In Re the Welfare of Sumey

621 P.2d 108, 94 Wash. 2d 757, 1980 Wash. LEXIS 1418

• Court: Washington Supreme Court
• Decided: December 4, 1980
• Docket: 46600
• Status: Published

Opinions

Utter, C.J.

This appeal was certified to this court by Division Two of the Court of Appeals to determine whether the residential placement procedures of RCW 13.32 violate due process by authorizing placement of a minor without a prior finding of parental unfitness.

Sheila Marie Sumey, the petitioner at trial, is the daughter of appellants Rolin and Laura Sumey. At the time of trial in August 1978, Sheila was 15 years old. In the years preceding the initiation of this action, a number of problems had developed between Sheila and her parents. The parents set several rules for Sheila's conduct, which she did not always follow. On a number of occasions, Sheila ran away from home. Extensive family counseling was attempted, but was not successful.

In early June 1978, there was again conflict in the home and Mrs. Sumey began to believe that Sheila would once again run away from home. On June 17, Mrs. Sumey called the police to prevent Sheila from running away. The police placed Sheila in a receiving home on that day. The Department of Social and Health Services (DSHS) began to provide crisis intervention services to the family and on June 20, Mrs. Sumey signed a consent form stating that Sheila should be in receiving care.

The DSHS crisis intervention services did not succeed in reconciling the differences between Sheila and her parents. The DSHS staff concluded that Sheila could not be returned home at that time, and she remained in receiving care. On July 15, Sheila filed a petition for alternative residential placement with the Pierce County Juvenile Court, pursuant to RCW 13.32.020. A hearing on the petition was held, and the juvenile court concluded that: the family was in conflict; prior counseling and crisis intervention had failed to remedy that conflict; the conflict could not be remedied by continued placement in the home; and the reasons for the alternative residential placement were not capricious. The court approved the petition for alternative residential placement and ordered that Sheila be placed in a nonsecure licensed facility. The court provided for rights of visitation for Mr. and Mrs. Sumey. The case was set for review in 6 months to determine what had been accomplished in resolving the conflict and reuniting the family.

Mr. and Mrs. Sumey appealed the juvenile court order and challenged the constitutionality of RCW 13.32, the statutory authority for the order of alternative residential placement. Division Two of the Court of Appeals certified the appeal to this court.

RCW 13.32 was enacted in the 1977 legislative session and has since been repealed and replaced by RCW 13.32A. Laws of 1979, ch. 155. The challenged statutes in RCW 13.32 were part of the basic juvenile court act of 1977, which established different procedures for dealing with three classes of children: (1) Children who are "runaways" and who have conflict in their family relationship (RCW 13.30, 13.32, 74.13); (2) Children who are abused, neglected, or abandoned by their parents (RCW 13.34); and (3) Children who commit crimes (RCW 13.40).

Under RCW 13.30.020, a child may be taken into limited custody when the parents report the child as a runaway or when a law enforcement officer believes that the child is in circumstances which constitute imminent and substantial danger to the child's physical safety. Once a child has been taken into limited custody, DSHS must offer crisis intervention services to the family. RCW 74.13.031(4). The statutes specify that DSHS must pursue a primary goal of attempting to reconcile the differences between parents and child, and effect the child's return to the family home. RCW 74.13.031(4). If a reconciliation cannot be achievéd, then DSHS must find a living situation for the child that is agreeable to both parents and child. RCW 74.13.031(4).

If either the parents or the child do not agree with the current placement, then they or the child can petition the juvenile court under RCW 13.32 for an alternative residential placement. RCW 13.32.020, 74.13.031(4)(f). The set of statutes challenged in this case, RCW 13.32, govern the juvenile court procedures for alternative residential placements. RCW 13.32.020 confers upon the juvenile court a "special jurisdiction to approve or disapprove alternative residential placement or its continuation." The procedures that must be followed in a juvenile court hearing on a petition for alternative residential placement are set forth in RCW 13.32.030-.040. At the conclusion of a hearing, the juvenile court can place the child outside the parental home if it finds by a preponderance of the evidence that the petition is not capricious and that "there is a conflict between the parent and the child that cannot be remedied by counseling, crisis intervention, or continued placement in the parental home." RCW 13.32.040. If the court does order residential placement, then the placement is only temporary and a review hearing must be held every 6 months to approve or disapprove the continuation of the placement. RCW 13.32.050. Throughout the 6-month period that the child is in the placement, DSHS must provide appropriate interim services to the child and family (RCW 13.32.050) with the ultimate goal of reuniting the child and parents (RCW 74.13.020).

