Opinion
No. 60956-4-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-5-01992-9, Jim Rogers, J., entered November 1, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Grosse and Agid, JJ.
Angela Glassburn challenges the termination of her parental rights pursuant to chapter 26.33 RCW, which provides a mechanism for termination in an adoption proceeding. She argues that the statute violates due process because it does not require a finding of harm or risk of harm. But the requirements of due process are satisfied when parental unfitness is established by clear, cogent, and convincing evidence. Glassburn also contends that the trial court violated due process by terminating her parental rights based on her past history of drug abuse rather than on present parental unfitness. But the court's unchallenged findings demonstrate that the termination was based on present unfitness. Glassburn next argues that the statute violates equal protection because unlike the dependency statute, it does not require the State to provide services to remedy parental deficiencies prior to termination. Because a parent subject to dependency termination under chapter 13.34 RCW is not "similarly situated" to a parent subject to adoption termination under chapter 26.33 RCW, we hold there is no equal protection violation. Accordingly, we affirm.
FACTS
Angela Glassburn has a long history of drug abuse. Before moving to Washington, Glassburn's parents took her to a drug treatment center, but she refused to continue treatment beyond the first day. Glassburn and her boyfriend, William Webb, moved to Washington together, and Glassburn began working at a bar. Glassburn became acquainted with one of the bar's regular customers, Michael Cook. After Webb assaulted Glassburn, Cook offered to let her move in with him. Cook lived in a small house on his parent's property in Auburn. Glassburn began a relationship with Cook and became pregnant soon after moving in with him.
Glassburn testified that she stopped using methamphetamines two months into her pregnancy, as soon as she found out that she was pregnant. She gave birth to a son, T.A.C., on April 18, 2002. After T.A.C. was born, Glassburn stopped working and began parenting him with assistance from Cook's mother. Glassburn denied using methamphetamines after her son was born, but acknowledged using marijuana. Glassburn testified that her relationship with Cook involved domestic violence and that when T.A.C. was a year old. Cook "was holding [T.A.C.] in — in his arms and he punched me in my face." 2 RP (Oct. 16, 2007) at 157.
On March 25, 2004, Glassburn gave birth to a daughter, T.R.C. She testified that she did not learn she was pregnant until she was eight months along, but that she "stopped doing everything" at that point, including smoking. Glassburn was the primary caretaker for both T.A.C. and T.R.C. until she and Cook separated, sometime between August and October 2004. After the separation, the children lived with Cook, but Glassburn continued to see them, though with decreasing frequency. In the fall of 2005, Cook was arrested on a drug charge and the children went to live with his parents. Glassburn had one brief visit with the children in late 2005 and one visit in March 2006. On July 11, 2006, Cook's parents obtained a third-party custody order based on a showing of parental unfitness under chapter 26.10 RCW. The court also entered a residential schedule order permitting supervised visits and unsupervised visits upon compliance with certain requirements. But neither parent attempted any visitation, and Glassburn did not appeal the orders. During this period, Glassburn used methamphetamines and lived in her car and in numerous apartments with individuals she did not know well. In the fall of 2006, Glassburn was arrested and pleaded guilty to possession of methamphetamines. While in jail, she learned that she was several months pregnant. Glassburn was released in October 2006 and gave birth to L. on March 7, 2007. She and L. moved to California with her new boyfriend approximately one month later. Glassburn did not support T.A.C. or T.R.C. financially, write to them, or send them gifts after they went to live with their paternal grandparents.
In the spring of 2007, Cook's parents, who were in their 70s, decided they could not care for the children long-term, and they contacted an adoption agency. The agency identified a potential adoptive home and began an adoption termination proceeding. An order of default was entered against Cook, and his parental rights were terminated. Glassburn refused to consent to the adoption.
She testified that she had been clean and sober since September 2006 and that she was successfully raising L. in California. She emphasized that she had a new circle of friends and the support of her sister, father, and stepmother. Her father, a former security officer at a medical center, testified that he had not seen her under the influence of drugs. Her stepmother, a retired counselor, testified that Glassburn was an excellent mother to L. Douglas Reid, a board certified addiction specialist, testified that he has seen Glassburn several times and believed her recovery was genuine, while acknowledging that many methamphetamine addicts relapse frequently and that Glassburn was not in a treatment program.
