IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parental No. 85483-6-I Rights of: DIVISION ONE A.R. UNPUBLISHED OPINION
SMITH, C.J. — A.R. was removed from the care of her parents shortly after
birth. She has had no contact with her father, E.R., since then. In September
2022, the Department of Social and Health Services (the Department) petitioned
to terminate E.R.’s parental rights. The Department’s multiple attempts to serve
E.R. personally by process server and then by certified mail were unsuccessful.
Following these attempts at service, the court granted the Department’s request
to serve E.R. by publication. E.R.’s counsel appeared at the termination trial but
E.R. did not, despite further attempts to reach him. At the conclusion of the trial,
the court terminated E.R.’s parental rights. E.R. appeals, asserting that he never
received proper notice of the termination petition. We disagree and affirm.
FACTS
Shortly after A.R. was born, she was removed from her parents’ care due
to substance abuse by both parents. A.R. has had no contact with her father,
E.R., since she was discharged from the hospital after birth. In January 2019,
the court established dependency as to E.R by default. The dependency order
placed A.R. in licensed foster care pending the investigation of relative No. 85483-6-I/2
placement options. She was later placed with her maternal aunt, who had
already adopted her half-brother.
Jamie Driscoll, the social worker assigned to A.R.’s dependency case,
attempted to stay in contact with E.R. through the course of the dependency
proceedings but received little to no response. E.R. rarely responded to
Driscoll’s attempts to communicate, nor did he complete any of the offered
services.
In September 2022, the Department filed a petition to terminate E.R.’s
parental rights to A.R. The Department noted E.R.’s lack of contact with A.R.,
the fact that he did not know about her needs or how to care for her, and the lack
of any improvement in his longstanding parenting deficiencies despite years of
offered services.
Between September and October 2020, the Department attempted to
personally serve E.R. with the petition seven times at the address listed for him in
the State Enforcement Management System (SEMS) – Division of Child Support
records. Each attempt was unsuccessful. The process server reached E.R. by
phone on one attempt and E.R. provided a time frame during which he would be
home. E.R. did not return home during that window. At no point did E.R. deny
living at his listed address.
The Department next attempted to serve E.R. notice of the petition by
certified mail, using the same address. E.R. received notice of the attempt to
deliver the mail but failed to pick up the certified mail packet. The postal service
returned the certified mail packet as undeliverable.
2 No. 85483-6-I/3
Given the extent of the unsuccessful attempts to serve E.R. personally or
by mail, the Department sought court authorization to serve notice by publication.
The court granted the Department’s request based on various declarations
detailing the numerous attempts to serve and to locate E.R. and notify him of the
petition. This included documentation of searches of Department databases and
the “jail registry.” Following the court order, the Department published a notice
and summons in the Seattle Daily Journal of Commercial Commerce.
E.R.’s attorney, Dennice Bryant, appeared at the May 2023 dependency
trial following the service by publication. The court paged E.R. in the courtroom
and over Zoom but he did not respond. Bryant moved to withdraw based on
E.R.’s absence but the court denied the motion, noting that it did not want E.R. to
be entirely unrepresented.
The trial court heard testimony from Driscoll and the court appointed
special advocate (CASA) on the merits of the Department’s petition. Bryant
cross-examined both witnesses. Relying on Driscoll and the CASA’s testimony,
the trial court terminated E.R.’s parental rights to A.R. The court determined that
E.R. had not answered the petition after service by publication and deemed the
allegations in the petition admitted. The court also explicitly found that the
testimony and evidence supported findings necessary for the termination of
E.R.’s parental rights under RCW 13.34.180(1) and RCW 13.34.190(1) and (2).
E.R. appeals the termination of his parental rights, asserting only that he
did not receive legal notice of the Department’s termination petition.
3 No. 85483-6-I/4
ANALYSIS
Standard of Review
We review alleged due process violations and sufficiency of service of
process claims de novo. In re Welfare of L.R., 180 Wn. App. 717, 723, 324 P.3d
737 (2014); In re Dependency of G.M.W., 24 Wn. App. 2d 96, 114, 519 P.3d 272
(2022), review denied, 1 Wn.3d 1005 (2023).
Notice
E.R. asserts that the Department did not properly notify him of the
termination proceedings because he did not receive personal service. The
Department contends that service by publication comported both with E.R.’s due
process rights and the dependency statute. We agree with the Department.
“Parental termination proceedings are accorded strict due process
protections.” In re Interest of Darrow, 32 Wn. App. 803, 806, 649 P.2d 858
(1982). Strict due process requires notice that is “ ‘reasonably calculated, under
all the circumstances,’ to apprise the parties of the pendency of the action and
enable them to present a defense.” In re Welfare of H.S., 94 Wn. App. 511, 525,
973 P.2d 474 (1999) (quoting Duskin v. Carlson, 136 Wn.2d 550, 557, 965 P.2d
611 (1998)). Default termination may proceed once proper notice is given. In re
Welfare of S.I., 184 Wn. App. 531, 543, 337 P.3d 1114 (2014).
A party to a termination proceeding must be personally served if personal
service is possible. RCW 13.34.070(8). If the party cannot be personally served,
but their address is known or can be determined with reasonable diligence, the
party may be served by certified mail. RCW 13.34.070(8). And if neither
4 No. 85483-6-I/5
personal service nor service by certified mail is possible, the court may authorize
service by publication. RCW 13.34.080(1), (2).
Personal service may be accomplished by delivering a copy of the
summons to the party personally or leaving a copy at the party’s place of “usual
abode” with a person of “suitable age and discretion” who similarly lives in the
home.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parental No. 85483-6-I Rights of: DIVISION ONE A.R. UNPUBLISHED OPINION
SMITH, C.J. — A.R. was removed from the care of her parents shortly after
birth. She has had no contact with her father, E.R., since then. In September
2022, the Department of Social and Health Services (the Department) petitioned
to terminate E.R.’s parental rights. The Department’s multiple attempts to serve
E.R. personally by process server and then by certified mail were unsuccessful.
Following these attempts at service, the court granted the Department’s request
to serve E.R. by publication. E.R.’s counsel appeared at the termination trial but
E.R. did not, despite further attempts to reach him. At the conclusion of the trial,
the court terminated E.R.’s parental rights. E.R. appeals, asserting that he never
received proper notice of the termination petition. We disagree and affirm.
FACTS
Shortly after A.R. was born, she was removed from her parents’ care due
to substance abuse by both parents. A.R. has had no contact with her father,
E.R., since she was discharged from the hospital after birth. In January 2019,
the court established dependency as to E.R by default. The dependency order
placed A.R. in licensed foster care pending the investigation of relative No. 85483-6-I/2
placement options. She was later placed with her maternal aunt, who had
already adopted her half-brother.
Jamie Driscoll, the social worker assigned to A.R.’s dependency case,
attempted to stay in contact with E.R. through the course of the dependency
proceedings but received little to no response. E.R. rarely responded to
Driscoll’s attempts to communicate, nor did he complete any of the offered
services.
In September 2022, the Department filed a petition to terminate E.R.’s
parental rights to A.R. The Department noted E.R.’s lack of contact with A.R.,
the fact that he did not know about her needs or how to care for her, and the lack
of any improvement in his longstanding parenting deficiencies despite years of
offered services.
Between September and October 2020, the Department attempted to
personally serve E.R. with the petition seven times at the address listed for him in
the State Enforcement Management System (SEMS) – Division of Child Support
records. Each attempt was unsuccessful. The process server reached E.R. by
phone on one attempt and E.R. provided a time frame during which he would be
home. E.R. did not return home during that window. At no point did E.R. deny
living at his listed address.
The Department next attempted to serve E.R. notice of the petition by
certified mail, using the same address. E.R. received notice of the attempt to
deliver the mail but failed to pick up the certified mail packet. The postal service
returned the certified mail packet as undeliverable.
2 No. 85483-6-I/3
Given the extent of the unsuccessful attempts to serve E.R. personally or
by mail, the Department sought court authorization to serve notice by publication.
The court granted the Department’s request based on various declarations
detailing the numerous attempts to serve and to locate E.R. and notify him of the
petition. This included documentation of searches of Department databases and
the “jail registry.” Following the court order, the Department published a notice
and summons in the Seattle Daily Journal of Commercial Commerce.
E.R.’s attorney, Dennice Bryant, appeared at the May 2023 dependency
trial following the service by publication. The court paged E.R. in the courtroom
and over Zoom but he did not respond. Bryant moved to withdraw based on
E.R.’s absence but the court denied the motion, noting that it did not want E.R. to
be entirely unrepresented.
The trial court heard testimony from Driscoll and the court appointed
special advocate (CASA) on the merits of the Department’s petition. Bryant
cross-examined both witnesses. Relying on Driscoll and the CASA’s testimony,
the trial court terminated E.R.’s parental rights to A.R. The court determined that
E.R. had not answered the petition after service by publication and deemed the
allegations in the petition admitted. The court also explicitly found that the
testimony and evidence supported findings necessary for the termination of
E.R.’s parental rights under RCW 13.34.180(1) and RCW 13.34.190(1) and (2).
E.R. appeals the termination of his parental rights, asserting only that he
did not receive legal notice of the Department’s termination petition.
3 No. 85483-6-I/4
ANALYSIS
Standard of Review
We review alleged due process violations and sufficiency of service of
process claims de novo. In re Welfare of L.R., 180 Wn. App. 717, 723, 324 P.3d
737 (2014); In re Dependency of G.M.W., 24 Wn. App. 2d 96, 114, 519 P.3d 272
(2022), review denied, 1 Wn.3d 1005 (2023).
Notice
E.R. asserts that the Department did not properly notify him of the
termination proceedings because he did not receive personal service. The
Department contends that service by publication comported both with E.R.’s due
process rights and the dependency statute. We agree with the Department.
“Parental termination proceedings are accorded strict due process
protections.” In re Interest of Darrow, 32 Wn. App. 803, 806, 649 P.2d 858
(1982). Strict due process requires notice that is “ ‘reasonably calculated, under
all the circumstances,’ to apprise the parties of the pendency of the action and
enable them to present a defense.” In re Welfare of H.S., 94 Wn. App. 511, 525,
973 P.2d 474 (1999) (quoting Duskin v. Carlson, 136 Wn.2d 550, 557, 965 P.2d
611 (1998)). Default termination may proceed once proper notice is given. In re
Welfare of S.I., 184 Wn. App. 531, 543, 337 P.3d 1114 (2014).
A party to a termination proceeding must be personally served if personal
service is possible. RCW 13.34.070(8). If the party cannot be personally served,
but their address is known or can be determined with reasonable diligence, the
party may be served by certified mail. RCW 13.34.070(8). And if neither
4 No. 85483-6-I/5
personal service nor service by certified mail is possible, the court may authorize
service by publication. RCW 13.34.080(1), (2).
Personal service may be accomplished by delivering a copy of the
summons to the party personally or leaving a copy at the party’s place of “usual
abode” with a person of “suitable age and discretion” who similarly lives in the
home. RCW 4.28.080(16). Although a party may have more than one place of
abode, service need only be attempted at the residence most likely to ensure that
party received actual notice of the proceedings. In re Dependency of G.M.W., 24
Wn. App. 2d 96, 119, 519 P.3d 272 (2022), review denied, 1 Wn.3d 1005 (2023).
When personal service has been unsuccessful, a court may allow notice
by publication to parents who cannot be located: The court shall direct the clerk to publish notice in a legal newspaper printed in the county, qualified to publish summons .... [and] [t]he publication of notice shall be deemed equivalent to personal service upon all persons, known or unknown, who have been designated as provided in this section.
RCW 13.34.080.
E.R. contends that the Department inadequately attempted personal
service because other possible addresses appeared in the record and the
Department did not attempt personal service at those locations. He then argues
that because personal service was not properly attempted, any substitute service
by mail of or publication was impermissible. We disagree.
To begin, the Department attempted personal service at E.R.’s listed
address seven times without success. In fact, E.R. actively evaded the process
5 No. 85483-6-I/6
server even after having personal contact with them and verifying a time that
E.R. would be home. When the Department eventually attempted service by
mail, E.R. then failed to pick up the certified mail packet. E.R. at no point stated
that he lived elsewhere. And no evidence in the record indicates that E.R.
actually did live elsewhere.
E.R.’s contention that he lived with M.W., A.R.’s mother, dates back to
2018, four years before the Department filed the termination petition. And that
contention is based solely on two mentions in Driscoll’s testimony that E.R.
visited A.R. in the hospital after she was born – “showing that [M.W. and E.R.]
remained together.” The presumption that E.R. and M.W. were still together at
A.R.’s birth is not enough to establish M.W.’s home as E.R.’s usual place of
abode at the time service of the petition was attempted four years later. And the
Department was not legally required to attempt to service E.R. at additional
addresses, not known to be his, before seeking a court order authorizing service
by publication.
Moreover, E.R. cannot establish that service at M.W.’s home would have
been more likely to ensure that he received actual notice. The same process
server attempted service for both E.R. and M.W. and noted that no one was
available to be served at M.W.’s home either.
Because the Department diligently attempted, and was unsuccessful, with
both personal service and service by mail, it appropriately requested substitute
6 No. 85483-6-I/7
service.1
Lastly, the court granted the Department’s request for notice by
publication and the Department met all of the necessary requirements when
publishing notice: E.R.’s full name was provided, along with the termination
cause number, the name of the court, the date, time, and location of the hearing,
and the number a party could call to learn more or to participate in the hearing by
phone. The notice was published in the Seattle Daily Journal of Commerce three
times in three consecutive weeks.
Given the evidence of the Department’s diligent attempts at personal
service and service by certified mail at E.R.’s usual place of abode before
requesting service by publication, the court acted appropriately in granting the
request to allow service by publication. Thereafter the notice was appropriately
published, resulting in E.R. having been properly served. No due process
violation exists.
We affirm.
WE CONCUR:
1 It is also worth noting that E.R.’s attorney, Bryant, informed the court that she was “aware of [E.R.’s] interest to seek further review if he did not prevail at trial,” clearly indicating that E.R. knew termination was pending and a trial had been set. 7