In re the Welfare of S.I.

337 P.3d 1114, 184 Wash. App. 531

• Court: Court of Appeals of Washington
• Decided: November 18, 2014
• Docket: Nos. 31727-7-III; 31728-5-III
• Status: Published

Opinions

¶1 A party who fails to appear in an action is not entitled to notice prior to entry of a default order. We are asked to decide whether a mother who appeared and participated in a dependency action yet failed to appear in a subsequent termination proceeding is required to receive notice prior to entry of a default order in the termination proceeding. We hold that a dependency proceeding is separate from a termination proceeding. We also hold that a parent’s appearance and participation in a dependency proceeding does not constitute an appearance in a later termination proceeding. Therefore, a default order entered in a termination proceeding without notice to the nonappearing parent is proper and need not be set aside unless the parent establishes good cause. Finally, we also hold that the trial court did not abuse its discretion when it denied the mother’s motion to set aside the default order. We affirm the default order, determine that the process used to terminate the mother’s parental rights was constitutional, and affirm the trial court’s termination of the mother’s parental rights.

Lawrence-Berrey, J.

FACTS

¶2 In July 2011, the Department of Social and Health Services (Department) filed a dependency petition with respect to two of Maquel Ames’s children, S.I. (D.O.B. 5/11/04) and D.D. (D.O.B. 03/20/06). The petition alleged that Ms. Ames and her two children were living in a homeless camp and had no source of income, and that Ms. Ames was abusing illegal substances. S.I. reported to a social worker that they had been kicked out of her uncle’s home and that her father, Mr. I., had been camping with her, Ms. Ames, and D.D. Mr. I. is an untreated sex offender, convicted of child rape.

¶3 The mother appeared in the dependency action. The court found the children dependent and entered an agreed order of dependency on October 4, 2011, as to the mother. On that same date, the court entered a default order of dependency as to Mr. I., and a few weeks later entered a default order of dependency as to the unknown father of D.D. The parenting deficiencies for the mother included substance abuse, mental health issues, and an inability to meet the physical and emotional needs of her children.

¶4 On October 4, 2011, the court entered a dispositional order as to the mother. This order, and subsequent review orders, required the mother to participate in a chemical dependency screening, random urinalysis and blood alcohol (UA/BA) monitoring, mental health treatment, parenting assessment, individual counseling, family therapy, and medication management. The dispositional order entered as to Mr. I. and the unknown father of D.D. stated that an appropriate plan would be prepared in the event that a father appeared in the action. Neither father appeared in the action.

¶5 The services that were ordered were offered or provided to the mother. The mother sporadically participated in random UA/BA monitoring. She tested positive for amphetamine and methamphetamine on February 29,2012 and failed to appear for testing after May 2012. The mother engaged minimally and struggled with attendance in outpatient chemical dependency treatment and stopped participating as of July 2012. The mother completed a parent-child assessment but ceased participating in the assessment’s recommended counseling after April 2012.

¶6 As for court appearances, Ms. Ames attended her first review hearing on December 20, 2011. The order entered that date set the next review hearing for March 27, 2012. Ms. Ames did not appear for the March 27, 2012 review hearing and also did not appear for the subsequent review hearing scheduled on August 16, 2012. At the August 2012 review hearing, Ms. Ames was found noncompliant for not completing her chemical dependency screening, for not participating in outpatient treatment and individual counseling, and for not providing UAs. She was chronically late to family therapy and did not provide adequate food and drink for her children as requested. The long-term permanent plan for the children was adoption. The court scheduled the next permanency planning review hearing for January 3, 2013.

¶7 Prior to that review hearing, in October 2012 the Department filed a petition for termination of parent-child relationship. Ms. Ames’s social worker personally served her with the petition as well as a notice and summons to appear at 9:00 a.m. on December 6, 2012. The notice explained that the purpose of the hearing was to hear and consider evidence on the petition. It warned that if she failed to appear for the hearing, “the court may enter an order in your absence permanently terminating your parental rights.” Clerk’s Papers (CP) at 125. The notice explained other important rights, including her right to representation at public expense and the process and contact information for appointment of counsel.

¶8 Ms. Ames did not appear at the courthouse for the December 6, 2012 hearing. On December 13, 2012, the Department filed a motion for default, and the trial court entered the default order the same day.

