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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of No. 84852-6-I (consolidated with Nos. C.M.L. and C.S.S., 84853-4-I, 85000-8-I, 85001- 6-I)
Minor children. ORDER GRANTING MOTION TO PUBLISH
Respondent the Department of Children, Youth, and Families filed a
motion to publish the opinion filed on August 28, 2023 in this case, and appellant
filed an answer to the motion. A majority of the panel has determined that the
motion should be granted. Now, therefore, it is hereby
ORDERED that respondent’s motion to publish the opinion is granted.
FOR THE COURT:
Judge For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of No. 84852-6-I (consolidated with Nos. C.M.L. and C.S.S., 84853-4-I, 85000-8-I, 85001-6-I)
UNPUBLISHED OPINION Minor children.
BOWMAN, J. — D.L. appeals the trial court’s denial of her motion to vacate
a default order terminating her parental rights to C.M.L. and C.S.S. D.L. argues
we should set aside the default order because (1) the Department of Children,
Youth, and Families (Department) failed to notify her of the motion for default
under CR 55(a)(3), (2) the Department deprived her of due process because the
termination summons did not adequately advise her of her right to an attorney,
and (3) the factors under CR 60(b)(1) supported vacating the default judgment.
We affirm.
FACTS
D.L. is the biological mother of C.M.L. and C.S.S. The children’s biological
father is deceased. In May 2021, the Department filed dependency petitions and
removed both children from D.L.’s care, citing D.L.’s issues with mental health,
substance use, and parenting skills. The court appointed D.L. an attorney, and For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/2
the Department assigned her a caseworker to assist D.L. with reunification
services.
In June 2021, the Department referred D.L. for a drug and alcohol
evaluation, but she did not follow through with the assessment. And between
May and August 2021, the Department referred D.L. for drug testing, but she
failed to appear to submit samples.
On September 16, 2021, the court issued an order finding the children
dependent. Then, in November 2021, D.L. completed detox and a drug and
alcohol evaluation. In December 2021, she completed a 28-day inpatient
treatment program. After inpatient treatment, D.L. began an intensive outpatient
treatment program. But in January 2022, she relapsed and stopped participating
in treatment.1 In June 2022, D.L. started another 28-day inpatient program, but
she again stopped outpatient treatment after discharge.
The Department also referred D.L. for mental health and family
preservation services throughout 2021, but she did not participate in any of the
services. And she did not regularly visit her children or maintain regular contact
with her caseworker.
On August 24, 2022, the Department filed petitions to terminate D.L.’s
parental rights to C.M.L. and C.S.S. The petitions noted that the father may have
been a member of the Turtle Mountain Band of Chippewa Indians. So, the
Department sent notice to the tribe as required by the Indian Child Welfare Act of
1978 (ICWA), 25 U.S.C. § 1901, and the Washington State Indian Child Welfare
1 When D.L. stopped outpatient treatment, she lost her housing.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Act (WICWA), chapter 13.38 RCW. The tribe responded that neither the children For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/4
nor the father were members and that the children were not eligible for
membership.
On October 28, 2022, D.L.’s Department caseworker Stacie Naweli
personally served D.L. with the termination petitions and a “Notice and
Summons/Order [re] Termination of Parent-Child Relationship.” The summons
informed D.L. that the Department was seeking to terminate her parental rights to
C.M.L. and C.S.S. It said that the court scheduled a preliminary hearing on
termination for December 5, 2022 at 9:00 a.m.2 The notice informed D.L. that
she “should be present at this hearing.” And it warned her that if she did not
appear, “the court may enter an order in [her] absence . . . [p]ermanently
terminating [her] parental rights.”34 The notice also informed D.L. that she had
the right to an attorney and instructed her how to request one.
When Naweli gave D.L. the summons, she “pointed out the date of the
hearing.” Naweli also told D.L. that “she could appear at the hearing via Zoom [5]
and then asked [D.L.] for a good e[-]mail address,” which D.L. provided.
