* In re The Welfare of: S.i.

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BELED
NOVEMBER 18, 2614
in the Office of the Clerk of Court
WA State Court of Appeals, Division Hi

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE
In re the Welfare of: ) No. 31727-7-I1
) (consolidated with
S.I. ) 31728-5-HD)
)
D.D. J PUBLISHED OPINION
)
)

LAWRENCE-BERREY, J. — A party who fails to appear in an action is not entitled
to notice prior to entry of a default order. We are asked to decide whether a mother who
appeared and participated in a dependency action yet failed to appear in a subsequent
termination proceeding is required to receive notice prior to entry of a default order in the
termination proceeding. We hold that a dependency proceeding is separate from a
termination proceeding. We also hold that a parent’s appearance and participation in a
dependency proceeding does not constitute an appearance in a later termination
proceeding. Therefore, a default order entered in a termination proceeding without notice
to the nonappearing parent is proper and need not be set aside unless the parent
establishes good cause. Finally, we also hold that the trial court did not abuse its

discretion when it denied the mother’s motion to set aside the default order. We affirm

No. 31727-7-III; 31728-5-IIl

Inre Welfare of SLI. & DD.

the default order, determine that the process used to terminate the mother’s parental rights

was constitutional, and affirm the trial court’s termination of the mother’s parental rights.
FACTS

In July 2011, the Department of Social and Health Services (Department) filed a
dependency petition with respect to two of Maquel Ames’s children, 8.1. (D.O.B.
5/11/04) and D.D. (D.O.B. 03/20/06). The petition alleged that Ms. Ames and her two
children were living in a homeless camp, had no source of income, and that Ms. Ames
was abusing illegal substances. SI. reported to a social worker that they had been kicked
out of her uncle’s home and that her father, Mr. L. had been camping with her, Ms. Ames,
and D.D. Mr. I. is an untreated sex offender, convicted of child rape.

The mother appeared in the dependency action. The court found the children
dependent and entered an agreed order of dependency on October 4, 2011, as to the
mother. On that same date, the court entered a default order of dependency as to Mr. L.,.
and a few weeks later entered a default order of dependency as to the unknown father of
D.D. The parenting deficiencies for the mother included substance abuse, mental health
issues, and an inability to meet the physical and emotional needs of her children.

On October 4, 2011, the court entered a dispositional order as to the mother. This

order, and subsequent review orders, required the mother to participate in a chemical

No, 31727-7-H1; 31728-5-I1

In re Welfare of SI. & D.D.

dependency screening; random urinalysis and blood alcohol (UA/BA) monitoring, mental
health treatment, parenting assessment, individual counseling, family therapy, and
medication management. The dispositional order entered as to Mr. I. and the unknown
father of D.D. stated that an appropriate plan would be prepared in the event that a father
appeared in the action. Neither father appeared in the action.

The services that were ordered were offered or provided to the mother. The
mother sporadically participated in random UA/BA monitoring. She tested positive for
amphetamine and methamphetamine on February 29, 2012, and failed to appear for
testing after May 2012. The mother engaged minimally and struggled with attendance in
outpatient chemical dependency treatment and stopped participating as of July 2012. The
mother completed a parent-child assessment, but ceased participating in the assessment’s
recommended counseling after April 2012.

As for court appearances, Ms. Ames attended her first review hearing on
December 20, 2011. The order entered that date set the next review hearing for
March 27, 2012. Ms. Ames did not appear for the March 27, 2012 review hearing, and
also did not appear for the subsequent review hearing scheduled on August 16, 2012. At -
the August 2012 review hearing, Ms. Ames was found noncompliant for not completing

her chemical dependency screening, for not participating in outpatient treatment and

No. 31727-7-I; 31728-5-IH

in re Welfare of SI. & DD.

individual counseling, and for not providing UA’s. She was chronically late to family
therapy and did not provide adequate food and drink for her children as requested. The
long-term permanent plan for the children was adoption. The court scheduled the next
permanency planning review hearing for January 3, 2013.

Prior to that review hearing, in October 2012 the Department filed a petition for
termination of parent-child relationship. Ms. Ames’s social worker personally served her
with the petition as well as a notice and sumimons to appear at 9:00 a.m. on December 6,
2012. The notice explained that the purpose of the hearing was to hear and consider
evidence on the petition. It warned that if she failed to appear for the hearing, that “the
court may enter an order in your absence permanently terminating your parental rights.”
Clerk’s Papers (CP) at 125. The notice explained other important rights, including her
right to representation at public expense and the process and contact information for

Appointment of counsel.
Ms. Ames did not appear at the courthouse for the December 6, 2012 hearing. On
- December 13, 2012, the Department filed a motion for default, and the trial court entered
the default order the same day.
In late December 2012, Ms. Ames learned of the default order and requested

appointment of counsel. She attended the January 3, 2013, dependency review hearing as

No. 31727-7-TH; 31728-5-H1
Inve Welfare of SL. & DD.
scheduled. The review hearing order found that Ms. Ames defaulted in the termination
matter on December 13, 2012. The order noted that a hearing to vacate the default order
and to set a relinquishment hearing could be scheduled in the future. The trial court
appointed counsel to represent Ms. Ames in the termination matter.

Ms. Ames did not contact appointed counsel until March 2013, Later that month,
Ms. Ames filed a motion to vacate the default order. A hearing was held. She claimed
that good cause existed to vacate the default due to mistake, inadvertence, surprise, or
excusable neglect, citing CR 60. She explained that she was not aware that the petition
was to terminate her parental rights, that a hearing was set, and that she needed to apply
for a public defender. Ms. Ames also explained that during the time she received the
petition and learned of the default order, she was homeless and out of contact with her
attorney and the Department. Once she learned of the default order, she was under the
impression that the only way to vacate the default order would be to relinquish her
parental rights and to enter into an open adoption. She stated that her delay in contacting
appointed counsel was due to an unsuccessful attempt to obtain private counsel to handle

the matter.

No, 31727-7-U1E 31728-5-H1

in re Welfare

of SL & DD.

The Department submitted a declaration from Dean Duncan, the children’s court-

appointed special advocate/guardian ad litem, who had served in such role since

November |, 2012. Mr. Duncan stated in pertinent part:

I am opposing [the mother’s motion to vacate the default order] for the following
reasons:

1.

CP at 176-77.

Although Iam convinced that Ms. Ames dearly loves her children,
she has failed to do what has been required of her to regain custody
of her children. In the past, almost two years, I have been present in
meetings with Ms. Ames when the social worker repeatedly
reminded [Ms. Ames| of the urgency of moving forward with
services. Any forward movement has not taken place. The children
have, as a consequence, been moved three separate times to three
different foster placements. .

[D.D.] is in need of special help to allow him to focus on school
achievement. He needs some permanence in his life to make this
happen.

I visited the foster-to-adopt home where [D.D.] and [S.I.] have been
placed. .These parents have taken great efforts to welcome these two
children into their home and meet their physical and emotional
needs. I have seen both children happy and thriving in their care.
These children deserve the permanency and attention that this home
will provide them.

