In re Parental Rights to E. R. D.
| Decision Date | 19 January 2017 |
| Docket Number | No. 33762-6-III,33762-6-III |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Parental Rights to E. R. D. |
SIDDOWAY, J. — The mother of E.R.D. failed to appear at the time set for trial of a petition to terminate her parental rights and an order of default was entered. She was unable to provide the superior court with an address where notices of continued dates for a trial could reach her and she took no action to determine what was happening in the termination case. Three months after the trial was held and an order terminating her parental rights was entered, she moved to vacate the order of default and the judgment. Her motion was denied.
We find no abuse of discretion by the trial court and affirm.
The mother in this case adopted E.R.D. as a baby. E.R.D. came into the care of the Department of Social and Health Services (DSHS) after it had received and investigated four intakes alleging child abuse and neglect by the mother. In September 2012, after E.R.D. arrived at school wearing pajamas, with clothing in a bag and no shoes, and school personnel were left to get her dressed, feed her, and get her to her classroom, DSHS began dependency proceedings. On March 26, 2013, the juvenile court entered an agreed order of dependency for then 8-year-old E.R.D., and she was placed in foster care.
At the time, the mother's identified parenting deficiencies included untreated substance abuse and untreated mental health issues. She was offered substance abuse treatment, mental health services, parenting services, and random urinalysis.
Sixteen months later, in July 2014, DSHS commenced parental termination proceedings. On August 21, 2014, after the mother's social worker, Maura Brown, had been unable to contact her despite multiple attempts, Ms. Brown traveled to a visitation center where she knew the mother was scheduled for visitation with E.R.D. E.R.D. and her mother were present. According to Ms. Brown, she served the mother in the hallway with a notice and summons for the termination trial that was scheduled for October 23, 2014, verbally told her of the trial date, and told her that she needed to contact her attorney.
The notice and summons served on the mother included the following language:
The mother had been represented by lawyer Cathy Busha during the dependency but according to Ms. Brown, the mother informed her when served "that she would hire another attorney to represent her" and "was trying to procure other legal representation." Report of Proceedings (RP) (July 30, 2015) at 7-8.
The mother did not appear for the October 23 hearing. Ms. Busha, however, was present at court that day. It was only after the mother's case was called and the court noted the mother's absence on the record that Ms. Busha addressed the court. She said:
Invited to respond, Jennifer Dixon, DSHS's lawyer told the court, "I don't think there was an affirmative request for counsel or any indication that she has asked Ms. Busha to represent her today." Id. at 4. Ms. Busha did not disagree. Ms. Dixoncontinued that she would like the court to enter an order of default, knowing that would "give Ms. Busha an opportunity to make a motion to set the default aside later if that situation changes." Id. The court also heard from Nancy Graham, the guardian ad litem, who said that E.R.D. was doing well in her foster home and was inquiring about whether she would be adopted, and that she "hope[d] we can get this resolved." Id. at 5.
Ms. Dixon proposed to set the termination trial over to the next docket (November 13) and the court agreed, telling Ms. Busha that "hopefully that will—Ms. Busha, you'll be able to—have contact with your client, and take whatever steps are necessary." Id.
For reasons that are unexplained, trial was initially set, instead, for January 21, 2015. The Notice of Trial Date reflects the superior court administrator's certification that it was mailed or hand delivered to the parties, including the mother, on October 29, 2014. The record includes an envelope addressed to the mother at an Ellensburg apartment address, bearing a stamp that states "RETURN TO SENDER[,] MOVED LEFT NO ADDRESS[,] UNABLE TO FORWARD." CP at 16. The mother would later submit a declaration explaining that:
At the time of the dependency and termination trial, I was having a great deal of difficulty in my life and was homeless for some months. I was on a downhill spiral. I did not see some of my mail nor had a phone sometimes.
An order of default was not entered until November 5, 2014.
On November 20, the trial date was reset to December 11, 2014. The proof of service on the notice resetting hearing states that a copy of the document was served by U.S. Mail on all parties or their counsel of record. Nothing in the record indicates that a lawyer had appeared on behalf of the mother. Trial proceeded on December 11. The mother did not appear, nor did anyone on her behalf.
Ms. Brown was questioned during the termination trial by Ms. Dixon and by the guardian ad litem. Ms. Brown testified that during the dependency, she had provided the mother with multiple substance abuse treatment referrals, a referral for a psychological parenting capacity evaluation, and joint mental health sessions with E.R.D. She testified that while the mother completed a chemical dependency program on January 28, 2013, she then failed to complete the recommended intensive inpatient chemical dependency treatment or co-occurring mental health treatment. She testified that the mother did not provide consistent urine samples and in 2013 she had multiple positive UAs for both methamphetamine and marijuana.
Ms. Brown testified that communication with the mother had been very difficult and visitation between the mother and E.R.D. had been disruptive and erratic. She testified that the mother was homeless and did not demonstrate any change in behavior during the dependency. She expressed her opinion that it would take at least two years for the mother to remedy her parenting deficiencies. She also expressed the view thattermination was in E.R.D.'s best interest and recommended terminating the parental relationship and allowing E.R.D. to be adopted by her foster parents.
At the conclusion of the one day trial, the court announced its decision to terminate the mother's parental rights. It entered amended findings of fact, conclusions of law, and an order of termination on December 18.
The mother had her last visit with E.R.D. that day, and Ms. Brown delivered to her a copy of the order terminating her parental rights.
Three months later, on March 18, 2015, the mother filed a motion to set aside the default. Her declaration in support stated among other matters that she "was unaware of the date of the termination trial court hearing," that she did "not honestly recall anyone serving [her] with papers for the court date," and that "[a]fter learning of this news, [she] was extremely devastated that there was a trial and [she] was not in attendance and that [her] parental rights had been terminated." CP at 43. She said she had been clean and sober since sometime in November 2014, had called the Office of Public Defense after learning of the order of termination, and they had arranged for Ms. Busha to represent her in moving to set aside the default.
The mother's motion was continued a couple of times but was ultimately heard on July 23. That day, Ms. Busha filed a declaration from the mother stating that she had missed court in November and December 2014 "due to not being notified by [DSHS]." CP at 60. Given the conflicting testimony of the social worker and the mother as to whether the mother had been served, the court concluded that the factual dispute needed to be resolved and notified the parties that "[d]ue to the fact that it is difficult to make credibility determinations from a review of written declarations, the court will take brief testimony from the social worker and the mother on this important issue within the next week or so." CP at 64.
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