Opinion
Nos. 58794-3-I; 59394-3-I; 59395-1-I.
November 19, 2007.
Appeals from a judgment of the Superior Court for Skagit County, No. 05-3-00698-2, Michael E. Rickert, J., entered August 9, 2006.
Affirmed by unpublished per curiam opinion.
In these appeals, Kelly Stephenson challenges trial court rulings denying her attempts to participate in dependency and adoption proceedings involving her two granddaughters. But Stephenson was never the girls' legal guardian or custodian, and she was not caring for the children at the time of the adoption hearing. Under the circumstances, she had no statutory or due process right to notice or the right to participate in the adoption proceedings. Because Stephenson has not established any basis for setting aside the final adoption decrees, we affirm.
FACTS
Kelly Stephenson is the maternal grandmother of A.S. (DOB 6/21/01), and T.S. (DOB 7/15/02). In 2002, citing the mother's anger management and mental health issues, as well as concerns about the mother's ability to supervise the children adequately, DSHS filed dependency petitions for both children. With the agreement of the mother, DSHS eventually placed both girls, as well as an older brother, in Stephenson's home. Prior to the dependency filing, Stephenson had cared for A.S. and the older brother on occasions when the mother felt overwhelmed. The court entered agreed orders of dependency as to the mother in September 2002. The long-term plan contemplated returning the children to their mother.
The brother is not involved in these appeals.
DSHS petitioned on several occasions to remove the children from Stephenson's care, alleging circumstances that threatened the safety of the children, including returning T.S. to her mother's care for longer periods than the case plan authorized. The court denied the petitions, but placed additional conditions on Stephenson, including requiring her to maintain a protection order against her husband and to use licensed daycare for the children. In June 2003, the Individual Service and Safety Plans recommended that both A.S. and T.S. remain in Stephenson's care and indicated both children were progressing satisfactorily.
As of December 2003, the girls' mother had stopped participating in required services and indicated she wished to relinquish her children. The mother also expressed a desire that Stephenson be permitted to adopt the children, and DSHS initiated an adoption home study for Stephenson. By January 2005, the mother and the children's fathers had consented to relinquishment of custody and the termination of parental rights, and the court terminated all parental rights by March 2005.
In February 2005, a Child Protective Services (CPS) referral alleged that the girls' older brother had choked one of the girls. Stephenson acknowledged the incident and indicated that it had happened on other occasions. CPS investigated the allegation and made a finding of negligent treatment. An area supervisor confirmed the finding of abuse or neglect.
At a hearing on June 23, 2005, DSHS requested an order changing the placement of all three children to foster care. The social worker advised the court about the founded referral as well as other concerns about Stephenson's ability to protect the children's safety, including Stephenson's refusal of voluntary intervention services, her failure to follow through with mental health services for one of the girls, permitting unauthorized persons to stay on the property, including the boy's father, a registered sex offender, and permitting one of the girls to leave the state with an unauthorized caregiver. The social worker also stated that the adoption home study could not proceed because of the founded CPS referral. The guardian ad litem supported the State's motion. The court then signed the order removing the children from Stephenson's home and transferring them to foster care. DSHS placed A.S. and T.S. into a pre-adopt family.
On December 29, 2005, Stephenson filed a nonparental custody petition seeking custody of A.S. and T.S. Stephenson also moved for a temporary custody order. On January 11, 2006, Stephenson filed a separate motion to stay the adoption proceedings, join all causes of action, or, in the alternative, allow her to interplead or intervene in the dependency proceedings. Stephenson also sought leave to amend the nonparental custody petition to add a claim that she was the children's de facto parent.
See RCW 26.10.
On February 28, 2006, a juvenile court commissioner denied Stephenson's motions to stay the adoption proceeding or join or intervene in the dependency proceedings. The court also refused to allow concurrent jurisdiction for Stephenson's nonparental custody petition. The superior court denied Stephenson's motion to revise these rulings.
On August 8, 2006, a superior court judge denied Stephenson's petitions for nonparental custody and a temporary custody order and the later motion to amend the petition. The court concluded that it lacked jurisdiction to hear the third party custody petition because the children were the subject of dependency proceedings and the juvenile court had not allowed concurrent jurisdiction. The trial court entered final adoption decrees and dismissed the dependency proceedings on January 17, 2007.
DECISION
On appeal, Stephenson asks this court to set aside the final adoption decrees and allow her to intervene and participate in the adoption proceedings. In support of this request, she argues that (1) the juvenile court erred in denying her motion for permissive intervention in the dependency proceedings under CR 24 and (2) she was constitutionally entitled to notice of the adoption petition and an opportunity to participate in that proceeding.
I. Permissive Intervention
Stephenson asks this court to vacate the adoption decrees because the juvenile court's reasons for denying permissive intervention under CR 24(b)(2) were legally and factually flawed. But this court recently considered and rejected comparable arguments in In re Adoption of R.L.M.
138 Wn. App. 276, 156 P.3d 940 (2007).
In R.L.M., DSHS removed a young girl from her parents and placed her with the paternal aunt, who maintained she had helped raise the child from birth. When the aunt began using drugs, DSHS removed the child and placed her with a foster-adopt family, who later filed an adoption petition. In the meantime, the aunt completed a drug treatment program and parenting classes and filed a competing adoption petition. The aunt eventually moved for a continuance of the foster parents' adoption proceeding and permission to intervene. She also sought joinder of the competing adoption petitions. The trial court denied all of the aunt's motions and entered a final order granting the foster parents' adoption petition.