The Department has done everything to give Ms. Ames the
{o]pportunity to regain custody of her children. She has done very
little to comply with the services offered to her.

I am surprised that Ms. Ames is making this motion. She was
present during a transition team meeting with foster parents and
social worker and myself. She made comments that indicated that
she was supportive of the decision to provide permanency for her
children.

No. 31727-7-H; 31728-5-U1
Inve Welfare of SI. & D.D.

The trial court denied Ms, Ames’s motion to vacate the default order. In denying
the motion, the court considered what the likely outcome of trial would be. The court
found that Ms. Ames had not demonstrated any progress in court-ordered services. The
court also found that there was no excusable neglect. The court also found that “[i]t is not
in the children’s best interest to vacate the default [order], and the four months that have
gone by since the default was entered is further indication of the mother’s neglect of her
children and this case.” CP at 66. The trial court concluded that Ms. Ames had forfeited
her right to contest the termination of her parental rights and denied her motion to vacate.

A default termination hearing occurred on May 23, 2013. The hearing was brief.
The social worker assigned to the case answered questions under oath that mirrored the
statutory requirements for termination. The social worker testified to the primary reasons
for the dependency and the specific services that were offered or provided to Ms. Ames.
The social worker also indicated that Ms. Ames was marginally compliant, but with no
progress reported by the providers and that conditions were not likely to change in the
near future because Ms. Ames demonstrated a significant pattern of failure to engage or

make progress in her services. Last, the social worker stated that the children were living

together in an adoptive home and termination of parental rights was in their best interest.

No. 31727-7-If; 31728-5-I1

In re Welfare of SL. & D.D.

The trial court entered corresponding findings of fact and conclusions of law and ordered
termination.

Ms. Ames appealed. She contends that the court erred by not vacating the default
order. She maintains that she was not given five days’ notice before the order was
entered, as required by CR 55. She also maintains that the termination of her parental
rights by default violated procedural due process, and that the court’s denial of her motion
to vacate the default order constituted an abuse of discretion.

ANALYSIS

Notice Prior to Entry of the Default Order. Ms. Ames contends that the entry of

the order of default without five days’ notice violated CR 55. She contends that she was
entitled to notice because her appearance and participation in the dependency proceedings
constituted an appearance in the termination proceeding. Whether Ms. Ames was entitled
to five days’ notice is a question of law that we review de novo.

CR 55(a) controls entry of an order of default and default judgment. A motion for
default may be made when a party against whom a judgment is sought has failed to
appear. CR 55(a}(1). CR 55 (a)(3) provides:

Notice. Any party who has appeared in the action for any purpose shall be

served with a written notice of motion for default and the supporting
affidavit at least 5 days before the hearing on the motion. Any party who

No. 31727-7-1T0; 31728-5-II
In re Welfare of SI. & DD.

has not appeared before the motion for default and supporting affidavit are

filed is not entitled to a notice of the motion.
(Emphasis added.)

In Gage v. Boeing Co., 55 Wn. App. 157, 776 P.2d 991 (1989), the employer
appeared, participated in, and prevailed in two agency actions. The employee appealed
both actions, served the employer with appropriate pleadings, but the employer failed to
file a notice of appearance in either case. The employee, without notice to the employer,
subsequently obtained two default judgments. The employer successfully vacated the
default judgments. The employee appealed. In affirming the trial court, Division One of
this court held that an appeal to superior court of an administrative proceeding was a
continuation of the original action, and that the employer was entitled to notice of default.
Id. at 162-63.

Conversely, an action to permanently terminate parental rights is a new proceeding
and not an extension of the dependency action. /n re Hiebert, 28 Wn. App. 905, 908-09,
627 P.2d 551 (1981). This is because the purpose of a dependency proceeding and a
- termination proceeding are diametric: A dependency proceeding seeks to provide services
to a parent to correct parental deficiencies so as to reunify the parent-child relationship;
whereas a termination proceeding seeks to permanently terminate the parent-child

relationship.

No. 31727-7-I11; 31728-5-TIl
ln re Welfare of Sut & DD.

The plain language of CR 55(a)(3) requires some type of appearance in the action
for the five-day notice rule to apply. Ms. Ames did not, in any manner, appear in the
termination proceeding. Ms. Ames was not entitled to five days’ notice because she did
not make a prior appearance in the termination proceeding.

Constitutional Due Process. We apply de novo review to determine whether a

| proceeding violated constitutional due process. /n re Welfare of J.M., 130 Wn. App. 912,
920, 125 P.3d 245 (2005).

Due process protections afford parents notice and an opportunity for a hearing
appropriate to the nature of the case. In re Dependency of C_R.B., 62 Wn. App. 608, 614,
814 P.2d 1197 (1991). The courts balance three factors when examining the adequacy of
process: (1) the private interest at stake, (2) the risk that the procedure used will result in
error, and (3) the State’s interest in retaining the procedure used and the fiscal or
administrative burden if additional safeguards were provided. In re Dependency of A.G.,
93 Wn. App. 268, 278-79, 968 P.2d 424 (1998).

l. Private Interest at Stake. The parent, child, and State have competing interests
in a termination proceeding. /d. at 279. A parent has a constitutionally protected interest
in the care and custody of their children. In re Dependency of J.B.S., 123 Wn.2d I, 12,

863 P.2d 1344 (1993). However, children have a right to establish a strong, stable, safe,

10

No, 31727-7-10; 31728-5-U1
In re Welfare of SI. & DD.

_and permanent home in a timely manner and this right “* cannot be put on hold
interminably because a parent is absent from the courtroom.’” 4.G.,93 Wn. App. at 280
(quoting C_R.B., 62 Wn. App. at 616), The State has an interest in protecting the rights of
children, which includes a speedy resolution of termination proceedings. Jn re
Dependency of M.S., 98 Wn. App. 91, 95, 988 P.2d 488 (1999). Judicial adherence to the
statutory dependency-termination scheme reasonably balances these competing rights.
Our legislature has declared:

[T]he family unit should remain intact unless a child’s right to conditions of

basic nurture, health, or safety is jeopardized. When the rights of basic

nurture, physical and mental health, and safety of the child and the legal

rights of the parents are in conflict, the rights and safety of the child should

prevail.
RCW 13,34,020.

2. Risk of Error. “[A] parent’s failure to respond to notices and summons of a
proceeding to terminate parental rights, in itself, does not preclude the State from
obtaining a judgment permanently terminating that parent’s right to the custody and care
of his or her child.” C.R.B., 62 Wn. App. at 616. Before a default termination judgment
can be entered, the court must have a meaningful hearing on the merits of the case in

accordance with statutory requirements for termination to satisfy due process. /d. This

procedure decreases the risk of error in a default proceeding by ensuring that a decision is

[1

No. 31727-7-E; 31728-5-I1

Inve Welfare of SL. & DD.

reached on the merits of the case while balancing the rights of the parents, child, and the
State. See In re Dependeney of E.P., 136 Wn. App. 401, 149 P.3d 440 (2006), review
granted, 161 Wn.2d 1014, 171 P.3d 1057 (2007). We determine that the process used
here, which requires sworn testimony of one familiar with the case and an opportunity for
a court to independently question such person, greatly minimizes. the risk that parental
rights will be terminated in error.

