Opinion
No. 35104-8-II
Filed: April 29, 2008
The unpublished opinion in this matter was filed on March 4, 2008. Upon the motions of Appellant and Intervenor, the court hereby orders as follows:
ORDERED that Appellant's Motion for Reconsideration is hereby denied; it is further
ORDERED that Appellant's Motion for Publication is hereby denied; it is further
ORDERED that Appellant's Motion for Clarification is hereby granted; it is further
ORDERED that Intervenor's Motion for Reconsideration is hereby granted. The court, in granting Appellant's Motion for Clarification, and Intervenor's Motion for Reconsideration, hereby amends the unpublished opinion as follows:
Page 1, line 5 of first paragraph, the following text will be deleted:
Holding that the trial court did not afford Crow and Cyr the due process protections afforded in a dependency proceedings, we remand for the commencement of such proceeding.
Page 1, line 5 of first paragraph, the following text will be inserted: Holding that the trial court did not afford Crow and Cyr due process, we vacate the placement order and remand to the trial court for further proceedings. Page 6, lines 11 — 18, the following text will be deleted:
In order to afford Crow and Cyr due process, we remand this matter to the juvenile court with the instructions that the Department file dependency petitions regarding the twins and that the juvenile court conduct a dependency proceeding. We express no opinion on the ultimate suitability of Crow's mother as a placement for the twins. But the juvenile court cannot order that placement until Crow and Cyr have been afforded due process, including the appointment of counsel. And the Department must provide Crow, Cyr, and the twins with the services mandated as parts of the dependency proceeding. Because of the animosity that has developed between Crow, Cyr, and the trial judge, we remand this matter to a different judge.
Page 6, line 11, the following text will be inserted:
We vacate the placement order and remand this matter to the trial court for further proceedings consistent with this opinion. We express no opinion on the suitability of Crow's mother as a placement for the twins. But the court cannot order that placement until Crow and Cyr have been afforded due process. One means of affording Crow and Cyr with due process would be through dependency petitions filed by the Department. But the decision whether to file dependency petitions lies with the Department. If the Department does not file dependency petitions, then the trial court must conduct proceedings that afford Crow and Cyr due process. Because of the animosity that has developed between Crow, Cyr, and the trial judge, we remand this matter to a different judge.
IT IS SO ORDERED.
Tawna Crow appeals from the trial court's order placing her twins in the custody of her mother. John Cyr, who is her ex-husband and the father of the twins, joins in her appeal. This court initially considered Crow's appeal as a motion on the merits to reverse under RAP 18.14. A commissioner of this court referred the appeal to a panel of judges. Holding that the trial court did not afford Crow and Cyr the due process protections afforded in a dependency proceeding, we remand for the commencement of such a proceeding.
The history of this case is complicated. Crow petitioned to dissolve her marriage with Cyr in 2002. At that time, the twins were five years old. The court appointed a guardian ad litem (GAL). That GAL, Kelly LeBlanc, prepared a report describing actions that both Crow and Cyr needed to make in order to have a safe and healthy home for the twins. LeBlanc drafted an "Agreed Order of Placement of Minor Children" in which Crow and Cyr agreed that the twins:
shall be placed with Kathy and Terry Larson of Vaughn, WA on a temporary . . . basis by the parties . . . in order to provide the children with continuity and stability while the parents take such actions as are needed to be able to provide the children with a stable and healthy environment, and until such time as the children can be returned to their care after further review and order of the court.
Clerk's Papers (CP) at 31.
In that agreed order, Crow was to complete a neuropsychological evaluation and follow any recommendations for treatment. Cyr was to take steps to provide an appropriate home for the twins and to seek employment. The trial court signed the agreed order on October 14, 2003. The court also dissolved the marriage between Crow and Cyr. The decree provided that:
No entry of a Parenting Plan or Order of Child [S]upport shall be made at this time because the children are currently placed with a third party as provided in the Agreed Order of Placement of Minor Children signed by the Court on October 14, 2003 and attached hereto and incorporated by reference herein.
CP at 53.
The Larsens anticipated caring for the twins for about four months. However, Crow did not complete her neuropsychological evaluation until July 2004.
In December 2004, Crow filed a petition to modify the decree to return the twins to her care. The court appointed Dolores Sarandos as a new GAL. In her report of January 6, 2005, Sarandos noted that Crow had obtained the required neuropsychological evaluation, which did not make any treatment recommendations. She noted that Crow had undergone an earlier psychiatric evaluation, which recommended counseling, but that Crow had not followed that recommendation. She noted that Crow had engaged in confrontations with the Larsens. In her petition to modify, Crow had stated that Cyr agreed with her petition. But Sarandos reported that Cyr did not support making Crow the residential parent of the twins. She noted that the twins were in a stable and secure setting with the Larsens. She opined that she did not support returning the twins to Crow's care. The trial court denied Crow's petition to modify the decree, noting that "[t]here is no adequate cause." CP at 112.
In May 2005, Crow made a motion to return custody of the twins to her, to establish child support, and to establish a permanent parenting plan. Sarandos prepared another report in which she reported that Crow had not begun counseling and that Crow had had additional confrontations with the Larsens. She opined that it was premature to change custody of the twins to Crow. On May 11, 2005, the trial court denied all three parts of Crow's motion without elaboration.
