* In re Welfare of D.E.

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Welfare of
D.E., V.E., and M.E.,
Minor children.
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No. 98043-8
En Banc
Filed ____________________
WHITENER, J.—At the end of 2018, the Department of Children, Youth, and
Families1 (Department) went to trial to terminate J.J.’s parental rights to her three
children. After closing arguments, the trial court orally ruled that the Department
had not met its burden to prove by clear, cogent, and convincing evidence that the
Department had offered all necessary services or that there was no reasonable
likelihood of J.J. correcting her parental deficiencies in the near future.
Instead of dismissing the termination petition, the trial court continued the
trial without entering any findings of fact or conclusions of law. Two months later,
the trial court heard more evidence and terminated J.J.’s parental rights to all three
1 Some documents in the record refer to the Department of Social and Health Services because
they were filed prior to the transfer of child welfare functions to the Department of Children,
Youth, and Families. See RCW 43.216.906. We use “Department” to encompass both to avoid
confusion.
August 20, 2020
FILE
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
AUGUST 20, 2020
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
AUGUST 20, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
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of her children. J.J. appealed, arguing that the trial court violated her right to due
process when it continued the trial after finding that the Department had not met its
burden of proof. The Court of Appeals, Division Two commissioner affirmed the
termination. We reverse the Court of Appeals and dismiss the termination petition.
The trial court violated J.J.’s right to due process when it continued the trial after
finding the Department had not met its burden of proof.
FACTS AND PROCEDURAL H ISTORY
J.J. is mother to three children: eight-year-old D.E., five-year-old V.E., and
three-year-old M.E.2 In August 2016, prior to M.E.’s birth, the Department became
aware of the family’s 	“deplorable” living conditions. 2 Verbatim Report of
Proceedings (VRP) (Nov. 7, 2018) at 177, 185. The children were removed from the
home because of the conditions, suspected domestic violence perpetrated by the
children’s father against their mother, and suspected substance abuse. D.E. and V.E.
were placed into foster care together. The court found them dependent in November
2016.
In March 2017, J.J. gave birth to M.E. Right after M.E.’s birth, J.J. tested
positive for amphetamines. Because of the positive drug test and because J.J. had
not engaged in services for substance abuse or domestic violence, M.E. was removed
2 The children’s father, S.E., voluntarily relinquished his parental rights and is not a party to this
appeal.
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In re Welfare of D.E., V.E., and M.E., No. 98043-8
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from her mother’s care just days after her birth. The court found M.E. to be
dependent in May 2017.
Shortly 	after 	M.E.’s 	birth, 	J.J. 	completed 	her 	court-ordered 	parenting
assessment. 	This 	was 	five 	months 	after 	her 	initial 	referral. 	The 	provider
recommended that J.J. engage in counseling, protective parenting groups, domestic
violence support groups, and that she find stable housing. Although J.J. was living
in Thurston County and expressed concerns about transportation, the proposed
services offered were in Pierce County. J.J. consistently expressed that she did not
believe that she needed any services and that S.E.3 was not violent toward her,
although the Department provided evidence of multiple incidents of domestic
violence between them. J.J. also stated that she would not live in clean and sober
housing or domestic violence housing. J.J. did obtain a chemical dependency
assessment and although there were no recommendations, the Department still
required random urinalyses (UAs) throughout the case.
The Department filed petitions for termination of parental rights as to D.E.
and V.E. in November 2017, and as to M.E. in April 2018. At the November 2018
termination trial, the court heard testimony as to the alleged parental deficiencies
and incidents of domestic violence. See, e.g., 1 VRP (Nov. 6, 2018) at 71-73 (J.J.’s
3 At trial J.J. testified that she and S.E. are “not [in a relationship] and have not been for quite
sometime [sic].” 1 VRP (Nov. 6, 2018) at 74.
