Nos. 61367-7-I; 61368-5-I.The Court of Appeals of Washington, Division One.
December 1, 2008.
Appeals from a judgment of the Superior Court for King County, No. 07-7-04361-4, Ronald Kessler, J., entered February 20, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Becker and Leach, JJ.
LAU, J.
Facing the possible involuntary termination of his parental rights through a dependency termination proceeding, Jason Bonwell decided to voluntarily relinquish his rights in exchange for an open adoption arrangement. After a court commissioner approved the agreement, Bonwell changed his mind and sought to revoke his consent to the relinquishment and adoption. The trial court denied his motion. On appeal, he argues that his due process rights were violated because the commissioner did not engage him in a colloquy to ensure that his relinquishment was knowing, intelligent, and voluntary. But because Bonwell raises this argument for the first time on appeal and does not make a plausible showing that a colloquy would have resulted in a different outcome in his case, we conclude that the issue is not properly before us. Accordingly, we affirm.
FACTS
The facts are undisputed. On January 31, 2006, two of Jason Bonwell’s children, J.B. and J.J.B., were declared dependent under RCW 13.34.030(5) based on alleged domestic violence and drug use by their parents.[1]
Bonwell was ordered to participate in domestic violence treatment, anger management classes, parenting classes, random urinalysis testing, and drug and/or alcohol evaluation and treatment. Bonwell entered two substance abuse programs, but was discharged from both due to rule violations.
On September 6, 2007, the Department of Social and Health Services (“the Department”) petitioned for termination of Bonwell’s relationship with his children.[2] The Department asserted that he had been unable to remain sober or stable for any sustained period of time. The Department also noted that Bonwell had not completed any treatment to address his history of domestic violence or substance abuse. The Department contended that Bonwell was unlikely to be able to provide his children with a stable home in the near future and termination was in their best interests.
Bonwell received court appointed counsel. Shortly before the termination trial was scheduled to begin, he enrolled in and completed an inpatient drug and alcohol treatment program. He also reported to the court appointed special advocate (“CASA”) for J.B. and J.J.B. that he had signed up for parenting classes and a domestic violence program that were set to begin in late January 2008. The CASA report noted that Bonwell’s recent treatment efforts were not combined with an effort to reestablish visitation with his children, which had been cancelled due to a series of missed visits. Bonwell requested a continuance of the termination hearing to allow him more time to participate in remedial services, but the court denied the request. The termination hearing was set for February 4, 2008.
On January 31, 2008, Bonwell agreed to relinquish his parental rights and consent to his daughters’ adoption. Bonwell also waived his right to notice of further proceedings in the matter, including proceedings for the relinquishment and termination of parental rights and the adoption. Among other things, the relinquishment of custody document stated,
4. I hereby consent to termination of my parental rights and request the Court to enter an order permanently terminating all of my parental rights to the children. . . .
. . . .
6. I understand that my decision to relinquish the children is an extremely important one, that the legal effect of this relinquishment will be to take from me all legal rights and obligations with respect to the children, and that an order permanently terminating all of my parental rights to the children will be entered. . . .
. . . .
10. I understand that after this consent is approved by the court, it is not revocable except for fraud or duress practiced by the person, department or agency requesting the consent or for lack of mental competency at the time the consent was given by me. . . .
. . . .
13. I have read or have had read to me the foregoing and I hereby understand the same. The foregoing consent has been given freely, voluntarily, and with full knowledge of the consequences, and the consent is not the result of fraud or duress, nor am I acting under the influence of anyone.
14. I certify and declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Clerk’s Papers (CP) at 63-65. Concurrently with the relinquishment, Bonwell, his attorney, the prospective adoptive parents, the Department’s social worker, and the children’s guardian ad litem signed an open adoption agreement allowing Bonwell certain visitation rights. Bonwell’s attorney reviewed the relinquishment and open adoption documents with him and witnessed his signature. Bonwell asked his attorney to hold onto the documents until February 4 in case he decided to change his mind.
On February 4, 2008, Bonwell’s attorney gave the documents to the Department’s attorney for presentation to a court commissioner, along with the Department’s new petition to terminate Bonwell’s parental rights pursuant to RCW 26.33. Bonwell was personally served, but he did not appear at the hearing. Noting that Bonwell had consented to the termination, the commissioner found that he “understood the consequences of his acts and was not acting under fraud, duress, or mistake of fact, and that the written consent was validly executed.” CP at 107. The commissioner ordered termination of Bonwell’s parental rights and signed the open adoption agreement.
