This opinion was filed for record at 8',Qo 0m oJrut ~ Vfl1 ~~B<.~ SUSAN l. CARLSON SUPR~ME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Parental Rights to ) K.J.B., a minor child. ) ) No. 91921-6 J.B., ) ) En Bane Petitioner, ) v. ) ) Filed JAN 2 6 2017 STATE OF WASHINGTON, ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES, ) ) Respondent. ) )
WIGGINS, J.-In 2013, the legislature amended the statute govermng
termination of parental rights. The legislature provided that "[i]f the parent is
incarcerated, the court shall consider" a set of factors bef?re determining that
"continuation of the parent and child relationship clearly diminishes the child's
prospects for early integration into a stable and permanent home." RCW
13.34.180(1)(±) (emphasis added). Petitioner J.B. argues that his parental rights
cannot be terminated without express written findings of fact on these incarcerated
parent factors. We hold that while explicit findings on the incarcerated parent factors
are not statutorily required, consideration of the factors is mandatory. Because the In re Parental Rights to K.J.B., No. 91921-6
trial court failed to consider the incarcerated parent factors in this case, we reverse
and remand the case to the trial court for consideration of the incarcerated parent
factors.
FACTS
J.B. is the biological father of K.J.B. K.J.B. was born on April 20, 2012 and
was immediately removed from her mother's care because of her mother's prenatal
methamphetamine use. K.J.B. was initially placed in relative care. At one month old,
K.J.B. was moved to a foster care family, where she currently resides. Her mother
has already relinquished her parental rights and is not a party to this proceeding.
K.J.B. has never lived with her biological mother or father.
J.B. has struggled with drug addiction since his adolescence. In October 2012,
the court entered a dependency order requiring J.B. to complete a drug/alcohol
evaluation and treatment, random urinalysis testing, and a parenting assessment and
instruction. J.B. completed a parenting assessment and participated in parenting
instruction. He started several drug treatment programs but never completed any. In
the findings of fact, the trial judge noted, "The father has a very serious drug
addiction." Clerk's Papers (CP) at 19 (Findings of Fact (FF) 1.11 ). He "has not been
able to demonstrate sobriety for any significant period of time, despite being
provide[d] ample time and opportunity to do so." FF 1.20. "His substance abuse
2 In re Parental Rights to K.J.B., No. 91921-6
addiction prevents him from parenting his child." FF 1.22. "The father has
demonstrated that he is incapable of providing or unwilling to provide a safe, healthy
and stable environment for [K.J.B.] due to his continued substance abuse addiction
and inability to complete treatment." FF 1.24. In his oral ruling, the judge stated, "I
find that your use of methamphetamine has prevented you from providing care for
this child for extended periods of time and you have a documented unwillingness,
and that's a difficult word to use for you, [J.B.], but a documented unwillingness to
receive and complete treatment or documented multiple failed treatments . " 2 Verbatim Report of Proceedings (VRP) at 249.
J.B. participated in visits with K.J.B. in January 2013 and more regularly
visited with her from March 2013 to January 2014. One parenting professional
testified that J.B. was nurturing and loving toward K.J.B. and that he showed
compassion and sensitivity. However, the trial judge found that "[t]he father's
parental deficiencies have not been corrected." FF 1.1 0.
In January 2014, J .B. was found guilty of first degree unlawful possession of
a firearm and possession of a stolen firearm. He was sentenced to 74 months of
incarceration.
At the time of the termination hearing, J.B. had been incarcerated for less than
52 days. 1 In considering the termination of J.B. 's parental rights, the trial court
1 J.B. was incarcerated on January 24, 2014. The termination trial started on March 17, 2014.
3 In re Parental Rights to K.J.B., No. 91921-6
apparently applied outdated statutory language in framing its analysis. Specifically,
the court applied RCW 13.34.180(1)(f) without mentioning its 2013 amendments
requiring courts to consider additional factors relevant to incarcerated parents.
Without expressly considering these factors set forth in RCW 13.34.180(1)(f), the
trial court terminated J.B. 's parental rights.
J.B. appealed. The Court of Appeals acknowledged "the trial court's failure to
weigh the required considerations" but ruled that it was harmless error that did not
require reversal. In re Parental Rights to K.J.B., 188 Wn. App. 263, 285, 354 P.3d
879 (2015). J.B. appealed, and we accepted review.
STANDARD OF REVIEW
We review matters of statutory interpretation de novo. O.S. T. v. Regence
BlueShield, 181 Wn.2d 691,696, ~ 8, 335 P.3d 416 (2014).
