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.

Petitioner Must Allege Facts at Adequate Cause Hearing on Non-Parental Custody Petition that Demonstrate the Parents Are Unfit

A unanimous Supreme Court decision clarified the standards the non-parent must meet for the court to hear a non-parental custody petition. In Re Custody of EATW, docket # 81945-9, held that a trial judge shall deny adequate cause and dismiss a third-party custody petition unless the petitioner files an affidavit that 1) alleges the child is either not living in the physical custody of one of its parents or that neither parent is a suitable custodian, and 2) facts showing that, if true, both parents are unfit or, placing the child with either parent would result in actual detriment to the child’s growth and development.
The opinion is based on the clear language of the statute and the standards established by the controlling third-party custody case, which is In Re Custody of Shields.
As the court explained , the statute strikes a balance between parental rights, which are protected by the 14th amendment to the Constitution, and children’s rights. Parents have the right to raise their children, but children have a sometimes countervailing right to basic nurture, physical and mental health, and safety. In striking the proper balance, the child’s health and safety shall be the paramount concern.
The unfit parent or actual detriment to the child standard, according to the court, strikes this balance. For a court, after trial, to award custody of a child to a non-parent, therefore, it must find either that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development.
The statute also seeks to weed out spurious non-parental custody petitions at the beginning of the case, before they cost the parties and the taxpayer’s money. The statute does this by requiring an adequate cause hearing. At the hearing, the petitioner must present prima facie evidence, e.g. evidence submitted in a declaration, that it will be able to prove it case with live testimony and other evidence at trial.

DSHS May Not Terminate Parental Rights Without First Offering the Parent Services to Correct Parenting Deficiencies

Our state’s Supreme Court recently affirmed that the statutory provision regarding the termination of parental rights means what it says. The state may not terminate parental rights to a child without offering the parent services to correct whatever parental deficiencies may form the basis of the termination petition.
In Welfare of C.S., docket No. 81720-1, DSHS brought termination proceedings against a mother with substance abuse problems. Pursuant to the termination statute, DSHS offered her drug treatment services.
Ultimately, the treatment worked. At the time of trial, the mother had been clean and sober for a year, verified by twice-weekly urinalysis. Nonetheless, DSHS refused to reunite mother and child, asserting that the mother was ill-equipped to handle the child, who had ADHD, Oppositional Defiant Disorder, and some other issues.
DSHS refused to offer the mother services in how to manage the child, although it did offer such services to the foster parent. The trial court then terminated parental rights and the appellate court affirmed.
The Supremes reversed.

Marital Community Is Liable for Molesting Boy

Our state Supreme Court recently affirmed an appellate decision that I blogged April 22, 2008. In Clayton v. Wilson, Docket No. 81920-3, filed January 21, 2010, the Supremes held that Wilson’s marital community was liable for Wilson’s intentional torts because he committed them while conducting community business.
I laid out the sordid facts of this case in my last blog. Basically, Mr. Wilson hired the boy, Clayton, to do yardwork at his house. After completing the yardwork and before receiving payment, Mr. Wilson sexually abused him.
Immediately after Mr. Wilson’s abuse became known, Mr. and Mrs. Wilson executed a separate property agreement that transferred ownership of 90% of the Wilson’s property from community to the separate property of Ms. Wilson. The Wilson’s then got divorced.
Thus, under one reading of Washington law, Clayton was SOL. Even though he had very obvious and serious damages (he was molested some 40 times between the ages of 14 and 16), he could not get any compensation because Mr. Wilson had transferred all the marital assets to Mrs. Wilson and Mrs. Wilson’s assets were untouchable, because, under Washington law, the innocent spouse is not liable for the intentional torts of the tortfeasor.
The Supreme court clarified that Washington law recognizes and exception to an exception. The innocent spouse is not liable for the intentional torts of the other spouse unless the other spouse committed them for the benefit of the community or in the management of community business.
Here, Mr. Wilson’s tort fell under the second prong. He molested the boy immediately after the boy completed his assigned yardwork. The yardwork was community business.

In a Proceeding to Disestablish Paternity, DNA Testing Is Not Permissible Unless It Is in the Child’s Best Interest

A new decision from Division II, Parentage of Sec, docket no. 38883-9, held that a court must determine that DNA testing is in the child’s best interest before ordering the testing.
The case pitted a presumptive father against a putative biological father. Washington law presumes that a man is a child’s father if the parents were married when the child was born. It also permits a proceeding to disprove a presumptive relationship if: a) the presumed father and the mother neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception, and b) the presumed father never openly treated the child as his own.
This provision also authorizes a court to require genetic testing, if such testing would be in the child’s best interest.
Here, the putative biological father filed a motion to disestablish the presumptive relationship. In the course of that proceeding, the court ordered the parties to submit to genetic testing. The child and the presumptive father did not comply with the order.
On appeal, the court held the order invalid, because it was issued without the requisite hearing to determine whether such testing was in the child’s best interest.