IN RE DEPENDENCY OF J. H. v. HANEL, 48234-3-I (Wash.App. 7-15-2002)

No. 48234-3-IThe Court of Appeals of Washington, Division One.
Filed: July 15, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 99-7-00232-4, Hon. James Doerty, March 23, 2001, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Nancy P. Collins, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Kelly L. Taylor, 900 4th Ave Ste 2000, Seattle, WA 98164.

SCHINDLER, J.

Jolene Hanel appeals a court order terminating her parental rights with respect to her daughter, J.H. At the conclusion of a lengthy trial on the Department of Social and Health Services’ (“DSHS”) petition for termination, the trial court concluded DSHS had not established the statutory elements required to terminate the mother’s parental rights. The trial court continued the trial for six months to provide the mother with another opportunity to participate in services. Three months later DSHS noted a motion asking the court to either terminate the mother’s parental rights or schedule a date to reconvene the termination trial. At the hearing on this motion, over the objections of the mother, the court granted DSHS’s motion to terminate her parental rights to J.H. The mother was denied her procedural due process rights when the court terminated her parental rights without adequate notice and a meaningful opportunity to participate in the proceedings. We reverse the order terminating Jolene Hanel’s parental rights and remand for a rehearing.

FACTS
Jolene Hanel’s daughter, J.H., was born in January of 1999.[1] Jolene was nineteen years old at the time of the child’s birth. Jolene has a seizure disorder and is developmentally delayed. While pregnant with J.H., Jolene was admitted to the University of Washington (“U.W.”) Medical Center after she had a seizure. Blood tests revealed that she had not been taking her medication to control the seizures. She was stabilized and discharged, but returned several days later after another seizure. Because seizures pose a danger to the fetus, Jolene was admitted to the hospital for the remainder of her pregnancy to ensure that she took her medication three times a day.

Jolene and her spouse, Michael Hanel, stayed in the hospital for about 9 weeks before J.H.’s birth. During the course of their stay, nurses, social workers and childbirth educators met with Jolene frequently to educate her about labor, delivery and newborn care. Staff also worked with her to arrange for services following delivery, particularly housing, since Jolene and Michael had been homeless before she was admitted to the hospital. Hospital staff who witnessed Jolene and Michael’s interactions regularly had concerns about their relationship because Michael was domineering, demanding and often verbally abusive.

Before J.H. was born, a U.W. social worker made a referral to CPS, based on her determination that without constant supervision, Jolene did not have the capacity to care for her baby due to her cognitive limitations, lack of housing, and resources. Other hospital staff who had come into contact with Jolene during her stay concurred with this assessment.

After J.H.’s birth, the court placed her in the care of Jolene’s great-grandmother. J.H. has remained in this placement ever since.

On March 23, 1999, the court entered an agreed order finding J.H. dependent. In the disposition order filed with the dependency order, the court found that the mother had attempted to engage in services but they had been ineffective partly due to her cognitive limitations and lack of stable housing. In a separate disposition order as to the father, Michael, the court found that he had not cooperated with the State’s attempts to offer services to him. The court ordered DSHS to provide services to both parents.

In July of 1999, DSHS filed a Petition of Termination of Parental Rights, seeking to terminate the parental rights of Jolene Hanel and Michael Hanel. Prior to trial, Jolene’s attorney requested a competency hearing. A doctor of clinical psychology conducted a competency evaluation and after a hearing, the court entered an order finding Jolene marginally competent based on the evaluation. The court adopted the doctor’s recommendations to appoint a guardian ad litem to represent and assist the mother and during the hearing to interrupt the proceedings every fifteen minutes so that the guardian ad litem could confer and explain the testimony to her.