The adoption agency presented testimony from Jill Dziko, a social worker, that it was in T.A.C. and T.R.C.'s best interests to terminate Glassburn's parental relationship and be placed in a permanent adoptive home. She noted that both children had very little memory of their biological parents and that "[t]hey are at an age in which it is becoming vital that they have a permanent family." 1 RP (Oct. 15, 2007) at 85. In response to Glassburn's arguments that she has overcome her drug addiction and is now able to parent her children, the adoption agency's attorney argued that she had provided no food, housing, or any of the normal parental functions. Under the adoption statute, "[w]e don't say, has she recovered? There really under the statute isn't an opportunity to determine recovery. You basically forfeit those rights when you — this amount of time goes by." 3 RP (Oct. 16, 2007) at 354.
The court terminated Glassburn's parental rights. It found that she had failed to perform any parenting functions for T.A.C. or T.R.C. since at least November 2005 and that she had failed to provide support to them or maintain regular contact in person or through calls or letters. In its oral decision, the court noted that Glassburn "appears to have made great strides recently. . . . However, she is under a court order in the third-party custody case to complete certain steps before she can have any contact with her children. She has not attempted any of those steps. . . ." 4 RP (Oct. 24, 2007) at 5. The court concluded that the circumstances under which Glassburn failed to perform her parental duties showed a substantial lack of regard for her parental obligations and that it was in the children's best interests to be provided with a permanent home through placement for adoption. Glassburn now appeals.
Analysis
Due Process
Glassburn argues that the termination of her rights under RCW 26.33.120 violates due process in two ways. First, she contends that RCW 26.33.120 is unconstitutional on its face because it allows a parent's rights to be terminated without a showing of harm or risk of harm to the child. Second, she contends that in her case, the trial court read the statute to allow termination without a showing of present parental unfitness and that this reading is unconstitutional. Whether a statute violates the constitution is an issue of law that is reviewed de novo. In re Parentage of C.A.M.A., 154 Wn.2d 52, 57, 109 P.3d 405 (2005). However, because there is a presumption that legislative enactments are constitutional, the burden of establishing that a statute is unconstitutional is with the party challenging the statute. In re Interest of Skinner, 97 Wn. App. 108, 114, 982 P.2d 670 (1999).
Glassburn's challenge to RCW 26.23.120 is based on the Fourteenth Amendment to the United States Constitution; she does not address any state constitutional violations.
Natural parents possess a fundamental liberty interest in the care, custody, and management of their children, and this interest is protected by the Fourteenth Amendment. In re Matter of H.J.P., 114 Wn.2d 522, 526, 789 P.2d 96 (1990). But protection against state interference with the parent-child relationship is not absolute. In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980). As parens patriae, the State may intervene to protect a child when a parent's actions or inactions endanger the child's emotional or physical welfare. Id. Upon a sufficient showing, the State may terminate the parent-child relationship in order to vindicate this interest. In re Dependency of I.J.S., 128 Wn. App. 108, 116-18, 114 P.3d 1215 (2005). Parental rights can be terminated consistent with due process where there is clear, cogent, and convincing evidence that the parents are "unfit" to raise their own children. See Skinner, 97 Wn. App. at 114-15; In re Adoption of McGee, 86 Wn. App. 471, 477-78, 937 P.2d 622 (1997); H.J.P., 114 Wn.2d at 527-31. Termination must be based on present parental unfitness. Id. at 530-31.
Washington's adoption statute allows a court to terminate parental rights.
[U]pon a upon a showing by clear, cogent, and convincing evidence that it is in the best interest of the child to terminate the relationship and that the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations and is withholding consent to adoption contrary to the best interest of the child.
RCW 26.33.120(1). In H.J.P. the court upheld this statute against a due process challenge by reading it to implicitly require a finding of parental unfitness. H.J.P., 114 Wn.2d at 530-31. Specifically, the court held,
in order for the court to terminate the parental rights of a nonconsenting parent, it must find parental unfitness on the part of the nonconsenting parent. Parental unfitness is established by showing that the nonconsenting parent "has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations. . . ."
Id. at 531 (quoting former RCW 26.33.120(1) (1985)). Since H.J.P. was decided, Skinner and McGee have reiterated that a finding of parental unfitness based on a parent's "substantial lack of regard for his or her parental obligations" is sufficient to support termination of that parent's rights. Skinner; 97 Wn. App. at 108; McGee, 86 Wn. App. at 476.