ANALYSIS
Our fundamental goal in statutory interpretation is to "discern and implement
the legislature's intent." State v. Armendariz, 160 Wn.2d 106, 110, ~ 7, 156 P.3d 201
(2007). Where "the statute's meaning is plain on its face, then the court must give
effect to that plain meaning as an expression of legislative intent." Dep 't ofEcology
v. Campbell v. Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). We discern plain
meaning "from all that the Legislature has said in the statute and related statutes
4 In re Parental Rights to K.J.B., No. 91921-6
which disclose legislative intent about the provision in question." Id. at 11. "[I]f,
after this inquiry, the statute remains susceptible to more than one reasonable
meanmg, the statute is ambiguous and it is appropriate to resort to aids to
construction, including legislative history." Id. at 12. Plain language that is not
ambiguous does not require construction. State v. Evans, 177 Wn.2d 186, 192, 298
P.3d 724 (2013).
Washington s Statutory Scheme for Termination ofParental Rights
The paramount goal of child welfare legislation is to reunite the child with the
legal parents if reasonably possible. In re Dependency of J.H, 117 Wn.2d 460, 4 76,
815 P.2d 1380 (1991); In re Custody ofC.C.M, 149 Wn. App. 184, 202 P.3d 971
(2009). Parents have a fundamental liberty and property interest in the care and
custody of their children. U.S. CONST. amends. V, XIV; WASH. CONST. art. I, § 3;
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
"The due process clause of the Fourteenth Amendment protects a parent's right to
the custody, care, and companionship of [his or] her children." In re Welfare ofKey,
119 Wn.2d 600, 609, 836 P.2d 200 (1992) (citing Stanley v. Illinois, 405 U.S. 645,
651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). Due process requires a court to find
the parent to be currently unfit before the parent-child relationship may be
terminated.
5 In re Parental Rights to K.JB., No. 91921-6
In order to deem a parent unfit and thus terminate the parent-child
relationship, the State must satisfy a two-pronged test. In re Dependency of K.NJ.,
171 Wn.2d 568, 576, ~ 15, 257 P.3d 522 (2011). The first prong focuses on the
adequacy of the parent and requires the State to establish six elements, outlined in
RCW 13.34.180(1). 2 "Each of the six statutory elements must be proved by clear,
cogent, and convincing evidence before the State may terminate parental rights."
K.N.J., 171 Wn.2d at 576-77 (citing In re Welfare ofC.S., 168 Wn.2d 51, 55,~ 7,
225 P.3d 953 (2010)); RCW 13.34.180(1). If the six statutory elements of
subsection ( 1) are established, then the parent has been implicitly found to be an
2 RCW 13.34.180(1) requires the State to prove: (a) That the child has been found to be a dependent child; (b) That the court has entered a dispositional order pursuant to RCW 13.34.130; (c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency; (d) That the services rendered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; (e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future ... [;]
(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. If the parent is incarcerated, the court shall consider whether a parent maintains a meaningful role in his or her child's life based on factors identified in RCW 13.34.145(5)(b); whether the department or supervising agency made reasonable efforts as defined in this chapter; and whether particular barriers existed as described in RCW 13.34.145(5)(b) including, but not limited to, delays or barriers experienced in keeping the agency apprised of his or her location and accessing visitation or other meaningful contact with the child.
6 In re Parental Rights to K.JB., No. 91921-6
unfit parent. K.N.J., 171 Wn.2d at 577, ~ 15 (citing In re Dependency of K.R., 128
Wn.2d 129, 141-42, 904 P.2d 1132 (1995)).
The second prong that the State must prove focuses on the child's best
interests. RCW 13 .34.190. Only if the first prong is satisfied may the court reach the
second. In re Interest ofS.G., 140 Wn. App. 461,470, ~ 26, 166 P.3d 802 (2007); In
re Welfare ofC.B., 134 Wn. App. 942, 952, ~ 21, 143 P.3d 846 (2006).
Amendments To Protect Rights ofIncarcerated Parents
The legislature recently recognized that statutory dependency/termination
requirements and timelines often undermine the efforts of incarcerated parents to be
reunited with their children. In 2013, this recognition led to Substitute House Bill
(SHB) 1284, titled "AN ACT Relating to the rights of parents who are incarcerated."
SUBSTITUTE H.B. 1284, 63d Leg., Reg. Sess. (Wash. 2013). SHB 1284 amended
several statutes in the Juvenile Court Act, effective July 2013. I d. (amending RCW
13.34.067, .136, and .145 and reenacting and amending .180). The primary sponsor
of SHB 1284 testified that its intent was to provide added protection for incarcerated
parents facing termination of their parental rights. Hr'g on H.B. 1284 Before the H.
Early Learning & Human Servs. Comm., 63d Leg., Reg. Sess. (Wash. Feb. 5, 2013)
(testimony of Representative Mary Helen Roberts), audio recording by TVW,
Washington State's Public Affairs Network, http://www.tvw.org.