The trial on the petition took place in November and December of 2000.[2] The court heard testimony from 15 witnesses presented by the State during the course of six days. At the conclusion of the trial, the court entered an order terminating the father’s parental rights.[3] The court did not terminate Jolene’s parental rights, but entered an order continuing the termination factfinding hearing. The court concluded DSHS had met its burden for sections 1, 2, 3 and 5 of RCW 13.34.180[4] but had not met its burden of proof on sections 4 and 6 of RCW 13.34.180.[5]
Specifically, the court found DSHS had not established by clear and convincing evidence that all necessary services reasonably available and capable of correcting parental deficiencies within the foreseeable future had been expressly and understandably offered or provided, or that continuation of the parent-child relationship clearly diminished the child’s prospects for early integration into a stable and permanent home.[6] The court’s decision was based on evidence presented during the trial that the mother had separated from the father. The court also considered that the mother had recently begun attending school. In its oral ruling, the court explained that the parents had not taken advantage of the services offered by DSHS because they were runaways and because of the father’s anger, hostility, and unwillingness to participate in services. Because of the father’s domination of the mother, it was unclear to the court to what degree Jolene’s lack of participation was due to his influence. Given these changed circumstances, the court stated there were “some services that have not been offered or provided that might be offered or provided reasonably” to Jolene. 8RP 107. The court concluded Jolene should have an opportunity, in the absence of the father, to participate in services.

In its oral ruling, the court said it would not dismiss the petition but would continue the termination factfinding hearing for six months to consider RCW 13.34.180 sections (4) and (6) after Jolene had another opportunity to participate in services. The court’s order set forth the following requirements: Jolene was to continue attending John Marshall High School Special Education or a mutually agreed similar alternative school; maintain consistent visitation with her daughters; work with Dr. Becker, or another psychologist; provide information to DSHS regarding her medical coupon and/or insurance so DSHS could investigate medical and counseling services; and allow DSHS to investigate her living situation.

A month later, in January 2001, the court held a review hearing for J.H.’s sister’s dependency.[7] Jolene’s attorney was present, but Jolene was not. Hillary Jacobsen, the assigned DSHS social worker, testified that she had not been able to reach Jolene since the termination factfinding and had discovered Jolene was no longer living at the address provided. She also said that Jolene had not visited the children. Jolene’s attorney told the court that she had been in contact with her client. A person, unidentified in the transcript, told the court that the mother’s new boyfriend Josh, had a child involved in dependency proceedings and that he was currently in jail on a domestic abuse charge. The court warned the mother’s attorney that given the seriousness of these concerns: “I think it’s fairly obvious that in six months when I look at entering findings on the evidence presented at the termination petition, I’ll have no choice but concluding that she didn’t take advantage of the six months.” 8RP 208.

At this January hearing, the parties scheduled a permanency planning review hearing for A.H. and J.H.’s case for March 15. The court explicitly expressed its desire to also resolve any outstanding issues related to services for Jolene at the March 15 hearing. On March 1, DSHS filed and noted a motion for a contested hearing for March 15. DSHS requested the court to either “enter an order terminating the parental rights of the mother or in the alternative schedule a date to reconvene the fact-finding termination in the near future”. CP 536. DSHS’s motion was based on their position that Jolene had not complied with the court’s order following the termination hearing in December, that she had not had contact with the assigned social worker or Dr. Becker, and that her whereabouts were unknown. The motion stated DSHS would present evidence to support these allegations. On March 8, the mother filed a response to this motion and asked the court to deny DSHS’s request to enter a termination order and instead schedule a date in the near future to reconvene the termination fact finding.