3, The State’s Interest in the Procedure Used, and Administrative Burden of
Additional Safeguards. The statutory dependency-termination process requires the
Department to identify and offer such reasonable and necessary services that will lead to
the reunification of the parent-child relationship. In this case, prior to the entry of the
order terminating Ms. Ames’s parental rights, the Department was required to prove the
following by clear, cogent, and convincing evidence: (1) the child has been found
dependent, (2) the court has entered a dispositional order pursuant to RCW 13.34.130,
(3) the services ordered under RCW 13.34.136 have been expressly and understandably
offered or provided, and all necessary services, reasonably available, capable of
correcting the parental deficiencies within the foreseeable future have been expressly and
understandably offered or provided, and (4) that there is little likelihood that conditions.

will be remedied so that the child can be returned to the parent in the near future.

12

No. 31727-7-1E; 31728-5-1H

Inve Welfare of SI. & DD.

RCW 13.34.190(1)(a)G). This process provided Ms. Ames a meaningful opportunity to
address and correct her parental deficiencies, with the foreknowledge that her failure to
comply with court-ordered services might lead to the termination of her parental rights.
The services offered in this case included a wide spectrum of professional services at
substantial expense to the State. We hold that the procedures used here prior to
termination of Ms. Ames’s parental rights were not only sufficient, but amply so.'

Another aspect of the procedure used was allowing Ms. Ames the opportunity to

vacate the default order. This opportunity allowed Ms. Ames the opportunity to establish
“good cause” for failure to appear at the December 6, 2012, hearing, and also the

opportunity to address the factual basis of the termination of her rights. We hold that this

' The dissent’s alternate bases for reversal are that the evidence and also the
written findings are insufficient to prove the statutory parental termination requirements
by clear and convincing evidence. However, Ms. Ames did not raise these issues on
appeal. It is improper for us to raise new issues sua sponte without first giving the parties
the chance to brief them. RAP 12.1; see also State v. Saintcalle, 178 Wn.2d 34, 52, 309
P.3d 326, cert. denied, 134 S. Ct. 831, 187 L. Ed. 2d 691 (2013) (We are not in the
business of inventing unbriefed arguments for parties sua sponte.). Nor should we further
delay this case by requesting additional briefing. We are convinced that the issues would
and should be resolved against Ms. Ames because the factual record prior to the default
establishes Ms. Ames’s chronic methamphetamine use that resulted in her living
homeless with her two young children and an untreated sex offender with a criminal
record of having raped a child. At some point---a point clearly reached in this case—
abstract (yet important) notions of parental rights give way to concrete realities of
protecting children from emotional and sexual abuse.

13

No. 31727-7-1H; 3 1728-5-H

Inve Welfare of SI. & DD.

process, all as set forth above, minimizes the risk of an improper termination of parental
rights and contains satisfactory safeguards that properly balance the constitutional rights

ofall participants.

Denial of Motion to Vacate the Default Order. Ms. Ames contends that the trial
court abused its discretion when it denied her motion to vacate the default order. We
review denial of a motion to vacate an order of default for an abuse of discretion. /n re
Welfare of M G., 148 Wn. App. 781, 792, 201 P.3d 354 (2009). A trial court abuses its
discretion if its decision is manifestly unreasonable or based on untenable grounds. Zd.

Ms. Ames argues that her failure to answer the termination petition was an
inadvertent mistake. A court may set aside a default order “I flor good cause shown and
upon such terms as [it] deems just.” CR 55(c)(1). “To establish good cause under CR 55,
a party may demonstrate excusable neglect and due dili gence,” Inre Estate of Stevens, 94
Wn. App. 20, 30, 971 P.2d 58 (1999), A party moving to vacate a default order is not
required to demonstrate a meritorious defense to establish good cause. /d. at 30-31.
Nevertheless, if a party offers evidence of a meritorious defense, a trial court more likely
abuses its discretion should it fail to vacate a default order. See, e.g., Canam Hambro
Sys., Ine. v. Horbach, 33 Wn. App. 452, 655 P.2d 1182 (1982). Here, Ms. Ames did not

offer any evidence of a meritorious defense.

14

No. 31727-7-HT; 31728-5-HI
Inre Welfare of SI. & D.D.

Washington courts favor resolving cases on their merits. Sacotte Constr., Inc. v.
Nat'l Fire & Marine Ins., Co., 143 Wn. App. 410, 414, 177 P.3d 1147 (2008). Despite
this partiality, there is also a need for efficiency and for a system that ensures that all
parties comply with judicial summons. Norton v. Brown, 99 Wn. App. 118, 123, 992
P.2d 1019 (1999),

The trial court did not abuse its discretion when it denied Ms. Ames’s motion to
set aside the default order. The facts support the trial court’s conclusion that Ms. Ames
did not establish good cause. Her failure to read the termination petition and summons to
appear is not excusable neglect. She was handed the papers by her social worker. She
was aware that her children were dependent and that her parental rights were in jeopardy.
Her disregard of the termination petition and summons is not excusable neglect.

Ms. Ames also failed to demonstrate due diligence. Ms. Ames was provided a
court-appointed attorney in early January 2013. Ms. Ames had the knowledge and
available resources to exercise due diligence. She knew that the default order would
affect the termination of her parental rights. Despite this knowledge, Ms. Ames delayed
contacting her attorney until March 2013.

Finally, the trial court properly considered the likely result of the termination

proceeding. By then, the trial court was well aware of Ms. Ames’s noncompliant status in

15

No. 31727-7-I1; 31728-5-HI
In re Welfare of SL. & DD.

the dependency proceeding. Ample evidence supports the trial court’s decision to deny
the motion to vacate the default order. The trial court did not abuse its discretion. We

affirm.

05

Lawrence-Berrey, J.

TCONCUR:

Preven At.)

Brown, A.C.J.

16

No. 31727-7-H1
(consolidated with No, 31728-5-HD)

FEARING, J. (dissenting) —- Hurrying through a process or cutting corners in
solving a problem, performing a task, or building a project does not save time. The effort
and minutes later spent in correcting the mistakes and snags exceeds the labor and
moments required to perform the task correctly in the first instance. This observation
applies equally well to legal proceedings, particularly when fundamental constitutional
rights are at stake. Taking special precautions to effectuate a litigant’s constitutional
rights may initially slow the process, but, in the end, speed the overall resolution of legal
issues. The precautions may even prevent an appeal such as brought by Maque!l Ames.