7 In re Parental Rights to K.JB., No. 91921-6
Prior to SHB 1284, the sixth element of the parental rights termination statute,
RCW 13.34.180(1)(£), required the state to prove "[t]hat continuation of the parent
and child relationship clearly diminishes the child's prospects for early integration
into a stable and permanent home." In re Dependency ofD.L.B., 188 Wn. App. 905,
914, ~ 24, 355 P.3d 345 (2015), aff'd, 186 Wn.2d 103, 376 P.3d 1099 (2016). In SHB
1284, the legislature added the following language to this sixth factor:
If the parent is incarcerated, the court shall consider
[(1.)] whether a parent maintains a meaningful role in his or her child's life based on factors identified in RCW 13.34.145(5)(b); [(2.)] whether the department or supervising agency made reasonable efforts as defined in this chapter; and [(3.)] whether particular barriers existed as described in RCW l3.34.145(5)(b) including, but not limited to, delays or barriers experienced in keeping the agency apprised of his or her location and in accessing visitation or other meaningful contact with the childPl
SUBSTITUTEH.B. 1284, at 13-14 (emphasis added).
SHB 1284 also added subsection (5)(b) to RCW 13.34.145. This new section
provides a nonexclusive list of factors that the trial court "may" consider in
determining whether an incarcerated parent "maintains a meaningful role in the
child's life," as well as various types of barriers that incarcerated parents may face
in maintaining such a role:
3 This language was added to subsection (1)(f) and became effective on July 28, 2013. SUBSTITUTEH.B. 1284.
8 In re Parental Rights to K.JB., No. 91921~6
(b) The court's assessment of whether a parent who is incarcerated maintains a meaningful role in the child's life may include consideration of the following: i. The parent's expressions or acts of manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child; ii. The parent's efforts to communicate and work with the department or supervising agency or other individuals for the purpose of complying with the service plan and repairing, maintaining, or building the parent-child relationship; iii. A positive response by the parent to the reasonable efforts of the department or supervising agency; iv. Information provided by individuals or agencies in a reasonable position to assist the court in making this assessment, including but not limited to the parent's attorney, correctional and mental health personnel, or other individuals providing services to the parent; v. Limitations in the parent's access to family support programs, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability to participate in foster care planning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and vi. Whether the continued involvement of the parent in the child's life is in the child's best interest.
SUBSTITUTE H.B. 1284, at 8-9 (formatting omitted).
Plain Language ofAmendments To Protect Rights ofIncarcerated Parents
J.B. argues that the trial court failed to consider all of the mandatory
termination factors set forth in RCW 13.34.180(1)(£). He urges this court to hold that
the incarcerated parent factors "changed the statutory termination element in RCW
13.34.180(1)(£), becoming part of the termination element that must be proved" by
clear, cogent, and convincing evidence. Pet'r's Suppl. Br. at 5 (citing In re
Dependency ofA.M.M., 182 Wn. App. 776,784,787-90,332 P.3d 500 (2014)). The
9 In re Parental Rights to K.JB., No. 91921-6
State argues the 2013 amendments do not change the actual elements that the
Department of Social and Health Services (DSHS) must prove. "Rather, the added
language provides factors that may inform the court as to whether this element is
met."4 Suppl. Br. ofDSHS at 10 (citingA.M.M., 182 Wn. App. at 787). At issue is
whether the trial court was statutorily required to consider the incarceration factors.
We begin with the plain language of the statute. The provision at issue here,
RCW 13.34.180(1)(±), states that "the court shall consider" three listed factors. A
full interpretation of this phrase requires consideration of both "shall" and
"consider."
A. "Shall" Is Mandatory
It is well settled that the word "shall" in a statute is presumptively imperative
and operates to create a duty, rather than to confer discretion. 5 State v. Bartholomew,
104 Wn.2d 844, 848, 710 P.2d 196 (1985). Moreover, when adding the word "shall,"
4 Justice Gonza1ez's dissent would decline to consider the merits of these arguments, as "J.B. did not object to the court's failure" to consider the incarceration factors. Dissent (Gonzalez, J.) at 1-2. Yet we frequently exercise our discretion to review an issue not raised in the trial court, and do so in this instance. RAP 2.5(a) ("The appellate court may refuse to review any claim of error which was not raised in the trial court."); Stephenson v. Pleger, 150 Wn. App. 658, 661, 208 P.3d 583 (2009) (noting that appellate courts "have discretion under RAP 2.5(a) to review an issue not raised in the trial court"); Kut Suen Lui v. Essex Ins. Co., 185 Wn.2d 703, 718, 375 P.3d 596 (2016) ("We have discretion to decide whether we address an issue asserted for the first time on appeal."); cf State v. Blazina, 182 Wn.2d 827, 832-33, 344 P.3d 680 (2015) (noting that we may refuse to review claims not raised in trial court). 5 The word "shall" is defined as follows: "used to express a command or exhortation ... [;] used in laws, regulations, or directives to express what is mandatory." WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 2085 (2002).
