In The Matter Of The Welfare Of A.B v. The Dep't Of Soc.

• Decision Date: 10 June 2010
• Docket Number: No. 80759-1.,80759-1.
• Citation: 168 Wash.2d 908,232 P.3d 1104
• Parties: In the Matter of the WELFARE OF A.B., a minor child.Rogelio Salas, Appellant,v.The Department of Social and Health Services, Respondent.
• Court: Washington Supreme Court

168 Wash.2d 908

232 P.3d 1104

In the Matter of the WELFARE OF A.B., a minor child.Rogelio Salas, Appellant,v.The Department of Social and Health Services, Respondent.

No. 80759-1.

Supreme Court of Washington En Banc.

Argued June 24, 2008.

Decided June 10, 2010.

Reconsideration Denied Sept. 17, 2010.

Susan F. Wilk, David L. Donnan, Washington Appellate Project, Seattle, WA, for Petitioner.

Sheila Malloy Huber, Attorney at Law, Olympia, WA, Michael James Shinn, Office of the Atty. General, Miriam Rosenbaum, Attorney General of Washington, Vancouver, WA, for Respondent.

Linda Lillevik, Carey & Lillevik PLLC, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association.

MORGAN, J.^*

¶ 1 The trial court granted the State's petition to terminate the parent-child relationship between Rogelio Salas and his daughter, A.B. The Court of Appeals affirmed by unpublished opinion. In re Welfare of A.B., 140 Wash.App. 1024 (2007). We granted Salas' motion for discretionary review. In re Dependency of A.L.S.B., 164 Wash.2d 1001, 192 P.3d 368 (2008). Salas now argues (1) that he has a due process right not to have his relationship with his natural child terminated unless the trial court first finds that he, at the time of trial, is currently unfit to be a parent, (2) that the trial court in his case did not make such a finding, and thus (3) that the trial court's order terminating his relationship with his daughter violated his right to due process. The State responds to the second of these propositions by asking us to imply such a finding if none was expressed and by claiming that the record in this case contains evidence sufficient to support the trial court's findings. In addition Salas argues that the trial court misapplied the six termination factors of RCW 13.34.180(1) by mixing considerations involving A.B.'s best interests and considerations involving his parental rights. Holding that Salas is correct on both scores and rejecting the State's responses, we reverse and remand for further proceedings consistent herewith.

¶ 2 By virtue of RCW 13.34.180(1) and RCW 13.34.190, a Washington court uses a two-step process when deciding whether to terminate the right of a parent to relate to his or her natural child. The first step focuses on the adequacy of the parents ¹ and must be proved by clear, cogent, and convincing evidence.² The second step focuses on the child's best interests ³ and need be proved by only a preponderance of the evidence. ⁴ Only if the first step is satisfied may the court reach the second. ⁵

¶ 3 According to RCW 13.34.180(1), the first step involves six termination factors, each of which must be proved clearly, cogently, and convincingly. They are

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;

(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all

necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the future ....; [and]

(f) That the continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.

RCW 13.34.180(1). According to RCW 13.34.190, the second step is for the court to ascertain the best interests of the child. Because the parent's rights will already have been observed in the first step, this second step need be proved by only a preponderance of the evidence.

¶ 4 With this statutory scheme in mind, we turn to the facts here. On October 27, 2001, A.B. was born at a hospital in Yakima, Washington. The hospital quickly discovered that A.B. had cocaine in her system, deduced that her mother, J.B., had been abusing that drug, and notified the Washington State Department of Social and Health Services (DSHS).

¶ 5 On October 29, 2001, DSHS took custody of A.B. and placed her temporarily in a licensed foster home. Soon thereafter, DSHS commenced dependency proceedings and promptly notified Salas, whom J.B. had named as A.B.'s father. J.B.'s parental rights were later terminated, and she is not a party to this appeal. Salas' paternity of A.B. was confirmed on June 25, 2002.

¶ 6 Never married to J.B., Salas was living in Las Vegas, Nevada, at the time A.B. was born. Due to his own prior drug abuse, he was being supervised by a Nevada drug court and was prohibited from leaving Nevada. As a result, he initially was unable to attend the Yakima dependency hearings in person, although appeared and participated through court-appointed counsel.