¶9 In late December 2012, Ms. Ames learned of the default order and requested appointment of counsel. She attended the January 3, 2013 dependency review hearing as scheduled. The review hearing order found that Ms. Ames defaulted in the termination matter on December 13, 2012. The order noted that a hearing to vacate the default order and to set a relinquishment hearing could be scheduled in the future. The trial court appointed counsel to represent Ms. Ames in the termination matter.

¶10 Ms. Ames did not contact appointed counsel until March 2013. Later that month, Ms. Ames filed a motion to vacate the default order. A hearing was held. She claimed that good cause existed to vacate the default due to mistake, inadvertence, surprise, or excusable neglect, citing CR 60. She explained that she was not aware that the petition was to terminate her parental rights, that a hearing was set, and that she needed to apply for a public defender. Ms. Ames also explained that during the time she received the petition and learned of the default order, she was homeless and out of contact with her attorney and the Department. Once she learned of the default order, she was under the impression that the only way to vacate the default order would be to relinquish her parental rights and to enter into an open adoption. She stated that her delay in contacting appointed counsel was due to an unsuccessful attempt to obtain private counsel to handle the matter.

¶11 The Department submitted a declaration from Dean Duncan, the children’s court-appointed special advocate/ guardian ad litem, who had served in such role since November 1, 2012. Mr. Duncan stated in pertinent part:

I am opposing [the mother’s motion to vacate the default order] for the following reasons:

1. Although I am convinced that Ms. Ames dearly loves her children, she has failed to do what has been required of her to regain custody of her children. In the past, almost two years, I have been present in meetings with Ms. Ames when the social worker repeatedly reminded [Ms. Ames] of the urgency of moving forward with services. Any forward movement has not taken place. The children have, as a consequence, been moved three separate times to three different foster placements.

2. [D.D.] is in need of special help to allow him to focus on school achievement. He needs some permanence in his life to make this happen.

3. I visited the foster-to-adopt home where [D.D.] and [S.I.] have been placed. These parents have taken great efforts to welcome these two children into their home and meet their physical and emotional needs. I ■ have seen both children happy and thriving in their care. These children deserve the permanency and attention that this home will provide them.

4. The Department has done everything to give Ms. Ames the [opportunity to regain custody of her children. She has done very little to comply with the services offered to her.

5. I am surprised that Ms. Ames is making this motion. She was present during a transition team meeting with foster parents and social worker and myself. She made comments that indicated that she was supportive of the decision to provide permanency for her children.

CP at 176-77.

¶[12 The trial court denied Ms. Ames’s motion to vacate the default order. In denying the motion, the court considered what the likely outcome of trial would be. The court found that Ms. Ames had not demonstrated any progress in court-ordered services. The court also found that there was no excusable neglect. The court also found that “[i]t is not in the children’s best interest to vacate the default [order], and the four months that have gone by since the default was entered is further indication of the mother’s neglect of her children and this case.” CP at 66. The trial court concluded that Ms. Ames had forfeited her right to contest the termination of her parental rights and denied her motion to vacate.

¶13 A default termination hearing occurred on May 23, 2013. The hearing was brief. The social worker assigned to the case answered questions under oath that mirrored the statutory requirements for termination. The social worker testified to the primary reasons for the dependency and the specific services that were offered or provided to Ms. Ames. The social worker also indicated that Ms. Ames was marginally compliant, but with no progress reported by the providers, and that conditions were not likely to change in the near future because Ms. Ames demonstrated a significant pattern of failure to engage or make progress in her services. Last, the social worker stated that the children were living together in an adoptive home and termination of parental rights was in their best interest. The trial court entered corresponding findings of fact and conclusions of law and ordered termination.

¶14 Ms. Ames appealed. She contends that the court erred by not vacating the default order. She maintains that she was not given five days’ notice before the order was entered, as required by CR 55. She also maintains that the termination of her parental rights by default violated procedural due process, and that the court’s denial of her motion to vacate the default order constituted an abuse of discretion.

ANALYSIS

¶15 Notice Prior to Entry of the Default Order. Ms. Ames contends that the entry of the order of default without five days’ notice violated CR 55. She contends that she was entitled to notice because her appearance and participation in the dependency proceedings constituted an appearance in the termination proceeding. Whether Ms. Ames was entitled to five days’ notice is a question of law that we review de novo.

