State v. Fox (In re A.L.F.)

• Court: Washington Court of Appeals
• Writing for the Court: SCHINDLER, J.
• Citation: State v. Fox (In re A.L.F.), 192 Wash.App. 512, 371 P.3d 537 (Wash. App. 2016)
• Decision Date: 08 February 2016
• Docket Number: Nos. 72498–3–I,72499–1–I.
• Parties: In the Matter of the Dependency of A.L.F., dob 09/22/2005, and C.R.F., dob 09/22/2005, Minor children. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. Floyd Alan FOX, Appellant.

192 Wash.App. 512

371 P.3d 537

In the Matter of the Dependency of A.L.F., dob 09/22/2005, and C.R.F., dob 09/22/2005, Minor children.

STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v.Floyd Alan FOX, Appellant.

Nos. 72498–3–I

72499–1–I.

Court of Appeals of Washington, Division 1.

Feb. 8, 2016.

As Amended on Denial of Reconsideration March 24, 2016.

Richard Wayne Lechich, Washington Appellate Project, Seattle, WA, for Appellant.

Rosalyn A. Dilorio, Washington State Attorney General's Office, Kelly L. Taylor, Ofc. of the Atty. General, Soc. & Hlth. Svcs. A.G. Office, Attorney at Law, Seattle, WA, for Respondent.

Kathleen Carney Martin, Dependency CASA Program, Kathryn Ann Barnhouse, King County CASA Program, Kent, WA, for Guardian Ad Litem.

SCHINDLER, J.

¶ 1 When a criminal defendant files a motion to enlarge time under RAP 18.8(b) to file an untimely appeal of a conviction, the State must establish the defendant made a voluntary, knowing, and intelligent waiver of his state constitutional right to appeal. Because a parent does not have a constitutional right to appeal, we hold the standard that applies to the appeal of a criminal conviction does not apply to a parent's motion to enlarge the time under RAP 18.8(b) to file an untimely appeal of a dependency and disposition order. And because Floyd Alan Fox fails to show extraordinary circumstances justify an extension of time under RAP 18.8(b), we deny his motion to enlarge time to file an untimely appeal of the dependency and disposition order, and dismiss the appeal.

¶ 2 Floyd Fox and Tonya Gilchrist married. In 2005, they were living in Oregon. On September 22, 2005, Gilchrist gave birth to twin girls A.L.F. and C.R.F. In 2007, an Oregon court entered a decree of dissolution of the marriage. The court awarded Fox “full custody” of the children.

¶ 3 In 2012, Fox married Kathy Brown. In April 2013, Brown took the children to California. Brown obtained an order from a California court prohibiting Fox from contacting her or the children.

¶ 4 In October 2013, Brown and the children were living in Auburn, Washington. On October 22, Auburn Police Department Officer Goethals arrested Brown on an outstanding felony warrant for failure to register as a sex offender. Officer Goethals placed the children in protective custody with the Washington State Department of Social and Health Services (Department).

¶ 5 On October 23, the Department filed a dependency petition. The petition identifies Floyd Fox and Tonya Gilchrist as the biological parents of A.L.F. and C.R.F. The petition states the “children's biological parent's [sic] whereabouts are currently unknown and information to suggest that they are able or willing to parent their children is not known at this time and needs to be further investigated.”

¶ 6 On October 24, the court held a shelter care hearing. Fox was represented by counsel and appeared by phone. The court found A.L.F. and C.R.F. “had no parent, guardian, or legal custodian to provide supervision or care” and “release of the child[ren] would present a serious threat of substantial harm to the child[ren].” The court placed A.L.F. and C.R.F. in foster care. The court scheduled a fact-finding hearing on the dependency petition for January 8, 2014.

¶ 7 On December 13, the Department filed an amended dependency petition. The amended petition alleged Fox neglected the children, engaged in physical and sexual abuse of the children, exposed the children to pornography, exposed the children to domestic violence, and engaged in alcohol abuse. The court continued the dependency fact-finding hearing to June 4, 2014.

¶ 8 On March 27, 2014, the court entered an order of dependency by default as to the mother Tonya Gilchrist.

¶ 9 Fox did not appear at the June 4 dependency fact-finding hearing “either in-person or by telephone.” The court continued the fact-finding hearing to Monday, June 9, at 1:00 p.m., and ordered Fox to appear in person to testify.

¶ 10 Fox did not appear at the fact-finding hearing on June 9. During the three-day hearing, the social worker, the children's therapists, and the court-appointed special advocate testified. The court admitted into evidence a number of exhibits.