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testifying about violent interactions with S.E.); 2 VRP (Nov. 7, 2018) at 171-77
(police officer testifying as to a violent incident between S.E. and J.J.). Throughout
the dependency, J.J. engaged in services sporadically, but she consistently indicated
that she was struggling with transportation both in regard to services and visitation
with her children. See, e.g., 1 VRP (Nov. 6, 2018) at 30, 45, 98, 100-101, 104, 120,
142, 145; 2 VRP (Nov. 7, 2018) at 198-199; 3 VRP (Nov. 8, 2018) at 254, 277, 279,
300, 335, 337, 389. Although transportation was a key issue, the initial social worker
testified there were no comparable services in Thurston County that J.J. could
access. J.J. asked a subsequent social worker about a provider in Thurston County,
but that social worker testified she could not find information on that provider. There
is no indication in the record that there was any subsequent investigation into
whether services could be provided in Thurston County.
After trial, the parties met again for the trial court’s decision. The trial court
judge indicated, “I have struggled with the fact that mom, [J.J.], really has not fully
acknowledged why we got where we are. . . . At the same time, I found that the
Department and particularly the testimony of [one social worker] was weak in some
very significant respects.” 4 VRP (Nov. 16, 2018) at 428. After discussing the
evidence of services the judge stated,
I think I cannot make a finding at this moment in time by clear, cogent
and convincing evidence that all necessary services have been offered
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or that there is no reasonable likelihood of her correcting them within
the immediate future.[4]
That said, I am not willing to dismiss this petition because I think
there are a lot of issues. And the fact that [J.J.] cannot give me her
address, continues to not have any source of income by which she could
support her children or pay for a subsidized housing and the fact that
we are in this limbo of not really understanding whether she has a
substance use problem, whether she has ongoing mental health needs
that are being met or aren’t being met leaves us with a need to get to
the heart of where we are.
And so my solution and what I am ordering is that this matter be
continued without findings by the Court at this moment and that we
immediately start to address where I find there to be deficiencies in
what has been offered and what mother needs to do.
In not terminating your children this morning, [J.J.], I want you
to know that I think you have some work to do. And what I am inclined
to do is to continue this just until the end of January or sometime in
February and give the Department an opportunity to work with [J.J.],
but, [J.J.], you really need to step it up.
Id. at 431-32.
The trial court found it hard to believe that “there were no comparable parent
courses . . . in Thurston County that would be more accessible to [the mother].” Id.
at 432-33. The court also observed that the mother’s visitation became more
consistent when the Department moved the visits closer to her and stated, “I think it
behooves the Department to look at whether there are resources available to [J.J.] in
4 This encompasses two of the six statutory factors that must be met to terminate parental rights.
See RCW 13.34.180(d)-(e).
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Thurston County that would be more accessible to her.” Id. at 433. The court also
stated,
If we can see significant progress from [J.J.] that leads the Court
to conclude that there is a likelihood that we could be reunified, then
we can move forward. But if that―if I don’t see that within a fairly
short time frame and the Department immediately addresses the
deficient areas that I have identified, then I think termination will be
appropriate at that point, but not today. I am giving mother essentially
another chance.
Id. at 434. This effectively gave both the Department and the mother 2 months to set
up services that the court found had not been adequately provided since the children
were removed from the home approximately 28 months prior. The court also asked
J.J. to complete a UA that day and indicated concerns about J.J.’s ongoing, untreated
mental health concerns. The court then set a status hearing and continued the trial
until January 2019.
J.J.’s UA was positive for methamphetamine. At the status hearing, the parties
and the court set out a detailed plan for services, including random UAs, a chemical
dependency assessment, Protective Parenting Group, a psychological assessment,
counseling, and medication management. Although the initial social worker had
testified that there were no comparable services in Thurston County, 2 weeks after
the court recommended that the Department locate services in Thurston County, the
Department identified multiple Thurston County providers for the recommended
services. The court told J.J. to stay and fill out health insurance forms to get Medicaid
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In re Welfare of D.E., V.E., and M.E., No. 98043-8
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and to contact the chemical dependency provider within 14 days. The court also
ordered the Department to help J.J. with transportation through gas cards and bus
passes.
