In re Adoption C.W.S.

In the Matter of the Adoption of C.W.S., C.L.S., and G.D.S.

No. 33260-8-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

November 15, 2016

UNPUBLISHED OPINION

FEARING, C.J. — Rachel Smith appeals the termination of her parental rights pursuant to Washington adoption statutes. She claims that use of the adoption statutes in Title 26 RCW to terminate her rights violated her equal protection rights because the adoption statutes do not require proof that the State offered necessary services to her, whereas the parental termination statutes found in Title 13 RCW demand such proof. We reject her argument and affirm the termination of Rachel's parental rights.

FACTS

This adoption and termination proceeding concerns the natural children of Donald and Rachel Smith, who were married on January 6, 2001. The couple bore three children, Casey, Cathy and Gregory. All names are fictitious. Casey and Cathy are twins born October 11, 2001, and Gregory was born November 28, 2005.

In 2001, after the twins' birth, Rachel Smith began abusing prescription pain medication. In 2004, she substituted alcohol for pain medication. Rachel worked as a paramedic for a fire department, but, in May 2007, she stole pain medication from her employer and faced criminal charges for possession of a controlled substance. Rachel and Donald Smith separated in May 2007 and divorced in April 2008.

Upon Rachel and Donald Smith's separation, the children remained in the primary care of their father. Under an agreed final parenting plan entered in September 2007, Rachel garnered supervised visits with the three children at her parents' home. She agreed to supervision because she did not trust herself to remain sober in front of the children. Rachel thereafter never requested unsupervised visits.

On unidentified dates, Rachel Smith appeared at events for the children while intoxicated, including the twins' kindergarten graduation, their 9th or 10th birthday party, and their sporting events. At one of Casey's baseball games, Rachel suffered an alcohol withdrawal seizure resulting in cancellation of the game. She attended a roller skating birthday party for Gregory highly intoxicated and assaulted a bystander.

On April 1, 2014, Rachel Smith ceased physical contact with the children. Rachel's contact with the children was thereafter restricted to one telephone call each week, and Rachel's parents monitored the calls. Rachel missed two of four phone calls inOctober 2014, four of four phone calls in November 2014, two of four phone calls in December 2014, and two of four phone calls in January 2015.

Rachel Smith has visited emergency rooms at Spokane hospitals hundreds of times, including eighty-six visits in 2012. Care providers diagnosed her with alcohol induced mood disorder, posttraumatic stress disorder, alcohol dependence, and borderline personality disorder. Rachel attempted suicide seven times.

Rachel Smith completed seven inpatient alcohol treatment programs and additional outpatient programs. Lake Chelan Community Hospital admitted her in November 2014 for inpatient treatment, but she failed to complete the program. The discharge note from the treatment noted her prognosis for continued sobriety was poor as evidenced by the severity and complexity of her psychiatric disorders. Rachel voluntarily and involuntarily entered psychiatric hospitals on several occasions. Rachel suffered incarceration for acts of violence toward law enforcement officers and medical providers.

Donald and June Smith met in January 2012 and married on August 17, 2013. June engages in all aspects of the three children's lives and dutifully cares for them.

PROCEDURE

On August 20, 2013, June Smith petitioned for termination of Rachel Smith's parental rights to Casey, Cathy, and Gregory. June sought to terminate Rachel's parental rights so that June could adopt the children. Rachel contested the termination. Thesuperior court appointed Heather Lund as guardian ad litem for each child. Lund completed an investigation and recommended that the court terminate Rachel's rights.

On February 2 and 3, 2015, the trial court conducted a trial, during which June Smith, Donald Smith, Rachel Smith, Rachel Smith's parents, and Heather Lund testified. Rachel did not argue before the superior court that the adoption scheme allowing termination of parental rights violated the equal protection clause of either the federal or state constitution.

On March 6, 2015, the trial court ordered the termination of Rachel's parental rights. The order included the following findings:

There is clear, cogent, and convincing evidence that [Rachel] is currently unfit to parent her children.

. . . .

19. The Petitioner established by clear, cogent, and convincing evidence that [Rachel] has failed to perform duties under circumstances showing a substantial lack of regard for her parental obligations.