On November 1, 2022, Naweli e-mailed D.L. a service letter that included
the preliminary termination hearing date and time and information on how to
access the hearing. And on November 30, 2022, Naweli e-mailed D.L. the
2 Under Snohomish County Superior Court Local Juvenile Court Rule (SCLJuCR) 3 .6A(a), “[i]n every matter set for a dependency, guardianship, or termination fact-finding hearing, a preliminary hearing shall first be had to resolve all undisputed facts and to consider matters of law.” 4 “Any party not appearing at the preliminary hearing in person or by counsel, after proper notice, may be adjudged in default.” SCLJuCR 3.6A(c). 5 Zoom is an online platform that provides audio and video conferencing.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/5
preliminary hearing date and time, the Zoom link to appear at the hearing, and
the call-in information.6 She also called D.L.’s last known phone number7 and left
a voice mail asking for a return call. Naweli then texted D.L. that she had
emailed her the Zoom link to appear at the hearing.
D.L. did not appear at the preliminary hearing on December 5, 2022.8 So,
the Department requested to proceed by default, which the court allowed. The
Department first asked the court to find that ICWA and WICWA do not apply
based on the tribe’s determination that neither child is a member or eligible for
membership. The trial court found that ICWA and WICWA do not apply.
The Department then presented testimony from caseworker Naweli.
Naweli described the services the Department offered D.L. and D.L.’s lack of
compliance with those services. Naweli opined that there is “little likelihood that
the children can be returned to [D.L.] in the near future” because she “has not
engaged in services necessary to remedy her parental deficiencies” or
“maintained contact” with the children or the Department. She also stated that
D.L. was unfit to parent the children because of her ongoing substance use,
6 Naweli sent both the November 1 and November 30 e-mails to the address that D.L. provided on October 28, 2022, to another e-mail address that D.L. had “personally provided” on December 16, 2021, and to two other addresses “that had been provided from parent locator searches.” 7 Naweli called the phone number “that she had been using to communicate with” D.L. since October 2022 and “had no reason to believe . . . was not a good number to reach [D.L.].” 8 D.L.’s dependency attorney appeared at the preliminary hearing. But she informed the court that she “represent[s] [D.L.] in the underlying dependency matter only” and that D.L. “has not reached out to me to request counsel for the termination.”
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/6
mental health issues, lack of safe and stable housing, and failure to engage in
any parenting skills classes.
Based on Naweli’s testimony, the court found that the Department met its
burden to show that it offered D.L. all necessary services and that she did not
follow through or maintain consistent engagement with the services. The court
specifically found that D.L. “continues to have untreated mental health issues
[and] substance use issues,” never “addressed any parenting skills or parenting
deficiencies,” and “has not maintained consistent visitation with the children.”
The court concluded that D.L. is unfit to parent the children and that there was
little likelihood that her parental deficiencies would allow the children to be
returned to her in the near future. The court issued a “Hearing, Findings, and
Order Regarding Termination of Parent-Child Relationship” as to each child and
a default order terminating D.L.’s parental rights to C.M.L. and C.S.S.
A couple of hours after the hearing, D.L. texted Naweli.9 D.L. said that
she was “having issues with her phone” and “wanted to check in about court.”
Naweli asked if she could call D.L. later and D.L. responded, “Yes what time is
court.” Naweli replied that court was at 9:00 a.m. D.L. told Naweli that “she
thought the hearing was at 2 [p.m.] but realized that she was thinking of her
doctor appointment.” Naweli then arranged to meet with D.L. two days later at a
location D.L. chose.
9 The record shows that the hearing began at 9:00 a.m. on December 5, 2022. D.L. texted Naweli at 11:24 a.m.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/7
On December 7, 2022, Naweli arrived at D.L.’s suggested location for the
meeting, but D.L. did not show up. Naweli called D.L., who answered and said
she would like to meet at a different location. Naweli drove to the new location,
but again, D.L. did not appear. Over the next 45 minutes, Naweli called and
texted D.L. several times, but D.L. never responded. Eventually, Naweli texted
D.L. that she had to leave but could meet the next week on December 12. D.L.
responded that she could meet at that later date. On December 12, 2022,
Naweli called D.L. to confirm their meeting, but D.L. did not respond.
More than a week later on December 21, D.L. texted Naweli, “apologizing
for not staying in touch.” Naweli then called D.L. and explained that the court
terminated her parental rights. D.L. asked Naweli for her dependency attorney’s
contact information, which Naweli provided.
