plan was entered on the same day, placing the parties' three minor children in Ms. Taylor's primary residential care. On December 17, 1997, Mr. Furrow petitioned to

63 P.3d 824

modify the parenting plan, and for a temporary parenting plan and child support. He also obtained an ex parte temporary restraining order against Ms. Taylor

On January 21, 1998, the trial court concluded that an adequate threshold showing had been made to permit the modification action to go forward, and entered a temporary parenting plan granting Mr. Furrow primary residential care of the children, pendente lite. The matter was referred to Family Court Services to investigate and recommend a new parenting plan for the parties.

In January 1999, Family Court Services filed its report, recommending that Mr. Furrow continue to have primary residential care of the children, that the children have supervised visits with Ms. Taylor, and that specific guidelines for all telephone contacts between the mother and the children be established.

Ms. Taylor subsequently decided that the ongoing hostility between the parents was harming the children. After consultation with her attorney, she decided to voluntarily relinquish her parental rights. Mr. Furrow agreed to this. Neither party asked Family Court Services to evaluate the proposal. Ms. Taylor's attorney prepared a relinquishment and Ms. Taylor signed it. Her attorney also prepared proposed findings of fact and an order terminating Ms. Taylor's parental relationship with the children. Without first appointing a guardian ad litem for the children, the trial court entered the findings and termination order on March 5, 1999. The findings state that the best interests of the children would be served by the relinquishment of parental rights, in that the Family Court Services parenting evaluation showed that Ms. Taylor had "substantial issues which are not in the children's best interest[.]" Clerk's Papers at 317. The modification action was dismissed. No appeal was taken from the order terminating Ms. Taylor's parental rights.

On April 21, 2000, Mr. Furrow sought and obtained a temporary protection order against Ms. Taylor because she was continuing to have contact with the children, admittedly sometimes with his consent, but at other times surreptitiously. A court commissioner entered the temporary restraining order, but concluded, sua sponte, that the modification court did not have legal authority to issue an order terminating Ms. Taylor's parental rights.

Concerned by the commissioner's conclusion, Mr. Furrow sought a clarification from the modification court regarding the validity of the order terminating Ms. Taylor's parental rights. On August 24, 2000, the judge who entered the termination order "clarified" that the order had been entered pursuant to RCW 26.09 and RCW 26.33, and ruled that the order was valid.

On January 18, 2001, Ms. Taylor filed a motion and declaration for an order to show cause, contending that the order terminating her parental rights was void, and ought to be vacated under CR 60(b)(5) or 60(b)(11). On February 14, 2001, the superior court denied the motion to vacate. Ms. Taylor appealed.

Because this case raises significant legal and public policy issues that were not adequately addressed in the parties' briefs on appeal, we requested amicus briefs from the Office of the Attorney General and the Family Law Section of the Washington State Bar Association.² We take this opportunity to express our appreciation to both amici for their thoughtful, thorough, and capable briefing of the procedural, legal and public policy issues raised by this appeal. The contribution by amici of their valuable time and considerable legal expertise has been of great assistance to the court, and is in accord with the highest ethical standards of the legal profession.

ANALYSIS

Subject Matter Jurisdiction: Ch. 26.09 RCW, the Marital Dissolution Statute

No provision in Ch. 26.09 RCW permits a court to terminate parental rights

63 P.3d 825

in the course of a marital dissolution or a post-decree modification action. Even RCW 26.09.191, which allows a court to restrict a parent's time with a child based upon parental behavior that puts the child at risk, makes no reference to the possibility of termination of parental rights as a potential remedy for parental shortcomings. This being so, Ms. Taylor and amici urge this court to declare that the modification court lacked subject matter jurisdiction to enter the order terminating Ms. Taylor's parental rights, and that the order is, accordingly, void and subject to vacation under CR 60(b)(5). Upon motion and upon such terms as are just, the court may relieve a party or his or her legal representative from a final judgment for the reason that the judgment is void. CR 60(b)(5). Parties cannot confer subject matter jurisdiction on the court by agreement between themselves; a court either has subject matter jurisdiction or it does not; if it does not, any judgment entered is void, and is, in legal effect, no judgment at all. Wesley v. Schneckloth, 55 Wash.2d 90, 93-94, 346 P.2d 658 (1959).

In Marley v. Department of Labor & Indus., 125 Wash.2d 533, 541, 886 P.2d 189 (1994), our Supreme Court adopted the requisites of a valid judgment set forth in Restatement (Second) of Judgments § 1 (1982). That section provides:

A court has authority to render judgment in an action when the court has jurisdiction of the subject matter of the action, as stated in § 11, and

(1) The party against whom judgment is to be rendered has submitted to the jurisdiction of the court, or

(2) Adequate notice has been afforded the party, as stated in § 2, and the court has territorial jurisdiction of the action as stated in §§ 4 to 9.

Section 11 of the Restatement (Second) of Judgments defines "subject matter jurisdiction." "`A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action.'" (Emphasis added by the Marley court, 125 Wash.2d at 539, 886 P.2d 189, to emphasize the importance of the phrase "type of controversy"). "A tribunal does not lack subject matter...