On February 5, 2008, Bonwell informed his attorney that he had doubts about the relinquishment. The next day Bonwell Page 5 decided that he wanted to vacate his relinquishment and proceed with a termination hearing under the dependency statute. Pursuant to Civil Rule 60(b), Bonwell’s attorney filed a motion to vacate the commissioner’s termination order. Bonwell did not allege that fraud, duress, or mental incompetence had caused him to agree to the relinquishment or that the relinquishment was in any way unknowing, unintelligent, or involuntary. Instead, he asked that the court vacate the commissioner’s order because he regretted signing the documents and was working hard in his remedial services programs. The court declined to do so. Bonwell appeals from the commissioner’s order terminating his rights and the court’s order denying his motion to vacate the commissioner’s order.
Analysis
The legislature has enacted a procedure for parents to voluntarily relinquish their children for adoption. Chapter 26.33 RCW. This procedure balances the strong public interest in the finality of the adoption process with the countervailing interest in preventing a parent’s ill-conceived, abrupt decision to relinquish his or her child. In re Interest of Perry, 31 Wn. App. 268, 274, 641 P.2d 178 (1982); In re Adoption of Baby Girl K, 26 Wn. App. 897, 905, 615 P.2d 1310 (1980). Parents are permitted to revoke their consent at any time before it is approved by the court, which cannot be sooner than 48 hours after the consent is signed.[3] RCW 26.33.090(1), RCW 26.33.160(2). Parents are entitled to notice of the relinquishment hearing, although they are also permitted to waive notice and appearance if certain conditions are met, including a requirement that the waiver contain language explaining the meaning and consequences of termination of the parent-child relationship. RCW 26.33.060; RCW 26.33.090(2); RCW 26.33.310 (4). However, the court has discretion to require parents to appear personally to enter their consent to adoption on the record before approving the relinquishment. RCW 26.33090(3). The court also has discretion to appoint a guardian ad litem to report on whether a parent’s written consent to adoption “was signed voluntarily and with an understanding of the consequences of the action.” RCW 26.33.070(1). After court approval, a parent’s consent to adoption may not be revoked absent “fraud or duress practiced by the person, department, or agency requesting the consent, or for lack of mental competency on the part of the person giving the consent at the time the consent was given.” RCW 26.33.160 (3).
Bonwell contends that this procedural framework is inadequate to protect his constitutional rights.[4] He asserts that due process requires the court to engage him in a colloquy to ensure that his relinquishment is knowing, intelligent, and voluntary. He reasons that when a parent consents to adoption while the State is simultaneously seeking to involuntary terminate the parent’s rights under the dependency statute, there is a heightened risk that the parent’s consent is not truly voluntary. To protect against this risk, he argues, the constitution requires a colloquy to ensure the relinquishment is valid. Bonwell did not raise this argument below.
Generally, an issue may not be raised for the first time on appeal. RAP 2.5(a). However, an exception is made allowing consideration of a manifest error affecting a constitutional right. RAP 2.5(a)(3). To be “manifest” a constitutional error must cause actual prejudice to the litigant. Parrell-Sisters MHC, LLC v. Spokane County, No. 26675-3-III, 2008, Wash. App. WL 4811403 (Nov. 6, 2008). Actual prejudice requires a plausible showing that the asserted error had practical and identifiable consequences in the case. State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).
Bonwell cannot make a plausible showing that the claimed error had practical and identifiable consequences because he cannot show that the lack of a colloquy actually prejudiced him. Bonwell speculates that if he had been required to appear at the relinquishment hearing for a colloquy, there is a possibility that the commissioner could have determined his relinquishment was not made voluntarily. But there is no evidence suggesting that Bonwell’s consent was anything but voluntary. When Bonwell later sought to revoke his consent he simply stated that he very much regretted agreeing to the adoption and that he wished to go to trial on the termination hearing instead. He did not allege that his consent was involuntary.[5] He did not argue that he was under duress, that the State misled him or improperly threatened him, or that he did not understand the consequences of his actions. He did not contend that he was induced to relinquish his parental rights under false pretenses. There is no evidence in the record of undue influence or overreaching.
Bonwell’s attorney reviewed the relinquishment and open adoption documents with him before he signed them and then waited longer than the statutorily prescribed 48 hours before submitting them for court approval. Bonwell was familiar with termination proceedings because he had been through the process with another child. J.B. and J.J.B. were declared dependent more than a year prior to trial; he had ample time to consider his options. Under these circumstances, Bonwell fails to make a plausible showing that the outcome of the relinquishment hearing would have been different if he had been required to engage in a colloquy. Consequently, there is no manifest constitutional error and we do not consider the argument Bonwell now raises.
Affirmed.