On December 29, 2022, D.L.’s dependency attorney filed a notice of
appearance in the termination matter. And on January 10, 2023, D.L. moved to
vacate the default termination order for mistake and excusable neglect. D.L.
argued that CR 60(b)(1) required the court to vacate the default termination order
because her dyslexia prevented her from meaningfully processing the notice of
hearing and summons. She also asserted that the default proceedings violated
her due process right to a meaningful opportunity to participate at the hearing.
D.L. summitted a declaration with her motion, admitting that Naweli
personally served her with the petitions and summons but that she has
“disabilities that interfered with [her] ability to understand the Notice of Hearing,
when the hearing was, and what [she] needed to do.” She said she suffers from
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/8
dyslexia and was on an individual education plan in school because of that
disability. And D.L. said she missed the December 5 hearing because “I got my
dates mixed up.”
The Department responded, arguing that D.L. was not entitled to relief
under CR 60(b)(1) because she failed to show excusable neglect or mistake and
failed to present a prima facie defense to the termination action. The Department
also argued that the court’s default judgment proceedings satisfied due process.
On January 25, 2023, the court heard the motion to vacate. At the
beginning of the hearing, D.L.’s attorney argued that ICWA mandated reopening
the case. She argued that the Turtle Mountain Band of Chippewa Indians
concluded that the children were not eligible by “blood quantum,” but under their
bylaws, the children are eligible for membership in the tribe by “linear descent of
enrolled members.” The court rejected that argument as speculation. D.L. then
argued that the State “cannot prove that she relapsed” and that her disability
warranted relief from the default.
The court denied the motion to vacate, concluding that D.L. failed to show
substantial evidence of a prima facie defense and showed insufficient evidence
of excusable neglect. The court found that D.L. acted with due diligence in
moving to vacate the default order but concluded that “it doesn’t negate the
weight to be given to the other factors.” Finally, the court concluded that “it is
really clear . . . there will be a substantial hardship, in terms of permanency, to
the children,” and that “when the rights of the children and the rights of the
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/9
parents are in conflict, the rights of the parents must give way to the best
interests of [the] child.”
D.L. appeals.10
ANALYSIS
D.L. argues (1) the Department should have notified her of the default
hearing under CR 55(a)(3), (2) due process required her termination summons to
explain that her dependency attorney did not also represent her in the
termination proceedings, and (3) the CR 60(b)(1) factors compelled the trial court
to vacate the default order. We address each issue in turn.
1. CR 55(a)(3)
D.L. argues we should reverse the default termination order because she
received no notice of the default proceeding as required under CR 55(a)(3). We
disagree.
Whether a party has a right to notice of a motion for default is a question
of law that we review de novo. In re Welfare of S.I., 184 Wn. App. 531, 539, 337
P.3d 1114 (2014). “CR 55(a) controls entry of an order of default and default
judgment.” Id. A party may move for default when the opposing party “has failed
to appear, plead, or otherwise defend as provided by these rules.” CR 55(a)(1).
Under CR 55(a)(3),
[a]ny party who has appeared in the action for any purpose shall be served with a written notice of motion for default and the supporting affidavit at least [five] days before the hearing on the motion. Any
10 D.L. filed four separate appeals of the termination orders, default order, and the order denying her motion to vacate the default termination order. We consolidated the appeals under No. 84852-6-I.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/10
party who has not appeared before the motion for default and supporting affidavit are filed is not entitled to a notice of the motion.
One “appears in an action when he or she answers, demurs, makes any
application for an order therein, or gives the plaintiff written notice of his or her
appearance.” RCW 4.28.210.
D.L. did not appear in the termination action. Still, she argues that
because she appeared in the dependency proceeding, she was entitled to five
days’ notice of the motion for default in the termination proceeding under CR
55(a)(3).