20. The Petitioner established by clear, cogent, and convincing evidence that [Rachel] has failed to perform the minimum parenting duties as described in In re H. J. P., 114 Wn.2d 522, 531-532, 789 P.2d 96 (1990).

21. The Petitioner established by clear, cogent, and convincing evidence that [Rachel] has failed to express love and affection for the children. . . .

22. The Petitioner established by clear, cogent, and convincing evidence that [Rachel] has failed to express personal concern over the health, education, and general well-being of the children. . . .

. . . .

24. Petitioner established by clear, cogent, and convincing evidence that [Rachel] failed to provide an adequate domicile for the minor children . . .

. . . .

31. Based on the foregoing, Petitioner established by clear, cogent and convincing evidence that [Rachel] is withholding her consent to theadoption of the minor children by Petitioner [] contrary to the best interest of the children.

32. Based on the foregoing, Petitioner established by clear, cogent, and convincing evidence that termination of [Rachel's] parental rights is in the children's best interest.

Clerk's Papers (CP) at 373-76.

On March 26, 2015, Rachel Smith appealed the termination order by filing a notice of appeal. On March 27, 2015, June petitioned to adopt Casey, Cathy, and Gregory. The trial court approved the adoption and filed a decree of adoption for each of the children.

LAW AND ANALYSIS

On appeal, Rachel Smith contends that the trial court's order to terminate her parental rights violates the equal protection clauses of the United States and Washington Constitutions because the rules governing termination of her right to parent her children under the adoption code differs from those applied to similarly situated parents whose rights are terminated under the dependency code. She emphasizes that termination under the dependency statutes requires the State to have provided remedial services to correct parental deficiencies, but the adoption process does not require the State to offer any services prior to the court's order of termination.

June Smith responds on the merits that equal protection does not benefit Rachel Smith because Rachel is not similarly situated to parents whose rights are taken by the State through the parental termination statutes. June also raises three obstacles toRachel's appeal: (1) this court lacks jurisdiction because Rachel failed to timely appeal the adoption order, (2) Rachel needed to and failed to notify the attorney general before challenging the constitutionality of the adoption statute, and (3) RAP 2.5(a) prevents Rachel from raising equal protection for the first time on appeal.

Issue 1: Whether Rachel Smith needed to appeal the adoption decree?

Answer 1: No.

On March 26, 2015, Rachel Smith filed a notice of appeal of the March 6, 2015, order terminating parental rights. Nevertheless, she filed no notice of appeal of the March 27, 2015, adoption decree. June Smith contends this court lacks jurisdiction over the appeal because Rachel failed to challenge the trial court's final order, the adoption decree. The validity of the adoption order entered after this appeal is not before us.

We disagree with June Smith. RAP 2.2(a)(6) expressly allows for review of an order terminating all parental rights. No court rule qualifies RAP 2.2(a)(6) by demanding that the appellant file an additional appeal notice after a later order. RCW 26.33.130(4) implies that the parent may file a notice of appeal of the termination order before any order of adoption and that no challenge to the adoption is necessary to proceed with the appeal of the termination. The statutory subsection reads:

(4) The parent or alleged father whose parent-child relationship with the child has been terminated is not thereafter entitled to notice of proceedings for the adoption of the child by another, nor has the parent or alleged father any right to contest the adoption or otherwise to participate inthe proceedings unless an appeal from the termination order is pending or unless otherwise ordered by the court.

RCW 26.33.130 (emphasis added).

In State ex rel. T.W. v. Ohmer, 133 S.W.3d 41 (Mo. 2004), the natural mother appealed an order of termination of her parental rights, after which order the trial court entered an order of adoption favoring the foster parents. The mother did not appeal the order of adoption but sought the extraordinary remedy of a writ of prohibition directing the trial court to vacate the order of adoption while the appeal of the termination order remained pending. The Supreme Court of Missouri granted the writ. Roberto F. v. Department of Child Safety, 237 Ariz. 440, 352 P.3d 909 (2015) also impliedly recognizes that a parent may appeal a termination order without appealing a later adoption order. In both decisions, the reviewing court proceeded with a review of the termination order regardless of an adoption order.

Rachel Smith timely filed the notice of appeal within thirty days of the termination order. RAP 5.2(a). We will address her appeal.

Issue 2: Must Rachel Smith...