Posts Tagged ‘unfit parent’

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 unanimous Supreme Court decision clarified the standards the non-parent must meet for the court to hear a non-parental custody petition. In Re Custody of EATW, docket # 81945-9, held that a trial judge shall deny adequate cause and dismiss a third-party custody petition unless the petitioner files an affidavit that 1) alleges the child is either not living in the physical custody of one of its parents or that neither parent is a suitable custodian, and 2) facts showing that, if true, both parents are unfit or, placing the child with either parent would result in actual detriment to the child’s growth and development.
The opinion is based on the clear language of the statute and the standards established by the controlling third-party custody case, which is In Re Custody of Shields.
As the court explained , the statute strikes a balance between parental rights, which are protected by the 14th amendment to the Constitution, and children’s rights. Parents have the right to raise their children, but children have a sometimes countervailing right to basic nurture, physical and mental health, and safety. In striking the proper balance, the child’s health and safety shall be the paramount concern.
The unfit parent or actual detriment to the child standard, according to the court, strikes this balance. For a court, after trial, to award custody of a child to a non-parent, therefore, it must find either that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development.
The statute also seeks to weed out spurious non-parental custody petitions at the beginning of the case, before they cost the parties and the taxpayer’s money. The statute does this by requiring an adequate cause hearing. At the hearing, the petitioner must present prima facie evidence, e.g. evidence submitted in a declaration, that it will be able to prove it case with live testimony and other evidence at trial.

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A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.

CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.

The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.

In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.

In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.

I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.

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