A.V.D., In re

• Court: Washington Court of Appeals
• Writing for the Court: AGID; GROSSE, C.J., and WEBSTER
• Citation: A.V.D., In re, 815 P.2d 277, 62 Wn.App. 562 (Wash. App. 1991)
• Decision Date: 26 August 1991
• Docket Number: No. 25698-0-I
• Parties: In re the Dependency of A.V.D. Mark VanDAM, Appellant, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

Page 562

62 Wn.App. 562

815 P.2d 277

In re the Dependency of A.V.D Mark VanDAM, Appellant, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 25698-0-I.

Court of Appeals of Washington Division 1.

Aug. 26, 1991.

Suzanne Lee Elliott, Seattle, for appellant.

Mary Li, Seattle, for respondent.

AGID, Judge.

Mark VanDam appeals an order terminating his parent-child relationship with his daughter, "V", pursuant to RCW 13.34.180 et seq. VanDam contends that the evidence is insufficient to support the trial court's findings under RCW 13.34.180(6) and 13.34.190(2). ¹ He further contends that the trial court should have ordered a guardianship under RCW 13.34.231 as a less restrictive alternative to termination.

V was born on April 30, 1988, to "D", her mother, and Mark VanDam (VanDam). D was 16 and VanDam was 21 when V was born. The parents never married. Following the child's birth, she and her parents lived with her maternal grandmother, Mrs. M, and her husband, Mr. M. D's first child, V's half-brother, also resided in the grandparents' residence. ²

On July 11, 1988, the Washington State Department of Social and Health Services (DSHS) filed a petition alleging that V, then 2 1/2 months old, was dependent pursuant to RCW 13.34.030(2). The petition alleged that the child was at risk due to the mother's history of mental health problems, an incident in which the mother shook her "in a manner which could cause injury", domestic violence between the parents, and the parents' temporary housing situation. The petition further alleged that the parents failed to adequately clothe and feed their child. ³

Two days later, an emergency shelter care hearing was held and an order issued directing Child Protective Services (CPS) to remove the child from her parents' custody. CPS placed her in the custody of her maternal grandmother. The parties entered into an agreed shelter care order under which V was to remain under the grandmother's care, the parents were permitted liberal supervised visitation, and both parents were ordered to take a parenting class and VanDam an anger management class. ⁴ In November 1988, the parents entered into an agreed dependency order. ⁵ Under the accompanying dispositional plan, the same conditions and orders listed in the shelter care order were mandated.

VanDam moved out of the Ms' home 2 weeks after CPS removed V from her parents' custody. He was earning only minimum wage and thus could not support V by himself. He therefore decided to look for work in other areas, and ultimately settled in California. While in California, VanDam worked for a major hotel chain. He hoped to transfer to a Seattle area hotel after working for his employer for the requisite 1 year.

While living out of state, VanDam kept in regular contact with V through Mrs. M. He sent postcards, special occasion and birthday cards and presents. He also called Mrs. M once or twice a month. Upon his return to Washington state 3 weeks before trial, VanDam visited V daily. Mrs. M testified that V knows her father and that he loves her.

On June 12, 1989, DSHS filed a petition to terminate both D's and VanDam's parental rights. On January 9, 1990, a hearing on the petition was held.

At the time of trial, VanDam still had not begun the parenting or anger management classes. He testified that he had difficulty arranging them because he had an erratic work schedule and was not sure he could afford the classes. He also testified that he did not feel he needed the anger management class. He acknowledged, however, that he could benefit from the parenting class and said that he would be willing to take both if he could retain his parental rights.

At the outset of the termination hearing, VanDam indicated that he was willing to relinquish his parental rights as long as the Ms continued to allow him to visit V. Mrs. M testified that she and her husband were willing to allow VanDam's continued visitation. During the trial VanDam changed his mind several times as to whether he wanted to retain or relinquish his parental rights. When he finally testified, however, he explained that he had not realized that relinquishing his parental rights would also legally terminate his visitation rights.

At the time of trial, V had been living in her maternal grandmother's home since birth. Mrs. M testified that V was a well-adjusted, bright child who got along well with her half-brother. VanDam did not dispute that V is well cared for by the Ms. At the close of the hearing, the trial court ordered termination of both parents' parental rights to V. VanDam's appeal followed.