Glassburn argues that the state interest that justifies termination of parental rights is the prevention of harm to the child and that RCW 26.33.120 violates due process because it does not require a showing of harm or risk of harm. To support this argument, she relies primarily on third party custody cases in which parental fitness was not at issue. For example, in In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the court struck down a third party visitation statute because it did not require a finding that the child would be harmed due to a denial of third party visitation rights. Smith, 137 Wn.2d at 20. The court rejected the contention that the best interest of the child was sufficient justification for state intervention, "regardless of the fact that the parent's fitness is not challenged or that there has been no showing of harm or threatened harm to the child." Id. at 17. The court concluded,
Short of preventing harm to the child, the standard of "best interest of the child" is insufficient to serve as a compelling state interest overruling a parent's fundamental rights. State intervention to better a child's quality of life through third party visitation is not justified where the child's circumstances are otherwise satisfactory.
Smith, 137 Wn.2d at 20.
Glassburn's case is not like Smith, which involved state interference with a fit parent's rights. Here, the court determined that Glassburn was not a fit parent because the circumstances showed that she had a substantial lack of regard for her parental obligations. Where a child's parent is unfit, the child's circumstances are not "otherwise satisfactory." Because the adoption statute requires a showing of parental unfitness by clear, cogent, and convincing evidence in addition to a demonstration that termination is in the child's best interests, the statute does not violate the requirements of due process.
Glassburn also cites C.A.M.A., which, like Smith, addressed third party visitation against the wishes of a fit parent, and Sumey, which held that the State could impose a temporary residential placement of a child away from his or her parents even in the absence of a finding that the parents were unfit in order to protect the child from physical, mental, or emotional harm. Glassburn's case is dissimilar to the cases she relies on because the court found her to be unfit.
Glassburn also argues that the termination violated due process because the trial court did not find that she was presently unfit. She points out that the attorney for the adoption agency argued, "We don't say, has she recovered? There really under the statute isn't an opportunity to determine recovery." Glassburn contends that this persuaded the trial court that no showing of present parental unfitness was required and that its decision was based on her past history of drug addiction.
We disagree. The court found that Glassburn failed to perform any parenting functions for either T.A.C. or T.R.C. between November 2005 and the time of the hearing. It found that she had not provided support, maintained regular contact in person or through calls or letters, or inquired into their well-being. While noting that Glassburn
has recently taken some steps to improve her life," the court found that "she has made no attempt to maintain contact with the children through supervised visitation as allowed under the non-parental custody action or to satisfy any of the pre-conditions for her to obtain unsupervised visitation in the non-parental custody action. She has been aware of the non-parental custody action but has taken no steps to participate in that action or follow its orders.
In its oral decision, the trial court referenced the nonparental custody order, No. 6-3-03635-6, that included a chemical dependency assessment requirement, drug testing, written questionnaire, criminal history review, and other conditions.
Glassburn does not challenge these findings, so they are verities on appeal. In re Interest of J.F., 109 Wn. App. 718, 37 P.3d 1227 (2001).
CP at 57-58.
Recognized parental obligations include more than recovery from a drug addiction. See In re Adoption of Lybbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969) (describing general obligations of parenthood including "(1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance."). Here, the trial court's decision was not based simply on Glassburn's past parental unfitness, but also on an ongoing failure to take steps to fulfill her parental obligations.
For this reason, Glassburn's reliance on In re Welfare of C.B., 134 Wn. App. 942, 143 P.3d 846 (2006) is misplaced. In that case, the court held that the State could not rely solely on past performance to prove parental unfitness where the evidence was that the parent had been improving. Id. at 953. Similarly, In re Interest of S.G., 140 Wn. App. 461, 466, 166 P.3d 802 (2007) involved a father whose rights were terminated even though the trial court concluded that there was no evidence of current parental deficiencies. Here, while there was some evidence that Glassburn was recovering from her drug addiction, there were also ongoing parental deficiencies that supported the court's finding of unfitness.
Glassburn further contends that she presented unchallenged testimony that she is presently a fit parent. We disagree. The adoption agency's counsel challenged the credibility of Glassburn's witnesses on cross examination, and it is apparent from the trial court's oral ruling and findings and conclusions that it rejected their testimony about her current fitness. During the trial, "[t]he trial court heard and saw the witnesses, and was thus afforded an opportunity, which is not possessed by this court, to determine the credibility of the witnesses." Garofalo v. Commellini, 169 Wash. 704, 705, 13 P.2d 497 (1932). The trial court's credibility determinations and its resolution of the truth from conflicting evidence will not be disturbed on appeal. Id. (credibility); DuPont v. Dep't of Labor Indus., 46 Wn. App. 471, 479, 730 P.2d 1345 (1986) (resolving truth from conflicting evidence). Because we conclude that the trial court found Glassburn to be presently unfit, we reject the premise on which her due process challenge is based.
