Welfare of Kevin L., In re

Citation45 Wn.App. 489,726 P.2d 479
Decision Date02 October 1986
Docket NumberNo. 7095-6-III,7095-6-III
CourtCourt of Appeals of Washington
PartiesIn Re the WELFARE OF KEVIN L. Diane L. WILHELM, Appellant, v. SPOKANE COMMUNITY MENTAL HEALTH CENTER, D/B/A Children's Hospitalization Alternative Program (CHAP), Respondent.

Mark Edward Wilson, Dennis C. Cronin, Legal Intern., Univ. Legal Assistance, Spokane, for appellant.

Lewis M. Wilson, Phoebe E. Powell, Legal Intern., Wilson & Ireland, Spokane, for respondent.

MUNSON, Judge.

This is an appeal of a termination of the mother's parental rights to her minor child; the father was served by publication and did not appear; a default was entered and his parental rights were terminated; his rights are not at issue. We reverse.

At the time these events began, the mother was divorced from the father of Kevin, age 4. The mother has a ninth grade education; she has three children, Kevin being the middle child; she receives public assistance.

Unable to control Kevin, the mother sought assistance from a parent education class and ultimately from Child Protective Services of the Department of Social and Health Services. They, in turn, referred her to the Children's Hospitalization Alternative Program (CHAP). 1 Kevin, who was exhibiting delayed and aggressive behavior, was interviewed by a CHAP caseworker who diagnosed his behavior as a pervasive developmental disorder. 2 The mother then released him into the custody of CHAP which placed him in a foster home for treatment of his deteriorating condition. To continue custody in the foster home beyond 6 Our review indicates the trial court labored long and hard before terminating the parental relationship. This mother did not abandon, abuse, or neglect her child. She was just incapable of dealing with him because of his developmental disorder. Likewise, the record reveals the court reviewed the intent of the Legislature and the law; it clearly articulated its dislike for long-term foster care. There is testimony that: (1) until the petition for termination, the mother's visits were sporadic; (2) after those visits (even after the petition for termination was filed), the child became unmanageable for varying lengths of time; and (3) the mother did not avail herself of the services offered. Perhaps the most telling testimony is that of the mother to the effect she came seeking help and had expected a "new" child returned to her.

                months, it became necessary to enter an order of dependency for Kevin so he could continue his treatment.   The mother appeared at the dependency hearing and indicated she was unable to provide the necessary care;  she agreed Kevin would benefit from placement outside the home.   RCW 13.34.130(2).   Subsequent review hearings were held with the mother being served by mail;  she failed to appear thereafter until she received the petition for termination of her parental rights, some 2 1/2 years after Kevin had been placed in the foster home
                

On the mother's behalf, counsel raises 20 assignments of error, only one of which we discuss. We decline to examine the other assignments as some were not raised at trial and, therefore, are not properly before this court; the remaining contentions need not be discussed given we reverse the order of termination. Thus, we limit our analysis to the agency's failure to provide the mother with a copy of the plan, and the court's subsequent failure at the initial dependency proceeding to advise her that a dependency determination could, under certain circumstances, result in the termination of her parental rights of Kevin, and the steps she needed to take to avoid such a result.

RCW 13.34.130(2) states:

Whenever a child is ordered removed from the child's home, the agency charged with his ... care shall provide the court with a specific plan as to where the child will be placed, what steps will be taken to return the child home, and what actions the agency will take to maintain parent-child ties.

(a) The agency plan shall specify what services the parents will be offered in order to enable them to resume custody and what requirements the parents must meet in order to resume custody.

Here, the court's memorandum decision speaks of such a plan. It appears a plan was filed with the Juvenile Court and perhaps maintained in that court's social file relative to Kevin. The fourth supplement to the clerk's papers submitted to this court contains an agency plan dated January 24, 1983. The first dependency hearing was held January 31, 1983. The clerk's papers show the filing stamp on the plan is whited out. However, reading the back of that page, it may be deduced the plan was filed with the Superior Court on January 2, 1986; the termination proceeding was held January 7 and 8, 1985. There is no filing stamp on the plan evidencing its filing with the Juvenile Court; nor is there any evidence or testimony indicating such a plan was provided to this mother.