Division Three of our court rejected that same argument in S.I. There, the
mother appeared in a dependency action and sporadically participated in
services that DSHS11 offered. S.I., 184 Wn. App. at 535-36. DSHS filed for
termination of the mother’s parental rights. Id. at 536. The assigned caseworker
personally served the mother with the termination petition and a notice and
summons to appear at a hearing on the petition. Id. The mother did not file a
notice of appearance in the termination matter or appear at the hearing. Id. at
536-37. A week later, DHSH moved for default, and the trial court entered a
default termination order the same day. Id.
On appeal, the mother argued that entry of the order of default without five
days’ notice violated CR 55(a)(3). S.I., 184 Wn. App. at 539. Division Three held
that the mother had no right to notice under CR 55 because her appearance in
the dependency matter did not amount to an appearance in the termination
11 Department of Social and Health Services.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/11
proceeding. Id. at 540-41. The court explained that “an action to permanently
terminate parental rights is a new proceeding and not an extension of the
dependency action.” Id. at 540. This is so because
the purpose of a dependency proceeding and a termination proceeding are diametric: A dependency proceeding seeks to provide services to a parent to correct parental deficiencies so as to reunify the parent-child relationship; whereas a termination proceeding seeks to permanently terminate the parent-child relationship.
Id.12
D.L. urges us to reject S.I. She argues that S.I. improperly relied on In re
Dependency of Hiebert, 28 Wn. App. 905, 627 P.2d 551 (1981), to conclude that
a dependency and a termination are separate proceedings. See S.I., 184 Wn.
App. at 540-41.
The court in Hiebert held that a party may file a timely affidavit of prejudice
to disqualify the judge in a termination proceeding when the same judge presided
over the dependency because the termination proceeding is a separate action.
28 Wn. App. at 910-11, 908. According to D.L., S.I. “inverted” Hiebert’s logic
because Hiebert focused “largely on the fact that termination constitutes so
profound a deprivation that due process entitles the parent to ‘new notice’ of the
proceedings.” But the relevant conclusion in Hiebert—that a termination action is
a separate proceeding from the dependency action—is well settled law. See In
12 We adopted the reasoning of S.I. in an unpublished opinion, In re Dependency of W.L.S., No. 80010-8-I, slip op. at 6 (Wash. Ct. App. Mar. 2, 2020), https://www.courts. wa.gov/opinions/pdf/800108.pdf.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/12
re Welfare of Martin, 3 Wn. App. 405, 410-11, 476 P.2d 134 (1970); In re Welfare
of Gibson, 4 Wn. App. 372, 379, 485 P.2d 131 (1971).
D.L. offers no compelling reason for us to depart from S.I. Because D.L.
did not appear in the termination action, she was not entitled to five days’ notice
of the default proceeding under CR 55(a)(3).
2. Due Process
D.L. argues that the Department violated her due process rights by failing
to adequately advise her of her right to an attorney. We disagree.
“No person shall be deprived of life, liberty, or property, without due
process of law.” W ASH. CONST. art. I, § 3. Due process in the termination context
“requires that parents have notice, an opportunity to be heard and defend, and
the right to be represented by counsel.”13 In re Welfare of L.R., 180 Wn. App.
717, 723, 324 P.3d 737 (2014). In determining whether a parent has received
due process, we must balance (1) the parent’s interests, (2) the risk of error
created by the procedures used and the likely value of additional safeguards,
and
(3) the state’s interests. In re Dependency of C.R.B., 62 Wn. App. 608, 614-15,
814 P.2d 1197 (1991) (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976)). We review whether a proceeding violates due
process de novo. In re Welfare of J.M., 130 Wn. App. 912, 920, 125 P.3d 245
(2005).
13 Terminations are civil proceedings, so the right to counsel guaranteed by the Sixth Amendment to the United States Constitution does not apply. In re Welfare of S.E., 63 Wn. App, 244, 249, 820 P.2d 47 (1991).
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/13
Parents have a fundamental liberty interest in the care and custody of their
children, protected by the Fourteenth Amendment to the United States
Constitution and article I, section 3 of the Washington Constitution. In re
Dependency of V.R.R., 134 Wn. App. 573, 581, 141 P.3d 85 (2006). As a result,
state law guarantees a parent the right to counsel in termination proceedings.
