In re S.I. D.D.

• Decision Date: 18 November 2014
• Docket Number: No. 31727-7-III,31727-7-III
• Court: Washington Court of Appeals
• Parties: In re the Welfare of: S.I. D.D.

In re the Welfare of: S.I. D.D.

No. 31727-7-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

NOVEMBER 18, 2014

(consolidated with 31728-5-III)

PUBLISHED OPINION

LAWRENCE-BERREY, J. — A party who fails to appear in an action is not entitled to notice prior to entry of a default order. We are asked to decide whether a mother who appeared and participated in a dependency action yet failed to appear in a subsequent termination proceeding is required to receive notice prior to entry of a default order in the termination proceeding. We hold that a dependency proceeding is separate from a termination proceeding. We also hold that a parent's appearance and participation in a dependency proceeding does not constitute an appearance in a later termination proceeding. Therefore, a default order entered in a termination proceeding without notice to the nonappearing parent is proper and need not be set aside unless the parent establishes good cause. Finally, we also hold that the trial court did not abuse its discretion when it denied the mother's motion to set aside the default order. We affirmthe default order, determine that the process used to terminate the mother's parental rights was constitutional, and affirm the trial court's termination of the mother's parental rights.

FACTS

In July 2011, the Department of Social and Health Services (Department) filed a dependency petition with respect to two of Maquel Ames's children, S.I. (D.O.B. 5/11/04) and D.D. (D.O.B. 03/20/06). The petition alleged that Ms. Ames and her two children were living in a homeless camp, had no source of income, and that Ms. Ames was abusing illegal substances. S.I. reported to a social worker that they had been kicked out of her uncle's home and that her father, Mr. I., had been camping with her, Ms. Ames, and D.D. Mr. I. is an untreated sex offender, convicted of child rape.

The mother appeared in the dependency action. The court found the children dependent and entered an agreed order of dependency on October 4, 2011, as to the mother. On that same date, the court entered a default order of dependency as to Mr. I., and a few weeks later entered a default order of dependency as to the unknown father of D.D. The parenting deficiencies for the mother included substance abuse, mental health issues, and an inability to meet the physical and emotional needs of her children.

On October 4, 2011, the court entered a dispositional order as to the mother. This order, and subsequent review orders, required the mother to participate in a chemicaldependency screening, random urinalysis and blood alcohol (UA/BA) monitoring, mental health treatment, parenting assessment, individual counseling, family therapy, and medication management. The dispositional order entered as to Mr. I. and the unknown father of D.D. stated that an appropriate plan would be prepared in the event that a father appeared in the action. Neither father appeared in the action.

The services that were ordered were offered or provided to the mother. The mother sporadically participated in random UA/BA monitoring. She tested positive for amphetamine and methamphetamine on February 29, 2012, and failed to appear for testing after May 2012. The mother engaged minimally and struggled with attendance in outpatient chemical dependency treatment and stopped participating as of July 2012. The mother completed a parent-child assessment, but ceased participating in the assessment's recommended counseling after April 2012.

As for court appearances, Ms. Ames attended her first review hearing on December 20, 2011. The order entered that date set the next review hearing for March 27, 2012. Ms. Ames did not appear for the March 27, 2012 review hearing, and also did not appear for the subsequent review hearing scheduled on August 16, 2012. At the August 2012 review hearing, Ms. Ames was found noncompliant for not completing her chemical dependency screening, for not participating in outpatient treatment andindividual counseling, and for not providing UA's. She was chronically late to family therapy and did not provide adequate food and drink for her children as requested. The long-term permanent plan for the children was adoption. The court scheduled the next permanency planning review hearing for January 3, 2013.

Prior to that review hearing, in October 2012 the Department filed a petition for termination of parent-child relationship. Ms. Ames's social worker personally served her with the petition as well as a notice and summons to appear at 9:00 a.m. on December 6, 2012. The notice explained that the purpose of the hearing was to hear and consider evidence on the petition. It warned that if she failed to appear for the hearing, that "the court may enter an order in your absence permanently terminating your parental rights." Clerk's Papers (CP) at 125. The notice explained other important rights, including her right to representation at public expense and the process and contact information for appointment of counsel.