When the parties reopened the trial5 in January, witnesses testified that J.J.
had been unable to obtain health insurance so she could not attend some services.
She rescheduled her psychological assessment twice and had still not attended. She
had attended one of three Protective Parenting Groups.
At the end of the reopened trial, the court terminated J.J.’s parental rights. 7
VRP (Jan. 30, 2019) at 694. In doing so, the court emphasized that there was a
positive UA, and that the mother had not contacted the chemical dependency service
within 14 days as ordered, did not attend psychological testing, had not obtained
Medicaid, and did not attend all of the Protective Parenting Groups. The court then
“conclude[d] that the Department has satisfied its burden by clear, cogent and
convincing evidence; that services have been expressly and understandably offered
and provided, reasonably available. It is [J.J.] that has not availed herself of those
services.” Id. at 691. The court also found that because of J.J.’s denial, excuses, and
failure to engage in services, the Department had met the burden to prove that there
was little likelihood the conditions would be remedied.
5 It appears from the record that the Department understood the trial to have ended as it asked the
court at the status hearing on January 15, 2019 to “reopen” the termination trial, which the court
did by setting the January 30, 2019 date. 6 VRP (Jan. 15, 2019) at 495-96.
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J.J. appealed the termination of her parental rights, alleging that the trial court
violated her right to due process when it did not dismiss the termination petition at
the conclusion of the trial when the court found that the Department had not met its
burden of proof by clear, cogent, and convincing evidence. J.J. also asserted that the
trial court erred when it held “review” and “status” conferences after the trial had
ended and the Department had not met its burden, and it also erred when the trial
court, during a subsequent “review” hearing, considered the best interests of the
children prior to finding the Department had met its burden of proof. Furthermore,
J.J. challenged the trial court’s findings that the Department provided all necessary
services, that there is little likelihood that she can parent in the near future, and that
she was currently unfit to parent.
Commissioner Schmidt of the Court of Appeals, Division Two, affirmed the
termination, finding that no due process violation occurred, that substantial evidence
supported the trial court’s findings, and that the findings of fact supported the
conclusions of law as to the termination elements by clear, cogent, and convincing
evidence. J.J. moved to modify this ruling, but a panel of judges denied the motion.
J.J. then petitioned this court for review of whether the trial court violated
J.J.’s right to due process when it did not dismiss the termination trial after finding
the Department had not met its burden of proof or when the trial court considered
the best interests of the children in the middle of the termination trial. She also sought
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In re Welfare of D.E., V.E., and M.E., No. 98043-8
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review of whether a status as a domestic violence victim is a parental deficiency. We
granted review “only on the issue of whether the trial court violated the mother’s
due process rights in continuing the termination trial after concluding that the
Department . . . had failed to meet its burden of proof.” Order at 1 (Wash. Apr. 1,
2020).
ANALYSIS
J.J. argues that the trial court violated her right to due process when the court
continued the trial after stating that it could not find that the Department had met its
burden of proof. J.J. argues that the proper remedy when the Department has not met
its burden of proof is to dismiss the termination petition. We agree.
I. 	Standard of Review
The Department contends that the standard of review in this case is abuse of
discretion. Suppl. Br. of Dep’t at 12 (quoting In re Interest of Pawling, 101 Wn.2d
392, 396, 679 P.2d 916 (1984)). We disagree.
The case relied on, Pawling, is distinguishable from the case at hand. First,
Pawling concerns a private termination brought under the former adoption statutory
scheme and allegations of abandonment. Under the current adoption statutory
scheme, specifically RCW 26.33.120, the court looks to whether termination is in
the best interests of the child at the outset. In contrast, in the present case, the court
must first find parental unfitness and that all statutory termination factors are met
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prior to examining the best interests of the child. See RCW 13.34.190; In re Interest
of S.G., 140 Wn. App. 461, 467, 166 P.3d 802 (2007).