10 In re Parental Rights to K.JB., No. 91921-6
the legislature simultaneously established additional factors that the court "may"
consider. RCW 13 .34.145( 5)(b ). We look to a legislature's facility with the terms in
our analysis. Kingdomware Techs., Inc. v. United States, - U.S. - , 136 S. Ct. 1969,
1977, 195 L. Ed. 2d 334 (2016) (noting that "[w]hen a statute distinguishes between
'may' and 'shall,' it is generally clear that 'shall' imposes a mandatory duty"). As a
result, the legislature's changes require trial courts to consider the implications of
incarceration when the parent is incarcerated. RCW 13.34.180(1)(±). Because the
legislature states that courts "shall" consider these issues, the inquiry is mandatory.
In contrast, Justice Madsen's dissent would construe "shall" as mandatory
only when the trial court's decision to terminate parental rights visibly rests, at least
in part, on the parent's incarceration. Dissent (Madsen, J.) at 5 (noting that "here,
the trial court's oral ruling and written findings make clear that the father's
incarceration played no role in the trial court's reasoning"). For support, Justice
Madsen's dissent cites to legislative history, which in turn states that the amendment
"[ e]xpands the rights of parents who are incarcerated with regard to ... [t ]ermination
of parent-child relationship proceedings." 2 LEGISLATNE DIGEST AND HISTORY OF
BILLS, 63d Leg., at 87 (2d ed., Wash. 2013-14); dissent (Madsen, J.) at 5 n.2. Yet
this language does not indicate that the rights of incarcerated parents are expanded
only when the parent's incarceration is explicitly at issue in the decision.
11 In re Parental Rights to K.J.B., No. 91921-6
While not openly stated in this legislative history, we acknowledge that there
are logical reasons for supposing that the incarceration factors should be applied
only where the court demonstrably considered the implications of incarceration as
part of its termination decision. After all, if the trial court did not rely on the parent's
incarceration in reaching its decision, how would factors tending to rebut
incarceration's impact even apply? Yet this conjecture fails to account not only for
the language the legislature actually passed, but also for other justifications the
legislature may have had for passing a broad, clear rule applying to all incarcerated
parents. For instance, the legislature might consider a parent's incarcerated status as
unavoidably implicit in any termination of an incarcerated person's parental rights,
and thus the incarceration factors would be critical considerations as well. While
Chief Justice Madsen's dissent might find this statutorily mandated step to be
unnecessary, excessive, or both, we leave these policy considerations to the
legislature. Absent an absurd result, we should be slow to assume that the legislature
meant something other than what it said.
In light of the literal meaning of "shall," and given the legislature's stated
protective goals, we hold that consideration of the RCW 13.34.180(1)(£) factors is
mandatory. See SUBSTITUTEH.B. 1284.
12 In re Parental Rights to K.J.B., No. 91921-6
B. "Consider" Requires Weighing on the Record
Next we must consider what action, exactly, RCW 13.34.180 mandates. Title
13 RCW requires, but does not define, that courts "consider" the incarceration
factors. Yet "consider" might connote a range of actions, from internal
contemplation to explicit written findings.
The first definition of "consider" in Webster s is "to reflect on : think about with a degree of care or caution." WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 483 (2002). One Court of Appeals decision suggested this definition
for "consider" when interpreting the statute's requirements: "A 'consideration' of
evidence ultimately means a weighing or balancing of facts, along with a resolution
of that weighing." In re Parental Rights to MJ.., 187 Wn. App. 399, 409, 348 P.3d
1265 (2015). "[T]he legislature has had no trouble mandating findings in other
portions of the dependency statute when it has wanted to do so." !d. (emphasis
added). For example, in order to declare a child dependent, RCW 13.34.110
mandates a fact-finding hearing and directs the court to "make written findings of
fact, stating the reasons therefor." We agree and hold that findings are not required
when the statute requires only that the factor be considered.
Here, RCW 13.34.180(1)(±) directs the court to specify only whether certain
allegations were established according to specific burdens of proof. RCW
13.34.190(l)(a)(i) (requiring, pursuant to RCW 13.34.180(1), allegations to be
13 In re Parental Rights to K.J.B., No. 91921-6
established by "clear, cogent, and convincing evidence"). And although we
recognize that entry of findings is a good practice and helpful on review, this step is
not essential to demonstrate that the court considered the mandatory factors.
Thus, even though formal findings are not required, the superior court is
expressly required to "consider" the incarceration factors. We turn then to whether
the trial court in this case considered the factors as required by statute.