Id.; RCW 13.34.070(3), .180(6). On the other hand, the Department “has a
strong interest in protecting the rights of the children, which includes a speedy
resolution of the termination proceeding.” L.R., 180 Wn. App. at 727. That
interest is “ ‘not only in establishing a stable and permanent home for the child,
but also in doing it as soon as possible.’ ” Id. (quoting C.R.B., 62 Wn. App. at
615). Given D.L.’s and the Department’s competing interests here, the second
factor (whether adequate safeguards exist to protect a parent’s liberty interests)
is dispositive.
A parent’s right to counsel in dependency and termination proceedings
arises under RCW 13.34.090. In re Dependency of E.P., 136 Wn. App. 401,
404-05, 149 P.3d 440 (2006). That statute provides:
At all stages of a proceeding in which a child is alleged to be dependent, the child’s parent, guardian, or legal custodian has the right to be represented by counsel, and if indigent, to have counsel appointed for him or her by the court. Unless waived in court, counsel shall be provided to the child’s parent, guardian, or legal custodian, if such person (a) has appeared in the proceeding or requested the court to appoint counsel and (b) is financially unable to obtain counsel because of indigency.
RCW 13.34.090(2). The statute creates both a right to be represented by
counsel and an obligation to appoint counsel should a parent appear in a
proceeding unrepresented. See In re Welfare of G.E., 116 Wn. App. 326, 333,
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/14
65 P.3d 1219 (2003) (appearance triggers the court’s duty to provide counsel; a
parent need not request appointment of counsel). Our Supreme Court has held
that RCW 13.34.090 “fulfills all of the requirements of due process” in the
dependency context. In re Welfare of Key, 119 Wn.2d 600, 611, 836 P.2d 200
(1992).
Parents are advised of their right to counsel in termination proceedings by
way of a summons. RCW 13.34.070. Under RCW 13.34.070(2) and (3), the
Department must serve the parent with the termination petition and a summons,
which “shall advise the parties of the right to counsel.” The summons “shall also
inform the child’s parent, guardian, or legal custodian of his or her right to
appointed counsel, if indigent, and of the procedure to use to secure appointed
counsel.” RCW 13.34.070(3). Under RCW 13.34.180(6), the petition must
include, “in substantially the following form,” notice that the parents
“have the right to have a lawyer represent you at the hearing. A lawyer can look at the files in your case, talk to the [D]epartment . . . or other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a courtappointed lawyer you must contact: (explain local procedure) .”
Here, D.L.’s caseworker served her with the termination petitions and a
summons that contained the required statutory language. The summons advised
D.L.:
• You have the right to be represented by a lawyer. If you cannot afford a lawyer, you have the right to request that the court appoint a lawyer to represent you at public expense. If you qualify, a lawyer will be appointed by the court to represent you.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/15
• Your lawyer can look at the social and legal files in your case, talk to the supervising agency or other agencies, tell you about the law, help you understand your rights and help you at hearings.
• If you wish to have a lawyer appointed, contact the Snohomish County Office of Public Defense by telephone at 425-388- 3500, or at 3000 Rockefeller First floor, Room #C-103, Everett, WA 98201.
Still, D.L. argues that the language in her summons does not satisfy due
process. According to D.L., the language is a “vague advisement” that
“overestimated [her] legal sophistication.” She complains that the summons
“said nothing about dependency counsel” and that there was “no reason for [her]
to infer, without specific direction, a need to formally retain the attorney who had
already represented her.” But D.L.’s summons clearly advised her that she had
the right to a lawyer and explained the steps she must take to obtain one. And
as much as she may have been confused about the process, the statute
provides a safeguard. Had D.L. appeared at the preliminary hearing, the court
was statutorily required to appoint her a lawyer. Indeed, D.L.’s dependency
attorney was present at the hearing and stood ready to represent D.L. if she
appeared and requested appointment.
D.L. fails to show that current safeguards do not adequately protect a
parent’s due process right to counsel in termination proceedings.
3. CR 60(b)(1)
D.L. argues the trial court abused its discretion by denying her motion to
vacate under CR 60(b)(1) for mistake or excusable neglect. We disagree.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/16
Default judgments are not favored in the law. Gage v. Boeing Co., 55 Wn.
