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In re Welfare of A.W.

Supreme Court of Washington, En Banc

February 19, 2015

In the Matter of the Welfare of A.W. et al.
T.P., Appellant The Department of Social and Health Services, Respondent,

Argued October 21, 2014

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[Copyrighted Material Omitted]

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Appeal from Benton County Superior Court. 12-7-00092-7. Honorable Joseph R. Schneider.

Eric J. Nielsen, Eric Broman, David B. Koch, and Dana M. Nelson (of Nielsen Broman & Koch PLLC ), for appellant.

Robert W. Ferguson, Attorney General, Carrie H. Wayno, Managing Assistant, and Anne E. Egeler, Assistant, for respondent.

AUTHOR: Justice Mary E. Fairhurst. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud, Justice Mary I Yu.


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[182 Wn.2d 694] Fairhurst, J.

¶ 1 In 2010, the legislature enacted a new guardianship statute, chapter 13.36 RCW (new statute), to create permanency for children in foster care through the dismissal of dependency and the appointment of a guardian. RCW 13.36.010. This case involves whether the preponderance of the evidence standard of proof satisfies due process and whether the record supports the trial court's decision to appoint guardians. We answer both questions yes and affirm.


¶ 2 The Department of Social and Health Services (DSHS) petitioned for an order appointing a guardian for A.W. and M.W. pursuant to the new statute, and the children's mother, T.P., [1] contested guardianship.

¶ 3 In 2009, both A.W. and M.W. came to the attention of DSHS after an investigation showed that T.P.'s then 13 year old son, W.W., had sexually abused M.W. and A.W. as well as a third sibling. [2] The abuse occurred while all three children were in T.P.'s care. DSHS obtained a court order removing A.W., M.W., and the third sibling from T.P.'s home on September 17, 2009.

¶ 4 On September 21, 2009, DSHS filed a dependency petition on behalf of A.W. and M.W based on former RCW 13.34.030(5)(c) (2003), which states that the child " [h]as no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." In December 2009, T.P. agreed to the dependency.

[182 Wn.2d 695] ¶ 5 As part of dependency, DSHS identified several of T.P.'s parental deficiencies: inadequate parenting skills, lack of awareness of sexual abuse issues, possible substance abuse issues, and mental health issues. The court entered dispositional orders placing the children in out of home care, and requiring T.P. to engage in services including parenting evaluation, mental health counseling, services through the Sexual Assault Response

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Center, substance abuse assessment, and random urine analysis (UA). A.W.'s and M.W.'s dependencies were reviewed at the required six month intervals. [3] See RCW 13.34.138.

¶ 6 In March 2010, the court approved transitioning the children to T.P.'s home contingent on T.P.'s compliance with court ordered services and a DSHS safety plan that continued until the guardianship. The court ordered services were similar to those required as part of dependency and included a parenting evaluation, mental health counseling, Family Preservation Services (FPS), submitting to random UAs, and obtaining and maintaining a safe place to live. A safety plan outlines the conditions for the children to be returned home and is created once a parent engages in FPS. Dr. Michelle Leifheit provided FPS to T.P., and T.P. agreed to the safety plan developed by Dr. Leifheit and DSHS. A term in the safety plan prohibited T.P. from allowing her significant other, S.B., to have unsupervised access to the children because S.B. did not pass DSHS' background check.

¶ 7 In December 2010, the transition to T.P.'s home was terminated because a DSHS social worker making a home visit discovered S.B. alone with the children. Additionally, despite the past abuse inflicted by W.W., T.P. permitted him to have frequent visits with the children.

¶ 8 Dr. Naughne Boyd, a psychologist, performed a psychological evaluation on T.P. in March 2011, diagnosing her with polysubstance dependence, attention deficit hyperactivity [182 Wn.2d 696] disorder, and adjustment disorder with mixed anxiety and depression. Dr. Boyd determined that if T.P. tested positive for methamphetamine again, it would not be in the best interests of the children to return them to T.P.'s custody.

