In re R.H.

• Decision Date: 04 September 2013
• Docket Number: Nos. 43580–2–II, 43590–0–II, 43594–2–II, 43684–1–II, 43690–6–II, 43694–9–II.,s. 43580–2–II, 43590–0–II, 43594–2–II, 43684–1–II, 43690–6–II, 43694–9–II.
• Citation: 309 P.3d 620,176 Wash.App. 419
• Parties: In re the WELFARE OF R.H., R.A., T.A., T.H., N.R., and Z.R., Minor Children.
• Court: Washington Court of Appeals

176 Wash.App. 419

309 P.3d 620

In re the WELFARE OF R.H., R.A., T.A., T.H., N.R., and Z.R., MinorChildren.

Nos. 43580–2–II, 43590–0–II, 43594–2–II, 43684–1–II, 43690–6–II, 43694–9–II.

Court of Appeals of Washington, Division 2.

Sept. 4, 2013.

Jordan Broome McCabe, McCabe Law Office, Bellevue, WA, Sarah McNeel Hrobsky, Washington Appellate Project, Seattle, WA, for Appellant.

Lisa Marie Lydon, Attorney at Law, Wa. St. Atty. Generals Offc., Spokane, WA, for Respondent.

QUINN–BRINTNALL, J.

[176 Wash.App. 421]¶ 1 In this case, we address how RCW 13.36.040, the guardianship statutethe legislature enacted in 2010, influences parental termination actions under RCW 13.34.180(1).The juvenile court entered orders terminating Bobby Adolphus's parental rights to his three sons, R.H., T.A., and R.A. Adolphus appeals the termination orders, arguing that the juvenile court erred by denying his timely motion for a continuance to allow him to present evidence of the availability of a relative guardianship placement and that the State failed to prove several of the statutory elements required for termination of parental rights under RCW 13.34.180(1).¹We agree that the juvenile court erred by denying Adolphus's timely motion to continue, thereby failing to properly address whether continuation of Adolphus's relationship diminished his children's prospects for early integration into a stable and permanent home.We reverse the juvenile court's orders terminating Adolphus's parental rights and remand for a new trial.In addition, we impose, under a separate order, a monetary sanction on Adolphus's counsel, Jordan B. McCabe, for making material misrepresentations to this court regarding the record in this case.

FACTS

¶ 2Winter Howland has six children: T.H., R.H., T.A., R.A., N.R., and Z.R.In March 2009, the Department of Social and Health Services(DSHS) removed all six children from Howland's care.Adolphus is R.H., T.A., and R.A.'s father.²At the time of the removal, Adolphus had visitation with his children on some weekends but was not the primary residential parent.DSHS considered placing the children with Adolphus but chose not to because of safety concerns related to Adolphus's alcohol and marijuana use, criminal history, and concerns regarding his girlfriend's mental health, criminal history, and history with Child Protective Services (CPS).On May 6, the juvenile court entered agreed orders of dependency as to both Howland and Adolphus.

¶ 3 More than two years later, DSHS petitioned for the termination of Adolphus's parental rights on October 21, [176 Wash.App. 423]2011.The termination trial was set for May 3, 2012.Prior to the termination hearing, the children's paternal aunt was identified as a potential guardianship placement for the children.On April 5, Adolphus moved to continue the termination hearing to allow DSHS to complete the aunt's home study.Adolphus's continuance motion was heard on April 18.The juvenile court agreed with the State's argument that whether the children would be able to be placed with their aunt was immaterial to whether the State could prove all of the required elements at the termination trial and denied the motion.

¶ 4 After trial, the juvenile court granted DSHS' petition to terminate Adolphus's parental rights.Adolphus and Howland appealed.A commissioner of this court considered the appeal on an accelerated basis under RAP 18.13A, affirmed the termination of Howland's parental rights, and referred Adolphus's appeal to a panel of judges.

ANALYSIS

¶ 5 Adolphus argues that the trial court erred by failing to grant his motion to continue the termination trial until after the aunt's home study could be completed and DSHS determined whether the aunt was available as an appropriate guardianship placement for the children.In 2010, the legislature created a “more flexible alternative to parental termination—guardianship under RCW13.36.040.”In re Guardianship of K.B.F.,No. 43922–1–II, 2013 WL 2606570, at *3(Wash.Ct.App.June 11, 2013).In this case, we must determine how the new guardianship statute influences the potential termination of parental rights under RCW 13.34.180(1).Specifically, whether the availability of a guardianship placement is material to the trial court's finding that the State proved that continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.We hold that an identified guardianship is material to this determination.Therefore,the trial court erred by denying Adolphus's timely motion to continue the termination trial until after the aunt's home study could be completed.