Further, Pawling involved a continuance of the fact-finding hearing to provide
the parent whose rights were at risk of being terminated with adequate notice of an
amended pleading and an opportunity to respond. In the present case, the court, after
finding the Department did not meet its burden, continued the trial and requested
that the Department supplement the inadequate record to meet its burden of proof by
clear, cogent, and convincing evidence. Also, the father in Pawling did not allege
that the continuance to hear more evidence in that case violated his right to due
process, as J.J. does here. Therefore, the standard of review in the present case is
that of due process violations.
We review alleged violations of due process de novo. In re Welfare of L.R.,
180 Wn. App. 717, 723, 324 P.3d 737 (2014) (citing Post v. City of Tacoma, 167
Wn.2d 300, 308, 217 P.3d 1179 (2009)).
II. 	Due Process in Termination Cases
Parents 	have 	a 	fundamental 	liberty 	interest 	in 	the 	care, 	custody, 	and
management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982) (plurality opinion). This right “does not evaporate
simply because they have not been model parents or have lost temporary custody of
their child to the State.” Id. Accordingly, when the State seeks to terminate parental
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rights, “it must provide the parents with fundamentally fair procedures.” Id. at 753-
54. A parent’s right to due process at a termination trial is subject to the balancing
test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976). Santosky, 455 U.S. at 754; L.R., 180 Wn. App. at 724. Under this test, the
court balances (1) the private interests affected,6 (2) the risk of erroneous deprivation
of the private interest created by the procedures used, and (3) the State’s interest in
using the challenged procedure. Mathews, 424 U.S. at 335.
A. 	The private interests affected
The Department rightfully concedes that “[t]he strength of the parent’s
interest under the first factor is undisputed.” Suppl. Br. of Dep’t at 16 (citing In re
Dependency of M.H.P., 184 Wn.2d 741, 760, 364 P.3d 94 (2015)). However, the
private interests involved are not limited to those of the parent. As the United States
Supreme Court acknowledged in Santosky, “until the State proves parental unfitness,
the child and his parents share a vital interest in preventing erroneous termination of
their natural relationship.” 455 U.S. at 760. Accordingly, D.E., V.E., and M.E. also
share a private interest in preventing the erroneous termination of their mother’s
parental rights. This is not to say that the child has no materially aligned interest with
6 The Court of Appeals below misstates the first factor of the Mathews test as “the parent’s
interest.” See Ruling Affirming Order Terminating Parental Rights at 24 (Wash. Oct. 8, 2019). The
factor examines the private interests, not just parental interests. See Santosky, 455 U.S. at 754
(citing Mathews, 424 U.S. at 335)). As discussed in the “private interests” section below, children
also have a concurrent private interest with their parents.
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the State’s interest in a speedy resolution of cases. But to the extent that the goal of
the dependency system is reunification and accurate decisions, the preservation of
families is a paramount interest shared by the parents, the child, and ultimately, the
Department. See id. at 766 (quoting Lassiter v Dep’t of Soc. & Health Servs., 452
U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981) (“Since the State has an urgent
interest in the welfare of the child, it shares the parent's interest in an accurate and
just decision.”)).
B. 	The risk of erroneous deprivation
The second Mathews factor arguably is the core controlling factor: whether
the procedure creates a risk of erroneous deprivation of the private interest at stake.
The Court of Appeals commissioner ruled that “[the lower court’s] refusal to dismiss
the termination petitions after finding the [Department] had not yet satisfied its
burden was a means of ensuring J.J.’s due process rights were protected and that it
had the opportunity to consider all relevant evidence.” Ruling Affirming Order
Terminating Parental Rights at 25 (Wash. Oct. 8, 2019). However, in doing so, the
commissioner effectively created a rule that whenever the Department has not met
its burden of proof, the trial court can continue the trial for the Department to obtain
more evidence and for the respondent to prove their fitness to parent. This is
problematic as the burden of proof in a termination trial is on the Department and
should never be shifted to the parent. Further, it is the Department’s decision to
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choose when to file a petition, and the Department must be prepared to carry its
burden of proof of clear, cogent, and convincing evidence. 	Here the lower court
continued the trial ostensibly to allow J.J., who did not have the burden of proof, to
prove her fitness, when in fact the continuance benefited the Department’s case for
termination.