RCW 13.32 thus establishes a means for providing social services to the family and nurturing the parent-child bond in a situation in which the family conflict, although extremely serious, has not as yet resulted in parental abuse, neglect, or abandonment of the child. The use of the RCW 13.32 procedure is predicated on the existence of family conflict of sufficient magnitude that the parents and child are unable to live in the same home even with the assistance of counseling or other rehabilitative social services. RCW 13.32.040. The procedure is founded upon a fundamental policy of preserving the relationship between parents and children. The legislature has specifically " declare [d] that the family unit is a fundamental resource of American life which should be nurtured" and that accordingly, "the family unit should remain intact in the absence of compelling evidence to the contrary." RCW 13.34.020. The RCW 13.32 procedure furthers these goals by requiring the employment of all feasible measures such as counseling and rehabilitative social services prior to removing the child from the home, and requiring the continuation of efforts to unite the family after the child has been removed from the home. RCW 13.32.040, 13.32.050.

Appellants Mr. and Mrs. Sumey contend that RCW 13.32 violates due process in that it authorizes residential placement of a child outside the parental home even though the parents have not been found to be unfit. Appellants argue that the constitutional right to care, custody and companionship of one's child requires that parents retain custody of their children until the parents have been found to be unfit.

The liberty and privacy protections of the due process clause of the Fourteenth Amendment establish a parental constitutional right to the care, custody, and companionship of the child. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); In re Myricks, 85 Wn.2d 252, 253-54, 533 P.2d 841 (1975). This constitutionally protected interest of parents has been described as a "sacred right" (Moore v. Burdman, 84 Wn.2d 408, 411, 526 P.2d 893 (1974)), which is "'more precious . . . than the right of life itself.'" In re Myricks, supra at 254.

The parents' constitutional rights, however, do not afford an absolute protection against State interference with the family relationship. Although " [historically, the natural parent's right to custody of a child . . . [was considered to be] absolute, barring a showing of unfitness . . . [g] rowing concern for the welfare of the child and the disappearance of the concept of the child as property has led to a gradual modification in judicial attitude." In re Becker, 87 Wn.2d 470, 477, 553 P.2d 1339 (1976). It is now well established that when parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child. See Parham v. J.R., 442 U.S. 584, 603, 61 L. Ed. 2d 101, 119, 99 S. Ct. 2493 (1979); Wisconsin v. Yoder, 406 U.S. 205, 230, 233-34, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). As we observed in State v. Koome, 84 Wn.2d 901, 907, 530 P.2d 260 (1975),

Although the family structure is a fundamental institution of our society, and parental prerogatives are entitled to considerable legal deference . . . they are not absolute and must yield to fundamental rights of the child or important interests of the State.

See also, e.g., In re Tarango, 23 Wn. App. 126, 129-30, 595 P.2d 552 (1979), review denied, 92 Wn.2d 1022 (1979). Thus, in assessing the constitutionality of a procedure which infringes upon parents' rights to the care, custody, and companionship of their children, it is necessary to ascertain the proper balance between the parents' constitutional rights and the State's constitutionally protected parens patriae interest in protecting the best interests of the child.

The central question in this case, therefore, is whether the interests of the State and child which underlie the RCW 13.32 procedure justify the degree of abridgement of parental constitutional rights which stems from an RCW 13.32 residential placement.