App. 157, 159, 776 P.2d 991 (1989). Still, the Department may obtain a
judgment terminating a parent’s right to the custody of their child if the parent
fails to respond to notices and summons of the proceeding to terminate their
rights. C.R.B., 62 Wn. App. at 616. This is because “a child’s right to a stable
home cannot be put on hold interminably because a parent is absent from the
courtroom and has failed to contact his or her attorney.” Id. But before the court
can enter a default judgment terminating parental rights, it must have a
meaningful hearing on the merits of the case in accordance with the statutory
requirements for termination. Id.
Under CR 60(b)(1), “the court may relieve a party or the party’s legal
representative from a final judgment, order, or proceeding for . . . [m]istakes,
inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment
or order.” We will not disturb a trial court’s decision on a motion to vacate a
default judgment absent an abuse of discretion. White v. Holm, 73 Wn.2d 348,
351, 438 P.2d 581 (1968). A trial court abuses its discretion “when its decision is
manifestly unreasonable, based on untenable grounds, or made for untenable
reasons.” Fowler v. Johnson, 167 Wn. App. 596, 604, 273 P.3d 1042 (2012). If
the decision to deny a motion to vacate is based on tenable grounds and is
within the bounds of reasonableness, we must affirm. In re Est. of Stevens, 94
Wn.
App. 20, 30, 971 P.2d 58 (1999).
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/17
A party seeking to vacate a default judgment must show (1) that there is
substantial evidence supporting a prima facie defense, (2) that the failure to
timely appear and answer was due to mistake, inadvertence, surprise, or
excusable neglect, (3) that the defendant acted with due diligence after notice of
the default judgment, and (4) that the plaintiff will not suffer a substantial hardship
if the court vacates the default judgment. TMT Bear Creek Shopping Ctr., Inc. v.
PETCO Animal Supplies, Inc., 140 Wn. App. 191, 212, 165 P.3d 1271 (2007). The first two factors are primary and the other two are secondary. Id. at 200-01.
The “factors are interdependent,” so the proof that a moving party must show “on
any one factor depends on the degree of proof made on each of the other
factors.” Norton v. Brown, 99 Wn. App. 118, 124, 992 P.2d 1019 (1999).
If the moving party shows a “ ‘strong or virtually conclusive defense,’ ” the
court will spend little time inquiring into the reasons for the failure to appear and
answer, provided the party timely moved to vacate and the failure to appear was
not willful. TMT, 140 Wn. App. at 20514 (quoting Johnson v. Cash Store, 116 Wn.
App. 833, 841, 68 P.3d 1099 (2003)). Relieving a party from a default judgment
that has a strong or virtually conclusive defense serves equitable principles that
ensure “ ‘substantial rights are preserved and justice is done.’ ” Id. at 204-05
(quoting Johnson, 116 Wn. App. at 841). But when the moving party’s evidence
supports no more than a prima facie defense, the court will scrutinize the reasons
for the failure to timely appear with greater care. Id.
14 Internal quotation marks omitted.
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/18
A. Prima Facie Defense
D.L. argues that the trial court erred by finding she failed to show a prima
facie defense. We disagree.
The party seeking to vacate a default judgment must show “that there is
substantial evidence supporting a prima facie defense.” Little v. King, 160 Wn.2d
696, 703-04, 161 P.3d 345 (2007). To determine whether evidence supports a
prima facie defense, “the trial court must take the evidence, and reasonable
inferences therefrom, in the light most favorable to the movant.” Pfaff v. State
Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 835, 14 P.3d 837 (2000). A CR 60
movant shows a prima facie defense when they produce evidence that, if
believed by the trier of fact, would amount to a defense to the claims presented.
Id. at 835-36. So, a parent may show a prima facie defense by challenging the
State’s ability to meet its burden of proof under the termination statute, RCW
13.34.180.