As the United States Supreme Court recognized, termination proceedings
contain numerous factors that increase the risk of erroneous termination: the
evidence is largely controlled by the State, the ultimate decision is based on the
subjective determination of one person (the judge), the court has the ability to
discount factors that favor the parents, the State can shape the history and future of
the child through placement and visitation, and the State has access to experts and
social workers who are also employed by the State. Santosky, 455 U.S. at 762-63.
All of these factors are exacerbated by the fact that the majority of cases involve
persons who are poor, uneducated, and/or minorities, leaving an opening for class
and racial bias. Id.
The Court of Appeals commissioner below relies solely on In re Dependency
of T.R., 108 Wn. App. 149, 29 P.3d 1275 (2001) for the resolution of this particular
due process issue. In that case, the parties proceeded to the termination trial, at the
end of which the trial court orally ruled that the Department had proved all of the
statutory termination factors. Id. at 155. However, the judge reserved the right to
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consider a guardianship. Id. A week later he issued a decision formalizing his ruling
that the State had proved all of the statutory factors. The parties then attempted to
implement a guardianship, but when that did not work, the State sought again to
terminate. Although the mother’s attorney argued that the mother’s situation had
changed since the previous findings of fact, the judge relied on the previous findings
of fact and terminated the parental rights. Id. at 157.
The Court of Appeals affirmed, holding that under the Mathews factors due
process had been satisfied. As to the “risk of erroneous deprivation” factor, the Court
of Appeals found that there was no risk of error because, although over a year had
passed since trial, the status hearings showed that the mother still had not fixed her
parental deficiencies. Id. at 159. The Court of Appeals did note that “[w]hether a
further hearing is required depends upon the facts and circumstances of each case.”
Id. at 160.
T.R. is materially distinguishable from the present case. First, the court in T.R.
found that the State had proved all of the statutory termination factors prior to the
parties’ attempting to implement a guardianship. Accordingly, the Court of Appeals
found that “the risk of erroneous deprivation depends upon the likelihood that
parental deficiencies established at trial had been remedied.” Id. at 158 (emphasis
added). Because the deficiencies had not been remedied, there was no due process
violation. In contrast, here the trial court orally ruled that the Department had not
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proved all of the statutory termination factors and so parental unfitness had not been
established at trial. T.R. thus does not apply to the present case.
Second, in T.R., the mother had over a year to work on remedying her parental
deficiencies when the trial court found that the State had provided all of the
necessary services per the statutory factor. In contrast, in the present case, J.J. was
given only 2 months to obtain services that the court found the Department had not
adequately provided her throughout the dependency. Although the present case did
have a supplemental evidentiary hearing, a 2-month continuance was not sufficient
time to provide services that the court found the Department had not adequately
provided over the course of an approximately 30-month dependency.
The Department attempts to distinguish the present case from In re Welfare of
Shantay C.J., 121 Wn. App. 926, 91 P.3d 909 (2004). In that case, at the end of the
termination trial, the court held that three of the six statutory factors had been met
but declined to rule on the others. Id. at 932. The court told the parties it was taking
the other three factors “under advisement” and then continued the trial and ordered
more services for the parents. Id. The parents did not comply with the services
required during the continuance, and the State asked the court to strike the
continuance order. Id. at 934. At the next hearing, the parents were not allowed to
present additional evidence or address the court. Id. The court terminated the
parental rights. Id.
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Applying the Mathews factors, the Court of Appeals found a due process
violation because of the risk of erroneous deprivation. The Court of Appeals could
not determine if the trial court terminated parental rights because of the statutory
factors or because the parents did not fully comply with the conditions of the
continuance. Id. at 937. Accordingly, the Court of Appeals held that the trial court
was required to take more evidence and enter full findings of fact prior to
termination. Id. at 940.
