In Re The Welfare Of H.q., A Minor Child (Majority and Order)

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FILED COURT OF APPEALS T DIVISION II Oi4 JUL. 22 Pi 10: 20 IN THE COURT OF APPEALS OF THE STATE OF WASHING i: ` WicS1 DIVISION II fki-rY In re the Welfare of: No. 44649 -9 -II '\,, D\ H.Q. A Minor Child. ORDER DENYING MOTION FOR RECONSIDERATION AND WITHDRAWING OPINION A motion for filed in the reconsideration was After review of the records above matter. and files herein, this court denies the motion for reconsideration. However, this court on its own motion withdraws the published opinion filed on March 25, 2014. A new opinion will be filed on this same date. Dated this 21. / day of L i. , 2014. Panel: Jj. Maxa, Lee, Penoyar. FOR THE COURT: Presiding Judge 4crN FILED CGU T OF APPEALS DIVISION II 2Q1L JUL 22 AM! 0: 20 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON_ DIVISION II No. 44649 -9 -II In re the Welfare of: H.Q. A Minor Child. PUBLISHED OPINION PENOYAR, J. P. T. is the father to parent of H. Q., 1 C. Q. a girl her because of appeals born in 2008. disabilities the 2 caused involuntary termination of his parental rights. C. Q. C. Q. has a good relationship with H. Q. but is unable by a head injury when he was a child. As a result, C. Q. was faced with termination of his parental rights. sought to voluntarily relinquish his rights in order to enter into an open - C. Q. communication adoption agreement with H.Q.' s prospective adoptive parents because that was . the only way for him to have an enforceable right to continue a relationship with H.Q. after the The juvenile court did not conduct a hearing to determine C. Q.' s competence to termination. voluntarily relinquish that attorney subsequently C. Q. his parental rights. Instead, it accepted the representation of C. Q.' s was not competent to voluntarily relinquish his parental rights and involuntarily terminated those rights. Because a parent' s right to voluntarily relinquish his parental rights is a fundamental right protected by due process, we vacate the termination of C. Q.' s parental rights and remand for the juvenile court to hold a hearing on 1 Judge Joel Penoyar is serving as a judge pro tempore of the Court of Appeals, Division. II, pursuant to CAR 21( c). 2 H. Q.' s mother, C. H., voluntarily relinquished her rights and entered into an open - communication adoption agreement with H. Q.' s adoptive parents and, thus, is not a party to this appeal. 44649 -9 -II C. Q.' s competence to voluntarily relinquish his parental rights and for further additional proceedings dependent upon the outcome of the competency hearing. FACTS BACKGROUND I. C. Q. is a 30- year -old man with disabilities caused by a head injury when he was eight or nine years old.3 These disabilities leave him with the mental faculties of a six year -old. Francis Peck became C. Q.' s foster parent after C. Q.' s head injury and then his legal guardian under 11.88 RCW chapter when he turned 18. Peck makes all of H.Q.' s medical and financial decisions and provides him transportation. Despite C. Q.' s disabilities, C. Q. has lived on his own in a w fifth - heel RV trailer located ¢near Peck' s friends since June or July 2012. C. Q. is independent in feeding, bathing, and dressing himself, and he prepares his own meals, keeps his residence clean, and has maintained a job as a stock clerk. Prior to February 2012, C. Q. lived with H. Q.' s mother, C. H. In December 2008, H.Q. fractured her leg. Due to concerns regarding H.Q.' s injury, the Department of Social and Health Services filed under a dependency petition. former RCW 13. 34. 030( 5)( c) ( In February 2009, C. Q. agreed to a dependency of H.Q. 2008). In accepting C. Q.' s waiver, the juvenile court found that C. Q. understood the terms of the order he signed, including his responsibility to participate in remedial services, and understood that entry of the order started a process which could result in termination of his relationship with H. Q. The juvenile court also found that C. Q. " knowingly 3 C. Q. has a serious brain injury as a result of his birth mother deliberately slamming his head in a car door when he was approximately eight or nine years old. He has an Axis I diagnosis of cognitive disorder affecting executive decision making; social judgment dementia due to head trauma, provisional; adjustment disorder with low mood; moderate anxiety relating to dependency issues; mild mental retardation; history of head injuries; suspected fetal alcohol effects; and a global assessment functioning scale of 40. _ 2 44649 -9 -II and willingly stipulated and agreed to and signed the order or orders, without duress, and without by misrepresentation fraud or any other party." Ex. 1, at 2. As part of the dependency, C. Q. completed a psychological evaluation in October 2009. The examiner recommended that C. Q. hands -on receive parent coaching. Eventually, H. Q. returned to the care of C. H. and in December 2009, the Department dismissed the dependency. SECOND DEPENDENCY PETITION II. In August 2010, the Department filed a second dependency petition as to H.Q. on the basis of neglect due to unsanitary in C. H.' conditions s home. 4 On December 20, 2010, the juvenile court held a contested fact finding hearing and found that C. Q. had " significant mental health issues and head trauma causing developmental and cognitive delays such that he [ was] currently unable dependent to adequately under care for his child." former RCW 13. 