In Re The Dep Of A.a.a., Sudi Shire, App V. Dshs, State Of Wa, Resp

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of )
)
A.A., )
D.O.B. 1/12/2015, )
)
STATE OF WASHINGTON, )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, )
)
Respondent, )
)
v. )
)
No. 78021-2-1
DIVISION ONE
SUDI SHIRE, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: January 22, 2019
)
MANN,J. — The Department of Social and Health Services (Department)
petitioned for the termination of Sudi Shire and Abdisalam Ahmed's parental rights of
their child, A.A. Prior to the termination proceeding, A.A.'s prospective adoptive parents
offered Shire and Ahmed an open adoption agreement. While Ahmed agreed to the
settlement, Shire declined and proceeded to trial. The trial court then granted the
Department's petition for termination. Shire appeals. We affirm.

No. 78021-2-1/2
I.
Sudi Shire is the mother and Abdisalam Ahmed is the father of A.A., a child born
in January 2015. In January 2016, the Department received a referral alleging negligent
treatment and maltreatment of A.A., and suspected drug abuse and criminal activity by
both of the parents. The referral also indicated concerns about domestic violence
between the parents.
A Child Protective Services(CPS)social worker met with the parents on January
8, 2016. A.A. appeared healthy and active and both parents denied the allegations in
the referral. Over the next two months, CPS reached out to the parents on two different
occasions but neither responded. Then on March 3, 2016, CPS reached out to the
housing complex that the family was living in and learned that due to their failure to pay
rent, the housing complex had initiated eviction proceedings against the parents.
On April 5, 2016, the housing complex informed CPS that the family had been
evicted. CPS social workers then contacted A.A.'s maternal grandmother, who
informed CPS that A.A. had been living with her but was back with Shire. The maternal
grandmother also informed CPS that she was concerned about A.A.'s safety because
Ahmed could be very violent and because both parents were using heroin.
Over the next month, CPS continued its attempt to contact both parents. Then
on April 21, 2016, Shire's uncle informed CPS that Shire had returned to her mother's
house with A.A. A social worker responded to the home and was able to make contact
with Shire. Shire admitted that she and Ahmed regularly used heroine, which
contributed to her eviction, family issues, and inability to engage with Departmental
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No. 78021-2-1/3
services. Shire then agreed to leave A.A. at her mother's home and to go to a detox
and inpatient treatment center. Shire did not remain at the center, however.
On May 11, 2016, the Department held a Family Team Decision meeting. Shire
and Ahmed were invited but did not attend. At the meeting, A.A.'s grandmother agreed
to take primary care of A.A. and the Department decided to file a dependency petition.
On May 18, 2016, A.A. was officially removed from the custody of his parents
and has not returned home since. A.A.• was found to be dependent as to Ahmed on
July 22, 2016 and as to Shire on August 19, 2016. The dependency court placed A.A.
in the care of his maternal grandmother, and allowed Shire to have visits with A.A. twice
a week.
The dependency court also ordered Shire to participate in services including a
drug evaluation and treatment recommendations, random urinalysis testing, a
psychological evaluation, and parenting classes. The Department made repeated
attempts to involve Shire in these services. Social workers repeatedly referred Shire for
random urinalysis testing, referred her to drug and alcohol evaluations, took her to
psychological evaluations, and scheduled visits with her and A.A.
Despite the Department's assistance, Shire has not completed any of the court
ordered services. Shire has also only visited A.A. at most ten times since the
dependency hearing. Shire was also arrested on a criminal warrant after removing A.A.
from her grandmother's home, without authorization, and taking him to the jail where
Ahmed was incarcerated. Shire further admitted to using both heroin and
methamphetamine, admitted to missing and being late to appointments with social
workers, and admitted to spending time with Ahmed despite a no-contact order.
