In the Matter of the Parental Rights to K.J.B., a minor child. J.B, Petitioner,
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
2013, the legislature amended the statute governing
termination of parental rights. The legislature provided that
"[i]f the parent is incarcerated, the court
shall consider" a set of factors before
determining that "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) (emphasis added). Petitioner J.B. argues that
his parental rights cannot be terminated without express
written findings of fact on these incarcerated parent
factors. We hold that while explicit findings on the
incarcerated parent factors are not statutorily required,
consideration of the factors is mandatory. Because the trial
court failed to consider the incarcerated parent factors in
this case, we reverse and remand the case to the trial court
for consideration of the incarcerated parent factors.
the biological father of KJ.B. KJ.B. was born on April 20,
2012 and was immediately removed from her mother's care
because of her mother's prenatal methamphetamine use.
KJ.B. was initially placed in relative care. At one month
old, KJ.B. was moved to a foster care family, where she
currently resides. Her mother has already relinquished her
parental rights and is not a party to this proceeding. KJ.B,
has never lived with her biological mother or father.
has struggled with drug addiction since his adolescence. In
October 2012, the court entered a dependency order requiring
J.B. to complete a drug/alcohol evaluation and treatment,
random urinalysis testing, and a parenting assessment and
instruction. J.B. completed a parenting assessment and
participated in parenting instruction. He started several
drug treatment programs but never completed any. In the
findings of fact, the trial judge noted, "The father has
a very serious drug addiction." Clerk's Papers (CP)
at 19 (Findings of Fact (FF) 1.11). He "has not been
able to demonstrate sobriety for any significant period of
time, despite being provide[d] ample time and opportunity to
do so." FF 1.20. "His substance abuse addiction
prevents him from parenting his child." FF 1.22.
"The father has demonstrated that he is incapable of
providing or unwilling to provide a safe, healthy and stable
environment for [K.J.B.] due to his continued substance abuse
addiction and inability to complete treatment." FF 1.24.
In his oral ruling, the judge stated, "I find that your
use of methamphetamine has prevented you from providing care
for this child for extended periods of time and you have a
documented unwillingness, and that's a difficult word to
use for you, [J.B.], but a documented unwillingness to
receive and complete treatment or documented multiple failed
treatments . . . ." 2 Verbatim Report of Proceedings
(VRP) at 249.
participated in visits with K.J.B. in January 2013 and more
regularly visited with her from March 2013 to January 2014.
One parenting professional testified that J.B. was nurturing
and loving toward K.J.B. and that he showed compassion and
sensitivity. However, the trial judge found that "[t]he
father's parental deficiencies have not been
corrected." FF 1, 10.
January 2014, J.B. was found guilty of first degree unlawful
possession of a firearm and possession of a stolen firearm.
He was sentenced to 74 months of incarceration.
time of the termination hearing, J.B. had been incarcerated
for less than 52 days. In considering the termination of
J.B.'s parental rights, the trial court apparently
applied outdated statutory language in framing its analysis.
Specifically, the court applied RCW 13.34.180(1)(f) without
mentioning its 2013 amendments requiring courts to consider
additional factors relevant to incarcerated parents. Without
expressly considering these factors set forth in RCW
13.34.180(1)(f), the trial court terminated J.B.'s
appealed. The Court of Appeals acknowledged "the trial
court's failure to weigh the required
considerations" but ruled that it was harmless error
that did not require reversal. In re Parental Rights to
K.J.B., 188 Wn.App. 263, 285, 354 P.3d 879 (2015). J.B.
appealed, and we accepted review.
review matters of statutory interpretation de novo.
O.S.T. v. Regence Blue Shield, 181 Wn.2d 691, 696,
¶ 8, 335 P.3d 416 (2014).
fundamental goal in statutory interpretation is to
"discern and implement the legislature's
intent." State v. Armendariz, 160 Wn.2d 106,
110, ¶ 7, 156 P.3d 201 (2007). Where "the
statute's meaning is plain on its face, then the court
must give effect to that plain meaning as an expression of
legislative intent." Dep 't of Ecology
v. Campbell v. Gwinn, LLC, 146 Wn.2d 1, 9-10, 43
P.3d 4 (2002). We discern plain meaning "from all that
the Legislature has said in the statute and related statutes
which disclose legislative intent about the provision in
question." Id. at 11. "[I]f, after this
inquiry, the statute remains susceptible to more than one
reasonable meaning, the statute is ambiguous and it is
appropriate to resort to aids to construction, including
legislative history." Id. at 12. Plain language
that is not ambiguous does not require construction.
State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724
Statutory Scheme for Termination of Parental Rights
paramount goal of child welfare legislation is to reunite the
child with the legal parents if reasonably possible. In
re Dependency of J.H., 117 Wn.2d 460, 476, 815 P.2d 1380
(1991); In re Custody of C.C.M., 149 Wn.App. 184,
202 P.3d 971 (2009). Parents have a fundamental liberty and
property interest in the care and custody of their children.