34. 030( 6)( entered an agreed dispositional orders c) ( Ex. 6, 2010). at 2. The juvenile court found H.Q. On January 31, 2011, the juvenile court that required C. Q. to participate in parent coaching. The juvenile court also permitted C. Q. to have supervised visitation with H.Q. once per week for two hours. The Department social worker, Jean Austin, referred C. Q. for hands -on parent coaching with Debra Roo, a master' s degree parenting instructor. Austin did not know whether Roo had expertise in working with developmentally disabled individuals, but she had used Roo in other 4 C.H. had a number of pets and there were animal feces all over floor, such that it was hard to step on the carpet without stepping in feces. The Department was concerned because H.Q. was on the floor playing with her toys. 5 The order indicates that a dispositional hearing was held on January 26, 2011, at which C. Q. and his Guardian ad Litem ( GAL), court' s order whether the order is it Kathy conducted a stamped with " Ex Parte." Schultz, colloquy with Ex. 7, at 1. 3 were present. C. Q. regarding It is unclear from the juvenile waiver of his rights. Further, 44649 -9 -II cases with disabled developmentally parents. After two sessions with C. Q., Roo reported that further parent coaching was not an effective tool for C. Q due to his cognitive capacity and rate of skill development during the sessions. The Department stopped offering this service. Thereafter, the only support offered or provided to C. Q. was supervised visitation with H.Q. At the permanency planning hearing on September.28, 2011, the juvenile court found that C. Q. was in compliance with the court order but was not making progress towards correcting his deficiencies. parenting reunification to 6 adoption. The juvenile court also changed H.Q.' s permanent plan from That same day, the Department filed a petition to terminate C. Q.' s On January 23, 2013, the juvenile court ordered that H.Q.' s placement be parental rights. changed from foster care to relative care with P. M., H.Q.' s maternal great aunt who lives in Missouri. III. TERMINATION HEARING Prior to the termination fact finding hearing on February 12, 2013, Laura Jorgensen, C. Q.' s attorney, submitted a trial brief indicating that C. Q.' s guardians wished to sign a relinquishment of his parental rights in order to take advantage of an open communication adoption agreement under chapter 6 26. 33 RCW. Jorgensen also informed the juvenile court that The juvenile court had held its first dependency review hearing on April 13, 2011, and found that C. Q. was in compliance with the court order and was making progress towards correcting his parenting deficiencies. 7 On December 21, 2011, the juvenile court appointed Schultz to act as C.Q.' s GAL in the Schultz was discharged as C. Q.' s GAL in the termination action because C. Q. has a permanent guardianship. termination action. On August 20, 2012, 4 44649 -9 -II C. Q. was not in a position where he was competent to personally relinquish his legal 8 rights. She argued that C. Q.' s equal protection rights were violated by the Department' s position that C. Q. could not voluntarily relinquish his rights through his guardians and enter into opencommunication adoption under chapter 26. 33 RCW because of his disability. In response, the Department argued that C. Q. was unable to enter into any type of voluntary agreement to relinquish his rights and thus could not meet the necessary prerequisites under 26. 33 RCW. chapter involuntarily termination of his The Department asserted that the only option was to pursue 9 rights. Without addressing the issue in any manner, the juvenile court asked the Department to call its first witness. Austin, the Department social worker, testified that the permanent plan for H. Q. was for her to be adopted by P. M., who intended to support a continuing emotional relationship between H.Q. and C. Q. Austin believed that some kind of ongoing contact between C. Q. and H.Q. was in H.Q.' s best interests, although she also believed that termination was in H.Q.' s best interest so that she could be adopted and that C. Q. loved H. Q. very had never seen have a permanent, much and watched out C. Q. do anything to harm H. Q. legal parent. for her safety and Peck, C. Q.' s guardian, testified they were together. Peck could keep her Peck when believed that he safe. stated, however, that C. Q. could not independently care for H.Q. and that someone else would need to be her parental figure. 8 Subsequent to this, Jorgenson reported to the juvenile court that C. Q. had been permitted to dependency represented C. Q. in the prior action. sign an agreed order of Jorgenson noted, however, that she had not in 2009. 9 The Department further stated that open -communication adoption agreements were not permitted under the involuntary termination statutes. 