Posts Tagged ‘Parental rights’

The Washington State Court of Appeals, Division II, held recently that a CR2A agreement was binding on both parties, when, at different times, each party had moved to enforce it.

Court Rule 2A (“CR2A”) provides that the court will not enforce an agreement between the parties unless it is made in open court on the record, or unless it is in writing and signed by the attorneys.  CR2A agreements are commonly used to memorialize agreements made during mediation or other Alternative Dispute Resolution.

The case, Marriage of Teresa Grimsley-LaVergne and Mark A. LaVergne, No. 37731-4-II arose from a drawn-out dissolution process that began in 2001 and ended in 2009.  During that process, in 2004, the parties engaged in an eleven-hour marathon mediation with a professional mediator.  Pursuant to that mediation, the parties signed a CR2A agreement.    

In this case, the CR2A agreement was hard to read.  It was scribbled and interlineated.  Sections were scratched out and then sometimes reinserted.  Nonetheless, it was signed and it contained language indicating that the parties agreed to it and thought it was fair and equitable.

The night after the mediation, the parties had sex and conceived twins.  For the next three years, they lived together and appeared to have reconciled.  Nonetheless, the parties also executed at least some of the provisions of the CR2A agreement and, at different times, attempted to enforce it.

In 2009, the Husband attempted to set aside the CR2A agreement because, he claimed, the parties had reconciled.  The trial court, after a two-day trial, denied the motion.  The Husband appealed.  The Court of Appeals affirmed the trial court, holding that, by moving to enforce the CR2A agreement, the parties had waived their right to appeal its enforceability.


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In a Dependency Action, Parental Unfitness May Not Be Implied When Findings Are Contradictory

Our state Supreme Court recently held that an appellate court may not infer a finding of parental unfitness from the trial court record unless the facts and circumstances clearly demonstrate that the finding was actually made, but not explicitly written.

In Re the Welfare of: A.B., Cause No. 89759-1, a father sought to preserve his parental rights whereas DSHS sought to terminate them.

The Supreme court based its decision on the dependency statute, RCW 13.34 et. seq.  The statute sets up a two-phase process for terminating parental rights and then placing the dependent child with a caregiver.

In the first phase, termination of parental rights, the court must find that each of the following six statutory factors have been met, by clear, cogent, and convincing evidence:

a)   the child has been found to be dependent;

b)  the court has entered a dispositional order regarding the child’s temporary placement;

c)  the child has been removed from his/her parent’s home for at least six months;

d)  the state has offered services to the child;

e)  there is little likelihood that the conditions will be remedied so that the child may be returned in the future

f)   the continuation of the parent/child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home;

In addition, per case law interpreting the Constitution, the court must find that the parent is unfit at the time of trial to be a parent.

        In the second phase of the statutory scheme, the court must determine, by a preponderance of the evidence, what placement is in the child’s best interest.

        Here, the trial court made the necessary boilerplate findings based on the language from phase I, but never made an explicit finding of parental unfitness.  In addition, it made contradictory, non-boilerplate findings seeming to indicate that the father was not unfit.

        The Supreme Court held that not finding of unfitness could be implied, given the contradictory findings, and ordered the child placed with the father.

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A recent termination of parental rights case affirmed the trial court’s conclusion that the mother’s progress towards correcting her parental deficiencies was too little, too late.

In Welfare of A.G., L.S. cause # 27659-7-III consolidated with cause # 27660-1-III, the trial court concluded that “there is little likelihood that conditions will be remedied so that A.G. or L.S. could be returned to their mother in the near future.”
Termination of parental rights is a two-step process. First, the state must show that it has established the six statutory requirements by clear, cogent, and convincing evidence. Second, once those factors have been established, the state must show by a preponderance of the evidence that termination of parental rights is in the best interest of the child.

The six statutory factors are:

1. the child has been found dependent;

2. the court has entered a dispositional order;

3. the child has been removed from the custody of the parent for at least six months;

4. remedial services have been offered and/or provided;

5. there is little likelihood that the conditions will be remedied in the near future; and

6. that continuation of the parent/child relationship clearly diminishes the child’s prospects for early integration into a permanent and stable home.

The factors at issue in this case were numbers five and six. The court explained that “near future” depends on the age and circumstances of the child, but that a parent’s inability to correct their deficiencies within one year creates a rebuttable presumption that the conditions will not be remedied.
The appellate court held that the trial court’s factual findings supported its conclusion that the state had established elements five and six.

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Our state’s Supreme Court recently affirmed that the statutory provision regarding the termination of parental rights means what it says. The state may not terminate parental rights to a child without offering the parent services to correct whatever parental deficiencies may form the basis of the termination petition.
In Welfare of C.S., docket No. 81720-1, DSHS brought termination proceedings against a mother with substance abuse problems. Pursuant to the termination statute, DSHS offered her drug treatment services.
Ultimately, the treatment worked. At the time of trial, the mother had been clean and sober for a year, verified by twice-weekly urinalysis. Nonetheless, DSHS refused to reunite mother and child, asserting that the mother was ill-equipped to handle the child, who had ADHD, Oppositional Defiant Disorder, and some other issues.
DSHS refused to offer the mother services in how to manage the child, although it did offer such services to the foster parent. The trial court then terminated parental rights and the appellate court affirmed.
The Supremes reversed.

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