The Department argues that in Shantay C.J., the Court of Appeals reversed
because the parents could not present new evidence and that because the trial court
here did allow for J.J. to present new evidence, due process is satisfied. But Shantay
C.J. is not dispositive, and allowing for more evidence does not conclusively mean
there was not a due process violation. The judge in Shantay, C.J. had not explicitly
ruled, as in the present case, that the State had not met its burden by clear, cogent,
and convincing evidence, and the Court of Appeals was unsure if the termination
was based on the failure to comply with the conditions of the continuance. There is
a material difference between a court continuing a trial while “taking the matter
under advisement,” id. at 932, and a court continuing a trial after making a
determinative finding that the State has not met its burden by clear, cogent, and
convincing evidence.
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Here, at the conclusion of trial, the trial court was not required to immediately
decide whether to terminate J.J.’s parental rights. However, when the trial court
stated, “I cannot make a finding at this moment in time by clear, cogent and
convincing evidence that all necessary services have been offered or that there is no
reasonable likelihood of her correcting them within the immediate future,” it did
make a decision: that the Department had not met its burden of proof. 4 VRP (Nov.
16, 2018) at 431 (emphasis added). The proper remedy was not to continue the trial
for the Department to collect more evidence against the mother and shift the burden
to the mother to show she was fit to parent. The proper remedy was to dismiss the
termination petition as the Department did not meet the burden of proof required.7
This in no way precluded the Department from offering further services and filing
another termination petition when and if the Department could meet the burden of
proof. See Santosky, 455 U.S. at 764 (“[N]atural parents have no ‘double jeopardy’
7 The Department relies on DGHI Enterprises v. Pacific Cities, Inc., 137 Wn.2d 933, 977 P.2d
1231 (1999) for the holding that a judge’s oral ruling is not binding on subsequent proceedings.
That case involved an oral ruling in a commercial lease dispute where the judge died before he
could sign the findings of fact and conclusions of law. Id. at 937-38. This court held that the newly
assigned judge could not just sign the findings of fact and conclusions of law, although the former
judge had laid them out on the record with intent to sign at a later date, because the intent to sign
the findings was not binding on the deceased judge. Id. at 943-44. However, J.J. does not ask for
a judge to be bound by a prior oral ruling at a subsequent hearing. She asks for a termination
petition to be dismissed when the judge orally rules the Department did not meet the burden of
proof and that the case not be set for a subsequent hearing where the Department can present more
evidence against a parent. Further, the present case concerns parental rights, not a commercial
lease, and the due process concerns necessitate the need for holding the Department to its burden
of proof.
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defense against repeated state termination efforts. If the State initially fails to win
termination . . . it always can try once again to cut off the parents’ rights after
gathering more or better evidence.”).
It is not equitable or just for the Department to be granted a continuance that
enables it to obtain more evidence in order to meet its burden of proof when it
already controls the narrative and services to be provided. See Santosky, 455 U.S. at
763 (“The State’s ability to assemble its case almost inevitably dwarfs the parents’
ability to mount a defense.”). When the Department failed to meet its burden of proof
and the trial court granted the Department a continuance to gather more evidence in
a condensed timeline, that action created a risk of erroneous deprivation of the
parent’s rights to parent. Such a procedure deprives the parent of a full opportunity
to take advantage of services that were not initially given. Therefore, this factor
weighs in favor of finding the trial court violated J.J.’s right to due process.
C. 	The State’s interest in the challenged procedure
There is no dispute that the State has a strong interest in the speedy and fiscally
responsible resolution of cases. There is also no dispute that the State has an interest
in assisting children in finding their permanent placements as quickly as possible.
