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In re Parental Rights To K.J.B.

Supreme Court of Washington, En Banc

January 26, 2017

In the Matter of the Parental Rights to K.J.B., a minor child. J.B, Petitioner,

          WIGGINS, J.

         In 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.


         J.B. is 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.

         J.B. 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.

         J.B. 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.

         In 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.

         At the time of the termination hearing, J.B. had been incarcerated for less than 52 days.[1] 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 parental rights.

         J.B. 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.


         We 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).


         Our 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 (2013).

         Washington's Statutory Scheme for Termination of Parental Rights

         The 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.

         In 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).[2] "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)).

         The 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).

         Amendments To Protect Rights of Incarcerated Parents

         The 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,

         Prior 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:

         If the 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 13.34.145(5)(b);
[(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.[3]

         Substitute H.B. 1284, at 13-14 (emphasis added).

         SHB 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 ...

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