5 44649 -9 -II H. Q.' s relinquishment Kyle Barber, testified that his preference would be to accept C. Q.' s GAL, with an open communication adoption agreement if the law permitted it. He stated that H.Q. knew C. Q. was her father and that she had a good relationship with him. Barber believed it would be detrimental to H.Q. if she did not have contact with C. Q. in the future, but he nevertheless said that termination was in H.Q.' s best interest because she needed legal permanence and C. Q. could not safely parent her in the long term. Barber had spoken to P. M. about adoption and believed that she intended to allow C. Q. and H.Q. to have a continuing relationship. Following the testimony, the juvenile court found that the Department proved the elements evidence. of former RCW 13. 34. 180( 1)( a) through ( 2013) f) ( by clear, cogent, and convincing It found that C. Q. had the intellectual level of a six - o -eight year old and there was t little likelihood conditions would be remedied so that H.Q. could be returned to his care in the near future. In addition, it found by a preponderance of the evidence that termination of C. Q.' s parental rights was in H.Q.' s best interest because she needed a parent who could help prepare As to C. Q.' s ability to voluntary relinquishment his parental rights, the her for the future. juvenile court stated: cannot be an open adoption in involuntary termination cases under RCW 13. 34. An open adoption requires a voluntary Under Washington law, there relinquishment of parental rights under RCW 26. 33, and the agreement of all the parties, and the adoptive parents, to an open adoption under RCW 26. 33. 295. The father is apparently not capable of voluntarily relinquishing his parental rights, and thus this case had to proceed to trial. His legal guardian participated in the trial. Clerk' order s Papers ( CP) at terminating C. Q.' 72 ( emphasis added). s parental rights On March 13, 2013, the juvenile court entered an to H. Q. C. Q. appeals. 44649 -9 -II ANALYSIS I. DUE PROCESS C. Q. argues he had a fundamental right to voluntarily relinquish his parental rights to H.Q. and that the juvenile court violated due process by failing to determine whether he was capable of voluntarily relinquishing his parental rights before proceeding with the involuntary termination hearing. We hold that a parent has a substantive due process right to pursue voluntary relinquishment of his or her parental rights as an alternative to involuntary termination. The juvenile court should have held a hearing to determine C. Q.' s competence to relinquish his parental rights before involuntarily terminating his parental rights to H. Q. Thus, we vacate the involuntary termination of C. Q.' s parental rights and remand for the juvenile court to hold a hearing C. Q.' on s competence to voluntarily relinquish his parental rights. If the juvenile court determines that C. Q. is competent to relinquish, further proceedings should be held consistent with the competency determination and with C. Q.' s right to pursue voluntary relinquishment as an alternative to involuntary termination. 10 Although C. Q. did not raise a due process argument at the juvenile court, we will consider it because it pertains to his substantive due process right and the fundamental fairness of the termination trial. RAP 2. 5( a)( 3). We review constitutional challenges de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P. 3d 1055 ( 2010). FUNDAMENTAL RIGHT TO PARENT A. The voluntary question at issue here whether parents have the fundamental right to pursue relinquishment as an alternative to involuntary is termination an issue of first Io These further proceedings would include determining whether C. Q. actually does want to Voluntarily relinquish his parental rights. 7 44649 -9 -II impression in Washington. It is well settled that parents have a " fundamental liberty interest[ ]" in " the care, of liberty their children," which is protected by the Fourteenth Troxel v. Granville, 530 U.S. 57, 65 -66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 ( 2000) Amendment. The their and management of custody, interest issue in this at case the interest of parents in the care, custody, and control is perhaps the oldest of the fundamental liberty interests recognized by this children Court. "); Santosky v. Kramer, 455 U. S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 ( 1982) T] his Court' s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. "); In re Dependency of J.H., 117 Wn.2d 460, 473, 815 P. 2d 1380 ( 1991) ( " It is unquestioned that biological and adoptive parents do have a fundamental liberty and privacy interest in the care, custody and management fundamental of their right to autonomy in in make personal choices P. 2d 21 , ( 1998); constitutionally see This fundamental liberty interest includes a parent' s children. "). matters of also protected lost temporary custody of family Santosky, interests " their decisions" and gives parents the freedom to child rearing life. 455 U. S. In re Custody of Smith, 137 Wn.2d 1, 13, 969 753. at