The Incarceration Factors Were Not Considered in This Case
RCW 13.34.180(1)(£) requires a trial court to consider whether (1) a parent
maintains a meaningful role in the child's life, (2) the department made reasonable
efforts, and (3) particular barriers of incarceration existed. The record establishes
that the trial court did not address or even refer to the 20 13 amendments or the
specific statutory factors pertaining to incarcerated parents at any point during the
course of the trial, in its oral decision, or in the written findings of fact and
conclusion of law. Nor did counsel for either side direct any argument to the court
based on the specific statutory amendments.
Indeed, it appears that the trial court judge applied an outdated version of
RCW 13.34.180(1)(±), without mentioning the 2013 amendment requiring
consideration of the incarcerated parent factors. Instead, the judge's oral decision
and findings of fact. focused on J.B.'s addiction to methamphetamine and the
problems that this addiction caused in his life. See 2 VRP at 246-49; FF 1.22 ("The
14 In re Parental Rights to K.JB., No. 91921-6
father is currently unfit to parent because he is unable to maintain sobriety and is
unable to provide a safe and stable home environment for the child at this time or in
the near future. His substance abuse addiction prevents him from parenting his child.
He has been unable to successfully complete the necessary treatment."). 6
There is evidence in the record relevant to the incarceration factors, though it
is not discussed. For instance, at the time of trial, J.B. had not contacted his social
worker or inquired about K.J.B. 's well-being at any point during his incarceration.
CP at 22, 185. Nor had the social worker received any messages from J.B. through
his attorney. CP at 198. The trial court heard extensive testimony about the
department's efforts to remedy J.B.'s drug addiction. CP at 9-12, 42, 45-46, 48. No
evidence was presented regarding particular barriers of incarceration.
While the trial court focused on J.B. 's drug addiction, this emphasis did not
preclude application of the incarceration factors. Because the judge cites to RCW
13.34.180(1)(£) without referring to the factors, and because the judge does not
mention the factors at any point, we are unable to conclude that the trial court
weighed the mandatory issues in reaching its decision.
6 The judge stressed that even though J.B. 's real problem was drug addiction, J.B. failed to complete any treatment programs. FF 1.20 ("The father has not been able to demonstrate sobriety for any significant period of time, despite being provide[ d] ample time and opportunity to do so."); FF 1.21 ("The father has a substance abuse addiction and continues to struggle with sobriety. He has not been able to complete treatment and continues to relapse."); FF 1.24 ("The father has demonstrated that he is incapable of providing or unwilling to provide a safe, healthy and stable environment for [K.J.B.] due to his continued substance abuse addiction and inability to complete treatment.").
15 In re Parental Rights to K.JB., No. 91921-6
The Court of Appeals in this case acknowledged that "the amended statute
does not contain an exception to the mandatory language." K.J.B., 188 Wn. App. at
284. "Nevertheless," the court continued, "a failure to weigh the required
considerations will not require reversal if the State's case is strong or if the factors
are not contested." Jd. (citing MJ., 187 Wn. App. at 409). Thus, relying on other
appellate court precedent, the Court of Appeals found the evidence to be sufficiently
strong such that reversal was not required: "J.B. made no effort to play a meaningful
role in his daughter's life," while the department "made reasonable attempts to
remedy J.B.'s parental deficiencies," and there were no "barriers of incarceration"
that impacted J.B. Id. at 284-85. By weighing the evidence on appeal, the Court of
Appeals concluded that "the trial court's failure to weigh the required considerations
was harmless error, which does not require reversal." Id. at 285.
We disagree.
Again, the paramount goal of child welfare legislation is to reunite the child
with the legal parents if reasonably possible. It is the State's responsibility to
establish each element necessary to terminate parental rights. More specifically, the
legislature has mandated that the trial court "shall consider" certain contextual
factors relevant to incarceration when terminating the rights of incarcerated parents.
RCW 13.34.180(1)(£). Here, an incarcerated parent faced termination ofhis parental
rights and we lack any evidence that the court was aware of, let alone considered,
16 In re Parental Rights to K.J.B., No. 91921-6
the statutory incarceration factors. In light of the significant rights at stake, we
reverse and remand for the trial court to consider and apply the mandatory RCW
13.34.180(1)(£) factors. 7
CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals and remand to the
trial court for its consideration of the mandatory incarceration factors, RCW
13 .34.180(1 )(f), and for other proceedings, if any, consistent with this opinion.
7 Contrary to the impression of Justice Gonzalez's dissent, we do not direct the trial court "to start all over." Dissent (Gonzalez, J.) at 1. We simply remand for consideration of the incarceration factors, which are, as we observe, mandatory.
17 No. 91921-6
WE CONCUR.
7AMhMMf..