On appeal, the aunt argued that the trial court hearing the foster parents' adoption petition had erred in denying permissive intervention. We noted that in order to secure the finality and stability of adoption placements, the legislature severely limited the grounds for appealing final adoption decrees. Except for certain specified circumstances, a party cannot challenge an adoption decree on the grounds that it is "in any other manner defective." RCW 26.33.260(3)(b). This court concluded the aunt's permissive intervention claim was a procedural error and was therefore insufficient to support a challenge to the final adoption decree under RCW 26.33.260(3)(b). Accordingly, we declined to consider the claim.
Id. at 283.
Unlike the aunt in R.L.M., Stephenson did not specifically move to intervene in the foster parents' adoption proceeding or file a competing adoption petition. But her motions to intervene in the dependency proceeding, continue the adoption proceeding, and join all proceedings, including her petition for non-parental custody, were essentially attempts to participate in the adoption proceeding. As in R.L.M., the alleged deficiencies in these various proceedings are procedural errors that are insufficient to support a challenge to a final adoption decree under RCW 26.33.260(3)(b). We therefore decline to consider Stephenson's challenges to these proceedings.
See id.
II. Due Process
Stephenson contends that she was denied procedural due process when the trial court entered the adoption decrees involving A.S. and T.S. without providing her notice and a meaningful opportunity to be heard. A party alleging a constitutional violation "necessarily presents sufficient grounds for challenging an adoption decree under RCW 26.33.260." But we considered and rejected essentially identical arguments in R.L.M.
Id. at 284.
Generally, the only relatives entitled to statutory notice of adoption hearings are the child's parents, the alleged father of a minor, or a relative who is the child's legal guardian. Consequently, as the children's grandmother, Stephenson was not entitled to statutory notice of the adoption hearings. Moreover, because Stephenson was never the girls' legal guardian or custodian and DSHS had removed the girls from Stephenson's care well before the adoption hearing, Stephenson's claim that she was the girls'"psychological parent" does not create a due process right to participate in the girls' custody or adoption proceedings. Under the circumstances, Stephenson had no due process right to participate in the adoption proceedings.
See RCW 26.33.240; 26.33.160(1); R.L.M. at 284.
See R.L.M. at 285.
See id. at 285-88 (distinguishing In re Welfare of Hansen, 24 Wn. App. 27, 599 P.2d 1304 (1979), and In re Dependency of J.W.H., 147 Wn.2d 687, 57 P.3d 266 (2002)).
See id. at 288.
In order to be entitled to procedural due process, Stephenson would have to demonstrate that she was the children's "de facto" parent under the following four part test:
(1) the child's legal parent "consented to and fostered the parent-like relationship" between the child and the alleged de facto parent; (2) the child lived with the person claiming de facto parent status; (3) the person assumed parental obligations without expectation of financial compensation; and (4) the person has "been in a parental role for a length of time sufficient to have established . . . a bonded, dependent relationship" with the child.
Id. (quoting In re Parentage of L.B., 155 Wn.2d 679, 708, 122 P.3d 161 (2005), cert. denied sub nom. Britain v. Carvin, 126 S. Ct. 2021 (2006)).
But Stephenson has failed to devote any legal argument to these criteria or demonstrate that she can satisfy all four parts of the test, including a requirement that "the parent consent to and foster the parent-like relationship." Accordingly, we decline to consider the issue further.
Id. at 289.
Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court may decline to address issue unsupported by adequate argument and authority).
Stephenson also argues that she was statutorily entitled to participate in the adoption proceeding because the girls' mother filed a statement of preference that Stephenson be allowed to adopt the children. RCW 13.34.125 requires that DSHS honor the parents' wishes regarding adoption provided that "(1) the parents have indicated an intent to make a voluntary adoption plan, (2) have agreed to terminate their parental rights, (3) their adoptive preference is qualified to adopt, and (4) the court finds the adoptive placement to be in the child's best interest."
In re the Dependency of Z.F.S., 113 Wn. App. 632, 641, 51 P.3d 170 (2002).
But Stephenson cannot satisfy the third requirement. An adoption home study was never completed after DSHS removed the children from Stephenson's care. Nor has Stephenson made any showing that she is "properly qualified to adopt in compliance with the standards in [chapter 13.34 RCW] and chapter 26.33 RCW." Stephenson's argument therefore fails.
We recently noted the difficulties that nonparental relatives such as Stephenson encounter when DSHS supports competing adoption petitions by nonfamily members:
We recognize that the current statutes and case law leave family members seeking to adopt children with whom they may have strong biological and social ties without a remedy in the face of a competing adoption petition by a nonfamily member who has received consent from DSHS. Under the current law, in the absence of a formal court order granting them custody or guardianship of the child, these nonparental relatives must either have de facto parent status or successfully obtain permissive intervention in the dependency proceedings in order to get notice and an ability to meaningfully participate in a hearing that will forever foreclose their ability to adopt the child. . . .
R.L.M. at 289.
But these problems can only be resolved by the legislature, not the appellate courts.
See id. at 290.
Affirmed.