We also note that the court's findings, along with the unchallenged testimony of social worker Dziko that the children had no memory of their biological parents and were in need of a permanent family, support its conclusion that termination is in the best interests of T.A.C. and T.R.C. Because the trial court's findings of fact are supported by substantial evidence in the record and its conclusions of law are supported by its findings, we reject Glassburn's argument that the trial court erred in concluding that termination was in her children's best interests.
Equal Protection
Glassburn next argues that the termination of her parental rights under the adoption statute violates equal protection because the statute does not require the State to provide remedial services to cure her parental deficiencies. She points out that the dependency statute, unlike the private adoption statute, generally requires the State to provide such services prior to termination of the parent-child relationship. While conceding that there is no constitutional right to services per se, Glassburn contends that requiring services for some parents and not others violates the constitution's demand that similarly situated persons be treated alike. She further argues that because the fundamental right to parent is at stake, any disparate treatment can be justified only if it is necessary to serve a compelling state interest.
The equal protection clause guarantees that people similarly situated under the law will receive similar treatment from the State. State v. Schaaf, 109 Wn.2d 1, 17, 743 P.2d 240 (1987). To establish an equal protection violation, a party must first show that the unequal treatment complained of is directed towards two similarly situated classes of people. Cosro, Inc., v. Liquor Control Bd. 107 Wn.2d 754, 760, 733 P.2d 539 (1987). "Where persons in different classes are treated differently, there is no equal protection violation." Forbes v. Seattle, 113 Wn.2d 929, 943, 785 P.2d 431 (1990); see also Skinner, 97 Wn. App. at 118 (people in circumstances that are different in relevant ways need not be treated as though their situations were the same). The treatment or classification at issue in an equal protection claim must be the result of state action or private conduct with significant state involvement. Kennebec, Inc. v. Bank of the West, 88 Wn.2d 718, 721-23, 565 P.2d 812 (1977).
We conclude that a parent subject to dependency termination under chapter 13.34 RCW is not "similarly situated" to a parent subject to adoption termination under chapter 26.33 RCW. While both statutes authorize termination of parental rights, the state's involvement under the two statutes is fundamentally dissimilar. Unlike in the dependency context, nonconsenting parents in the adoption context do not face a state-supported attempt to permanently sever all their parental rights.
Dependency proceedings usually begin when the Department of Social and Health Services (DSHS), having received a report of abuse or neglect, files a dependency petition with the court. RCW 13.34.040. A dependent child is any child who
(a) Has been abandoned;
No showing that parent deserted or abandoned the child is necessary in an adoption termination proceeding. In re Adoption of McGee, 86 Wn. App. at 477-78.
(b) Is abused or neglected . . .; or
(c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.
RCW 13.34.030(5). If the court reasonably believes that the child's health, safety, and welfare are seriously endangered, the court may order a law enforcement officer or an official of Child Protective Services (a division of DSHS) to remove the child from the home. RCW 13.34.050. The child is then immediately placed in shelter care pursuant to RCW 13.34.060. Within 72 hours of the child's removal, the court must hold a shelter care hearing to determine whether the child should remain in out-of-home placement or can be safely returned home. RCW 13.34.065. The court may return the child to the parent unless (1) reasonable efforts have not been able to make the child's return home possible and (2) either the child had no parent or guardian to provide care and supervision, the parent has been charged with custodial interference, or returning the child to the home would otherwise "present a serious threat of substantial harm" to the child. Former RCW 13.34.065(2)(b)(ii) (2006). DSHS must convene a case conference no later than 30 days prior to a dependency fact-finding hearing, which must be held within 75 days of the petition being filed. RCW 13.34.067, .070. After a fact-finding hearing, if a child is found to be dependent, legal custody of the child is transferred to the State. In re Dependency of Schermer, 161 Wn.2d 927, 942, 169 P.3d 452 (2007); State v. Harrell, 105 Wn.2d 840, 844-45, 718 P.2d 797 (1986).
Immediately following the fact-finding, or within 14 days, the court must hold a dependency disposition hearing, during which it determines where the child is to be placed — with the parent, a relative, or licensed foster or group care. RCW 13.34.130(1)(b). If the court places the child with the parent, it must also provide a program "to alleviate the immediate danger to the child, to mitigate or cure any damage the child has already suffered, and to aid the parents so that the child will not be endangered in the future." RCW 13.34.130(1)(a). But if there is no reasonable belief "that the health, safety, or welfare of the child [will] be jeopardized, or that efforts to reunite the parent and child will be hindered," the court can place the child with a relative. RCW 13.34.130(1)(b).
