In Re The Dependency Of S.e.r., Kizzy Reid v. Dshs

• Court: Court of Appeals of Washington
• Decided: September 23, 2019
• Docket: 78770-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Dependency of No. 78770-5-1 S.E.R., DOB: 10/21/2014 DIVISION ONE

Minor Child. UNPUBLISHED OPINION

THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES,

Respondent,

V.

KIZZY KENYATTA REID,

Appellant. FILED: September 23, 2019

LEACH, J. — Kizzy Kenyatta Reid appeals an order terminating her

parental rights with S.E.R. She claims that the underlying dependency order is

void because of internal inconsistencies in that order but does not challenge the

court's personal or subject matter jurisdiction to enter the order. Because any

procedural irregularity may make the challenged order voidable but not void, this

claim fails. We affirm. No. 78770-5-1 /2

BACKGROUND

In November 2016, Reid fell asleep in the airport baggage claim while her

daughter S.E.R. was sitting, unbuckled, in her stroller. A police officer contacted

Reid and discovered outstanding warrants. After the police arrested Reid, the

Department of Social & Health Services (DSHS)1 took S.E.R. into protective

custody. DSHS filed a dependency petition and provided Reid with proper notice

of the dependency hearing. Her assigned social worker also told Reid about the

impending dependency hearing and provided her with the court date.

Neither Reid nor an attorney representing her appeared at the

dependency hearing. The court entered a default dependency order in January

2017. The default order required Reid to complete a drug/alcohol evaluation and

follow treatment recommendations, complete 90 days of random urinalysis

testing, complete age appropriate parenting classes, and complete a

psychological evaluation with parenting component. The order provided Reid

with two two-hour visits per week. Reid did not appeal the dependency order.

She never asked the trial court to vacate it.

After the first dependency review hearing in April 2017, the court entered

an order that identified S.E.R. as a dependent child pursuant to RCW

13.34.030(6). In a September 2017 order entered after a permanency planning

meeting, the trial court again identified S.E.R. as a dependent child pursuant to

1 The agency is now known as the Department of Children, Youth and Families.

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RCW 13.34.030(6). In December 2017, DSHS filed a petition for termination.

The trial court held another dependency review in March 2018. Its order entered

after that hearing once again identified S.E.R. as a dependent child pursuant to

RCW 13.34.030(6).

In late June 2018, the court held a two-day hearing on DSHS's termination

petition. Reid's attorney attended both days. Reid appeared the first day and

testified. She did not appear the second day.

In its oral ruling, the court said it found Reid's testimony "compelling"

because she recognized that her substance abuse was a central problem. But

the court found her failure to engage in the services necessary to address the

issue by the time of the hearing undermined that testimony. The trial court

concluded that DSHS had proved RCW 13.34.180(1)(a)-(f) by clear, cogent, and

convincing evidence and that it had established by a preponderance of the

evidence that termination was in S.E.R.'s best interest.

In mid-July 2018, the trial court entered findings of fact, conclusions of

law, and an order terminating the parent-child relationship between Reid and

S.E.R.

Reid appeals.

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ANALYSIS

Reid claims that the State did not meet its burden of proving at the

termination hearing that S.E.R. was a dependent child because the dependency

order was void.2 We disagree.

In Washington, the rights of a parent may be terminated after the State

completes three steps, including a determination of dependency, dependency

review hearings every six months and, finally, termination.3 At the termination

hearing, the State must satisfy two prongs.4

First, it must prove the following statutory elements by clear and

convincing evidence:

(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 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.[5]

2RCW 13.34.180(1)(a), (c). 3RCW 13.34.030(6); RCW 13.34.138(1); In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522(2011). 4 RCW 13.34.190(1). 5 RCW 13.34.190(1)(a)(i); RCW 13.34.180(1).

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If it does, the State must also prove that termination is in the "best

interests of the child" by a preponderance of the evidence.6 If the State proves

both prongs, the trial court will enter an order terminating parental rights.7

Whether a termination order satisfies statutory requirements presents a question

of law that we review de novo.8

The sole basis for Reid's challenge to the termination order is her

assertion that the underlying dependency order was void.