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No. 78021-2-1/4
Based on Shire's failure to engage meaningfully in court ordered services and
failure to maintain a relationship with A.A., on July 10, 2017, the Department petitioned
for termination of her and Ahmed's parental rights. Over the course of three days in
January 2018, the trial court held a termination hearing. Initially, both Ahmed and Shire
appeared and contested the petition. Then, after the second day of hearings, Ahmed
agreed to voluntarily relinquish his parental rights in an open adoption settlement offer
with A.A.'s prospective adoptive parents. In the agreement, Ahmed was granted limited
contact with A.A. Shire was also offered the open adoption agreement but declined to
voluntarily relinquish her parental rights and opted to contest the termination petition.
On January 16, 2018, the trial court granted the Department's petition for
termination of Shire's parental rights. The court determined that Shire was offered and
understood what services she was required to complete, but that she had not followed
through on any of them. Shire "admitted candidly [to] using heroin to self-medicate."
Shire "[i]nexplicably. .. failed to take advantage of the majority of the visits that were
provided with [A.A.,]. . . . understands that [A.A.] should not have to wait. . . to obtain
stability in his own life[,] . . .[and A.A.] has some special needs that Ms. Shire hasn't
even inquired about." The court further determined that termination was in the best
interest of A.A.
Shire does not dispute the trial court's findings or conclusion supporting the
termination of her parental rights.1 Instead, for the first time on appeal Shire asserts
1 Shire does not argue that the Department failed to prove by clear, cogent, and convincing
evidence that the statutory factors for termination in RCW 13.34.180(1) were met. Therefore, we do not
address the sufficiency of the Department's evidence.
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No. 78021-2-1/5
that RCW 26.33.295, the open adoption agreement statute, and RCW 13.34.200, the
statute revoking a biological parent's legal standing after parental rights are terminated,
was unconstitutional as applied to her proceeding. Shire contends that she should have
been allowed to seek an open adoption agreement after the termination order was
entered. We disagree.
We review constitutional challenges de novo. Dependency of M.-A.F.-S., 4 Wn.
App. 2d 425, 445, 421 P.3d 482 (2018). Statutes are presumed constitutional and the
burden falls to the "challenger of a statute [to] prove beyond a reasonable doubt that the
statute is unconstitutional." In re Welfare of A.W., 182 Wn.2d 689, 701, 344 P.3d 1186
(2015).
RCW 26.33.295 provides birth parents the ability to voluntarily relinquish their
parental rights to adoptive parents in exchange for some contact with the child.
Agreements regarding communication with or contact between child
adoptees . . . and a birth parent or parents shall not be legally enforceable
unless the terms of the agreement are set forth in a written court order
entered in accordance with the provisions of this section. The court shall
not enter a proposed order unless the terms of such order have been
approved in writing by the prospective adoptive parents, any birth parent
whose parental rights have not previously been terminated, and, if the
child or siblings of the child are in the custody of the department or a
licensed child-placing agency, a representative of the department or child-
placing agency.... The court shall not enter a proposed order unless the
court finds that the communication or contact with the child adoptee, as
agreed upon and as set forth in the proposed order, would be in the child
adoptee's best interests.
RCW 26.33.295(2).
RCW 13.34.200 provides in pertinent part:
Upon the termination of parental rights. . . all rights, powers, privileges,
immunities, duties, and obligations, including any rights to custody,
control, visitation, or support existing between the child and parent shall
be severed and terminated and the parent shall have no standing to
appear at any further legal proceedings concerning the child.
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No. 78021-2-1/6
A.
Shire did not raise her constitutional concerns below and "a party generally
waives the right to appeal an error unless there is an objection at trial." State v.
Kalebauqh, 183 Wn.2d 578, 583, 355 P.3d 253(2015). RAP 2.5(a)(3) provides an
exception to that general rule for a "manifest error affecting a constitutional right."
Appellate courts "will not sanction a party's failure to point out at trial an error which the
trial court, if given the opportunity, might have been able to correct to avoid an appeal
and a consequent new trial." State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).
In order to establish a manifest constitutional error, the appellant must demonstrate both
an error of constitutional magnitude and that the error is manifest.