At the beginning of the March 15 hearing, the court stated that the hearing was a permanency planning hearing for both children, A.H. and J.H. After discussing A.H.’s case, the court stated that it would hear argument on the DSHS’s motion for J.H.’s case. The State argued that “nothing has transpired” since December and it was prepared to offer witnesses if the allegations in its motion were contested. 9RP 14. The mother objected to reconvening the termination fact finding based on her understanding that it would be scheduled for a later date. Therefore, she was not prepared to present witnesses, cross examine witnesses or defend against DSHS’s request for termination. Also given that DSHS had not met its burden on elements four and six of 13.34.108, the mother reiterated her request to reschedule the hearing. The court denied the mother’s request to schedule the factfinding for a later date. The court found DSHS’s motion in conjunction with the Individual Service Plan (ISP)[8]
filed by DSHS provided sufficient notice of the possibility the court would enter a termination order at the review hearing scheduled for March 15 and apprised Jolene of the evidence to be presented. Jolene’s attorney made an offer of proof for the record, stating that she would have called Jolene’s caseworker from the State Division of Developmental Disabilities, her boyfriend, Josh, Josh’s sister, and her mental health counselor.[9]

DSHS presented the testimony of Jacobsen, the assigned social worker, and called Jolene as witness. At the conclusion of this testimony, the trial court summarized its understanding of the posture of the case. At the time the trial recessed, the court had been unable to find that two of the required elements had been met. The point of the recess had been to see what effect the change in the mother’s circumstances would have. The court concluded, “[t]o the degree the situation is any different at all from when the trial was recessed, it meets the State’s burden of proof.” 9RP 71. The court entered an order of termination finding that the elements had been met “particularly in view of the testimony unrebutted and by the mother, there has been no visitation at all since the last recess.” 9RP 72.

DISCUSSION
The primary issue is whether Jolene’s procedural due process rights were violated when the court granted DSHS’s motion and terminated her parental rights without reconvening the termination factfinding and allowing her the opportunity to meaningfully participate.[10] Parents have a fundamental right to the care and custody of their children, and a trial court asked to interfere with that right should employ great care In re Welfare of H.S., 94 Wn. App. 511, 530, 973 P.2d 474 (1999) cert. denied, 529 U.S. 1108 (2000). These fundamental liberty and privacy interests are protected by the Fourteenth Amendment entitlement to due process. See In re Dependency of J.H., 117 Wn.2d 460, 473-74, 815 P.2d 1380
(1991); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The essential requirements of procedural due process are notice and an opportunity for a hearing appropriate to the nature of the case. Burman v. State, 50 Wn. App. 433, 440, 749 P.2d 708, review denied, 110 Wn.2d 1029 (1988); Dependency of C.R.B., 62 Wn. App. 608, 614, 814 P.2d 1197 (1991).

In addition to notice and an opportunity to be heard, due process requires that the factual basis for termination be shown by at least clear and convincing evidence. Santosky, 455 U.S. at 769-70. A parent also has the right to a meaningful opportunity to participate in a termination hearing.

RCW 13.34.090(1). Termination of parental rights can be ordered only after the statutory requirements are proved at a factfinding hearing. RCW 13.34.180.

The process due to parents to ensure protection of their due process rights is determined by analyzing and balancing three factors: (1) the parent’s interest (2) the risk of error created by the procedure and (3) the State’s interest. In re Dependency of T.R., 108 Wn.2d 149, 157-160, 29 P.3d 1275 (2001); Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)). As to the first element, a natural parent’s interest in the care and custody of his or her child is a “fundamental liberty interest.” Santosky, 455 U.S. at 753. In termination proceedings, a parent has a right to be represented and a right to a fair hearing. RCW 13.34.090(1); Dependency of M.S., 98 Wn. App. 91, 94, 988 P.2d 488 (1999). The child also has an interest in preventing the erroneous termination of its relationship with its natural parents. See Santosky, 455 U.S. at 765. (“the parents and the child share an interest in avoiding erroneous termination”). Jolene’s parental rights require deference absent a significant countervailing interest.