Inherent in the statutory requirement that the agency file a plan with the court is the requirement that the plan also be served on the parents if their whereabouts are known. The court at the dependency hearing must discuss the plan with the parents, if present, so they are able to understand the contemplated steps to be taken regarding their dependent child, and the importance of their participation in that program.

Here, it is obvious that everyone at the initial dependency hearing was concerned with helping Kevin because of his emotional instability and delayed development. However, given this focus, it is likewise apparent that the participation of the mother in this process was not addressed. Although such a plan is necessarily general in scope, providing the mother with the plan would have emphasized Future review hearings were clearly anticipated as Kevin was in a long-term treatment program; he was placed in a foster home with foster parents who had been given special education in handling these types of children, and had, in fact, previously adopted one such child. However, our review reveals no indication the mother was advised at the original dependency hearing that her continued presence was recommended at subsequent review hearings. Nor was she advised that her lack of such participation could contribute to the termination of her parental rights. Having attended the first hearing where she agreed to the necessity of treatment, she likely believed her presence was unnecessary, and perhaps even unwelcome, at subsequent review hearings as her visitations not only confirmed, but accelerated Kevin's continuing disturbed condition. Further, the orders entered after the review hearings appear routine in their appraisal of the situation. While noting the mother's reluctance to visit her son, there were no reasons given for this reluctance nor solutions suggested to improve the visitations. Parenting classes were suggested as well as individual and parent-child therapy, yet the review board on January 12, 1984, stated the agency was satisfied with the cooperation of the parent "given her circumstances." We have no concept of what that means.

                the subsequent instructions given by caseworkers and medical personnel with respect to her role in learning how to live with Kevin.   Without reference to such a plan or the court's solemn advice, the people helping Kevin were unable to make the mother understand the necessity of her participation in her son's treatment;  she simply expected them to "wave the magic wand" and return to her a normal son without any input on her part.   This expectation was totally unrealistic, but given her background, her care of two other children, and considering she was neither neglectful, abusive, nor abandoning Kevin, we conclude it was necessary to provide her with a copy of the plan
                

Although we recognize the dependency caseload of the juvenile court system is overwhelming and caseworkers are The judgment is reversed.

                frequently frustrated by a parent's seeming lack of involvement, we are also cognizant of the strict legislative and due process requirements imposed to insure the fairness of termination proceedings.   In re Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974)
                

GREEN, C.J., concurs.

McINTURFF, Judge (specially concurring).

Two issues raised by Ms. Wilhelm were not discussed in the unanimous opinion because they were not essential for the disposition of this case. However, should either party seek further review, I would urge that the Supreme Court address these questions, for they present two problems of constitutional magnitude impacting the disposition of termination cases in this State. The issues relate to (1) a knowing and intelligent waiver of the right to an attorney, and (2) the standing of private agencies and individuals to file petitions for termination.

I note that neither of these issues was raised at the trial court level. However, the waiver issue presents a problem of constitutional magnitude, so may be considered for the first time on appeal. RAP 2.5(a). Although the issue of standing is waived if not presented to the trial court, Baker v. Baker, 91 Wash.2d 482, 484, 588 P.2d 1164 (1979), counsel for CHAP agreed to waive his objection to appellate review during oral argument. Based on his stipulation and the premise this court may rule on an issue of fundamental justice, Peoples Nat'l Bank v. Peterson, 82 Wash.2d 822, 830, 514 P.2d 159 (1973); State v. Gann, 36 Wash.App. 516, 522, 675 P.2d 1261 (1984), I address these contentions.

KNOWING AND INTELLIGENT WAIVER

Ms. Wilhelm also argues she did not make a knowing and intelligent waiver of her right to an attorney. While it is clear she was entitled to an attorney and that the court had The liberty interest in a criminal case has been distinguished from the liberty interest of parental rights in Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640, reh'g denied, 453 U.S. 927, 102 S.Ct. 889, ...

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