On appeal, we first determine whether the alleged error raises a constitutional
interest. "We look to the asserted claim and assess whether, if correct, it implicates a
constitutional interest as compared to another form of trial error." O'Hara, 167 Wn.2d at
98. If the alleged error raises a constitutional interest, we look next to whether the error
is manifest. "'Manifest' in RAP 2.5(a)(3) requires a showing of actual prejudice." State
v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). "To demonstrate actual
prejudice, there must be a 'plausible showing by the [appellant] that the asserted
error had practical and identifiable consequences in the trial of the case." O'Hara,
167 Wn.2d at 99(quoting Kirkman, 159 Wn.2d at 935). The focus of the actual
prejudice analysis is whether the error is obvious on the record. O'Hara, 167 Wn.2d
at 99-100.
It is not the role of an appellate court on direct appeal to address claims
where the trial court could not have foreseen the potential error or where
the prosecutor or trial counsel could have been justified in their actions or
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No. 78021-2-1/7
failure to object. Thus, to determine whether an error is practical and
identifiable, the appellate court must place itself in the shoes of the trial
court to ascertain whether, given what the trial court knew at that time, the
court could have corrected the error.
O'Hara, 167 Wn.2d at 100.
Shire asserts that the intersection of RCW 26.33.295 and RCW 13.34.200
violated her Fourteenth Amendment substantive due process right. If correct, this is
certainly an error of constitutional magnitude. The Department appears to agree with
this conclusion as it only argues that RCW 26.33.295 and RCW 13.34.200 did not have
a practical effect on Shire's termination proceeding.
The Department argues that neither RCW 26.33.295 nor RCW 13.34.200 had a
practical effect on the trial because both statutes operate independently from the
termination proceeding. But, here, both parents were offered open adoption
agreements pursuant to RCW 26.33.295 as a settlement of the termination proceeding,
which RCW 13.34.200 indicated if they declined the agreement and subsequently lost at
trial, they would not be able to pursue again. This indicates that both statutes had a
practical effect on the tria1.2 Shire had the opportunity to forego trial and maintain some
contact with her child, but she instead opted to risk termination in order to argue for the
continuation of her parental rights. Therefore, both RCW 26.33.295 and RCW
13.34.200 had a practical effect on this trial.
B.
Shire argues that because of RCW 26.33.295 and RCW 13.34.200, she was
essentially forced to choose between voluntarily relinquishing her parental rights but
2 Further, Ahmed accepted the RCW 26.33.295 settlement in the middle of the termination
proceeding, which meant that instead of having two different parties arguing against termination,
suddenly on the last day of trial Shire stood alone in her argument against termination.
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No. 78021-2-1/8
maintaining some limited contact with A.A. and going to trial to attempt to maintain her
parental rights. She argues that this situation violated her substantive due process
rights to maintain the family unit because while open adoptions should depend on the
best interest of the child and not on the parent's desire to continue to trial, here she was
essentially punished for asserting her right to go to trial.
The Fourteenth Amendment provides that "No person may be deprived of life,
liberty, or property without due process of law." U.S. CONST. amend. XIV. "Parents
have a fundamental liberty and privacy interest in the care and custody of their
children." M.-A.F.-S., 4 Wn. App. 2d at 445 (citing Santoskv v. Kramer, 455 U.S. 745,
753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). But,"when parental actions or
decisions seriously conflict with the physical or mental health of the child, the State has
a parens patriae right and responsibility to intervene to protect the child." In re Welfare
of Sumev, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).
"Substantive due process protects against arbitrary and capricious government
action[,]" Amunrud v. Board of Appeals, 158 Wn.2d 208, 218-19, 143 P.3d 571 (2006),
not against the actions, however grievous, of other individuals. See Faircloth v. Old
Nat'l Bank of Wash., 86 Wn.2d 1, 541 P.2d 362(1975)(private conduct is not controlled
by the Fourteenth Amendment due process clause unless it is significantly intertwined
with state involvement.); Civil Riphts Cases, 109 U.S. 3, 11,3 S. Ct. 18, 21, 27 L. Ed.
835(1883)("It is State action of a particular character that is prohibited. Individual
invasion of individual rights is not the subject-matter of the amendment.").