The second element to consider is the risk of error created by the procedure which was used. This requires examination of the nature of the hearing. DSHS’s motion was stated in the alternative and created ambiguity and uncertainty as to the scope of the March 15 hearing. DSHS asked the court to either enter a termination order or schedule a date in the near future to reconvene the factfinding. The motion was noted for March 15, the date of a previously agreed review hearing. This motion did not sufficiently notify Jolene that at the permanency planning review hearing, the court would enter an order terminating her parental rights without evidentiary inquiry or that it would reconvene the termination factfinding hearing on that day. The mother’s belief that the termination factfinding hearing would not be held on March 15 was also understandable given the history of the proceedings and the expectations previously articulated. Before the March 15 hearing, the court had more than once emphasized its intention to reevaluate the termination in six months. Consistent with this intent, the court acknowledged several times during the March 15 hearing that the purpose of the hearing was a permanency planning review for J.H. and A.H. And although the court initially said at the March 15 hearing that no further factfinding or reconvening of the termination trial was required, the court did, in fact, allow DSHS to call two witnesses; the social worker and Jolene.[11] The court heard testimony and relied on that new testimony in concluding that the statutory elements had been met.[12] And even though the mother was not precluded from calling her own witnesses or cross-examining the witnesses, she did not have any witnesses present and her attorney was admittedly unprepared to cross-examine the witnesses presented or otherwise effectively represent the mother.

The State has two interests in a termination procedure: a parens patriae interest in preserving and promoting the welfare of the child, and an administrative interest. T.R., 108 Wn.2d at 159. The State’s interest includes the goal of providing a speedy resolution to a dependency proceeding to secure a permanent, stable, home for the child. Santosky, 455 U.S. at 766. In this case, the court had already concluded in December that a six month delay on the termination petition would not unduly disrupt the child’s stability because the child was in stable placement with her great-grandparents. Therefore, reconvening the hearing would not have unduly impaired the State’s interest in speedy resolution.

The court was persuaded by the fact that the defense was not able to make a more specific offer of proof, showing that anything would be gained by reconvening the trial to take more evidence. But an evidentiary hearing was not discretionary, it was required because of the statutory mandate and the court’s explicit findings that DSHS had not met its burden of proof for two of the mandatory statutory elements. Additionally, although the mother made no showing that she had complied with the court’s December order continuing the termination factfinding, she argued that she had made progress in other areas that were consistent with the intent of that order. But because of the lack of notice she was not prepared or able to cross examine witnesses, to offer witnesses, or fully present her case. This case is factually different than In re Dependency of T.R., relied upon by the State. In T.R., after a termination trial, the trial court concluded that the State had met its burden of proof on all elements required for termination but determined that guardianship, rather than termination, was appropriate. Fourteen months later, after guardianship turned out to be unfeasible, the court entered a final order of termination. The mother appealed, arguing that because termination is based on a determination of current parental unfitness, the delay in entry of a final order without additional factfinding violated her right to due process. This court rejected her argument, concluding that while “an additional evidentiary hearing would have been preferable”, its absence did not deprive the mother of her right to due process. T.R., 108 Wn. App. at 160. The court held that if “circumstances indicate any reasonable possibility that in the interim, parental deficiencies have been corrected so that reunification is possible in the near future, the court should reopen the proceedings.”T.R., 108 Wn. App. at 160.

The critical difference between T.R. and this case is that in T.R. the State met its burden of proof on all elements. Here, the court’s order explicitly concluded that the evidence presented by DSHS at the termination trial in December did not satisfy two of the six elements required for termination by clear and convincing evidence. Because the court concluded that DSHS had not met its burden of proof on two of the required elements after the termination trial, the court was required to formally reconvene the trial and allow the mother the opportunity to meaningfully participate. DSHS’s motion did not adequately notify Jolene that the termination factfinding would be reconvened at the March 15 permanency planning review hearing and the mother was not prepared to proceed on March 15. Given the potential irrevocable decision in termination proceedings, the statutory mandate that requires DSHS to prove each statutory element, and the risk of error created by the procedure used in this termination, necessary procedural safeguards were not provided in this case. Accordingly, we reverse the order of termination and remand for a rehearing. The evidence from the termination trial is preserved and the scope of the hearing is limited to the presentation of additional evidence on elements four and six.[13]

We reverse.

GROSSE and BECKER, JJ, concur.