¶16 CR 55(a) controls entry of an order of default and default judgment. A motion for default may be made when a party against whom a judgment is sought has failed to appear. CR 55(a)(1). CR 55(a)(3) provides:

Notice. Any 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 5 days before the hearing on the motion. Any party who has not appeared before the motion for default and supporting affidavit are filed is not entitled to a notice of the motion.

(Emphasis added.)

¶17 In Gage v. Boeing Co., 55 Wn. App. 157, 776 P.2d 991 (1989), the employer appeared, participated, and prevailed in two agency actions. The employee appealed both actions and served the employer with appropriate pleadings, but the employer failed to file a notice of appearance in either case. The employee, without notice to the employer, subsequently obtained two default judgments. The employer successfully vacated the default judgments. The employee appealed. In affirming the trial court, Division One of this court held that an appeal to superior court of an administrative proceeding was a continuation of the original action and that the employer was entitled to notice of default. Id. at 162-63.

¶18 Conversely, an action to permanently terminate parental rights is a new proceeding and not an extension of the dependency action. In re Hiebert, 28 Wn. App. 905, 908-09, 627 P.2d 551 (1981). This is 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.

¶[19 The plain language of CR 55(a)(3) requires some type of appearance in the action for the five-day notice rule to apply. Ms. Ames did not, in any manner, appear in the termination proceeding. Ms. Ames was not entitled to five days’ notice because she did not make a prior appearance in the termination proceeding.

¶20 Constitutional Due Process. We apply de novo review to determine whether a proceeding violated constitutional due process. In re Welfare of J.M., 130 Wn. App. 912, 920, 125 P.3d 245 (2005).

¶21 Due process protections afford parents notice and an opportunity for a hearing appropriate to the nature of the case. In re Dependency of C.R.B., 62 Wn. App. 608, 614, 814 P.2d 1197 (1991). The courts balance three factors when examining the adequacy of process: (1) the private interest at stake, (2) the risk that the procedure used will result in error, and (3) the State’s interest in retaining the procedure used and the fiscal or administrative burden if additional safeguards were provided. In re Dependency of A.G., 93 Wn. App. 268, 278-79, 968 P.2d 424 (1998).

¶22 1. Private Interest at Stake. The parent, child, and State have competing interests in a termination proceeding. Id. at 279. A parent has a constitutionally protected interest in the care and custody of their children. In re Dependency of J.B.S., 123 Wn.2d 1, 12, 863 P.2d 1344 (1993). However, children have a right to establish a strong, stable, safe, and permanent home in a timely manner, and this right “ ‘cannot be put on hold interminably because a parent is absent from the courtroom.’ ” A.G., 93 Wn. App. at 280 (quoting C.R.B., 62 Wn. App. at 616). The State has an interest in protecting the rights of children, which includes a speedy resolution of termination proceedings. In re Dependency of M.S., 98 Wn. App. 91, 95, 988 P.2d 488 (1999). Judicial adherence to the statutory dependency-termination scheme reasonably balances these competing rights. Our legislature has declared:

[T]he family unit should remain intact unless a child’s right to conditions of basic nurture, health, or safety is jeopardized. When the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail.

RCW 13.34.020.

¶23 2. Risk of Error. “[A] parent’s failure to respond to notices and summons of a proceeding to terminate parental rights, in itself, does not preclude the State from obtaining a judgment permanently terminating that parent’s right to the custody and care of his or her child.” C.R.B., 62 Wn. App. at 616. Before a default termination judgment can be entered, the court must have a meaningful hearing on the merits of the case in accordance with statutory requirements for termination to satisfy due process. Id. This procedure decreases the risk of error in a default proceeding by ensuring that a decision is reached on the merits of the case while balancing the rights of the parents, child, and State. See In re Dependency of E.P., 136 Wn. App. 401, 149 P.3d 440 (2006), review granted and dismissed, 161 Wn.2d 1014 (2007). We determine that the process used here, which requires sworn testimony of one familiar with the case and an opportunity for a court to independently question such person, greatly minimizes the risk that parental rights will be terminated in error.