¶ 7 According to the trial court's written findings of fact, Salas last abused drugs in late 2001. Around that same time, Salas and his mother asked DSHS to arrange for a Nevada home study, in the hope that A.B. could be placed in the home that Salas, his mother, and her husband (Salas' stepfather) were then sharing. Nevada declined, citing his criminal history and the fact that his paternity had not yet been confirmed.

¶ 8 On February 4, 2002, the trial court entered an order finding that A.B. was dependent. It also ruled that Salas could visit A.B. so long as he did so in Yakima. About the same time, DSHS removed A.B. from the foster home where she had been living since late October and placed her in the home of T.L., a distant cousin of J.B.'s. A.B. has resided with T.L. ever since.

¶ 9 While these events were taking place, Salas continued to participate in the Nevada drug court program, and he found steady employment in Las Vegas. Shortly after his paternity was confirmed, he reiterated his request for a Nevada home study. Nevada again denied the request, this time citing his criminal history and prior drug use.

¶ 10 By February 25, 2003, Salas had successfully completed his drug court program and was no longer prohibited from leaving Nevada. On that date, he came to Yakima and had his first supervised visit with A.B., who by then was almost 16 months old.

¶ 11 On June 11, 2003, Salas moved from Las Vegas to Yakima. On June 13, two days later, he presented himself to the DSHS caseworker, and she arranged for urinalyses, a parenting assessment, and supervised visits three times a week for an hour each time. That same month, Salas began visiting A.B. regularly and frequently, albeit under supervision.

¶ 12 Visitation progressed so well over the summer that by September 2003, the DSHS caseworker thought that A.B. had come to see Salas as “someone who was in her life consistently ... [a]nd so she began to trust.” ⁶ At a September meeting called to plan where A.B. should be permanently placed, the caseworker noted that she was planning to arrange increased visitation without supervision, and that she was moving toward placing A.B. in Salas' home, despite T.L.'s apparent opposition.

¶ 13 On September 16, 2003, Salas' first unsupervised visitation was scheduled to take place at a Yakima park. The caseworker and A.B. were there on time, but Salas never arrived. An hour after the appointed time, Salas' stepfather called to say that Salas was in jail for pushing a police officer who had tried to intervene in a fight between Salas and his then-girlfriend, C.S.

¶ 14 Due in part to an immigration hold, Salas remained in jail for the next four months. During that period, he did not see A.B., and the DSHS caseworker changed her permanent plan from one that would have reunited A.B. and Salas, to one that would terminate their parent-child relationship and make A.B. available for adoption by T.L.

¶ 15 Visitation resumed in January 2004, but it was different from before. A.B. seemed not to recognize Salas, and she treated him like a stranger. Rather than showing any sort of attachment to Salas, one observer noted, A.B. constantly turned to T.L., who was also present at the visitations. According to the April 2003 report of another observer, A.B. seemed not to want to leave T.L.'s side during the visitations. At trial, the DSHS caseworker explained that four and a half months can be a very long time to a child of A.B.'s age, and that A.B.'s reluctance to interact with Salas was likely due to the gap between visits that had occurred while Salas was in jail. Nonetheless, Salas visited A.B. every week from February 2004 through most of February 2005.

¶ 16 Meanwhile, in May 2004, Salas married C.S., the girlfriend with whom he had been fighting the previous September. Their relationship was “dysfunctional and unhealthy,” ⁷ and they separated in July 2004, after only three months of marriage.

¶ 17 On January 1, 2005, C.S. gave birth to Salas' child, A.S. When C.S. left the hospital, the heat at her house was turned off, and she had nowhere to go. Consequently, Salas allowed her and the three persons living with her (A.S., the new baby; G.S., C.S.'s older child from another relationship; and C.S.'s disabled adult sister) to move in with him. In February 2005, C.S. was convicted for criminally mistreating her disabled sister-an event of which Salas disclaims all knowledge, and for which he was never charged.

¶ 18 In late February 2005, Salas moved back to Las Vegas, where he resumed living with his mother and stepfather and working at the steady job he previously had held. His mother and stepfather having been made guardians of A.S., the baby born on January 1, 2005, and Salas having received custody of G.S., C.S.'s older child from another relationship, by virtue of a tribal court order, the five of them, three adults and two children, have since resided together in the home of his mother and stepfather.

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