In proceedings for child neglect, abuse, or abandonment, where the potential consequence is termination of parental rights on a temporary or permanent basis, the ultimate nature of the abridgement of parental constitutional rights necessitates an extremely substantial justification. Thus, a parent's constitutional rights to care, custody and companionship of the child can only be terminated if the evidence shows that the child has suffered or is likely to suffer physical, mental or emotional harm as a result of the parents' conduct. See Roe v. Conn, 417 F. Supp. 769, 779-80 (M.D. Ala. 1976) (3-judge court); Alsager v. District Court, 406 F. Supp. 10, 26 (S.D. Iowa 1975), aff'd, 545 F.2d 1137 (8th Cir. 1976). In re Tarango, supra at 129-30. However, a residential placement under RCW 13.32 does not infringe upon parental rights as severely as does a dependency adjudication or termination of parental rights under RCW 13.34. An adjudication of dependency (on grounds such as parental abuse, neglect, or abandonment) can result in placement of the child in a foster home and transfer of certain legal rights and duties to the foster parents (see RCW 13.34.130; JuCR 3.8(e)), and can ultimately result in full termination of parental rights if the parents do not correct the behavior which led to the finding of dependency. RCW 13.34.180; JuCR 3.4(c). In contrast, a residential placement under RCW 13.32 does not result in the transfer of any legal rights and duties to the custodians of the child and such a placement cannot serve as a basis for a subsequent termination of parental rights. The full termination of parental rights under RCW 13.34 is certainly more severe than an RCW 13.32 placement, for the termination severs "all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent". RCW 13.34.200.

Under RCW 13.32, the basis for the limited degree of State infringement upon parental rights is the existence of "a conflict between the parent and child that cannot be remedied by counseling, crisis intervention, or continued placement in the parental home." RCW 13.32.040. Thus, a minor can be temporarily removed from the parental home pursuant to RCW 13.32 only if the family is experiencing such severe conflict that temporary removal is the only feasible means for providing assistance to the family. In every case in which RCW 13.32 residential placement is ordered, the trial court must specifically find, as did the court in this case, that the currently existing family conflict is so extreme that it cannot be remedied by less restrictive alternatives such as counseling or crisis intervention services. RCW 13.32.040.

It must be determined, therefore, whether the RCW 13.32 basis for a limited infringement upon parental rights represents a constitutionally adequate balance between the rights and interests of the parents, child, and State. Cf. State v. Koome, supra at 907-08; cf. also Parham v. J.R., supra at 117-21. On one side of the balance is the parents' constitutional right to care, custody and companionship of the child. On the other side is the State's constitutionally protected parens patriae interest in protecting the physical and mental health of the child. The RCW 13.32 process enables the State to safeguard the mental and emotional health of the child by removing him or her from a situation of family conflict that is so extreme that the parents and child are unable to live together even with the aid of counseling. The procedure also allows the State to protect the physical health of children like the minor in the present case, who are driven by the family conflict to run away from home and expose themselves to the physical dangers that attend running away. The State also has an interest in employing the RCW 13.32 procedure to end family problems and strengthen parent-child relationships. The legislature has declared that "the family unit is a fundamental resource of American life which should be nurtured." RCW 13.34.020. The RCW 13.32 residential placement procedure enables the State to resolve family conflict and nurture the family unit before the problems are so severe as to require the drastic step of terminating parental rights on a temporary or permanent basis.

The interests of the State and child supporting the RCW 13.32 procedure are sufficient to justify the degree of intrusion upon parents' constitutional rights. The interests of the State and child which have been identified are extremely weighty for they concern the welfare and best interests of the child as well as the strengthening of the family unit. The degree of intrusion upon the parents' rights is relatively minor in that the parents retain custody over the child, the placement outside the home is designed to be temporary and to end as soon as the family conflict has been resolved through rehabilitative social services, and the temporary placement outside the home cannot serve as the foundation for a subsequent termination of parental rights. Moreover, the RCW 13.32 procedure can only be invoked if there has already been conflict between the parents and child and it has been determined that this conflict cannot be resolved by less restrictive alternatives such as counseling or crisis intervention services. On balance, the substantial interests of the State and child are sufficient to justify the limited infringement upon the parents' rights.

Accordingly, it must be concluded that appellants' due process challenge to RCW 13.32 is without merit. The ruling of the trial court is affirmed.

Stafford, Horowitz, Dolliver, and Williams, JJ., and Hopp, J. Pro Tern., concur.'