Trespectfully dissent from the majority’s decision to affirm the trial court’s refusal
to vacate the order of default against Maquel Ames. Based upon Gage v. Boeing Co., 35
Wn. App. 157, 776 P.2d 991 (1989), I would rule that Ames made an appearance and was
entitled to notice before any default order was entered. A parental termination
proceeding is a continuation of a child dependency proceeding and the two sufficiently
overlap such that an appearance in the child dependency proceeding constitutes an
appearance in the parental termination proceeding. A court should be reluctant to
terminate parental rights without the parent being heard, despite the parent’s delay in
participation. I also dissent, based upon Jn re Dependency of C_R.B., 62 Wn. App. 608,
615, 814 P.2d 1197 (1991) because the trial court did not enter sufficient findings of fact

to terminate Maquel Ames’ parental rights.

No. 31727-7-IL; No. 31728-5-Hi
Inve Welfare of SI. & DD, — dissent
PROCEEDING

Maquel Ames is the mother of Si. and D.D., respectively 10 and 8 years old.
Both children are the subject of this termination action.

in July 2011, the Department of Social and Health Services (DSHS) filed a
~ dependency petition with respect to S.J. and D.D. Maquel Ames, through appointed
. counsel, appeared in the dependency action. The court found the children dependent and
entered an agreed order of dependency on October 4, 2011. The parenting deficiencies
for the mother included substance abuse, mental health issues, and an inability to meet
the physical and emotional needs of her children. Among other problems, the family,
including the father of one of the children, lived in a homeless camp. That father has
been convicted of child rape.

As part of the dependency proceeding, court orders demanded that Maquel Ames
participate in chemical dependency screening, random urinalysis and blood aicohol
(UA/BA) monitoring, mental health treatment, parenting assessment, individual
counseling, family therapy, and medication management. According to DSHS, Ames
sporadically participated in these programs. One urinalysis tested positive for
amphetamine and methamphetamine. She generally missed review hearings, and, in
August 2012, the trial court found her noncompliant for failing to complete her chemical
dependency screening, failing to participate in outpatient treatment and individual
counseling, and failing to undergo urinalysis. According to Maquel Ames, she

participated in services, visited her children regularly, and appeared at review hearings

No. 31727-7-ITI; No. 31728-5-H1
Inre Welfare of SI. & D.D. —— dissent
either personally or through her court-appointed attorney.

The trial court scheduled a permanency planning review hearing for January 3,
2013. Prior to that review hearing, in October 2012, DSHS filed a petition for
termination of the parent-child relationship. Kathleen Marquez, a social worker, avers by
affidavit that she personally served, on October 24, 2012, Ames with the petition as well
as a notice and summons to appear at 9:00 a.m., on December 6, 2012. The notice
explained that the purpose of the hearing was to hear and consider evidence on the
petition. Maquel Ames testified she did not recall receiving the petition. In November
2012, Ames visited the children. Ames did not appear for the hearing on December 6,
2012.

Maquel Ames testified that she was not aware that the petition was to terminate
her parental rights, that a hearing was set, and that she needed to apply for a public
defender, testimony that may be inconsistent with her claim she does not recall recetving
the petition. During this time frame, she was homeless. Despite the social worker being
able to find and serve the petition upon her, DSHS did not remind Ames of the hearing,
explain to her the importance of the hearing, or ensure that counsel represented her at any
default hearing. DSHS claims it sent a copy of the petition for termination to Maquel
Ames’ dependency proceeding counsel. Because of Ames’ failure to appear on
December 6, DSHS filed, on December 13, 2012, a motion for default, and the trial court
entered the default order the same day. DSHS has no record of sending the motion for

default to dependency counsel.

No, 31727-7-II; No. 31728-5-I
In re Welfare of SJ. & DD, — dissent

In late December 2012, Maquel Ames learned of the default order and requested
appointment of counsel. She attended the January 3, 2013, dependency review hearing as
scheduled. The review hearing order noted that Ames defaulted on the termination
petition on December 13, 2012. The order observed that a hearing to vacate the default
order and to set a relinquishment hearing could be scheduled in the future. On January 3,
2013, the trial court appointed the Office of the Spokane County Public Defender to
represent Ames in response to the termination petition. On that same day, the same
public defender, who represented Ames in the dependency action, appeared as counsel
for Ames.

Maquel Ames testified that DSHS told her she could vacate the default order only
by relinquishing her parental rights. She further testified that she delayed contacting
appointed counsel due to an unsuccessful attempt to obtain private counsel to handle the
matter, a claim possibly inconsistent with her other testimony.

Maquel Ames contacted appointed counsel in March 2013. On March 4, 2013,
another assistant public defender substituted as counsel for Ames. On March 25, Ames
filed a motion to vacate the default order. In an affidavit supporting the motion to vacate,
Ames stated she wishes to change her life and make progress in parenting. She declared
she wishes to contest termination. The trial court denied Ames’ motion to vacate.

The trial court conducted a default termination hearing on May 23, 2013, without
Maquel Ames or any counsel for Ames being present. The hearing lasted from 10: 13:50

a.m, to 10:18:49 a.m. Social worker Kathy Marquez answered questions that repeated

No. 31727-7-H; No. 31728-5-II1
Inve Welfare of SI. & DD, — dissent

statutory requirements for termination of parental rights. No one cross-examined
_ Marquez. Marquez’s entire testimony follows:

PRAHL: Would you state your name and spell your last name for
the record?

MARQUEZ: Kathleen Marquez, MARQUEZ.

PRAHL: What’s your business address?

MARQUEZ: 1313 N. Atlantic, Suite 2000, Spokane, WA 99201.

PRAHL: Who is your employer?

MARQUEZ: I work for Children’s Services.

PRAHL: How long have you worked there’?

MARQUEZ: Five years.

PRAHL: What’s your educational background?

MARQUEZ: IT have a bachelor’s of arts in education and a master’s
degree in social work.

PRAHL: Are you currently assigned to [D.D.] and [S.1.]?

MARQUEZ: Tam.

PRAHL: Are you familiar with the records and files for these
children?

MARQUEZ: Yes.

PRAHL: And what is the status of the parent’s paternal interests
regarding these children?

MARQUEZ: The paternal! interests as well as the other father have
been defaulted.

PRAHL: Okay and the mother?

MARQUEZ: Defaulted as well.

PRAHL: Okay, are these children dependent?

MARQUEZ: Yes.

PRAHL: And when were they made dependent?

MARQUEZ: July 27", 2011.

PRAHL: And could you give the court an overview of the reason
for the dependency?

MARQUEZ: Yes, the primary issues or reasons for the dependency
were ongoing negligent treatment of the children, being left in the care ofa
registered sex offender and ongoing concerns about drug use.

PRAHL: Was a disposition order entered?

MARQUEZ: Yes.

PRAHL: As to the mother, when was that entered?

MARQUEZ: October 4", 2011.

PRAHL: And what about [S.I.’s] father, Jake is he?

No. 31727-7-IlI: No. 31728-5-lll
iInre Welfare of SJ. & DD, —- dissent

MARQUEZ: Yes.

PRAHL: Was he defaulted in the dependency?

