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In re Welfare of H.Q.

Court of Appeals of Washington, Division 2

March 25, 2014

In the Matter of the Welfare of H.Q

Oral Argument January 7, 2014

Page 310

Appeal from Kitsap Superior Court. Docket No: 11-7-00451-1. Date filed: 02/15/2013. Judge signing: Honorable Sally F Olsen.

Maureen M. Cyr (of Washington Appellate Project ), for appellant.

Robert W. Ferguson, Attorney General, and Peter Kay, Assistant, for respondent.

AUTHOR: Joel Penoyar, J.P.T. We concur: Bradley A. Maxa, J., Linda Cj Lee, J.

OPINION

Page 311

Penoyar, J.[*]

[180 Wn.App. 399] ¶ 1 C.Q. appeals the involuntary termination of his parental rights. C.Q. is the father of H.Q., a girl born in 2008.[1] C.Q. has a good relationship with H.Q. but is unable to parent her because of disabilities caused by a head injury when he was a child. As a result, C.Q. was faced with termination of his parental rights.

¶ 2 C.Q. sought to voluntarily relinquish his rights in order to enter into an open-communication adoption agreement with H.Q.'s prospective adoptive parents because that was the only way for him to have an enforceable right to continue a relationship with H.Q. after the termination. The juvenile court did not conduct a hearing to determine C.Q.'s competence to voluntarily relinquish his parental rights. Instead, it accepted the representation of C.Q.'s attorney that C.Q. was not competent to voluntarily relinquish [180 Wn.App. 400] his parental rights and subsequently involuntarily terminated those rights. Because a parent's right to voluntarily relinquish his parental rights is a fundamental right protected by due process, we vacate the termination of C.Q.'s parental rights and remand for the juvenile court to hold a hearing on C.Q.'s competence to voluntarily relinquish his parental rights and for further additional proceedings dependent upon the outcome of the competency hearing.

FACTS

I. Background

¶ 3 C.Q. is a 30-year-old man with disabilities caused by a head injury when he was eight or nine years old.[2] These disabilities leave him with the mental faculties of a six-year-old. Francis Peck became C.Q.'s foster parent after C.Q.'s head injury and then his legal guardian under chapter 11.88 RCW when he turned 18. Peck makes all of H.Q.'s medical and financial decisions and provides him transportation. Despite C.Q.'s disabilities, C.Q. has lived on his own in a fifth-wheel recreational vehicle trailer located near Peck's friends since June or July 2012. C.Q. is independent in feeding, bathing, and dressing himself, and he prepares his own meals, keeps his residence clean, and has maintained a job as a stock clerk.

¶ 4 Prior to February 2012, C.Q. lived with H.Q.'s mother, C.H. In December 2008, H.Q. fractured her leg. Due to concerns regarding H.Q.'s injury, the Department of Social and Health Services (Department) filed a dependency petition. In February 2009, C.Q. agreed to a dependency of [180 Wn.App. 401] H.Q. under former RCW 13.34.030(5)(c) (2008). In accepting C.Q.'s waiver, the juvenile court found that C.Q. understood the terms of the order he signed, including his responsibility to participate in remedial services, and understood that entry of the order started a process which could result in termination of his relationship with H.Q. The juvenile court also found that C.Q. " knowingly and willingly stipulated and agreed to and signed the order or orders, without duress, and without misrepresentation by fraud or any other party." Ex. 1, at 2.

¶ 5 As part of the dependency, C.Q. completed a psychological evaluation in October 2009. The examiner recommended that C.Q. receive hands-on parent coaching. Eventually, H.Q. returned to the care of C.H. and in December 2009, the Department dismissed the dependency.

Page 312

II. Second Dependency Petition

¶ 6 In August 2010, the Department filed a second dependency petition as to H.Q. on the basis of neglect due to unsanitary conditions in C.H.'s home.[3] On December 20, 2010, the juvenile court held a contested fact finding hearing and found that C.Q. had " significant mental health issues and head trauma causing developmental and cognitive delays such that he [was] currently unable to adequately care for his child." Ex. 6, at 2. The juvenile court found H.Q. dependent under former RCW 13.34.030(6)(c) (2010). On January 31, 2011, the juvenile court entered an agreed dispositional order [4] that required C.Q. to ...


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