Termination of Parental Rights Is Appropriate When Parent Cannot Remedy Her Deficiencies in Near Future

A recent termination of parental rights case affirmed the trial court’s conclusion that the mother’s progress towards correcting her parental deficiencies was too little, too late.

In Welfare of A.G., L.S. cause # 27659-7-III consolidated with cause # 27660-1-III, the trial court concluded that “there is little likelihood that conditions will be remedied so that A.G. or L.S. could be returned to their mother in the near future.”
Termination of parental rights is a two-step process. First, the state must show that it has established the six statutory requirements by clear, cogent, and convincing evidence. Second, once those factors have been established, the state must show by a preponderance of the evidence that termination of parental rights is in the best interest of the child.

The six statutory factors are:

1. the child has been found dependent;

2. the court has entered a dispositional order;

3. the child has been removed from the custody of the parent for at least six months;

4. remedial services have been offered and/or provided;

5. there is little likelihood that the conditions will be remedied in the near future; and

6. that continuation of the parent/child relationship clearly diminishes the child’s prospects for early integration into a permanent and stable home.

The factors at issue in this case were numbers five and six. The court explained that “near future” depends on the age and circumstances of the child, but that a parent’s inability to correct their deficiencies within one year creates a rebuttable presumption that the conditions will not be remedied.
The appellate court held that the trial court’s factual findings supported its conclusion that the state had established elements five and six.

De Facto Parentage Does Not Apply to Step Parents

Our State Supreme Court recently held that the de facto parentage relationship does not apply to stepparent/stepchild relationships. Parentage of M.F., Cause # 81043-5 (Wash. Sup. Crt. April 1, 2010).

Our state courts recognized the de facto parent concept in November, 2005, to fill in a gap in the statutory scheme governing child custody. That gap concerned parents who had a child born from artificial insemination and then got into a custody dispute over the child.

The Parenting Act applies to custody disputes between parents. The definition of parent includes a woman who is artificially inseminated and gives birth to the child. However, it doe not include the woman’s partner who intended to raise the child with the mother and created a parent-like bond with the child.
Likewise, the Non-Parental Custody Act applies to custody disputes between a parent and a non-parent. It also does not include the spouse of a woman who gave birth via artificial insemination where the mother and spouse intended to raise the child together as a family.
To fill in this gap between the statutes, the court, in Parentage of L.B.155 Wn.2d 679, 122 P. 3d 161 (2005), established the test for determining de facto parentage:

1. the natural/legal parent consented to and fostered the parent-like relationship;

2. the de facto parent lived with the child in the same household;

3. the de facto parent assumed the obligations of parenthood without expectations of financial gain;

4. the de facto parent and child have a bonded, dependent relationship, parental in nature; and

5. the de facto parent has committed to a permanent, unequivocal and responsible role in the parent’s life.

Here, the court held that the de facto parent test does not apply to step-parents because they are not the constitutional equivalent of parents. Rather, they are a third-party and therefore the non-parental (“Third-Party”) custody act applies.

Court May Modify a Parenting Plan Based on Facts Previously Before the Court in an Unsuccessful Petition to Modify.

Division III recently held that a court may modify a parenting plan based on facts previously before the court in unsuccessful petition to modify the parenting, or on facts that arose prior to entry of an agreed parenting plan.
In Marriage of Zigler and Sidwell, Dkt # 27378-4 (Div. III, 3/4/2010), the parties entered two modifications of the parenting plan by agreement. After each agreed modification, the father then attempted to modify the order again, via court action. The first time he was unsuccessful. The second time he was successful.
The timing of each parenting plan dispute was as follows:
• 2002: final parenting plan;
• April, 2004: agreed modified parenting plan;
• December, 2004: father filed petition to modify. Court denies petition;
• March, 2006: agreed modified parenting plan; and
• April, 2006: father files petition to modify. Court grants petition.

By law, parties to a parenting plan may modify it by agreement. Absent agreement, the moving party must demonstrate a substantial change of circumstances in the non-moving party or the child, based on facts unknown to the court at the time of entry of the existing parenting plan.
In addition, the moving party must demonstrate that the child’s current living situation is detrimental to his health and that the harm likely to be caused by change is outweighed by the advantage of change.
On appeal, the mother argued that evidence regarding the substantial change of circumstances the father used to support his unsuccessful petition to modify in 2004 was inadmissible because the commissioner had already considered it and denied the petition anyway.

The court of appeals disagreed, holding that all evidence after entry of the original parenting plan in 2002 was admissible.