MARQUEZ: Yes.

PRAHL: Okay, have you ever had any contact with him?

MARQUEZ: No, .

PRAHL: What services were offered or provided to the mother?

MARQUEZ: Family preservation services, parent education, family
therapy, UA testing, chemical dependency assessment as well as treatment,
mental health assessment, a psychological evaluation and individual
counseling.

PRAHL: Can you describe her progress and participation in those
services?

MARQUEZ: Um, Ms. Ames was marginally, um, compliant in
services with no progress reported by providers.

PRAHL: Okay and were, did the, did Mr. [I.] or any other paternal
interest ever contact you about services?

MARQUEZ: No,

PRAHL: Have all the court ordered services been offered or
provided?

MARQUEZ: Yes.

PRAHL: Are there any other services reasonable, reasonably
available in the community capable of correcting parental deficiencies in
the foreseeable future? .

MARQUEZ: No.

PRAHL: And do you, describe the mother’s contact with the
children. .

MARQUEZ: Um, prior to November of 2012, her contact was
sporadic through supervised visitation. That eventually went to therapeutic
visitation where there continued to be concerns and several missed
appointments and visits.

PRAHL: Do you know when her last visit was?

MARQUEZ: It was in November 2012.

PRAHL: What is the likelihood that conditions will change so the
children could be returned to a parent in the near future?

MARQUEZ: Very unlikely.

PRAHL: And why is that?

MARQUEZ: Mom has demonstrated a significant pattern of failure
to engage or make progress in her services.

PRAHL: Is it necessary to terminate the parent-child relationship so
these children can be part of a stable and permanent home?

MARQUEZ: Yes.

No, 31727-7-I0; No. 31728-5-HI
Inve Welfare of SI. & D.D, — dissent

PRAHL: What is the department’s plan for a permanent home for
the children?
MARQUEZ: The children have been placed together in an adoptive
home.

PRAHL: In your opinion is termination of parental rights in these
children’s best interest?

MARQUEZ: Yes.

PRAHL: Are the allegations in the termination petition true and
correct to the best of your knowledge?

MARQUEZ: Yes.

PRAHL: Are these children Indian chil dren?

MARQUEZ: No,

PRAHL: Do you believe any of the parents to be a member of the
military?

MARQUEZ: No.

PRAHL: And do these children have any siblings?

MARQUEZ: They do.

PRAHL: And do they have any contact with that sibling?

MARQUEZ: Thev did have contact with one half-sister and that
hasn’t happened since mom stopped visitation all together, but, um, the
adoptive parents are willing to work something out with the father that
allows contact.

PRAHL: I don’t have any other questions, Your Honor.

COURT: Okay.

PRAHL: I would just request that the petition be granted.

COURT: J will grant the petition.

Report of Proceedings (May 23, 2013) at 1-5.
The trial court entered corresponding findings of fact and conclusions of law and

ordered termination.
The findings of fact, in relevant part, read:

IV,

[D.D.] has been found to be dependent under Spokane County
Juvenile Court Cause No. 11-7-01549-4. [S.1] has been found to be
dependent under Spokane County Juvenile Court, Cause No. 11-7-01548-6.
Disposition orders have been entered pursuant to RCW 13.34.130. The

No, 31727-7-HI; No. 31728-5-U
Inve Welfare of SI. & DD. ~—— dissent

child has been removed from the custody of the parent(s) for at least six
months pursuant to a finding of dependency under RCW 13.34.030,
Vv.

Services court-ordered under RCW 13.34.130 have been expressly
and understandably offered or provided and all necessary services,
reasonably available, capable of correcting parental deficiencies within the
foreseeable future have been offered or provided including: Chemical
dependency screening, random UA/BA monitoring, mental health
treatment, parenting assessment, individual counseling, family therapy, and
medication management.

VI.
There is little likelihood that conditions will be remedied so that the
child can be returned to the parent(s) in the near future.
VIL.
The parent(s) is currently unfit to parent the child.
VILL.

Continuation of the parent-child relationship clearly diminishes the

child’s prospects for early integration into a permanent and stable home.

IX.
It is in the child’s best interests to terminate the parent-child
relationship.
XH.

The allegations in the termination petition filed herein are true and
correct and adopted as a Finding of Fact.

Clerk’s Papers (CP) at 68-69.
LAW AND ANALYSIS
Appearance and Default Order
The first question on appeal is whether the trial court should have vacated the
order of default and allowed Maquel Ames to participate in the trial on the merits to
terminate her parental rights. A more specific issue is whether DSHS needed to give
notice of its motion for default to Ames. Both the majority and I resolve this question, in

part, by addressing whether a dependency proceeding is a case separate from a parental

No. 31727-7-TII; No. 31728-5-Tf
inve Welfare of SI. & D.D. — dissent
termination proceeding such that an appearance in the dependency proceeding qualifies
the parent to receive notice of a default hearing in the termination proceeding. Unlike the
majority, I conclude the two proceedings have enough similarity to be treated as one case.
l also conclude that, because of a fundamental constitutional right being at stake, we
should resolve any doubt as to whether the two proceedings are one case in favor of the
parent.

Maquel Ames maintains that she was not given five days’ notice, as required by
CR 55, before the trial court entered the order of default. She also maintains that the
termination of her parental rights by default violated procedural due process, and that the
court’s denial of her motion to vacate the default order constituted an abuse of discretion.
DSHS agrees it did not serve Ames notice of the defiult hearing, but contends no notice
was needed since Ames did not make an appearance in the termination proceeding.

According to JuCR 1.4(a), the Superior Court Civil Rules apply in child
dependency and parental termination proceedings when not inconsistent with the Juvenile
Court Rules and applicable statutes. Since ] find no contradictory Juvenile Court Rule or
statute, | begin my analysis with CR 55. CR 55 reads: |

(a} Entry of Default.
(1) Motion, When a party against whom a judgment for affirmative
relief is sought has failed to appear, plead, or otherwise defend as provided

by these rules and that fact is made to appear by motion and affidavit, a
motion for default may be made.

No, 31727-7-TH; No, 31728-5-TE
Inre Welfare of SI. & D.D. — dissent
In turn, CR 55{a)(3) provides:
Notice. Any party who has appeared in the action for any purpose

shall be served with a written notice of motion for default and the

supporting affidavit at least 5 days before the hearing on the motion. Any

party who has not appeared before the motion for default and supporting

affidavit are filed is not entitled to a notice of the motion, except as

provided in rule 55((2)(A).