Crow and Cyr reportedly entered into an agreed parenting plan in August 2005, under which they would alternate weeks as the residential parent. However, in that same month, Cyr took the twins from the Larsens for a visit and did not return them. He objected to the ways the Larsens were raising the twins and took them to a relative's home. That relative returned the twins to the Larsens. But in September 2005, Cyr took the twins from school and he reported the Larsens to the Department of Social and Health Services. After being contacted by the Department, the Larsens agreed to continue caring for the twins until the next court hearing on September 23, 2005. But after being confronted again by Cyr, the Larsens decided they could no longer care for the twins. The Department then placed the twins in foster care.
The hearing was continued to September 30, 2005. According to Sarandos, the Department had concluded that neither Crow nor Cyr was a suitable parent for the twins. According to the Department, both Crow and Cyr had signed a voluntary placement agreement. The twins had expressed a preference of being placed with Crow's mother. Sarandos recommended that a dependency be established under RCW 13.34.030(5)(c).
After the hearing on September 30, the trial court entered an order that provided
1. That this case be transferred after 90 days to Pierce County Juvenile Court and a dependency established under RCW 13.34.030(5)(c). 90 days will allow [the Department] time to complete home study in Oregon. If favorable, children can be placed w/ maternal grandmother w/o further order of the Court.
2. That the trial currently set for November 16, 2005 be stricken.
3. That, in accordance with the Voluntary Placement Agreement signed by both [Crow and Cyr], the Department . . . actively seek relative or other placement for these children, as neither parent is a suitable placement for these children at this time. Upon completion of home study w/ favorable recommendation, the Department may immediately transfer the children to the home of the maternal grandmother. If no appropriate placement is found, a (c) dependency will be established.
CP at 160.
On October 26, 2005, after the Department conducted a favorable home study of Crow's mother's home, Sarandos filed a motion to place the twins with Crow's mother. On November 4, 2005, the trial court entered an order placing the twins with Crow's mother. The order allowed visits by Crow, but suspended visits by Cyr until he obtained a psychological evaluation. In its oral ruling, the court deleted the portion of the September 30 order that provided that the case would be transferred to juvenile court after 90 days. The Department did not seek, and the court did not establish, a dependency under RCW 13.34.030(5)(c).
Crow filed a petition for writ of habeas corpus. The trial court treated the petition as a motion for reconsideration and denied the motion. Crow appeals. Cyr, while nominally the respondent, agrees with Crow's position on appeal.
First, Crow argues that the trial court denied her due process when it entered the dissolution decree on October 14, 2003, without affording her a trial on the parenting plan issues. But she entered into an agreed order at that time, eliminating the need for a trial. And that agreed order is now moot, because the twins have been placed with a custodian other than those designated in the agreed order.
Cyr asserts that his signature on the agreed order was the result of fraud. But he never presented any evidence of fraud to the trial court. And, as noted above, the agreed order is moot.
Second, Crow argues that the trial judge engaged in improper ex parte communications with the juvenile court and the Department, but there is no evidence of improper communications. She has presented no evidence, to the extent that the trial judge contacted the juvenile court or the Department, that his actions might reasonably bring his impartiality into question. Sherman v. State, 128 Wn.2d 164, 205-06, 905 P.2d 355 (1995). His actions did not disqualify him from entering the orders in this matter.
Third, Crow argues that the trial court denied her due process when it entered the November 5, 2005 order, which placed the twins with her mother, without a dependency proceeding having been commenced by the Department and conducted by the court. She is correct. Parents have a fundamental liberty interest in the care and custody of their minor children. In re Myricks, 85 Wn.2d 252, 253-54, 533 P.2d 841 (1975). Before the court can order that another person shall have custody of a child, the court must afford his or her parents due process. In re Dependency of H.W., 70 Wn. App. 552, 555-56, 854 P.2d 1100 (1993). In that context, due process requires that the parent have notice, an opportunity to be heard and defend, and the right to assistance of counsel. RCW 13.34.090; In re Dependency of H.W., 70 Wn. App. at 555-56; In re Myricks, 85 Wn.2d at 253-54.
In this case, the trial court did not afford Crow or Cyr due process when it placed the twins with Crow's mother. The agreed order, entered by Crow and Cyr in 2003, did not give it the authority to place the twins with Crow's mother because the agreed order had not given that authority to the trial court. The trial court never entered a permanent parenting plan addressing the custody of the twins. Crow's mother did not start a third party custody proceeding, under which the court could have placed the twins with her. The only possible lawful authority for placing the twins with Crow's mother was under the auspices of a dependency proceeding. But the Department never commenced, and the court never conducted, a dependency proceeding. While the court had intended to transfer the case to the juvenile court in its September 30, 2005 order, it reversed itself in its November 4, 2005 order. Without the Department commencing, and the juvenile court conducting, a dependency proceeding, the trial court deprived Crow and Cyr of due process when it placed the twins with Crow's mother.
In order to afford Crow and Cyr due process, we remand this matter to the juvenile court with the instructions that the Department file dependency petitions regarding the twins and that the juvenile court conduct a dependency proceeding. We express no opinion on the ultimate suitability of Crow's mother as a placement for the twins. But the juvenile court cannot order that placement until Crow and Cyr have been afforded due process, including the appointment of counsel. And the Department must provide Crow, Cyr, and the twins with the services mandated as parts of the dependency proceeding. Because of the animosity that has developed between Crow, Cyr, and the trial judge, we remand this matter to a different judge.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Armstrong, P.J.
We concur:
Hunt, J.
Penoyar, J.