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In re Dependency of C.B.

May 13, 1991

IN THE MATTER OF THE DEPENDENCY OF C.B., ET AL.


Morgan, J. Worswick, C.j., and Petrich, J., concur.

Author: Morgan

Appellant is the mother of D.B., born March 31, 1979, and C.B., born November 6, 1981. On November 21, 1988, the State alleged that both children were dependent. In summary form, its allegations were as follows: (1) The mother failed to provide adequate food. (2) The 2-bedroom home was filthy and was occupied by the mother, the two children and four other adults. (3) The mother left the children with inappropriate caretakers. (4) Friends of the mother used up D.B.'s medication and she failed to replace it. (5) The mother had a history of cocaine addiction. She had not been in treatment and had failed or refused to attend counseling. (6) The mother had allowed the children to observe drug use by her friends and physical abuse of her by her boyfriend. In addition, she had "failed to protect" C.B. from the boyfriend.*fn1 (7) The mother failed to insure that the children attended school, and that they were dressed appropriately for school.

On February 16, 1989, an agreed order was entered. It provided that the mother did not dispute the above allegations, and that the children would be placed in foster care under supervision of the Department of Social and Health Services (DSHS). It also specified the corrective actions that the mother would be expected to take. In summary form, those were as follows: (1) Obtain a drug/alcohol evaluation, comply with its recommendations, and submit to random urinalysis. (2) Establish a safe and stable home environment, and work with a homemaker in order to develop the skills needed to maintain it. (3) Participate in a support group for battered women, and obtain an order of protection against the boyfriend. (4) Participate in weekly supervised visits with the children.

On October 28, 1989, the State filed a petition for termination of the mother's parental rights. After a 1-day hearing held on January 3, 1990, the trial court terminated the

mother's parental rights on the basis of findings that can be paraphrased and summarized as follows: (1) On April 10, 1989, the mother underwent drug/alcohol evaluation. The evaluator recommended complete abstention, plus intensive outpatient treatment beginning April 17, 1989. (2) On or about April 15, 1989, the mother was arrested in a drug raid on the house where she was then residing, and shortly thereafter, she moved to California without telling DSHS. (3) In early September 1989, the mother returned to Washington with the intent to enter drug/alcohol treatment. On December 15, 1989, she entered a 90-day inpatient treatment program, and on December 17, 1989, she voluntarily left it. (4) Between February 16, 1989, the date of the agreed dispositional order, and January 3, 1990, the date of the termination hearing, the mother failed to comply with any of the services ordered, although all reasonably available services had been offered to her. In addition, she failed to establish a safe and stable home environment. (5) As of the date of the hearing, January 3, 1990, there was little likelihood that the conditions generating the dependencies could be remedied, and continuation of the mother-child relationships clearly diminished the prospects of integrating the children into a stable and permanent home.

On appeal, the mother makes two major contentions. First, she argues that various findings were not supported by substantial evidence. Second, she argues that she did not have the effective assistance of counsel.

Substantial Evidence

In every case, there is both a burden of persuasion and a burden of production. See E. Cleary, McCormick on Evidence 946-52 (3d ed. 1984). The burden of persuasion is applied by the trier of fact. Its function is to define how certain the trier of fact must be before resolving an issue of fact in favor of the party having the burden of proof. Thus, depending on the type of case, the trier of fact must find that there is proof beyond a reasonable doubt, proof by

clear, cogent and convincing evidence, or proof by a preponderance of the evidence. McCormick, at 956-64.

The burden of production is applied by the judge. Its function is to identify whether there is an issue of fact to be submitted to the trier of fact for its decision. McCormick, at 952-56. If there is, the issue is deferred to the trier of fact for decision. Deferral is accomplished by taking the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party.

In Washington parental termination cases, the burden of persuasion is well established. The State must prove its case by clear, cogent and ...


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