U.S. Const, amends. V, XIV; Wash. Const, art. I, § 3;
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982). "The due process clause of
the Fourteenth Amendment protects a parent's right to the
custody, care, and companionship of [his or] her
children." In re Welfare of Key, 119 Wn.2d 600,
609, 836 P.2d 200 (1992) (citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d
551 (1972)). Due process requires a court to find the parent
to be currently unfit before the parent-child relationship
may be terminated.
order to deem a parent unfit and thus terminate the
parent-child relationship, the State must satisfy a
two-pronged test. In re Dependency of K.N J., 171
Wn.2d 568, 576, ¶ 15, 257 P.3d 522 (2011). The first
prong focuses on the adequacy of the parent and requires the
State to establish six elements, outlined in RCW
13.34.180(1). "Each of the six statutory elements
must be proved by clear, cogent, and convincing evidence
before the State may terminate parental rights."
K.N.J., 171 Wn.2d at 576-77 (citing In re
Welfare of C.S., 168 Wn.2d 51, 55, ¶ 7, 225 F.3d
953 (2010)); RCW 13.34.180(1). If the six statutory elements
of subsection (1) are established, then the parent has been
implicitly found to be an unfit parent. K.N J., 171
Wn.2d at 577, ¶ 15 (citing In re Dependency of
K.R., 128 Wn.2d 129, 141-42, 904 P.2d 1132 (1995)).
second prong that the State must prove focuses on the
child's best interests. RCW 13.34.190. Only if the first
prong is satisfied may the court reach the second. In re
Interest of S.G., 140 Wn.App. 461, 470, ¶ 26, 166
P.3d 802 (2007); In re Welfare of C.B., 134 Wn.App.
942, 952, ¶ 21, 143 P.3d 846 (2006).
To Protect Rights of Incarcerated Parents
legislature recently recognized that statutory
dependency/termination requirements and timelines often
undermine the efforts of incarcerated parents to be reunited
with their children. In 2013, this recognition led to
Substitute House Bill (SHB) 1284, titled "AN ACT
Relating to the rights of parents who are incarcerated."
Substitute H.B. 1284, 63d Leg., Reg. Sess. (Wash. 2013). SHB
1284 amended several statutes in the Juvenile Court Act,
effective July 2013. Id. (amending RCW 13.34.067,
136, and 145 and reenacting and amending .180). The primary
sponsor of SHB 1284 testified that its intent was to provide
added protection for incarcerated parents facing termination
of their parental rights. Hr'g on H.B. 1284 Before the H.
Early Learning & Human Servs. Comm., 63d Leg., Reg. Sess.
(Wash. Feb. 5, 2013) (testimony of Representative Mary Helen
Roberts), audio recording by TVW, Washington
State's Public Affairs Network,
to SHB 1284, the sixth element of the parental rights
termination statute, RCW 13.34.180(1)(f), required the state
to prove "[t]hat continuation of the parent and child
relationship clearly diminishes the child's prospects for
early integration into a stable and permanent home."
In re Dependency of D.L.B., 188 Wn.App. 905, 914,
¶24, 355 P.3d345 (2015), aff'd, 186 Wn.2d
103, 376 P.3d 1099 (2016). In SHB 1284, the legislature added
the following language to this sixth factor:
parent is incarcerated, the court shall consider
[(1.)] whether a parent maintains a meaningful role in his or
her child's life based on factors identified in RCW
[(2.)] whether the department or supervising agency made
reasonable efforts as defined in this chapter; and
[(3.)] whether particular barriers existed as described in
RCW 13.34.145(5)(b) including, but not limited to, delays or
barriers experienced in keeping the agency apprised of his or
her location and in accessing visitation or other meaningful
contact with the child.
H.B. 1284, at 13-14 (emphasis added).
1284 also added subsection (5)(b) to RCW 13.34.145. This new
section provides a nonexclusive list of factors that the
trial court "may" consider in determining whether
an incarcerated parent "maintains a meaningful role in
the child's life, " as well as various types of
barriers that incarcerated parents may face in maintaining
such a role:
(b)The court's assessment of whether a parent who is
incarcerated maintains a meaningful role in the child's
life may include consideration of the following:
i. The parent's expressions or acts of manifesting
concern for the child, such as letters, telephone calls,
visits, and other forms of communication with the child;
ii. The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the
purpose of complying with the service plan and repairing,
maintaining, or building the parent-child relationship;
iii. A positive response by the parent to the reasonable
efforts of the department or supervising agency;
iv. Information provided by individuals or agencies in a
reasonable position to assist the court in making this
assessment, including but not limited to the parent's
attorney, correctional and mental health personnel, or ...