¶ 9 T.P. was charged with possession of methamphetamine in May 2012. According to T.P., her relationship with S.B. [4] along with the passing of her father in September 2012 led to increased stress that created difficulties completing DSHS services and drug treatment.

¶ 10 At the guardianship hearing in March 2013, A.W. was 10 years old and M.W. was 12 years old. T.P. admitted that her parental deficiencies were not adequately remedied and that she was not capable of parenting a child. Nonetheless, T.P. asserted that she was improving and the children could be returned to her care in the near future. T.P. stated that she needed more time to adjust to her medication and learn about her mental health issues and that she could do this within the next three months. [5] T.P. also noted that throughout the proceedings there was no doubt that she loved and was bonded with her children and that A.W. and M.W. loved her as well.

¶ 11 The trial court found that based on T.P.'s substance abuse, poor judgment, incarcerations, chaotic lifestyle, failure to remedy parental deficiencies, and the length of time of this case, there was little likelihood that conditions could be remedied such that the children could be returned to T.P. in the near future. The trial court entered findings and conclusions and an order appointing guardians for A.W. and M.W. pursuant to the new statute.

[182 Wn.2d 697] ¶ 12 T.P. appealed and argued that (1) establishing a guardianship under the new statute using the preponderance of the evidence standard is unconstitutional because it violates due process and (2) even if preponderance of the evidence is the correct standard, the trial court's factual findings were not supported by substantial evidence. The Court of Appeals certified this case for direct review, and the Supreme Court Commissioner accepted direct review.


¶ 13 In 2010, the Washington State Legislature enacted Substitute House Bill 2680,

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" GUARDIANSHIP--FOSTER CARE." Laws of 2010, ch. 272. This chapter created a new process to establish, modify, and terminate guardianships for dependent children in foster care. H.B. Rep. on Substitute H.B. 2680, 61st Leg., Reg. Sess. (Wash. 2010) (hereinafter H.B. Rep.). The legislature enacted the new statute to " create a separate guardianship chapter to establish permanency for children in foster care through the appointment of a guardian and dismissal of the dependency." RCW 13.36.010.

¶ 14 Under the old guardianship statute, former RCW 13.34.231 (2000), repealed by Laws of 2010, ch. 272, § 16 (old statute), DSHS had three options for the placement of dependent children: continue dependency, establish a dependency guardianship, or terminate parental rights. When DSHS continues dependency, it provides services to the parent in an attempt to reunify the parent and the child. See RCW 13.34.020-.025. A dependency is reviewed every six months to determine if agency involvement is still necessary. RCW 13.34.138. Dependency guardianships established under the old statute were used as a permanency option for children who were in foster care and for whom reunification with parents or adoption was not promising. H.B. Rep. at 1. Under the old statute, a dependency guardianship was established when there was little chance that [182 Wn.2d 698] conditions would be remedied to return the child to the parent in the near future, and when guardianship, rather than termination of parental rights, was in the best interests of the child.

¶ 15 While dependency guardianships were considered a permanency option and the dependency guardian had many of the same rights and responsibilities as the parent, the underlying dependency was not dismissed. Id. As such, the court could order continued involvement by DSHS. RCW 13.34.235. [6] In addition, when a dependency guardianship was established, parents maintained several rights. See former RCW 13.34.232 (1994). In contrast, termination completely severs the parent and child relationship, as well as DSHS' services and involvement for the parent. A court can order termination if it finds " [t]hat continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home." RCW 13.34.180(1)(f).

¶ 16 The enactment of the new statute removed dependency guardianships as a permanency option for children in foster care. [7] To establish guardianship under the new statute the court must find by a preponderance of the evidence

(a) ... that it is in the child's best interests to establish a guardianship, rather than to terminate the parent-child relationship and proceed with adoption, or to continue efforts to return custody of the child to the parent; and
(b) All parties agree to entry of the guardianship order and the proposed guardian is qualified, appropriate, and capable of performing the duties ...

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