Under CR 55(a)(3), if a party has “appeared” before a motion for default has been
filed, that party is entitled to notice of the motion before the trial court may enter a valid
default order. Smith v. Arnold, 127 Wn. App. 98, 103, 110 P.3d 257 (2005).
Consequently, if a defendant has appeared but not given proper notice prior to entry of
the order of default, the defendant is entitled to vacation of the default judgment as a
matter of right. Tiffin v. Hendricks, 44 Wn.2d 837, 847, 271 P.2d 683 (1954); Gutz v.
Johnson, 128 Wn. App. 901, 912, 117 P.3d 390 (2005), review granted, 156 Wn.2d 1017,
132 P.3d 734 (2006); Prof'l Marine Co. v. Those Certain Underwriters at Lloyd’s, 118
Wn. App. 694, 708, 77 P.3d 658 (2003); Colacurcio v. Burger, 110 Wn. App. 488, 497,
41 P.3d 506 (2002); In re Marriage of Daley, 77 Wn. App. 29, 888 P.2d 1194 (1994);
Shreve v. Chamberlin, 66 Wn. App. 728, 731, 832 P.2d 1355 (1992). Ifthe default order
is void, the court need not decide whether the motion to vacate is brought within a
reasonable time, and whether the defendant has a defense to the claim. Colacurcio, 110
Wn. App. at 497; Leen v. Demopolis, 62 Wn. App. 473, 477-78, 815 P.2d 269 (1991).

The court has a nondiscretionary duty to vacate a void judgment, and judgment must be

vacated regardless of the lapse of time. In re Dependency of A.G., 93 Wn. App. 268, 276,

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Inve Welfare of SL & D.D. — dissent

968 P.2d 424 (1998); Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323, 877 P.2d 724
(1994).

I address whether Maquel Ames “appeared in the action for any purpose,”
qualifying her for notice before the default order was entered. Ames does not rely on an
informal appearance, but the formal appearance made in the dependency proceeding.
Nevertheless, it is well accepted that informal acts may constitute an appearance. Prof] —
Marine Co., 118 Wn. App. at 708; Colacurcio, 110 Wn. App. at 495,

Default judgments are disfavored because it is the policy of the law that
controversies be determined on the merits rather than by default. Griggs v. Averbeck
Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979): Diouwhy v, Diouhy, 55 Wn.2d
718, 721, 349 P.2d 1073 (1960); Colacurcio, 110 Wn. App. at 494. The fundamental
guiding principle

“should be whether or not justice is being done. Justice will not be

done if hurried defaults are allowed any more than if continuing delays are

permitted. But justice might, at times, require a default or a delay. What is

just and proper must be determined by the facts of each case, not by a hard

and fast rule applicable to all situations regardless of the outcome.”

Griggs, 92 Wn.2d at 582 (quoting Widicus v. Sw. Elec. Coop., Inc.,26 Ill. App. 2d 102,
109, 167 N.E.2d 799 (1960)). Because default judgments are disfavored, the concept of
“appearance” is to be construed broadly for purposes of CR 55. Colacurcio, 110 Wn.

App. at 494-95; City of Des Moines v. $81,231 in United States Currency, 87 Wn. App.

689, 696, 943 P.2d 669 (1997).

ll

No. 31727-7-IL; No. 31728-5-H1
Inre Welfare of SI. & D.D. -~ dissent

Because of the nature of a parental termination proceeding, a court should abhor a
default and construe an appearance broadly to the extreme. A parent holds a fundamental
liberty interest, protected by the Fourteenth Amendment, in the care, custody and control
of achild. Santosky v. Kramer, 455 U.S. 745, 753, 102 s. Ct. 1388, 71 L. Ed. 2d 599
(1982); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35, 45 8. Ct. 571, 69 L. Ed. 1070
(1925); Meyer v. Neb., 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). Courts
undertake a grave responsibility when they deprive parents of the care, custody and
control of their natural children. Jn re Welfare of Sego, 82 Wn.2d 736, 738, 513 P.2d 831
(1973). Therefore, terminating parental rights is one of the severest of state actions and
implicates fundamental interests. In re Welfare of .M., 130 Wn. App. 912, 921, 125
P.3d 245 (2005). The child also has an interest in preventing the erroneous termination
of its relationship with its natural parents. Santosky, 455 US. at 765.

State intervention to terminate the relationship between a parent and his child must
be accomplished by procedures meeting the requisites of the due process clause.
Santosky, 455 U.S. at 753, 768; Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 37, 101 S.
Ct. 2153, 68 L. Ed. 2d 640 (1981). Because of the constitutional interests at stake ina
termination proceeding, parents are afforded greater due process rights than in
dependency proceedings or other proceedings to determine the custody or placement of
children. In re Welfare of R.H., 176 Wn. App. 419, 425, 309 P.3d 620 (2013).

My dissent principally relies on this court’s decision in Gage v. Boeing Co., 55

Wn. App. 157, 776 P.2d 991 (1989) in which we held that an appearance in one

12

No, 31727-7-IU: No, 31728-5-II

Inve Welfare of SI. & DD, —~ dissent

proceeding constitutes an appearance in a related proceeding. Gary Gage filed two
separate industrial injury claims with the Department of Labor and Industries. In each
case, Gage’s employer, Boeing, prevailed before the Board of Industrial Insurance
Appeals (Board). Gage filed separate appeals in superior court. When Boeing failed to
respond by filing notices of appearance as required by RCW 5$1.52.110, Gage sought and
was granted default judgments in both cases, Gage did not notify Boeing of the default
proceedings. The trial court eventually granted Bocing’s motions to vacate the default
judgments and Gage appealed.

The parties in Gage framed the issue on appeal as whether Boeing counsel’s
failure to file a notice of appearance pursuant to the statute constituted a “mistake” or
“excusable neglect” sufficient to justify vacation of the default judgments pursuant to
CR 60(b)(1). This court reframed the question as whether Boeing was entitled to notice
of the default proceedings because of its appearance in the proceeding before the Board.
This court affirmed the vacation of the default judgments noting that defaults are

‘disfavored and that we broadly construe what constitutes an appearance. Boeing’s
informal appearance resulted from appearing and vigorously contesting Gage’s claims
through the administrative process. Although the appeal to the superior court initiated a
new case where Gage was entitled to de novo review, the appeal was a continuation of
the administrative proceeding.

Gage y. Boeing contains factors absent in our appeal that are favorable to finding

an appearance by Boeing. Boeing energetically defended against Gage’s claims, such

13

No. 31727-7-Ill; No. 31728-5-T

Inre Welfare of SI. & DD. — dissent

that Gage should have expected a defense on appeal. The appeal had the same exact facts
and issues at stake.

Some considerations favor finding an appearance in the instant case more than
finding an appearance in Gage v. Boeing. Boeing, unlike Maquel Ames, had the
_ sophistication and resources to vigorously litigate. After filing his appeal, Gage could
have concluded that Boeing finally agreed his claims were valid and did not wish to resist
the appeal and, thus, no notice of the default motion was prejudicial to Boeing. Similar
to Gage v. Boeing, there is substantial overlying of facts and issues between Maquel
Ames’ dependency proceeding and her termination proceeding.

Maquel Ames participated in the dependency proceeding and agreed to the
dependency. Her participation put DSHS on notice that she may wish to participate in
the termination proceeding. Her agreeing to a dependency does not mean she would
agree to a termination, since the termination forever erases any care and companionship
with the child. In November 2012, Ames visited her children, an event showing a desire
of continued companionship with the children.

