In re the Welfare of R.H.

309 P.3d 620, 176 Wash. App. 419
CourtCourt of Appeals of Washington
DecidedSeptember 4, 2013
DocketNos. 43580-2-II; 43590-0-II; 43594-2-II; 43684-1-II; 43690-6-II; 43694-9-II
StatusPublished
Cited by64 cases

This text of 309 P.3d 620 (In re the Welfare of R.H.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Welfare of R.H., 309 P.3d 620, 176 Wash. App. 419 (Wash. Ct. App. 2013).

Opinion

Quinn-Brintnall, J.

¶1 In this case, we address how RCW 13.36.040, the guardianship statute the legislature enacted in 2010, influences parental termination actions under RCW 13.34.180(1). The juvenile court entered orders terminating Bobby Adolphus’s parental rights to his three sons, R.H., T.A., and R.A. Adolphus appeals the termination orders, arguing that the juvenile court erred by denying his timely motion for a continuance to allow him to present evidence of the availability of a relative guardianship [422]*422placement and that the State failed to prove several of the statutory elements required for termination of parental rights under RCW 13.34.180(1).1 We agree that the juvenile court erred by denying Adolphus’s timely motion to continue, thereby failing to properly address whether continuation of Adolphus’s relationship diminished his children’s prospects for early integration into a stable and permanent home. We reverse the juvenile court’s orders terminating Adolphus’s parental rights and remand for a new trial. In addition, we impose, under a separate order, a monetary sanction on Adolphus’s counsel, Jordan B. McCabe, for making material misrepresentations to this court regarding the record in this case.

FACTS

¶2 Winter Howland has six children: T.H., R.H., T.A., R.A., N.R., and Z.R. In March 2009, the Department of Social and Health Services (DSHS) removed all six children from Howland’s care. Adolphus is R.H., T.A., and R.A.’s father.2 At the time of the removal, Adolphus had visitation with his children on some weekends but was not the primary residential parent. DSHS considered placing the children with Adolphus but chose not to because of safety concerns related to Adolphus’s alcohol and marijuana use and criminal history; and concerns regarding his girl friend’s mental health, criminal history, and history with Child Protective Services. On May 6, the juvenile court entered agreed orders of dependency as to both Howland and Adolphus.

¶3 More than two years later, DSHS petitioned for the termination of Adolphus’s parental rights on October 21, [423]*4232011. The termination trial was set for May 3,2012. Prior to the termination hearing, the children’s paternal aunt was identified as a potential guardianship placement for the children. On April 5, Adolphus moved to continue the termination hearing to allow DSHS to complete the aunt’s home study. Adolphus’s continuance motion was heard on April 18. The juvenile court agreed with the State’s argument that whether the children would be able to be placed with their aunt was immaterial to whether the State could prove all of the required elements at the termination trial and denied the motion.

¶4 After trial, the juvenile court granted DSHS’ petition to terminate Adolphus’s parental rights. Adolphus and Howland appealed. A commissioner of this court considered the appeal on an accelerated basis under RAP 18.13A, affirmed the termination of Howland’s parental rights, and referred Adolphus’s appeal to a panel of judges.

ANALYSIS

¶5 Adolphus argues that the trial court erred by failing to grant his motion to continue the termination trial until after the aunt’s home study could be completed and DSHS determined whether the aunt was available as an appropriate guardianship placement for the children. In 2010, the legislature created a “more flexible alternative to parental termination — guardianship under RCW 13.36.040.” In re Guardianship of K.B.F., 175 Wn. App. 140, 146, 304 P.3d 909 (2013). In this case, we must determine how the new guardianship statute influences the potential termination of parental rights under RCW 13.34.180(1): specifically, whether the availability of a guardianship placement is material to the trial court’s finding that the State proved that continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home. We hold that an identified guardianship is material to this determination. There[424]*424fore, the trial court erred by denying Adolphus’s timely motion to continue the termination trial until after the aunt’s home study could be completed.

¶6 In January 2012, the aunt came forward as a potential guardianship placement for the children. Approximately a month before trial, Adolphus filed a motion to expedite the aunt’s home study or to continue the termination trial.3 The juvenile court heard Adolphus’s motion on April 18, two weeks before trial.

¶7 Adolphus argued that without the results of the home study, the record before the juvenile court would be incomplete because “[placement with the maternal [sic] aunt presents the option of permanency for the children that does not sever the children’s relationship with their father.” Clerk’s Papers at 118. At the time of the motion, the aunt’s background checks had been completed and DSHS had initiated the home study process. The aunt still had to complete a Parents Resources for Information Development Education class and the home study process before the State could consider her as a guardianship placement for any of the children. The State told the trial court that whether the children would be able to be placed with the aunt was immaterial to whether it could prove all of the elements of termination at trial. The juvenile court agreed with the State and denied Adolphus’s motion to continue the termination trial.

¶8 We review a decision to deny a continuance for manifest abuse of discretion. In re Dependency of V.R.R., 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006). The juvenile court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The juvenile court “takes into account a number of factors, [425]*425including diligence, due process, the need for an orderly procedure, the possible effect on the trial, and whether prior continuances were granted.” V.R.R., 134 Wn. App. at 581. Denial of a motion to continue violates due process if the parent can show “either prejudice by the denial or the result of the trial would likely have been different if the continuance was granted.” V.R.R., 134 Wn. App. at 581.

f 9 Parents have a fundamental liberty and privacy interest in the care and custody of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because of the constitutional interests at stake in a termination proceeding, parents are afforded greater due process rights than in dependency proceedings or other proceedings to determine the custody or placement of children (i.e., dissolutions, parent plan modifications, etc.).

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Cite This Page — Counsel Stack

Bluebook (online)
309 P.3d 620, 176 Wash. App. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-welfare-of-rh-washctapp-2013.