Here, Shire contends that the intersection of RCW 26.33.295 and RCW
13.34.200 violated her substantive due process right. But Shire fails to show what state
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No. 78021-2-1/9
action was implicated here. An open adoption agreement is an agreement between the
adoptive parents, the birth parents, and the child. Despite having to approve of the
agreement, the Department is not a party. In re Dependency of T.C.C.B., 138 Wn. App.
791, 800, 158 P.3d 1251 (2007). That the prospective adoptive parents, here, were
willing to negotiate an open adoption agreement with the parents does not indicate that
the state acted in any way which affected Shire's due process rights. See Kennebec,
Inc. v. Bank of the West, 88 Wn.2d 718, 723, 565 P.2d 812(1977)("mere enactment of
a statute which permits private conduct, with no further significant participation by the
state, is passive involvement and does not constitute 'state action."). Therefore, Shire's
constitutional claims fail based on a lack of state action.
In In re Adoption of Hernandez, Division Three of this court determined that there
was a lack of state action in voluntary relinquishment proceedings. 25 Wn. App. 447,
452,607 P.2d 879 (1980). There, after voluntarily relinquishing her parental rights, the
mother alleged that she was denied due process of law because she was not afforded
an attorney at the relinquishment hearing. Hernandez, 25 Wn. App. at 450. The
appellate court disagreed based on the "substantial difference in the precise nature of
the governmental function under" voluntary versus involuntary proceedings.
Hernandez, 25 Wn. App. at 451. While involuntary proceedings are adversarial in
nature, voluntary relinquishment proceedings are not. Therefore, the mother was not
"deprived of liberty" when she "voluntarily decided to terminate her rights as a parent"
because it was the mother, not the state, that acted. Hernandez, 25 Wn. App. at 451,
452-53. See also In re Adoption of Infant Boy Crews, 60 Wn. App. 202, 217, 803 P.2d
24(1991)(holding "there is no 'state action' in voluntary termination proceedings to
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No. 78021-2-1/10
trigger due process concerns"), aff'd, 118 Wn.2d 561, 825 P.2d 305 (1992), overruled
on other grounds by In re Adoption of T.A.W., 186 Wn.2d 828, 383 P.3d 492(2016).
In Welfare of H.Q., Division Two of this court held that "a parent has a
substantive due process right to pursue voluntary relinquishment of his or her parental
rights as an alternative to involuntary termination." 182 Wn. App. 541, 549, 330 P.3d
195 (2014). There, the father, who was so severely developmentally disabled that he
was unable to adequately care for his child, wanted to voluntarily relinquish his parental
rights in an open adoption agreement. The trial court however, without holding a
hearing to this effect, determined that the father was incapable of voluntarily
relinquishing his rights. Instead, the trial court held an involuntary termination hearing
and terminated the father's parental rights. H.Q., 182 Wn. App. at 548-49.
On appeal, the court held that this violated the father's substantive due process
right. The court reasoned that "it is well settled that parents have a 'fundamental liberty
interest[]' in 'the care, custody, and management of their children,' which is protected by
the Fourteenth Amendment." H.Q., 182 Wn. App. at 550 (quoting Troxel v. Granville,
530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). The court then went on
to distinguish Crews and Hernandez, noting that while in those cases "the state was not
involved in the [parents'] decision to relinquish their parental rights. . . [in H.Q.]the
Department did act to terminate [the father's] parental rights. Thus, there was state
action." H.Q., 182 Wn. App. at 552. The court then held that "[s]ubstantive due process
requires that parents be permitted the opportunity to pursue voluntary relinquishment
prior to the involuntary termination of their parental rights if voluntary relinquishment is
available as a viable alternative." H.Q., 182 Wn. App. at 553.
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No. 78021-2-1/11
Collectively, these cases stand for the proposition that the state cannot prevent a
parent from pursuing voluntary relinquishment and an open adoption agreement, if
available, but that voluntary relinquishment, without more, does not have sufficient state
action to trigger constitutional protections. Here, Shire was afforded the opportunity to
pursue voluntary relinquishment before the involuntary termination proceeding. While
Ahmed agreed to voluntary relinquishment and an open adoption settlement, Shire
declined that option and proceeded to trial.
We affirm.
WE CONCUR:
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