DSHS sent Maquel Ames’ counsel from the dependency proceeding the petition
for termination because it knew she would likely represent Ames in the termination
proceeding, Notice to counsel illustrates the similarity between the two proceedings.
DSHS does not know and has no record of sending the motion for default to Ames’

dependency counsel.

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No. 31727-7-IIL; No. 31728-5-I
Inre Welfare of SI. & DD. ~~ dissent

In In re Dependency of C_R.B., 62 Wn. App. at 619, we emphasized differences
between a dependency and a termination of parental rights. But we employed the
emphasis in order to vacate a default order and to protect the parent’s rights to her child.

Similarities may predominate over dissimilarities when comparing a dependency
proceeding with a termination proceeding. Dependency and termination are addressed in
-the same code, chapter 13.34 RCW, and some of the sections in the statute overlap
between the two proceedings. Both proceedings involve the same legislative
purpose. RCW 13.34.020. The same definitions of terms governs both proceedings.
RCW 13.34.030. A law enforcement officer is entitled to immunity from suits involving
either proceeding. RCW 13 34.055. A statute declaring rights of parents applies to both
a dependency proceeding and a termination proceeding. RCW 13.34.090, The trial court
appoints a guardian ad litem for the child in each proceeding. RCW 13.34.100. Both
proceedings may be closed to the public. RCW 13.34.115. Only a party to the
dependency proceeding may seek termination of parental rights. RCW 13.34.180(1). A
termination proceeding may be filed only after a dependency. RCW 13.34.180(1)(a).
The petition to terminate parental rights must conform to the petition for child
dependency. RCW 13.34.180(1). Termination of parental rights in Washington State is a
three-step process, including the dependency proceeding. In re Dependency of K.N.J.,
171 Wn.2d 568, 576, 257 P.3d 522 (2011).

Both the dependency proceeding and the termination proceeding focus on parental

sufficiency. RCW 13.34.030(6); RCW 13.34.180. The Assistant Attorney General who

15

No. 31727-7-IH; No. 31728-5-HI

In re Welfare of SI. & D.D, — dissent

handles the dependency proceeding usually, but not always, conducts the termination
proceeding. The same defense attorney typically represents the parent in each
proceeding. The two proceedings have different cause numbers, but cause numbers are
unimportant and emphasizing separate clerk files for each proceeding flaunts form over
substance. If the two proceedings employed the same cause number there would be no
argument that an appearance had already been filed and notice of the default hearing was
needed in the termination proceeding.

In this and other termination proceedings, DSHS argues for a streamlined, if not
hurried, process in order to benefit the children who need permanency and adoption.
Indeed, RCW 13.34.020 encourages a speedy resolution of proceedings. Critics of my
dissent will also contend that I do not understand the realities of the situation, which
"realities include large numbers of incompetent parents and a lack of resources and time to
spend a week or more in trial on each termination proceeding.

Still I question whether a few months of delay caused by a vacation in a default
order endangers permanency. The child will likely live with the potential adopting parent
or parents, if one or more are in existence, during the pendency of the termination
proceeding. Many children are of the age that they do not know of pending adoption
proceedings. In the event DSHS prevails in the termination proceeding, the child remains
with the adopting parent. If the parent prevails, it is because the child and parent deserve

continued connection. Again, we deal with a constitutional right and the courts should

te

16

No. 31727-7-HI; No, 31728-5-HI

Inre Welfare of SI. & D.D. — dissent

devote whatever resources are needed to protect constitutional rights. Constitutional
rights are not conditioned upon time, but are timeless.

At oral argument, DSHS was asked what harm it or the children would have
suffered if the court had vacated the order of default and allowed Maquel Ames to
participate in the termination trial. DSHS answered that, if the termination trial were
contested, the trial would be assigned to a superior court judge rather than a court
commissioner. In turn, according to DSHS, the trial could be delayed as much as nine
months. I accept the fact that a contested trial will be assigned to a superior court judge
and there will be some delay. I disagree that any delay will be nine months. A parental
termination trial receives the same priority on the trial calendar as a criminal trial, and a
superior court judge can and should be made readily available. Regardless, we are
dealing with a precious fundamental constitutional right dearer than life itself. The
process should not be rushed.

DSHS seeks to terminate rights due to a parent’s obstacles to good parenting.
Those obstacles in Maguel Ames’ life include homelessness and drug abuse. DSHS fails
to recognize that these same obstacles impair the parent’s response to a legal proceeding.
DSHS could and should respond to these obstacles by taking extra steps to insure that the
parent is represented by counsel and given a fair hearing.

DSHS contends that, if it needed to provide notice of a motion for default, it
provided that notice in the summons accompanying the termination petition. The

summons directed Maquel Ames to appear at a hearing on December 6, 2012, The notice

17

No, 31727-7-II]; No. 31728-5-H]

In re Welfare of SI. & DD. —~ dissent

also warned Ames that, if she did not appear, “the court may enter an order in [her]
absence permanently terminating [her}-parental rights.” CP at 8.

As stated earlier, CR 35 controls the detault order procedure. Nothing in the rule
allows the plaintiff to schedule a default hearing, before the default. Instead, CR 55(a)(1)
permits the motion to be made only after the default. Nothing in the rule allows the
plaintiff to avoid giving a copy of the motion for default and notice of issue for the
default hearing when the defendant has appeared. CR 55(a)\(3) demands, “Any party who
has appeared in the action for any purpose shall be served with a written notice of motion
for default and the supporting affidavit at least 5 days before the hearing on the motion.”

Since I would rule that the order of default must be vacated for lack of notice of
the default motion to Maquel Ames, I do not address whether there is good cause to
vacate otherwise. Since I would rule based upon state rules of appearance and notice, I
do not address Ames’ argument that the default order violated her constitutional due
process rights.

I make no judgment as to the merits of the parental termination action. What little
evidence we are given shows Maquel Ames to be an irresponsible and incompetent
mother, ] also question Maque! Ames’ claim that she now wishes to change her lifestyle,
receive government assistance and training, and adequately care for her children. But
allowing Maquel Ames the opportunity to participate in an evidentiary hearing is first in
priority. Incompetent parents are entitled to procedural rights and are in more need of

those rights. The extra time given for a full evidentiary hearing may not result in a

18

No. 31727-7-U1, No. 31728-5-III
Inre Welfare of SI. & D.D. — dissent
different outcome in this case, but it could in another case. Sometimes events surprise us,
and the inevitable termination does not come to fruition.
Sufficiency of Evidence

A second basis for dissenting is the lack of sufficiency of evidence to prove by
clear and convincing evidence the grounds for termination of Maquel Ames’ parental
rights. For this basis, Il rely on Jn re Dependency of C_R.B., 62 Wn. App. at 618-19, in
which we held that testimony, during a default hearing, that parrots the statutory
requirements of termination and corresponding findings of fact are not sufficient.