A trial court may terminate parental rights when the Department
establishes the statutory elements of RCW 13.34.180(1)(a) to (f) by clear,
cogent, and convincing evidence. In re Parental Rights to K.M.M., 186 Wn.2d
466, 478, 379 P.3d 75 (2016); RCW 13.34.190(1)(a)(i). Those elements are:
(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 ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/19
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. . . . . . . and (f) 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). The Department must also prove by a preponderance of the
evidence that termination of the parent-child relationship is in the child’s best
interests. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010);
RCW 13.34.190(1)(b). On appeal, D.L. argues she showed a prima facie defense against
termination by explaining that she “had disabilities including, at least, dyslexia,”
and that the Department did not properly investigate and tailor services to her
disabilities. But D.L. offered no evidence of this defense at the hearing on the
motion to vacate. D.L. did not allege in her declaration that the Department’s
investigation into her disabilities was inadequate, that the Department did not
offer sufficient services, or that her dyslexia prevented her from meaningfully
participating in those services. Instead, her declaration in support of vacating the
termination order addressed only the reasons she failed to appear at the
December 5 preliminary hearing. It said:
I have disabilities that interfered with my ability to understand the Notice of Hearing, when the hearing was, and what I needed to do. . . . I suffer from dyslexia. . . . When I was a student in school, I was on an IEP (Individual Education Plan) because of this disability.
Nothing in D.L.’s declaration amounts to a prima facie defense to the petitions to
terminate her parental rights.
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/20
D.L. also argues she “raised a prima facie defense related to ICWA and
WICWA” by arguing that the Turtle Mountain Band of Chippewa Indians erred in
determining her children were not eligible for membership by blood quantum
because the tribe’s bylaws state that the test for eligibility is by lineage. But it is
solely for the tribe to determine tribal membership eligibility. In re Dependency of
Z.J.G., 196 Wn.2d 152, 175, 471 P.3d 853 (2020); In re Dependency of A.L.W.,
108 Wn. App. 664, 671-72, 32 P.3d 297 (2001). And the record shows the tribe
determined that the children were not members or eligible to become members.
B. Excusable Neglect
Even if D.L. had set out a prima facie defense to the termination petitions,
she did not show that her failure to appear at the December 5 hearing resulted
from excusable neglect.
D.L. says she struggled to understand the summons because of dyslexia.
But her caseworker personally served her with the termination petitions and a
summons to appear at the termination hearing. The summons informed D.L. that
the Department was seeking termination of her parental rights to C.M.L. and
C.S.S., and that the court scheduled a preliminary hearing on termination for
December 5, 2022 at 9:00 a.m. It warned her several times to appear—“You
should appear at this hearing,” “You are summoned and required to appear at
the hearing,” “A termination Petition, if granted, will result in permanent loss of
your parental rights,” “If you do not appear the court may enter an order in
your absence . . . [p]ermanently terminating your parental rights.” When giving
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/21
D.L. the summons, Naweli “pointed out the date of the hearing.” Naweli told D.L.
that “she could appear at the hearing via Zoom and asked [her] for a good e[-
]mail address.” D.L. gave Naweli an e-mail address and never expressed
confusion about the date of the hearing.
On November 1, 2022, Naweli sent D.L. a service letter via e-mail that
included the hearing date and time and “information on how to access the
hearing.” And on November 30, 2022, Naweli sent D.L. an e-mail with the date
and time of the preliminary hearing, the Zoom link, and the call-in information for
the hearing. Naweli also called D.L.’s last known phone number and left a voice
mail, asking for a return call. She then texted D.L. that she had e-mailed her the
hearing link.
Finally, when D.L. called Naweli and asked about court, she did not tell the
caseworker that she did not understand the summons because of dyslexia.
Instead, she texted Naweli “to check in about court” because she was “having
issues with her phone.” And she told Naweli that she mixed up the time with her
doctor’s appointment that afternoon. D.L.’s declaration attached to her motion to
vacate also explains that she “got [her] dates mixed up.” Forgetting the time of a
termination hearing after formal notice and several reminders does not amount to
excusable neglect. See S.I., 184 Wn. App. at 544 (mother’s failure to read the
termination petition and summons after her caseworker personally served her
was not excusable neglect).
D.L. argues that this case is like In re Parental Rights to C.E.C.L., No.