18 In re Parental Rights to K.J.B.
No. 91921-6
MADSEN, J. (dissenting)-The majority acknowledges that findings on the
incarcerated parent factors at issue here are not required, yet reverses and remands for the
trial court to consider such factors. In my view, the termination of parental rights should
be affirmed under the circumstances of this case. I disagree with the majority that the
factors listed in RCW 13.34.145(5)(b) are mandatory requirements that must be expressly
considered in all cases. In my view, the trial court did not err, and because substantial
evidence supports the trial court's essential termination findings, we should affirm.
Because the majority requires needless delay in permanency for K.J.B., I dissent.
This court has explained that to terminate a parent-child relationship, the State
must prove the six elements found in RCW 13 .34.180(1) by clear, cogent, and convincing
evidence; then the court will determine if termination of the relationship is in the best
interest ofthe child. In re Dependency ofK.N.J., 171 Wn.2d 568,576-77,257 P.3d 522
(20 11 ). At issue here is what is required in the sixth element, found at RCW
13.34.180(1)(£), which states:
That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. If the parent is incarcerated, the court shall consider whether a parent maintains a meaningful role in his or her child's life based on factors No. 91921-6 Madsen, J., dissenting
identified in RCW 13.34.145(5)(b); whether the department or supervising agency made reasonable efforts as defined in this chapter; and whether particular barriers existed as described in RCW 13.34.145(5)(b) including, but not limited to, delays or barriers experienced in keeping the agency apprised of his or her location and in accessing visitation or other meaningful contact with the child.
In my view, the only finding required under subsection (1)(f) is a determination of
whether "continuation of the parent and child relationship clearly diminishes the child's
prospects for early integration into a stable and permanent home." RCW 13.34.180(1)(£).
Here, the trial court made this finding noting supporting evidence and stating its
reasoning. See Clerk's Papers (CP) at 22.
In the event the parent is incarcerated, subsection ( 1)(f) further provides that the
court will also consider "whether a parent maintains a meaningful role in his or her
child's life." RCW 13 .34.180. In my view, that contingent inquiry is informed by the
factors and considerations contained in the remainder of subsection (1)(f), or any other
relevant consideration bearing on the inquiry, but such considerations are not themselves
requirements that must be met. RCW 13.34.145(5)(b) supports this reading ofRCW
13.34.180(1)(£) by expressly stating that the court "may" consider listed factors in
assessing whether an incarcerated parent has "maintain[ ed] a meaningful role" in the 1 child's life. This reading harmonizes the provisions contained in both RCW
13.34.180(1)(£) and RCW 13.34.145(5)(b).
1 RCW 13.34.145(5)(b) provides: The court's assessment of whether a parent who is incarcerated maintains a meaningful role in the child's life may include consideration of the following:
2 No. 91921-6 Madsen, J., dissenting
In this case, the trial court did essentially consider whether the parent maintained a
meaningful role in the child's life, finding that the parent "does not have a bond with the
child," that "[t]he child has no bonding to her father," that the "father is currently unfit to
parent because he is ... unable to provide a safe and stable home environment for the
child," and that "[h]is substance abuse addiction prevents him from parenting his child."
CP at 22. In my view, the trial court did not err. It entered the essential finding called for
in RCW 13.34.180(l)(f): that continuation ofthe parent-child relationship would
diminish the child's prospects for permanent placement. See id. In making that
determination, the trial court assessed the parent's role in the child's life, as discussed
above. The basis of that decision was the particular deficiency present in this case-the
father's drug addiction. That deficiency was present and continuing since the child's
birth, rendering the father incapable of parenting his child. The father's recent
incarceration was unrelated to this deficiency and played no role in the trial court's
(i) The parent's expressions or acts of manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child; (ii) The parent's efforts to communicate and work with the department or supervising agency or other individuals for the purpose of complying with the service plan and repairing, maintaining, or building the parent-child relationship; (iii) A positive response by the parent to the reasonable efforts of the department or the supervising agency; (iv) Information provided by individuals or agencies in a reasonable position to assist the court in making this assessment, including but not limited to the parent's attorney, correctional and mental health personnel, or other individuals providing services to the parent; (v) Limitations in the parent's access to family support programs, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability to participate in foster care planning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and (vi) Whether the continued involvement of the parent in the child's life is in the child's best interest.
3 No. 91921-6 Madsen, J., dissenting
termination decision. Under these circumstances, the trial court's failure to make
findings or to expressly consider the discretionary factors listed in RCW 13.34.145(5)(b)
related to incarceration, which played no role in the trial court's determination, was not
error.
The majority chides the trial court for ignoring "evidence in the record relevant to
the incarceration factors," noting for example that "J.B. had not contacted his social
worker or inquired about K.J.B.'s well-being at any point during his incarceration."