¶ 6 In January 2012, the aunt came forward as a potential guardianship placement for the children.Approximately a month before trial, Adolphus filed a motion to expedite the aunt's home study or to continue the termination trial.³The juvenile court heard Adolphus's motion on April 18, two weeks before trial.

¶ 7 Adolphus argued that without the results of the home study, the record before the juvenile court would be incomplete because “[p]lacement with the maternal [sic] aunt presents the option of permanency for the children that does not sever the children's relationship with their father.”Clerk's Papersat 118.At the time of the motion, the aunt's background checks had been completed and DSHS had initiated the home study process.The aunt still had to complete a Parents Resources for Information Development Education (PRIDE) class and the home study process before the State could consider her as a guardianship placement for any of the children.The State told the trial court that whether the children would be able to be placed with the aunt was immaterial to whether it could prove all of the elements of termination at trial.The juvenile court agreed with the State and denied Adolphus's motion to continue the termination trial.

¶ 8We review a decision to deny a continuance for manifest abuse of discretion.In re Dependency of V.R.R.,134 Wash.App. 573, 580–81, 141 P.3d 85(2006).The juvenile court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.State ex rel. Carroll v. Junker,79 Wash.2d 12, 26, 482 P.2d 775(1971).The juvenile court“takes into account a number of factors, including diligence, due process, the need for an orderly procedure, the possible effect on the trial, and whether prior continuances were granted.”V.R.R.,134 Wash.App. at 581, 141 P.3d 85.Denial of a motion to continue violates due process if the parent can show “either prejudice by the denial or the result of the trial would likely have been different if the continuance was granted.”V.R.R.,134 Wash.App. at 581, 141 P.3d 85.

¶ 9 Parents have a fundamental liberty and privacy interest in the care and custody of their children.Santosky v. Kramer,455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982).Because of the constitutional interests at stake in a termination proceeding, parents are afforded greater due process rights than in dependency proceedings or other proceedings to determine the custody or placement of children (i.e., dissolutions, parent plan modifications, etc.).SeeIn re Dependency of R.W.,143 Wash.App. 219, 223, 177 P.3d 186(2008)(when determining placement under a dependency, the best interests of the children is the primary factor to be considered by the court);RCW 26.09.260(1)(allowing modification of a parenting plan if there has been a substantial change in circumstances, modification is in the best interests of the child, and modification is necessary to serve the best interests of the child).In contrast, the juvenile court may terminate parental rights only when the State has proved the six statutory factors in RCW 13.34.180(1)(a)-(f) by clear, cogent, and convincing evidence.⁴RCW 13.34.190(1)(a)(i).Because of the parents' fundamentalconstitutional rights at stake in termination hearings, due process requires that parents have the ability to present all relevant evidence for the juvenile court to consider prior to terminating a parent's rights.In re Welfare of Shantay C.J.,121 Wash.App. 926, 940, 91 P.3d 909(2004).

¶ 10 Although In re Dependency of A.C.,123 Wash.App. 244, 98 P.3d 89(2004), was decided based on the dependency guardianship statutes that existed prior to the legislative change in 2010, its analysis of the relationship between guardianship and termination is helpful here.In A.C., the juvenilecourt considered competing petitions for dependency guardianship (under former RCW 13.34.231(2000)) and termination of parental rights.The juvenile court found that termination was in the children's best interests and the parents appealed.A.C.,123 Wash.App. at 248, 98 P.3d 89.Division One of this court addressed whether the juvenile court erred by deciding that termination was in the children's best interests and, to that end, examined the effect of guardianship versus termination.A.C.,123 Wash.App. at 250, 98 P.3d 89.

¶ 11 Under the prior statutes, “Washington courts are said to ‘look at dependency guardianship as a less restrictive alternative to termination.’ ”A.C.,123 Wash.App. at 252, 98 P.3d 89(quoting 3 Washington Family Law Deskbook, cmt.§ 59.7(1)(2d ed.2000)).The primary consideration for the courts when deciding between dependency guardianship and termination is permanency for the child.A.C.,123 Wash.App. at 251, 98 P.3d 89.The A.C. court noted that “[d]ependency guardianships now offer sufficient permanencyto present a viable alternative to termination in appropriate cases.”123 Wash.App. at 251, 98 P.3d 89.And, in other cases, termination does not ensure permanency because “[t]here is no guaranty that adoption will follow termination.”A.C.,123 Wash.App. at 252, 98 P.3d 89.

¶ 12 In A.C., members of the children's extended family petitioned for a dependency guardianship and DSHS...