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/22
84156-4-I (Wash Ct. App. Apr. 10, 2023) (unpublished), https://www.courts.
wa.gov/opinions/pdf/841564.pdf. In that case, the Department petitioned to
terminate the father’s parental rights. Id., slip op. at 1. Though the father was “in
regular contact with his dependency attorney,” the Department failed in its
attempts to serve him. Id., slip op. at 7, 1. So, the Department moved to serve
him by publication, which the court granted. Id., slip op. at 1-2. The Department
then served notice by publication in the Daily Journal of Commerce.15 Id., slip
op. at 7.
When the father failed to appear at the termination hearing, the
Department moved for an order of default. C.E.C.L., No. 84156-4-I, slip op. at 2.
The court then held a default termination hearing, heard testimony from the
father’s caseworker, and granted the termination petition. Id. Shortly after the
hearing, the father appeared and moved to vacate under CR 60. Id. The trial
court denied his motion. Id. We reversed, concluding that the father showed
evidence of a prima facie defense. Id., slip op. at 1, 6. And we concluded that
the trial court “failed to consider mistake or excusable neglect” despite an error in
proper service and service by publication, a method of service unlikely to reach
the father. Id., slip op. at 7.
15 The Department also mailed the summons and termination petition to the father’s last known address, but “it previously had declared his whereabouts were unknown.” C.E.C.L., No. 84156-4-I, slip op. at 1-2. And under a local court rule, the Department e-mailed the documents to the father’s dependency attorney, but the attorney “had ‘missed’ and not opened or read the e[-]mail.” Id., slip op. at 2.
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/23
D.L.’s case is different. D.L. presents no evidence in support of a prima
facie defense. Further, the Department properly served her with a summons.
Indeed, D.L. received personal service of the termination petitions and summons,
received several reminders about the hearing, and never indicated confusion
about how to access the hearing. D.L. cannot show her absence resulted from
excusable neglect.
C. Due Diligence
D.L. argues that she acted with due diligence. The State agrees. The
record shows that D.L. contacted her dependency attorney on December 22,
2022, less than a month after the termination. The attorney then promptly
entered an appearance in the termination and moved to vacate the default order.
This secondary factor supports granting D.L.’s motion to vacate. D. Substantial Hardship
D.L. argues that the State would not suffer substantial hardship if we
vacated the default judgment. If we did so, the matter would proceed to a
termination trial. See Pfaff, 103 Wn. App. at 836. But that alone is not a
substantial hardship for purposes of CR 60(b)(1). Id. This secondary factor also
supports D.L.’s motion to vacate.
E. Equity
Finally, D.L. argues that equity demands we set aside the default
termination order. A CR 60(b)(1) determination to set aside a default judgment
“is not a mechanical test,” but “a matter of equity.” Little, 160 Wn.2d at 703-04.
Our overarching concern when reviewing a trial court’s decision on a motion to
vacate “is whether that decision is just and equitable.” TMT, 140 Wn. App. at
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/24
200. That is because “ ‘[j]ustice is not done if hurried defaults are allowed, but
neither is it done if continuing delays are permitted.’ ” Id. (quoting Johnson, 116
Wn. App. at 841). So, we employ an equitable analysis to determine what is
proper “ ‘by the facts of each case, not by a hard and fast rule applicable to all
situations.’ ” Id.16 (quoting Little, 160 Wn.2d at 703).
Here, the equities support the trial court’s decision denying D.L.’s motion
to vacate. At termination, the State and the children share an interest “ ‘not only
in establishing a stable and permanent home for the child, but also in doing it as
soon as possible.’ ” L.R., 180 Wn. App. at 727 (quoting C.R.B., 62 Wn. App. at
615). The Department removed D.L.’s children from her custody in May 2021,
more than a year and a half before the termination proceeding. Vacating the
termination order would cause more delay and disruption to the children’s
interest in a stable and permanent home. Starting the termination process anew
would be a hardship for the children and a barrier to permanency.
The primary factors under CR 60(b)(1) and equitable consideration of all
the factors weigh against vacating the default termination. The trial court did not
abuse its discretion by denying D.L.’s motion to vacate.
We affirm the order denying D.L.’s motion to vacate the default order
terminating her parental rights to C.M.L. and C.S.S.
16 Internal quotation marks omitted.
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 84852-6-I (consol. with Nos. 84853-4-I, 85000-8-I, 85001-6-I)/25
WE CONCUR: