¶1 On the second day of trial, John Charles Rousseau entered into a stipulation to terminate his parental rights to his son J.M.R. After an extensive colloquy, the court found Rousseau’s decision was knowing, intelligent, and voluntary, and entered the order terminating Rousseau’s parental rights to J.M.R. Rousseau appeals the order denying his CR 60(b) motion to vacate the stipulation and the order terminating his parental rights, [931] arguing that the court did not have the statutory authority to accept the stipulation. We hold that the court had the authority to accept the stipulation in a termination where the court ensures the parent knowingly, intelligently, and voluntarily enters into a stipulation to terminate parental rights. In the unpublished portion of the opinion we conclude Rousseau cannot establish ineffective assistance of counsel and affirm.
Schindler, J.
[931] FACTS
Dependency Petition
¶2 J.M.R. was born on July 12, 2002. Angelique Porter is his mother. John Rousseau is his father. Porter and Rousseau have an extensive history of drug abuse and domestic violence. Rousseau used methamphetamine and cocaine for at least 25 years and has several convictions for domestic violence assault and violations of domestic violence no-contact orders. Both Rousseau and Porter have a communicable terminal illness.
¶3 Child Protective Services (CPS) began receiving reports of neglect of J.M.R. by his parents in 2004. In September 2005, J.M.R.’s maternal grandmother in California filed a petition to be appointed the guardian of J.M.R. and his two half brothers. But after the court granted her guardianship petition, the grandmother immediately returned three-year-old J.M.R. to his parents.
¶4 In March 2006, CPS received a referral expressing concern about J.M.R.’s well-being and unsanitary conditions in the home. The referral states that Rousseau was taken to the hospital by the paramedics due to confusion. The referral describes the unsanitary condition of the apartment and concern that even though three-year-old J.M.R. had bronchitis, his parents continued to smoke in his presence.
Cigarette butts were everywhere, spilling out of ashtrays and all over the floor.... Piles of garbage and dirty clothes made it [932] difficult for paramedics to maneuver through the apartment. Bedroom doors were difficult to open due to all the stuff piled around. Old food was on the floor and coffee table. Unsanitary items were within easy reach of [J.M.R.].
f 5 On April 5, 2007, at the conclusion of a hearing on Parker’s request for a no-contact order against Rousseau, a Snohomish County Superior Court commissioner ordered CPS to place J.M.R. in protective care. Porter testified at the hearing that Rousseau assaulted her, choked her, and threatened to kill her.
¶6 On April 10, the Washington State Department of Social and Health Services (DSHS) filed a dependency petition. The petition alleged J.M.R. was abused or neglected and has no parent or guardian capable of adequately caring for him. The petition states that Porter and Rousseau had only sporadically parented J.M.R. and the maternal grandmother would not “ever parent [J.M.R.] herself.” Rousseau was represented by appointed counsel at the initial shelter care hearing on April 10. The same attorney represented Rousseau throughout the proceedings.
f 7 An order of dependency as to Porter was entered on July 10. At the fact-finding hearing on September 6, the court found J.M.R. dependent as to Rousseau. The order states, in pertinent part:
The father has not consistently parented the child, or provided for the child’s needs. The father has acknowledged that he has a life-threatening illness for which he is frequently hospitalized. He is not available to be a placement resource for the child by his own admission. The child’s legal guardian has indicated that she is too old to care for the child.
The disposition orders required DSHS to offer services to Porter and Rousseau. The court ordered Rousseau to obtain domestic violence and drug treatment assessments and follow all treatment recommendations.1
[933]
Petition To Terminate Parental Rights
¶8 On April 16, 2008, DSHS filed a petition to terminate the parental rights of Porter and Rousseau. DSHS alleged that all necessary services capable of correcting parental deficiencies in the foreseeable future were offered but the parents failed to meaningfully engage in services or substantially address their parental deficiencies. The termination trial was initially scheduled for March 23, 2009, but at Rousseau’s request the court continued the trial to April 13.
¶9 On March 23, Rousseau filed a dependency guardianship petition. In the dependency guardianship petition Rousseau admits DSHS had offered all services capable of correcting his parental deficiencies and there was “little likelihood that conditions will be remedied so the child can be returned” in the foreseeable future. The petition states, in pertinent part:
(a) The child has been found to be a dependent child under RCW 13.34.030.
(b) A dispositional plan has been entered pursuant to RCW 13.34.130.
(c) 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 under RCW 13.34.030.
(d) The services ordered under RCW 13.34.030 and 13.34.136 have been offered or provided and all necessary services reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided by a preponderance of the evidence related to the child’s dependency case.
(e) There is little likelihood that conditions will be remedied so the child can be returned to the parents in the near future by a preponderance of the evidence related to the child’s dependency case.
(f) A guardianship rather than termination of the parent-child relationship or continuation of the child’s current dependent status would be in the best interest of the child.
[934] f 10 At the time of the trial on April 13, J.M.R. was six years old and he had been living with the same foster family for more than a year. At the beginning of trial, Porter agreed to relinquish her parental rights to J.M.R. and agreed to an open adoption agreement with the foster parents that allowed her two visits a year with J.M.R.
Free access — add to your briefcase to read the full text and ask questions with AI
¶1 On the second day of trial, John Charles Rousseau entered into a stipulation to terminate his parental rights to his son J.M.R. After an extensive colloquy, the court found Rousseau’s decision was knowing, intelligent, and voluntary, and entered the order terminating Rousseau’s parental rights to J.M.R. Rousseau appeals the order denying his CR 60(b) motion to vacate the stipulation and the order terminating his parental rights, [931] arguing that the court did not have the statutory authority to accept the stipulation. We hold that the court had the authority to accept the stipulation in a termination where the court ensures the parent knowingly, intelligently, and voluntarily enters into a stipulation to terminate parental rights. In the unpublished portion of the opinion we conclude Rousseau cannot establish ineffective assistance of counsel and affirm.
Schindler, J.
[931] FACTS
Dependency Petition
¶2 J.M.R. was born on July 12, 2002. Angelique Porter is his mother. John Rousseau is his father. Porter and Rousseau have an extensive history of drug abuse and domestic violence. Rousseau used methamphetamine and cocaine for at least 25 years and has several convictions for domestic violence assault and violations of domestic violence no-contact orders. Both Rousseau and Porter have a communicable terminal illness.
¶3 Child Protective Services (CPS) began receiving reports of neglect of J.M.R. by his parents in 2004. In September 2005, J.M.R.’s maternal grandmother in California filed a petition to be appointed the guardian of J.M.R. and his two half brothers. But after the court granted her guardianship petition, the grandmother immediately returned three-year-old J.M.R. to his parents.
¶4 In March 2006, CPS received a referral expressing concern about J.M.R.’s well-being and unsanitary conditions in the home. The referral states that Rousseau was taken to the hospital by the paramedics due to confusion. The referral describes the unsanitary condition of the apartment and concern that even though three-year-old J.M.R. had bronchitis, his parents continued to smoke in his presence.
Cigarette butts were everywhere, spilling out of ashtrays and all over the floor.... Piles of garbage and dirty clothes made it [932] difficult for paramedics to maneuver through the apartment. Bedroom doors were difficult to open due to all the stuff piled around. Old food was on the floor and coffee table. Unsanitary items were within easy reach of [J.M.R.].
f 5 On April 5, 2007, at the conclusion of a hearing on Parker’s request for a no-contact order against Rousseau, a Snohomish County Superior Court commissioner ordered CPS to place J.M.R. in protective care. Porter testified at the hearing that Rousseau assaulted her, choked her, and threatened to kill her.
¶6 On April 10, the Washington State Department of Social and Health Services (DSHS) filed a dependency petition. The petition alleged J.M.R. was abused or neglected and has no parent or guardian capable of adequately caring for him. The petition states that Porter and Rousseau had only sporadically parented J.M.R. and the maternal grandmother would not “ever parent [J.M.R.] herself.” Rousseau was represented by appointed counsel at the initial shelter care hearing on April 10. The same attorney represented Rousseau throughout the proceedings.
f 7 An order of dependency as to Porter was entered on July 10. At the fact-finding hearing on September 6, the court found J.M.R. dependent as to Rousseau. The order states, in pertinent part:
The father has not consistently parented the child, or provided for the child’s needs. The father has acknowledged that he has a life-threatening illness for which he is frequently hospitalized. He is not available to be a placement resource for the child by his own admission. The child’s legal guardian has indicated that she is too old to care for the child.
The disposition orders required DSHS to offer services to Porter and Rousseau. The court ordered Rousseau to obtain domestic violence and drug treatment assessments and follow all treatment recommendations.1
[933]
Petition To Terminate Parental Rights
¶8 On April 16, 2008, DSHS filed a petition to terminate the parental rights of Porter and Rousseau. DSHS alleged that all necessary services capable of correcting parental deficiencies in the foreseeable future were offered but the parents failed to meaningfully engage in services or substantially address their parental deficiencies. The termination trial was initially scheduled for March 23, 2009, but at Rousseau’s request the court continued the trial to April 13.
¶9 On March 23, Rousseau filed a dependency guardianship petition. In the dependency guardianship petition Rousseau admits DSHS had offered all services capable of correcting his parental deficiencies and there was “little likelihood that conditions will be remedied so the child can be returned” in the foreseeable future. The petition states, in pertinent part:
(a) The child has been found to be a dependent child under RCW 13.34.030.
(b) A dispositional plan has been entered pursuant to RCW 13.34.130.
(c) 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 under RCW 13.34.030.
(d) The services ordered under RCW 13.34.030 and 13.34.136 have been offered or provided and all necessary services reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided by a preponderance of the evidence related to the child’s dependency case.
(e) There is little likelihood that conditions will be remedied so the child can be returned to the parents in the near future by a preponderance of the evidence related to the child’s dependency case.
(f) A guardianship rather than termination of the parent-child relationship or continuation of the child’s current dependent status would be in the best interest of the child.
[934] f 10 At the time of the trial on April 13, J.M.R. was six years old and he had been living with the same foster family for more than a year. At the beginning of trial, Porter agreed to relinquish her parental rights to J.M.R. and agreed to an open adoption agreement with the foster parents that allowed her two visits a year with J.M.R.
¶11 On the first day of trial, the court heard testimony from Porter, Rousseau, and his drug treatment provider. The next morning, DSHS presented the testimony of a domestic violence treatment provider and the DSHS visitation supervisor. Following a recess to discuss settlement, Rousseau agreed to enter into a stipulation and order voluntarily terminating his parental rights to J.M.R. In exchange, DSHS and the adoptive parents agreed to an open adoption agreement that allowed Rousseau four visits a year.
¶12 After the stipulation was prepared, Rousseau insisted on striking the phrase “[A] 11 of my parental rights to [J.M.R.] be permanently terminated,” and inserted “[J.M.R.] be placed with the family where he is currently living permanently.” Thereafter, Rousseau signed and dated the stipulation. The stipulation provides, in pertinent part:
3. The court has found [J.M.R.] to be dependent pursuant to RCW 13.34.030(5), and the court has entered a Dispositional Order pursuant to RCW 13.34.130 which was filed on September 6, 2007.
4. [J.M.R.] has been removed from my custody for a period of at least six months pursuant to a finding of dependency under RCW 13.34.030(5).
5. The services ordered under RCW 13.34.136 have been expressly and understandably offered or provided to me and all necessary services, reasonably available, capable of correcting my parental deficiencies within the foreseeable future have been expressly and understandably offered or provided to me.
6. There is little likelihood that conditions will be remedied so that the child can be returned to me in the near future.
7. Continuation of the parent and child relationship clearly diminishes the child’s prospects of early integration into a stable and permanent home.
[935]*9358.1 realize that it is in the best interest of the above-named child that [J.M.R.] be placed with the family where he is currently living permanently.
9. I understand that the legal effect of this voluntary termination of my parental rights to the above-named child will be to divest me of all legal rights and obligations with respect to the child except for past due child support obligations. I also understand that the child will be freed from all legal obligations with respect to me, and shall be, for all legal purposes, the child, legal heir, and lawful issue of the adoptive parents, entitled to all rights and privileges, including the right of inheritance, the right to take under testamentary disposition and subject to all obligations of a child of such adoptive parents as if born to such adoptive parents.
¶13 The court engaged in an extensive inquiry on the record with Rousseau to ensure he was entering into the stipulation knowingly, intelligently, voluntarily, and without duress. At the conclusion of the colloquy, the court found that Rousseau entered into the stipulation to terminate his parental rights “freely, knowingly, intelligently and voluntarily.” The April 15 order terminating Rousseau’s parental rights also states:
The court having reviewed and accepted the foregoing Stipulation and finding that the Stipulation for termination of the parental rights of John Michael [sic] Rousseau in and to [J.M.R.] was executed by him voluntarily and not under fraud or duress.
First Appeal and Motion To Vacate
¶14 On May 14, Rousseau filed a notice of appeal of the “Stipulation and Order on Termination of Parent-Child Relationship Regarding Father” entered on April 15. On May 27, this court scheduled a hearing on the status of the appeal because Rousseau had not filed proof of service, an order of indigency, a statement of arrangements, or a designation of clerk’s papers.
¶15 At the hearing on July 10, Rousseau’s attorney explained that Rousseau planned to file a CR 60(b) motion [936] to vacate the stipulation and order of termination to be heard by the trial court. The commissioner’s ruling states that “[i]n these unusual circumstances additional time should be allowed especially to obtain a decision on the pending motion to vacate,” and ordered the motion “set over ... to allow appellant to pursue his pending motion to vacate in the trial court and obtain a formal ruling on his pending motion for an order of indigency.”
¶16 On October 8, Rousseau filed the CR 60(b) motion to withdraw his stipulation and vacate the order terminating parental rights. In support, Rousseau and his attorney submitted declarations. In his declaration, Rousseau said that he was confused and did not understand the consequences of entering into the stipulation. Rousseau also states that he was coerced into signing the stipulation and discussed filing an appeal with his attorney.
I began to understand what I had done and I talked to my attorney and told him that the State did not have the right to take my son and that I did not understand that I was giving up my rights to him voluntarily. I told him that I felt coerced into signing the documents and we discussed appealing the stipulation.
The attorney states in his declaration that Rousseau should have entered into a voluntary relinquishment rather than a stipulation to terminate parental rights.
117 Following an October 21 hearing in this court on the status of the pending appeal, the commissioner ruled that “[i]n view of [counsel’s] explanation, counsel shall have until November 18, 2009 to file the proof of service, an order of indigency or the filing fee, a designation of clerk’s papers, and a statement of arrangements. If these steps are not accomplished by November 18, the appeal may be dismissed.”
¶18 On November 18, the trial court heard argument on Rousseau’s motion to vacate the stipulation and order terminating parental rights under CR 60(b)(3), (4), and [937] (ll).2 Rousseau argued that his health had improved over the six months since trial, that DSHS had not followed through with the open adoption agreement, and that DSHS convinced him to sign the stipulation. DSHS argued that Rousseau could not show he was entitled to withdraw his stipulation based on newly discovered evidence, misrepresentation or misconduct of DSHS, or extraordinary circumstances. DSHS pointed out that Rousseau’s long-term prognosis had not changed since the time of trial, that the later dispute between Rousseau and DSHS over visitation did not establish misconduct or misrepresentation, and that Rousseau understood the consequences of entering into the stipulation.
¶19 The court denied the motion to vacate. The court ruled that Rousseau entered into the stipulation to terminate his parental rights knowingly, intelligently, and voluntarily. The court explained:
From the standpoint of Mr. Rousseau, when I was going through the colloquy with him, he did indicate that he was afraid to lose his parental rights and he didn’t want to lose complete contact with his son. I went through the colloquy with him over and over and over again so I would be assured that he was making that decision knowingly, intelligently and voluntarily. Now, whenever he raised a question, I basically took a step back to assure myself that he understood what the issue was and that he was making his choice voluntarily. ... [I] t is clear to me that at no time did Mr. Rousseau ever indicate any confusion, any coercion, any duress, any claim that somehow [938] you provided him with improper counsel in relation to the case. It’s not there.