See In re Welfare of C.B., 134 Wn. App. 942, 951, 143 P.3d 846 (2006). However,
a petition for termination of parental rights should be filed only when it has been
shown that the efforts to cure parental deficiencies have been unsuccessful and
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In re Welfare of D.E., V.E., and M.E., No. 98043-8
19
additional services will not remedy those deficiencies in the foreseeable future. S.G.,
140 	Wn. 	App. 	at 	470. 	The 	“‘best interest of 	the 	child’ 	standard 	is 	not 	a
compelling state interest that overrules a parent’s fundamental right to raise her
children.” In re Welfare of L.N.B.-L., 157 Wn. App. 215, 257, 237 P.3d 944 (2010)
(citing In re Custody of Smith, 137 Wn.2d 1, 20, 969 P.2d 21 (1998)).
The analysis of whether to terminate parental rights is a two-step process. First
the trial court must find the Department has proved all of the statutory factors by
clear, cogent, and convincing evidence, and only then does the trial court turn to
whether termination is in the best interests of the child by a preponderance of the
evidence. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010); S.G.,
140 Wn. App. at 467. The trial court did not follow this two-step process in the
present case.
In determining that the burden of proof in termination cases must be clear,
cogent, and convincing evidence, the United States Supreme Court determined that
holding the State to a burden higher than a preponderance of the evidence burden is
consistent with both the parens patriae interest in the welfare of the child and the
interest in reducing the cost of the proceedings. Santosky, 455 U.S. at 766. This is
because 	the 	parens 	patriae 	interest 	at 	fact-finding 	“favors 	preservation, 	not
severance, 	of 	natural 	familial 	bonds.” 	Id. 	at 	767. 	Further, 	“[a]ny parens
patriae interest 	in 	terminating 	the 	natural 	parents’ 	rights 	arises 	only 	at 	the
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In re Welfare of D.E., V.E., and M.E., No. 98043-8
20
dispositional phase, after the parents have been found unfit.” Id. at 767 n.17. It
follows that holding the Department to its burden of proof and ensuring that the
Department proves parental unfitness prior to considering the best interests of the
children also helps to further these important state interests because, until the
Department meets the burden to prove unfitness of the parent, its interests align with
the parent, the children, and the preservation of the family unit.
In the present case, the trial court found that the Department failed to meet the
burden of proving the statutory factors and parental unfitness that the Department
must prove before the court can consider the best interests of the children. However,
the trial court, without making a finding that J.J. was an unfit parent, placed the
burden on the mother, at a subsequent reopening of the trial, to present evidence to
prove her fitness to parent. The court used the incorrect standard when it continued
the trial as being in the best interests of the children, stating, “[P]ermanency is in
these children’s best interest, and that’s why I need to keep this on a relatively short
timeline.” 4 VRP (Nov. 16, 2018) at 434 (emphasis added). Then at a review hearing
after the trial had ended, the court again erred when it used the best interest of the
children standard and placed the burden on the mother stating that the mother was
to be “diligent” about getting insurance and accessing services because “we have
children who are in foster care and in a preadopt home and are stable.” 5 VRP (Nov.
29, 2018) at 466-67. Focusing on the best interests of the children prior to the
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In re Welfare of D.E., V.E., and M.E., No. 98043-8
21
Department’s proving parental unfitness is contrary to A.B., 168 Wn.2d 908, RCW
13.34.180, and RCW 13.34.190.
Because holding the Department to its burden of proof is consistent with the
State’s parens patriae interests, we hold that the failure to hold the Department to its
burden of proof and continuing a trial in the children’s best interests when the
Department had not proved current unfitness is contrary to the State’s interests and
weighs in favor of finding a due process violation.
Because all three Mathews factors weigh in favor of finding a due process
violation, we hold that the trial court violated J.J.’s right to due process when it
continued the trial, instead of dismissing, after finding that the Department had not
met its burden of proof.
CONCLUSION
We reverse the Court of Appeals and hold that the trial court violated J.J.’s
right to due process when it continued the trial after ruling that the Department did
not meet its burden of proof. We dismiss the termination petition.
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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Welfare of D.E., V.E., and M.E., No. 98043-8
Whilever I.
Stephens, C.J González,O. Solom & Hlady Mill, 1.
madren. J. Lu. A
Mintogc.heris, J
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