¶24 3. The State’s Interest in the Procedure Used and Administrative Burden of Additional Safeguards. The statutory dependency-termination process requires the Department to identify and offer such reasonable and necessary services that will lead to the reunification of the parent-child relationship. In this case, prior to the entry of the order terminating Ms. Ames’s parental rights, the Department was required to prove the following by clear, cogent, and convincing evidence: (1) the child has been found dependent; (2) the court has entered a dispositional order pursuant to RCW 13.34.130; (3) 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; and (4) there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. RCW 13.34.190(l)(a)(i). This process provided Ms. Ames a meaningful opportunity to address and correct her parental deficiencies, with the foreknowledge that her failure to comply with court-ordered services might lead to the termination of her parental rights. The services offered in this case included a wide spectrum of professional services at substantial expense to the State. We hold that the procedures used here prior to termination of Ms. Ames’s parental rights were not only sufficient, but amply so.¹

¶25 Another aspect of the procedure used was allowing Ms. Ames the opportunity to vacate the default order. This opportunity allowed Ms. Ames the opportunity to establish “good cause” for failure to appear at the December 6, 2012 hearing and also the opportunity to address the factual basis of the termination of her rights. We hold that this process, all as set forth above, minimizes the risk of an improper termination of parental rights and contains satisfactory safeguards that properly balance the constitutional rights of all participants.

¶26 Denial of Motion To Vacate the Default Order. Ms. Ames contends that the trial court abused its discretion when it denied her motion to vacate the default order. We review denial of a motion to vacate an order of default for an abuse of discretion. In re Welfare of M.G., 148 Wn. App. 781, 792, 201 P.3d 354 (2009). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. Id.

¶27 Ms. Ames argues that her failure to answer the termination petition was an inadvertent mistake. A court may set aside a default order “[f ]or good cause shown and upon such terms as [it] deems just.” CR 55(c)(1). “To establish good cause under CR 55, a party may demonstrate excusable neglect and due diligence.” In re Estate of Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999). A party moving to vacate a default order is not required to demonstrate a meritorious defense to establish good cause. Id. at 30-31. Nevertheless, if a party offers evidence of a meritorious defense, a trial court more likely abuses its discretion should it fail to vacate a default order. See, e.g., Canam Hambro Sys., Inc. v. Horbach, 33 Wn. App. 452, 655 P.2d 1182 (1982). Here, Ms. Ames did not offer any evidence of a meritorious defense.

¶28 Washington courts favor resolving cases on their merits. Sacotte Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 143 Wn. App. 410, 414, 177 P.3d 1147 (2008). Despite this partiality, there is also a need for efficiency and for a system that ensures that all parties comply with judicial summons. Norton v. Brown, 99 Wn. App. 118, 123, 992 P.2d 1019 (1999).

¶29 The trial court did not abuse its discretion when it denied Ms. Ames’s motion to set aside the default order. The facts support the trial court’s conclusion that Ms. Ames did not establish good cause. Her failure to read the termination petition and summons to appear is not excusable neglect. She was handed the papers by her social worker. She was aware that her children were dependent and that her parental rights were in jeopardy. Her disregard of the termination petition and summons is not excusable neglect.

¶30 Ms. Ames also failed to demonstrate due diligence. Ms. Ames was provided a court-appointed attorney in early January 2013. Ms. Ames had the knowledge and available resources to exercise due diligence. She knew that the default order would affect the termination of her parental rights. Despite this knowledge, Ms. Ames delayed contacting her attorney until March 2013.

¶31 Finally, the trial court properly considered the likely result of the termination proceeding. By then, the trial court was well aware of Ms. Ames’s noncompliant status in the dependency proceeding. Ample evidence supports the trial court’s decision to deny the motion to vacate the default order. The trial court did not abuse its discretion. We affirm.

Brown, A.C.J., concurs.

1 The dissent’s alternate bases for reversal are that the evidence and also the written findings are insufficient to prove the statutory parental termination requirements by clear and convincing evidence. However, Ms. Ames did not raise these issues on appeal. It is improper for us to raise new issues sua sponte without first giving the parties the chance to brief them. RAP 12.1; see also State v. Saintcalle, 178 Wn.2d 34, 52, 309 P.3d 326, cert. denied, 134 S. Ct. 831 (2013) (We are not in the business of inventing unbriefed arguments for parties sua sponte.). Nor should we further delay this case by requesting additional briefing. We are convinced that the issues would and should be resolved against Ms. Ames because the factual record prior to the default establishes Ms. Ames’s chronic methamphetamine use, which resulted in her living homeless with her two young children and an untreated sex offender with a criminal record of having raped a child. At some point — a point clearly reached in this case — abstract (yet important) notions of parental rights give way to concrete realities of protecting children from emotional and sexual abuse.