In In re Dependency of C.R.B., DSHS could not find the mother, Tina Brown, to
serve her with the termination petition, so DSHS published notice. Brown did not appear
at the default hearing, but her attorney appeared on her behalf. I do not know how Brown
hired or was appointed an attorney, but suspect counsel had been Brown’s attorney in the
dependency proceeding. Counsel informed the court that she had not had contact with
Brown for three months, at which earlier time Brown expressed an interest in the child
returning to her care and her willingness to participate in court-ordered services. Counsel
requested that the case proceed to trial on the date already assigned five months into the
future rather than the trial court entering an order of default. The trial court, nevertheless,
entered an order of default and order of termination of parental rights, after listening to
the testimony of Brown’s caseworker. The caseworker testified:

Q: How long have you served as a Caseworker on this

particular case?
A: Since December of 1989,

19

No. 31727-7-IiL; No. 31728-5-HI
Inve Welfare of SI. & DD. — dissent

Has this child been found to be dependent?

Yes, he has.

Has the Court entered a Dispositional Order?

Yes, [it has].

: Has the child been removed, or will at the time of this
hearing have been removed from the custody of the parent for a
period of at least six months, pursuant to a Dependency Finding?

A: Yes, he has,

Q: Have the services ordered been offered or provided and
all necessary services reasonably available and capable of correcting
the parental deficiencies within the foreseeable future have been

offered or provided?

A: Yes, they have.

Q: Would you say there’s little likelihood the conditions will
be remedied so that the child can be returned to the parent in the near
future?

A: lL believe there’s little likelihood as the parents have not
accepted any services at this time.

Q: Would continuation of this parent-child relationship
clearly diminish the child’s prospects for early integration into a
stable, permanent home?

A: They would.

Q: Would termination of the parent-child relationship be in
the best interest of this child?

A: I believe it would.

Q2ere

In re Dependency of C.R.B., 62 Wn. App. at 612.

On appeal, in In re Dependency of C_R.B., DSHS, as it always does, argued that
lengthy legal proceedings create extended uncertainty, which infringes on the child’s
interest in having stable relationships. Thus, according to DSHS, a default judgment is a
remedy that should be available. We agreed that a default judgment could be entered, but
held that the termination hearing was insufficient. RCW 13.34.180 and .190 establishes

procedures required before terminating parental] rights. We wrote:

20

No, 31727-7-IL No. 31728-5-H1
Inre Welfare of SI. & D_D. -- dissent

When [DSHS] must prove its case by clear, cogent, and convincing
evidence, the evidence must be more substantial than that required under a
preponderance of the evidence standard. Required findings must be
“sufficiently specific to permit meaningful review.” Although the degree of
particularity required depends on the circumstances of each case, at
minimum, the findings should indicate the factual bases for the ultimate
conclusions. The court may look to the entire record to determine whether
the evidence is sufficient to support the court’s findings.

The “evidence” presented by Brown’s caseworker at the hearing
consisted of legal conclusions parroting the language of the statutory
requirements found in RCW 13.34.180. Aside from the caseworker’s
testimony, the only other evidence entered into the record at the termination
proceeding was that Brown had been served by various means and had not
responded.

The court’s “findings of fact” follow the testimony of Brown’s
caseworker and, accordingly, consist only of legal conclusions. Since the
court’s conclusions are not supported by facts and do not satisfy the
mandate of proof by “clear, cogent, and convincing” evidence, they do not
satisfy the requirements of RCW 13.34.180 & .190. Moreover, they are not
“sufficiently specific to permit meaningful review.” We thus conclude that
the court failed to comply with RCW 13.34.180 and .190.

The court’s failure-to satisfy the statutory requirements may not be
corrected by relying on evidence presented at the dependency hearings.

In re Dependency of C.R.B., 62 Wn. App. at 618-19 (citations omitted).

I would be remiss in discussing the insufficiency of evidence without mentioning
In re Dependency of E.P., 136 Wn. App. 401, 407, 149 P.3d 440 (2006), review granted,
161 Wn.2d 1014, 171 P.3d 1057 (2007). Ms. P. argued the trial court erred by holding
the termination trial in her absence because a one-sided nature of the hearing made the
risk of error unconscionably high. Ms. P. did not attend the termination hearing and the
trial court allowed her counsel to withdraw, at the beginning of the hearing, since she had
not communicated with him for months. On appeal, Ms. P. also argued that the trial

court’s findings and conclusions did not support termination of her parental rights

2)

No. 31727-7-IT; No. 31728-5-H1

Inve Welfare of SJ. & D.D. — dissent

because she was not present and could not present evidence. This division held,
however, that the trial court conducted a meaningful hearing. The trial court took
testimony, reviewed the documentary evidence, and made detailed findings on the
substantive issues required to be proved by DSHS under RCW 13.34.180 and .190. The
record reflected the court considered the case on its merits and held DSHS to the requisite
burden of proof on all issues. The decision does not disclose the extent of the testimony
or the findings of fact.

Absent a knowledge of the extent of the testimony and findings of fact in Jn re
Dependency of E.P., 1 consider our facts more similar to the facts in In re Dependency of
C.R.B. The testimony of Kathy Marquez may be more extensive than the testimony of
the C.R.B. caseworker, but only barely, Marquez provided few details concerning
Maquel Ames and her parenting ability since she was not asked for details. Most of
Marquez’ testimony consisted of legal conclusions that recited statutory requirements.
The findings of fact also lacked detail and repeated statutory language.

The findings of fact incorporated the allegations in the petition to terminate
parental rights. Those allegations provide more detail than the trial testimony, But Kathy
Marquez did not testify to the facts. She merely replied, in response to a leading
question, that the allegations in the petition, to the best of her knowledge, were true.

The trial court’s factual findings must be more than a recitation of allegations. /n
re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599 (2002). The appellate court, in

Anderson, reversed an order terminating parental rights, in part, because the findings of

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No, 31727-7-II; No. 31728-5-I0

Inve Welfare of SI. & D.D. ~~ dissent

fact repeated allegations of the government’s petition. Findings of fact that merely adopt
or disaffirm allegations in the pleadings are not findings of fact and are reversible error.
Martin v. Baker, 43 Cal. App. 3d 1049, 1054, 118 Cal. Rptr. 238 (1974).

Maque! Ames did not raise the issue of the sufficiency of evidence or findings in
her appeal brief. Therefore, the State did not address the issue. This court should not
raise new issues without first giving the parties the chance to brief them. RAP 12.1.
RAP 12.1(b), however, allows us to address an issue we deem important after notifying
the parties and granting them an opportunity to present written argument. Unfortunately,
the majority declines to ask the parties for written arguments on this important issue.
This court thereby fosters DSHS’ rush to judgment.

I respectfully dissent from my colleagues. Maquel Ames was entitled to be
present with counsel at the evidentiary hearing before the court severed the revered
relationship between parent and child. The perfunctory nature of that hearing was
insufficient to terminate parental rights. Justice is not achieved by a hastened process any

more than by continuing delays.

Airis a:
U~

Fearing, J.

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