¶ 11 On June 18, the court entered extensive and detailed “Findings of Fact, Conclusions of Law and Order of Dependency and Disposition as to the Father, Floyd Alan Fox.” The court found Fox engaged in “negligent treatment or maltreatment of the children,” a pattern of neglect and failure to protect, and substance abuse that put the children's health, safety, and welfare at risk. The court found the children “suffered trauma, chaotic lifestyle and neglect which already damaged their psychological and physical development.” The findings of fact state, in pertinent part:

[A.L.F.] was sexually abused by her father and both [A.L.F.] and [C.R.F.] were exposed to inappropriate sexual situations by their father. Their father engaged in negligent treatment or maltreatment of the children and showed a pattern of neglect of [A.L.F.] and [C.R.F.] by failing to protect them from a sex offender, failing to protect them from exposure to pornographic material, exposure to the father masturbating, exposure to the father naked, observing or hearing their stepmother being raped and exposure to domestic violence.

The father has shown a pattern of substance abuse that put the children's health, safety and welfare at risk. The father's intoxication around his children has impaired his ability to function, make appropriate parental judgments and he is not capable of adequately caring for [A.L.F.] and [C.R.F.] [A.L.F.] and [C.R.F.] suffered trauma, chaotic lifestyle and neglect which already damaged their psychological and physical development.

Neither one of them had control of their own basic bodily functions.

¶ 12 The court concluded the Department met its burden of establishing the dependency of A.L.F. and C.R.F. Specifically, the court found the children were abused or neglected under RCW 13.34.030(6)(b) ; and had “no parent capable of adequately caring for them, such that the children are in circumstances which constitute a danger of substantial damage to the children's psychological or physical development,” under RCW 13.34.030(6)(c). The court concluded, “It is currently contrary to the children's welfare to return home.” In the order of disposition, the court ordered Fox to obtain a drug and alcohol evaluation, a sexual deviancy evaluation, a domestic violence and parenting assessment, and follow treatment recommendations.

¶ 13 The attorney representing Fox notified him that the dependency and disposition order had been entered on June 18 and the deadline to file an appeal was July 18, 2014. The attorney sent Fox directions for filing an appeal of the dependency and disposition order and a declaration of indigency.

¶ 14 On August 26, the trial attorney filed an untimely notice of appeal of the dependency and disposition order and a motion to enlarge the time to file the untimely notice of appeal under RAP 18.8(b). The motion to enlarge time to file the appeal was “based upon the attached declaration of [trial] counsel.” In the declaration, trial counsel states she “exercised due diligence” in informing Fox of the entry of the dependency and disposition order and his right to appeal. The attorney states she “calculated the deadline for filing an appeal on behalf of Mr. Fox as the 18th of July, 2014,” and “sent to Mr. Fox specific direction to appeal and the declaration of indigency which Mr. Fox would need to complete in order for me to file an appeal on his behalf.” The attorney states that after the appeal deadline, Fox said he “wanted to file an appeal.” On August 6, Fox sent the attorney “Specific Direction to Appeal” and the declaration of indigency.

¶ 15 The Department opposed the motion to enlarge time to file an untimely notice of appeal under RAP 18.8(b). The Department argued no extraordinary circumstances justified granting the motion.

¶ 16 In reply, appellate counsel argued the court could not dismiss the motion to enlarge time under RAP 18.8(b) unless the Department established Fox voluntarily, knowingly, and intelligently waived his right to appeal the dependency and disposition order.

¶ 17 A notice of appeal must be filed in the trial court within 30 days of entry of the decision. RAP 5.2(a). RAP 5.2(a) states:

Notice of Appeal. Except as provided in rules 3.2(e) and 5.2(d) and (f), a notice of appeal must be filed in the trial court within the longer of (1) 30 days after the entry of the decision of the trial court that the party filing the notice wants reviewed, or (2) the time provided in section (e).

¶ 18 RAP 18.8(b) provides an exception to the filing requirement. RAP 18.8(b) allows the appellate court to enlarge the time to file a notice of appeal “only in extraordinary circumstances and to prevent a gross miscarriage of justice.” RAP 18.8(b) states:

Restriction on Extension of Time. The appellate court will only in extraordinary circumstances and to prevent a gross miscarriage of justice extend the time within which a party must file a notice of appeal, a notice for discretionary review, a motion for discretionary review of a decision of the Court of Appeals, a petition for review, or a motion for reconsideration. The appellate court will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section. The motion to extend time is determined by the appellate court to which the untimely notice, motion or petition is directed.

¶ 19 As a general rule, “the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time.” RAP 18.8(b) ; Shumway v. Payne, 136 Wash.2d 383, 395, 964 P.2d 349 (1998). However, in State v. Kells, 134 Wash.2d 309, 314, 949 P.2d 818 (1998), our Supreme Court held that in considering a motion to enlarge the time to...