A party make attack an order in a collateral proceeding only "if it is

absolutely void, not merely erroneous. A judgment is void only where the court

lacks jurisdiction of the parties or the subject matter or lacks the inherent power

to enter the particular order involved."9 A judgment is voidable if the court has

jurisdiction, but the order is the result of mistakes or procedural irregularities.10

Generally, CR 60(b) governs the process for vacating voidable orders. CR 55,

which governs default judgments, provides that a default judgment may be

vacated in accordance with CR 60(b).11

A party may ask to vacate a void order at any time.12 But CR 60(b)

requires that a party ask the court to vacate a voidable order within "a reasonable

6 RCW 13.34.190(1)(b). 7 RCW 13.34.190(1). 8 K.N.J., 171 Wn.2d at 574. 9 Bresolin v. Morris, 86 Wn.2d 241, 245, 543 P.2d 325 (1975) (citations omitted). 18 In re Marriage of Mu Chai, 122 Wn. App. 247, 254, 93 P.3d 936 (2004). 11 CR 55(c)(1). 12 In re Marriage of Leslie, 112 Wn.2d 612, 618-19, 772 P.2d 1013 (1989).

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time." And if the party bases its request on "[m]istakes, inadvertence, surprise,

excusable neglect or irregularity in obtaining" the order, the party must make its

request "not more than 1 year after the judgement, order, or proceeding was

entered or taken."13

Reid never challenged the dependency order on any basis in the trial

court.14 More than a year passed between the date the court entered the

dependency order and when it entered the termination order. In the interim, the

court held several hearings on the dependency and issued orders that repeated

the finding of dependency. During this time, Reid did not ask to vacate the order.

The time to make this request has passed.

Reid does not challenge the personal or subject matter jurisdiction of the

court to enter the dependency order. Instead, she relies on inconsistent

statements in the order stating that it was entered by default and with her

agreement.15 These inconsistencies do not make the order void. At best, they

make it voidable. So Reid may not collaterally attack the validity of the

dependency order.16

13 CR 60(b). 14 In addition to the remedies provided in CR 60(b), RAP 2.2(a)(5) allows for appeal of "the disposition decision following a finding of dependency by a juvenile court." 15 Reid challenges the trial court's jurisdiction over claims that the court did not have jurisdiction to issue the termination because it did not have a valid dependency order before it. 16 Reid asserts that the dependency order here is similar to the order the court determined was void in In re Dependency of K.N.J.,171 Wn.2d 568, 257 P.3d 522 (2011). But the appellant there successfully challenged the jurisdiction

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In her reply brief, Reid attempts to avoid the collateral attack bar with an

assertion that this court should review her claim under RAP 2.5(a)(2) and RAP

2.5(a)(3). We generally do not consider an argument raised for the first time in

an appellant's reply brief.17 But even if we consider her claims, they fail.

First, Reid contends that we should review her challenge to the

termination order under RAP 2.5(a)(2) because the State failed to establish

necessary facts for termination because the dependency order was void. As we

have discussed, this claim fails on its merits because the dependency order may

be voidable but is not void. And she has waited too long to ask the trial court to

vacate it.

Second, Reid asserts that we should review her claim under RAP

2.5(a)(3) because the entry of the dependency order was a manifest

constitutional violation of her right to due process.18 To show manifest

constitutional error, an appellant must demonstrate actual prejudice.18 And to

show actual prejudice, the appellant must make a "'plausible showing ... that the

of the court to issue the dependency order because the father did not consent to a judge pro tempore hearing the matter. K.N.J., 171 Wn.2d at 578. K.N.J. does not help her here. 17 King v. Rice, 146 Wn. App. 662, 673, 191 P.3d 946 (2008). 18 Mathews v. Eldridge, 24 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). 19 State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).

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asserted error had practical and identifiable consequences in the trial of the

case."2°

Reid's challenge to the dependency order relies on an apparent mistake

made by the person preparing the order. Reid makes no claim that she did not

receive timely notice of the dependency order. She does not challenge the truth

of the court's factual findings supporting the order. Reid's testimony at the

termination hearing was consistent with those findings. She described the

incident in the airport that caused DSHS to take S.E.R. into custody. She

testified that her other children had been removed from her care and found

dependent because she had been "on drugs." She said she was not, at the time

of the hearing, using "hard drugs" but she was taking Percocet to deal with

overwhelming anxiety. She described herself as "homeless" and lacking a

steady income. She did not engage any of the services offered to address her

substance abuse issues. Reid does not identify any evidence supporting her

contention that she suffered actual prejudice, so she fails to establish manifest

constitutional error.

Finally, Reid challenges the findings establishing dependency. But Reid

does not discuss the substance of the findings, apart from her challenge to the

dependency determination itself, and provides no direct challenge based on the

20 State v. 1NWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quoting State v. Lynn,67 Wn. App. 339, 345, 835 P.2d 251 (1992)).

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record. We decline to consider arguments that are not supported by reference to

the record.21

CONCLUSION

We affirm. Reid does not establish that the termination order was based

upon a void dependency order or that its entry was a manifest constitutional

violation of her right to due process.

WE CONCUR:

21RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)(declining to consider arguments unsupported by reference to the record).

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