FINDING OF DETRIMENT

VanDam first assigns error to the trial court's finding that continuation of the parent-child relationship between V and her natural parents clearly diminishes V's prospects for early integration into a stable and permanent home. He broadly argues that the trial court denied him due process because there was insufficient evidence to support the trial court's order of termination.

The courts have historically recognized that a biological parent has a fundamental liberty interest in the care, custody and control of his or her child. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446 (1923); Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Sumey, 94 Wash.2d 757, 762, 621 P.2d 108 (1980). However, that fundamental right is not absolute. The State has both a right and obligation as parens patriae to intervene to protect the child when the parent's actions or inactions endanger the child's physical or emotional welfare. Sumey, 94 Wash.2d at 762, 621 P.2d 108.

Under RCW 13.34.180 and .190, a court may terminate parental rights if it finds that (1) the requisite allegations ⁶ are supported by clear, cogent and convincing evidence; and (2) termination is in the best interests of the child. VanDam challenges the trial court's finding under RCW 13.34.180(6), that allowing the parent-child relationship between V and her father to continue clearly diminishes V's prospects for early integration into a stable and permanent home.

This court must uphold the trial court's factual findings if they are supported by substantial evidence. In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831 (1973). In termination proceedings, because DSHS is required to prove each of the statutory allegations by clear, cogent and convincing evidence, the evidence must be substantial enough to allow the court to conclude that the allegations are "highly probable." Sego, 82 Wash.2d at 739, 513 P.2d 831. Because only the trial court has the opportunity to hear the testimony and observe the witnesses' demeanor, an appellate court may not judge the credibility of witnesses. Nor is this court entitled to weigh the evidence. Sego, 82 Wash.2d at 739-40, 513 P.2d 831.

VanDam concedes on appeal that DSHS proved allegation (5) which alleges that there is little likelihood that conditions will be remedied so that V can be returned to her father in the near future. See RCW 13.34.180(5). Further, the record establishes that VanDam conceded this point at trial and is really only interested in retaining visitation rights. ⁷ Similarly, counsel for VanDam states in his brief that VanDam would like V to stay in her maternal grandmother's home and that he seeks only to continue his relationship with his daughter through visitation.

Although VanDam admits that he will not be able to care for V in the near future, he argues that her current living situation with her maternal grandmother is nevertheless a stable and permanent one. He claims that there is no evidence that continued contact with her father will be detrimental to V and points out that even the trial court found that such continued contact would be in V's best interests.

It is undisputed that V has lived in her maternal grandmother's home since birth and that she is thriving under her grandmother's care. Although she is being cared for by a close relative, V is still a dependent child in foster care. As long as she is in foster care, her living situation will by definition remain temporary. She will not have a permanent home until her parents resume custody or their parental rights are terminated and she is adopted. Thus, while VanDam's assertion that V's current placement with her grandmother is a stable one is accurate, it does not undercut the trial court's determination that continuing his parental rights inhibits her ability to be integrated, as an adopted child, into that home.

VanDam further argues that a guardianship would give V the permanency and stability that she needs while allowing him to continue his relationship with his daughter. The intent of a guardianship, however, is to give the parent an opportunity to take those steps necessary to resume custody of the child in the foreseeable future. A guardianship is only a temporary situation:

The primary difference between a guardianship and a termination action is the permanence afforded the child. A guardianship is not a "permanent" plan for the child. The parent or any party may seek to modify the guardianship. RCW 13.34.233. The parent may seek to set aside the guardianship and request the return of the child. This request may occur several years after the guardianship has been established.

(Emphasis added.) Washington State Bar Ass'n, Family Law Deskbook § 50.9, at 50-24 (1989). If a guardianship were imposed, V's father could come back many years later and seek to have the guardianship terminated on the ground that he was finally able to care for her. Indeed, he testified that he might well do so. ⁸ We therefore agree with the trial judge's conclusion that a guardianship, because it is an inherently temporary situation, would necessarily keep V in "limbo" by postponing her early integration into a stable and permanent home. See In re Ramquist, 52 Wash.App. 854, 861-62, 765 P.2d 30 (1988), review denied...