Natural parents do not lose these simply because they have not been model parents or have child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." Santosky, 455 U. S. at 753. Our Supreme Court described the importance of family as follows: " The family entity is the core element upon which modern civilization is founded. Traditionally, the integrity of the has been zealously family unit innate concomitant of 137 Wn.2d at 15. the guarded by protective status the courts. The safeguarding of familial bonds is an accorded the family as a societal institution." Smith, Because a parent' s fundamental right is protected as a matter of substantive 8 44649 -9 -II due process under the Fourteenth Amendment, any state interference with the right to parent must be subjected to strict scrutiny and "` is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved. "' In re A., 154 Wn.2d 52, 57, 109 P. 3d 405 ( 2005) Parentage of C.A. M. quoting Smith, 137 Wn.2d at 15). RIGHT TO PURSUE VOLUNTARY RELINQUISHMENT IS REQUIRED BY SUBSTANTIVE B. DUE PROCESS In distinguishable cases, Division One and Division Three of this court held involuntary parental termination proceedings are substantially different from voluntary parental relinquishment proceedings because relinquishment proceedings are voluntary, nonadversarial, and do not involve state action. In re Adoption of Infant Boy Crews, 60 Wn. App. 202, 217 -18, 803 P. 2d 24 ( 1991); In re Adoption of Hernandez, 25 Wn. App. 447, 452, 607 P. 2d 879 ( 1980). Due to the lack of state action, both courts held voluntary relinquishment proceedings do not trigger due process concerns. Crews, 60 Wn. App. at 217; Hernandez, 25 Wn. App. at 452 -53. In both Crews and Hernandez, mothers in their early 20s independently decided to relinquish their parental rights to their children; the state was not involved in their decisions to relinquish 50. their parental rights. Crews, 60 Wn. App. at 204 -05; Hernandez, 25 Wn. App. at 449- Neither court determined whether the right to relinquish parental rights is a fundamental right, but instead held the voluntary relinquislunent proceedings at issue did not trigger due process concerns Wn. App. at because there 452 -53. was no state action. Crews, 60 Wn. App. at 217; Hernandez, 25 In contrast, here, the Department did act to terminate C. Q.' s parental rights. Thus, there was state action and we must determine whether substantive due process requires the 9 44649 -9 -I1 juvenile court to allow a parent to pursue the alternative of voluntary relinquishment in order to protect the fundamental fairness of the termination trial. As noted proceeding. In parents' significant constitutional interests are at stake in a termination Therefore, parents are afforded greater due process rights than in a dependency proceedings. the above, re Welfare of R. H., 176 Wn. App. 419, 425, 309 P. 3d 620 ( 2013). " Because of fundamental constitutional rights at stake in termination hearings, due process requires that parents have the ability to present all relevant evidence for the juvenile court to consider prior to terminating a parent' s rights." Welfare of Shantay C.J., 121 Wn. App. R. H., 176 Wn. App. at 425 -26 ( citing In re 926, 940, 91 P. 3d 909 ( 2004)). Similarly, parents have the substantive due process right to pursue statutory alternatives to involuntary termination when the statutorily alternatives are available as viable options. See R. H., 176 Wn. App. at 428 -29 because guardianship was in progress and was a viable alternative to termination of parental rights, the trial court improperly denied a motion to continue to allow father to present evidence regarding the guardianship). voluntary One statutorily created alternative to involuntary termination is relinquishment of parental rights. Accordingly, substantive due process requires that parents be permitted the opportunity to pursue voluntary relinquishment prior to the involuntary termination of their parental rights if voluntary relinquishment is available as a viable alternative. Here, C.Q. may have wanted to voluntarily relinquish his parental rights so that he could enter an open communication adoption agreement and maintain his relationship with H.Q. However, the juvenile court representation regarding C. Q.' s summarily competency. dismissed this request based on Jorgensen' s Because due process requires that C. Q. have the opportunity to pursue voluntary relinquishment as an alternative to involuntary termination, the 10 44649 -9 -II juvenile court erred by dismissing C. Q.' s inquiry regarding voluntary relinquishment without holding a hearing to determine whether C. Q. was competent to voluntarily relinquish his rights. WAIVER OF A FUNDAMENTAL RIGHT C. Instead of following the statutory procedure for relinquishing parental rights under chapter 26. 