The purpose of a dependency action is to preserve and improve the family through comprehensive state intervention. Kathleen Haggard, Treating Prior Termination of Parental Rights As Grounds for Present Termination, 73 Wash. L. Rev. 1051, 1059 (1998). Thus, DSHS is generally required to offer the parent remedial services with the goal of reunifying the family. See RCW 13.34.180(d); In re Dependency of J.W., 90 Wn. App. 417, 424, 953 P.2d 104 (1998). But if reunification efforts are ultimately unsuccessful, DSHS can petition the court to terminate the parent-child relationship. RCW 13.34.180. The court may order termination if various requirements — generally including the provision of court-ordered services that are "reasonably available" — are established by clear, cogent, and convincing evidence. RCW 13.34.190. After termination, the court can commit the child's custody to DSHS or an agency for the purpose of placing the child for adoption. RCW 13.34.210.
This requirement is purely statutory; there is no constitutional right to the provision of services. See Skinner, 97 Wn. App. at 115-16. Moreover, the statute permits termination of the parent-child relationship without prior remedial services in some situations. See, e.g., RCW 13.34.132 and RCW 13.34.190(b) (no requirement for services where an infant under three years of age has been abandoned).
Thus, under the dependency statutes, the nature of the State's interference in the parent-child relationship is extensive. The coercive power and superior resources of the State are used to remove the child from the home, to require the parent to correct perceived deficiencies, and in the absence of sufficient progress, to permanently sever the parent-child relationship. While this process is generally initiated, directed, and funded by DSHS, the dependency statutes tightly regulate DSHS's actions and impose substantial oversight and authority with the court as well.
In contrast, the State's involvement under the private adoption statute does not provide for similar intervention by the State. DSHS does not seek to remove a child from the home, nor is it required to provide services in order to promote family reunification. Rather, the focus is on whether the parent has "forfeited all rights in the child," whether by voluntary relinquishment or by behavior demonstrating a "`substantial lack of regard for his or her parental obligations. . . .'" Skinner, 97 Wn. App. at 114 (quoting RCW 26.33.120(1)); RCW 26.33.090.
DSHS may be appointed by the court to serve as the child's legal guardian. RCW 26.33.020(9).
Here, Glassburn forfeited her parental rights by her own conduct. She left her children with Cook, despite his history of drug abuse and domestic violence, and has had minimal contact with them since that time. After Cook was arrested, the children went to live with their paternal grandparents, who sought and obtained legal custody of the children. Glassburn did not appear in the custody proceeding, and she did not appeal its outcome. When she learned about the custody proceeding, she took no action to modify the custody degree or residential schedule order. And she did not exercise visitation rights. Nor did she comply with court-ordered conditions such as the requirement to obtain a state certified chemical dependency assessment. She did not provide financial support for T.A.C. or T.R.C., write to them, or send them gifts.
The State did not place itself between Glassburn and her children as it would have in the dependency context. At the grandparents' request, a private adoption agency petitioned for termination of Glassburn's parental rights. At no point did DSHS play any role. And the State was not a party to the adoption proceeding. It did not initiate or fund the proceedings, and it never sought to obtain control over the care or custody of the children. Indeed, a finding of dependency would not have been appropriate under these circumstances because the grandparents were the children's custodians and it is undisputed that they were capable of adequately caring for them. See RCW 13.34.030(5)(c); In re Dependency of J.W.H., 147 Wn.2d 687, 696, 57 P.3d 266 (2002) (dependency order was improper without prior finding that custodian relatives were incapable of adequately caring for children). Where the State has not removed a child from the home and transferred custody to itself, the same risks from undue state interference with the parent-child relationship are not present. Cf. In re Marriage of King, 162 Wn.2d 378, 395, 174 P.3d 659 (2007) (noting that in parenting plan proceedings, the "State plays a meaningfully different role" than in dependency proceedings because it "neither applies its resources against either party nor instigates the proceeding"). The State's role in the dependency context is fundamentally different from its role in the private adoption context. The parents in each type of action are not similarly situated, and there is no equal protection violation. See Skinner, 97 Wn. App. at 110 (parent in adoption proceeding was not similarly situated to parent in dependency proceeding); see also McGee, 86 Wn. App. at 479-80 (holding that differences between RCW 26.33.120 and RCW 13.34.180 did not preclude termination of nonconsenting parent's rights under adoption statute where no dependency existed). Because they are not similarly situated, they are not accorded like treatment, nor are they required to be given like treatment.
Affirmed.