Majority at 15. But such evidence further demonstrates that substantial evidence
supports the trial court's relevant, required findings. We will not disturb the trial court's
findings of fact in a termination proceeding so long as they are supported by substantial
evidence in the record. In re Parental Rights to B.P., 186 Wn.2d 292,313,376 P.3d 350
(2016). The noted evidence provides additional support for the trial court's consideration
and assessment of the "maintained a meaningful role" contingent inquiry, which in turn
further supports the trial court's essential finding that continuation of the parent-child
relationship diminished the child's prospects for early integration into a stable and
permanent home. Thus, properly viewed, substantial evidence supports the trial court's
determination and finding regarding the subsection (1)(f) element.
Finally, I note that the discretionary factors listed in RCW 13.34.145(5)(b)
themselves suggest that the legislative purpose behind inclusion of such consideration
was to provide protection to incarcerated parents in termination proceedings who were
4 No. 91921-6 Madsen, J., dissenting
separated from their children due to their incarceration. 2 But here, the trial court's oral
ruling and written findings make clear that the father's incarceration played no role in the
trial court's reasoning for terminating the parental rights in this case. As noted, such
determination turned on the father's history of substance abuse, his repeated failure to
complete treatment, and his continuing inability to remain sober and provide a safe
environment for his child. Accordingly, the present case is not the circumstance that the
legislature was trying to address in amending subsection (1)(f) to add the considerations
concerning incarcerated parents who suffered parental deficiencies related to the
incarceration itself. In construing and applying a statute, we are to keep in mind the
'"object to be accomplished'" by the legislation and the "'consequences that would
result"' from construing the statute one way or another. BAC Home Loans Servicing, LP
v. Fulbright, 180 Wn.2d 754,766,328 P.3d 895 (2014) (internal quotation marks
omitted) (quoting Burns v. City of Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007)).
Moreover, "[i]t is with the welfare of the children in mind that the rights of the parents
are examined." In re Welfare of Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973).
Accordingly, in termination proceedings where the rights of the parent and the welfare of
the child conflict, the best interests of the child must prevail. In re Interest of Pawling,
101 Wn.2d 392, 399, 679 P.2d 916 (1984). Here, the majority overturns a parental rights
termination decision, which advanced the welfare of the child, based on the trial court's
2 See 2 LEGISLATIVE DIGEST AND HISTORY OF BILLS, 63d Leg., at 87 (2d ed., Wash. 2013-14) (noting SHB 1284 "[e]xpands the rights of parents who are incarcerated with regard to ... [t]ermination of parent-child relationship proceedings").
5 No. 91921-6 Madsen, J., dissenting
failure to expressly consider a discretionary criteria that played no role in the termination
decision and will not alter the result on remand. Under the circumstances of this case, the
trial court's parental rights termination order should be affirmed.
Accordingly, I dissent.
6 No. 91921-6 Madsen, C.J., dissenting
7 In re Parental Rights to K.JB., No. 91921-6 (Gonzalez, J., dissenting)
GONZALEZ, J. (dissenting)- We could have and should have decided this
case months ago. The proper resolution of this appeal is simple. J.B. did not
preserve the error, the trial court's error was·harmless, and our collective delay and
ultimate remand is harmful to K.J.B. The Court of Appeals filed its opinion June
11, 2015; we granted review eight months later, on February 10, 2016; and now,
nearly three years after trial, the majority is sending the case back for the trial court
to start all over. K.J.B. may well be an adult before the justice system is done
"helping" her. I respectfully dissent.
I believe the trial court's failure to explicitly consider the statutory
incarcerated parent factors listed in RCW 13 .34. 180(1)(£) is not, on its own,
reversible error. See In re Parental Rights to MJ., 187 Wn. App. 399, 409, 348
P.3d 1265 (2015); cf In re Dependency ofD.L.B., 186 Wn.2d 103, 122, 376 P.3d
1099 (20 16). The error was not preserved and should not be reviewed on appeal.
J.B. did not object to the court's failure to explicitly consider the fact that he had
1 In re Parental Rights to K.J.B., No. 91921-6 (Gonzalez, J., dissenting)
been incarcerated for the final two months of a nearly two-year dependency
proceeding.
The discretion the majority exercises to review J.B.'s unpreserved claim
should have been used to end this prolonged termination. In re Dependency of
MS.R., 174 Wn.2d 1, 11-23, 271 P.3d 234 (2012) (citing RAP 2.5(a) and holding
that "children of parents subject to dependency and termination proceedings have
due process rights that must be protected"). Instead of invoking RAP 2.5, the
majority should be considering the dangers of delay. City of Seattle v. Patu, 147
Wn.2d 717, 722-23, 58 P.3d 273 (2002) (C. Johnson, J., dissenting) ("I would
apply ... as we do other prudential doctrines, with discretion and to further
specific judicial goals." (citing RAP 2.5(a))). "[T]he child has a strong interest in
the speedy resolution of dependency and termination proceedings, see RCW
13.34.020, and the State has an interest in ensuring such a speedy resolution to
ensure that children do not remain in legal limbo." In re Dependency of MHP.,
184 Wn.2d 741, 762, 364 P.3d 94 (2015).
The majority concentrates on RCW 13.34.180(1)(f)'s use of"shall."