Ms. Ames did not appear at the courthouse for the December 6, 2012 hearing. On December 13, 2012, the Department filed a motion for default, and the trial court entered the default order the same day.

In late December 2012, Ms. Ames learned of the default order and requested appointment of counsel. She attended the January 3, 2013, dependency review hearing asscheduled. The review hearing order found that Ms. Ames defaulted in the termination matter on December 13, 2012. The order noted that a hearing to vacate the default order and to set a relinquishment hearing could be scheduled in the future. The trial court appointed counsel to represent Ms. Ames in the termination matter.

Ms. Ames did not contact appointed counsel until March 2013. Later that month. Ms. Ames filed a motion to vacate the default order. A hearing was held. She claimed that good cause existed to vacate the default due to mistake, inadvertence, surprise, or excusable neglect, citing CR 60. She explained that she was not aware that the petition was to terminate her parental rights, that a hearing was set, and that she needed to apply for a public defender. Ms. Ames also explained that during the time she received the petition and learned of the default order, she was homeless and out of contact with her attorney and the Department. Once she learned of the default order, she was under the impression that the only way to vacate the default order would be to relinquish her parental rights and to enter into an open adoption. She stated that her delay in contacting appointed counsel was due to an unsuccessful attempt to obtain private counsel to handle the matter.

The Department submitted a declaration from Dean Duncan, the children's court-appointed special advocate/guardian ad litem, who had served in such role since November 1, 2012. Mr. Duncan stated in pertinent part:

I am opposing [the mother's motion to vacate the default order] for the following reasons:

1. Although I am convinced that Ms. Ames dearly loves her children, she has failed to do what has been required of her to regain custody of her children. In the past, almost two years, I have been present in meetings with Ms. Ames when the social worker repeatedly reminded [Ms. Ames] of the urgency of moving forward with services. Any forward movement has not taken place. The children have, as a consequence, been moved three separate times to three different foster placements.

2. [D.D.] is in need of special help to allow him to focus on school achievement. He needs some permanence in his life to make this happen.

3. I visited the foster-to-adopt home where [D.D.] and [S.I.] have been placed. These parents have taken great efforts to welcome these two children into their home and meet their physical and emotional needs. I have seen both children happy and thriving in their care. These children deserve the permanency and attention that this home will provide them.

4. The Department has done everything to give Ms. Ames the [o]pportunity to regain custody of her children. She has done very little to comply with the services offered to her.

5. I am surprised that Ms. Ames is making this motion. She was present during a transition team meeting with foster parents and social worker and myself. She made comments that indicated that she was supportive of the decision to provide permanency for her children.

CP at 176-77.

The trial court denied Ms. Ames's motion to vacate the default order. In denying the motion, the court considered what the likely outcome of trial would be. The court found that Ms. Ames had not demonstrated any progress in court-ordered services. The court also found that there was no excusable neglect. The court also found that "[i]t is not in the children's best interest to vacate the default [order], and the four months that have gone by since the default was entered is further indication of the mother's neglect of her children and this case." CP at 66. The trial court concluded that Ms. Ames had forfeited her right to contest the termination of her parental rights and denied her motion to vacate.

A default termination hearing occurred on May 23, 2013. The hearing was brief. The social worker assigned to the case answered questions under oath that mirrored the statutory requirements for termination. The social worker testified to the primary reasons for the dependency and the specific services that were offered or provided to Ms. Ames. The social worker also indicated that Ms. Ames was marginally compliant, but with no progress reported by the providers and that conditions were not likely to change in the near future because Ms. Ames demonstrated a significant pattern of failure to engage or make progress in her services. Last, the social worker stated that the children were living together in an adoptive home and termination of parental rights was in their best interest.The trial court entered corresponding findings of fact and conclusions of law...