33 RCW, C. Q.' s attorney conceded that C. Q. was not competent to relinquish his parental rights and that Peck, his guardian, wished to sign a voluntary relinquishment order on C. Q.' s behalf. Because relinquishing parental rights is a fundamental liberty interest, the juvenile court violated C. Q.' s right to due process when it accepted Jorgensen' s waiver of C. Q.' s competence to voluntarily relinquish his parental rights to H.Q. without holding a hearing or determining whether C. Q. authorized Jorgensen to concede his incompetence. In general, the statutes pertaining to adoption permit a parent involved in a dependency action to elect to relinquish his or her parental rights. A parent who does this may then enter into communication adoption an open - 26. 33. 295. agreement to preserve some contact with the RCW child. This is, in fact, what occurred with H. Q.' s mother. Simply because a party has an ,appointed guardian or GAL, see RCW 4. 08. 060, however, does not preclude the party from seeking to voluntarily relinquish his parental rights. In fact, RCW 26. 33. 070, expressly permits incompetent persons to seek appointment of a guardian or a GAL in an nevertheless adoption proceeding. voluntarily Once appointed a guardian, the incompetent person may his relinquish parental rights after the guardian " make[ s] an investigation and report to the court concerning whether any written consent to adoption or petition for relinquishment understanding of the signed by consequences of the the parent . . . action." was signed voluntarily and with an RCW 26. 33. 070( 1) ( emphases added). This statute applies to parents of dependent children under chapter 13. 34 RCW and permits the court 11 44649 -9 -II to " rely on the minor parent' s dependency court attorney or guardian ad litem to make a report to the court." RCW 26. 33. 070( 1). Although an attorney is impliedly authorized to enter into stipulations and waivers concerning procedural matters to facilitate a hearing, an attorney may not waive her client' s 11 substantial rights. also Russell v. See In re Welfare of Houts, 7 Wn. Maas, 166 Wn. App. App. 476, 481, 499 P. 2d 1276 ( 1972); see 885, 890, 272 P. 3d 273 ( 2012); Graves v. P.J. Taggares Co., 94 Wn.2d 298, 303, 616 P. 2d 1223 ( 1980). Instead, the client must specifically authorize waiver of a substantial right. Graves, 94 Wn.2d at 303 ( quoting Houts, 7 Wn. App. at 481). Here, Jorgensen conceded C. Q.' s incompetence to voluntarily relinquish his parental rights. The juvenile court found that "[ t]he father is apparently not capable of voluntarily relinquishing his parental rights" without holding a hearing on C.Q.' s competence or determining whether C. Q. authorized the waiver. CP at 72 ( emphasis added). The record reflects that C. Q. may have wanted to relinquish his rights so that he could seek an open -communication adoption agreement. At an earlier hearing, C. Q. had been allowed to consent to a dependency fact finding, a waiver that opened the door to a dispositional order that would limit his parental rights and impose significant obligations on him to comply with a service plan. Instead of inquiring whether C. Q. in fact could also make the important but apparently less complex decision to relinquish his rights, the juvenile court and C. Q.' s attorney made the decision for him, depriving C. Q. of his due process right to pursue voluntary relinquishment as an alternative to involuntary termination. We vacate the involuntary termination of C. Q.' s parental rights and remand for the 11 Nor may a GAL waive a client' s substantial right. In re Matter 238 -39, 517 P. 2d 568 ( 1973) ( quoting Houts, 7 Wn. App. at 481). 12 of Quesnell, 83 Wn.2d 224, 44649 -9 -II juvenile court to hold a hearing on C. Q' s competence to voluntarily' relinquish his parental rights under the standard in RCW 26. 33. 070( 1). All the parties agree that it would be in the best interests of both H.Q. and C. Q. to maintain the parent and child We note that legislature recently amended chapter relationship. 13. 36 RCW in 2010 to create guardianships that establish permanency for dependent children while at the same time preventing the termination of parental rights. See RCW 13. 36. 010 ( "The legislature finds that a guardianship is an appropriate permanent plan for a child who has been found to be dependent under chapter 13. 34 RCW and who cannot safely be reunified with his or her The legislature intends to create a separate guardianship chapter to establish parents.... permanency for children in foster care through the appointment of a guardian and dismissal of the dependency. "). If the juvenile court finds C. Q. competent to voluntarily relinquish his parental rights, then the guardian will have the authority to pursue voluntary relinquishment as an alternative to involuntary termination. In the event that the competency hearing results in a finding that the father is not competent to voluntarily relinquish his parental rights, the parties may explore alternatives to establishing permanency for the child while still safeguarding the important familial bond H.Q. and C. Q. share. 13 44649 -9 -II We vacate the termination of C. Q.' s parental rights and remand for the juvenile court to hold a hearing on C. Q.' s competence to voluntarily relinquish his parental rights and for further additional proceedings consistent with this opinion. We concur: Maxa, J. L , J. 1 14

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