Majority at 11. I agree that the word "shall" generally means mandatory, but a
judicious interpretation does not stop at the dictionary. "Shall" should be
interpreted in light of our constitution: "Justice in all cases shall be administered
openly, and without unnecessary delay." WASH. CONST. art. I, § 10 (emphasis 2 In re Parental Rights to K.J.B., No. 91921-6 (Gonzalez, J., dissenting)
added). Similarly, the legislature provided the framework to interpret RCW
13.34.180(1)(f)'s use of"shall." 1 Contra majority at 17 (neglecting the
legislature's use of"unless" and "speedy" when referencing RCW 13.34.020).
Justice demands K.J.B.'s speedy permanent placement. E.g., In re Parental Rights
to K.MM, 186 Wn.2d 466,495, 379 P.3d 75 (2016) ("The alternative to
termination is not placing K.M.M. back in her father's custody, but the
continuation of her dependency, which has already spanned almost seven years.");
In re Dependency ofK.N.J., 171 Wn.2d 568, 584, 257 P.3d 522 (2011)
(termination of parental rights was in child's best interests, after nearly six years of
legal uncertainty). But see majority at 12, 15 ("Absent an absurd result, we should
be slow to assume that the legislature meant something other than what it said"; "at
the time of trial, J.B. had not contacted his social worker or inquired about K.J.B.'s
well-being at any point during his incarceration.").
By the time of the termination hearing, K.J.B. had been in a safe and stable
foster care home for 22 months, her foster parents were planning to adopt her, and
they were not interested in a guardianship. Continuation of the parent and child
[T]he legislature declares that the family unit should remain intact unless a child's right to conditions of basic nurture, health, or safety is jeopardized.... The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter.
RCW 13.34.020 (emphasis added). 3 In re Parental Rights to K.JB., No. 91921-6 (Gonzalez, J., dissenting)
relationship clearly diminished K.J .B.'s prospects for early integration into the
stable and permanent home of her adoptive family. The trial court made a detailed
oral ruling from the bench with ample justification for the termination. 2 Verbatim
Report of Proceedings at 245-51 (Mar. 18, 2014). The judge specifically gave the
parties an opportunity to ask questions. !d. at 250. This point in the proceedings
would have been the perfect time for J.B. to object to any seeming failure to
consider the statutory incarceration factors. Such an objection would have given
the trial judge the opportunity to promptly remedy any error and, of course, would
have provided a record for the appellate courts to review. Without such an
objection, the shadow of uncertainty over this child's fate has lingered in our
courts more than 1,500 days since dependency proceedings started. Suppl. Br. of
State ofWash., Dept. of Soc. & Health Servs. at 2-3 (citing Clerk's Papers at 9,
11). K.J.B. was born on April20, 2012. How old will she be when this
termination ends?
In matters of juvenile justice, getting to the right result quickly is a priority.
The court is well aware ofthis. 2 For example, we recently adopted new internal
2 See Letter from Justice Bobbe J. Bridge (Ret.) (Aug. 15, 2016) in ALICIA LEVEZU, DEFENDING OUR CHILDREN: A CHILD'S ACCESS TO JUSTICE IN WASHINGTON STATE (2016) ("Only with a data-driven understanding of what actually happens in our courts can we build a system responsive to the needs of the children who are at the heart of our work."), https://www.law.washington.edu/Clinics/Child/Projects/Defending0urChildrenAugust2016.pdf [https ://perma.cc/SP72-GBCK]. 4 In re Parental Rights to K.JB., No. 91921-6 (Gonzalez, J., dissenting)
deadlines for drafting opinions related to dependency and termination of parental
rights. 3 Thus far, it is proving effective-compare the length of time from oral
argument to filing in 2016's D.L.B. (6 months) and K.MM (9 months) to 2011's
K.N.J. (18 months). This progress should not stop; more must be done to minimize
delay and achieve pennanency for children in dependency proceedings.
J.B. did not object at trial, and any error was harmless. I respectfully dissent.
3 Wash. Supreme Court, Internal Rules, Rule II-5(A)(3) (amended Apr. 28, 2016), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Documents/SupremeC ourtlnternalRules.pdf [https://perma.cc/C47W-R9VQ]; see also RAP 18.13A. 5