In re JB

197 Wash.App. 430

387 P.3d 1152

In the MATTER OF the WELFARE OF: JB, JR., XX/XX/XX.

In the Matter of the Guardianship of: JB, Jr. D.O.B. XX/XX/XX

No. 47903-6-II

No. 47918-4-II

Court of Appeals of Washington, Division 2.

Filed December 28, 2016

Lise Ellner, Attorney at Law, P.O. Box 2711, Vashon, WA, 98070-2711, for Appellant.

Peter Everett Kay, Office of the Attorney General—Tacoma, 1250 Pacific Ave. Ste. 105, P.O. Box 2317, Tacoma, WA, 98401-2317, for Respondent.

Bjorgen, C.J.¶ 1 Appellant, JB, Sr., appeals the juvenile court's orders terminating the parental rights of JB, Sr. and KB as to JB, Jr. and denying the parents' petition to establish a guardianship for JB, Jr. with his grandparents AB and SB as guardians.

¶ 2 JB, Sr. argues that (1) the juvenile court erroneously considered the child's best interest under RCW 13.34.190(1)(b) before making the prerequisite determination on parental unfitness under RCW 13.34.180 ; (2) substantial evidence does not support the juvenile court's findings of fact related to RCW 13.34.180(1)(f) ; (3) substantial evidence does not support the juvenile court's findings that termination is in the child's best interest; (4) the juvenile court erred by not making a specific finding that a guardianship generally was not in the child's best interest; (5) the juvenile court erred by not considering JB, Jr.'s Indian heritage; (6) the juvenile court violated the separation of powers doctrine by accessing the Judicial Information System; and (7) the juvenile court violated the appearance of fairness doctrine.

¶ 3 In the published portion of this opinion, we hold that in a hybrid termination and guardianship proceeding, where the only contested issues are whether "continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home," RCW 13.34.180(1)(f), and whether a guardianship or termination is in the child's best interest, the juvenile court does not err by considering the proposed guardianship placement or the child's potential adoptive home in determining whether termination factor (f), regarding "early integration," has been established. Even though these considerations implicitly touch on the child's best interest, examination of that evidence is proper at this stage.

¶ 4 In the unpublished portion of this opinion, we hold that the juvenile court did not err in its findings of fact and conclusions of law and that it did not violate the separation of powers or appearance of fairness doctrines. We decline to consider whether the juvenile court erred in failing to consider JB, Jr.'s Indian heritage generally, because this issue was not sufficiently raised to the trial court. RAP 2.5(a).

¶ 5 Accordingly, we affirm.

FACTS

¶ 6 On November 12, 2012, JB, Jr. was born to JB, Sr., his father, and KB, his mother. On September 25, 2013, the Department of Social and Health Services (DSHS) filed a petition for the dependency of JB, Jr. after KB was arrested for shoplifting and the parents were found to be using methamphetamine and heroin. On November 13, the juvenile court entered an order of dependency, removed JB, Jr. from the parents' home, and placed him with KB's relative. In June 2014, KB's relative could no longer take care of JB, Jr., and he was placed in foster care, where he remains.

¶ 7 DSHS subsequently filed for termination of parental rights, alleging that all required services had been offered to the parents, that the parents made little or no attempt to correct their parental deficiencies through the services, and that the parents made little or no attempt to visit their child regularly, among other matters. In response, the parents petitioned the court to establish a guardianship for JB, Jr. with the grandparents, AB and SB, as guardians. DSHS opposed the guardianship. The guardianship and termination matters were consolidated for trial.¹

¶ 8 Upon the conclusion of trial, the juvenile court simultaneously entered a termination order and a guardianship order with findings of fact and conclusions of law. The orders first established that the parents stipulated to five of the required elements to either establish termination or a guardianship. Compare RCW 13.34.180(1)(a)–(e)with RCW 13.36.040(2)(c)(i)–(v). In its termination order, the juvenile court determined that the termination element of RCW 13.34.180(1)(f) —that continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home—was met. It further found that the termination, not the proposed guardianship, was in JB, Jr.'s best interest. In pertinent part, the termination order reads:

[Finding of Fact] IV

There is little likelihood that conditions will be remedied so that the above-named child can be returned to the parents in the near future. [KB] is currently unfit to parent the child.... She has acknowledged that she is not able to care for her child due to her own issues and wants the child to be placed in a guardianship.

[JB, Sr.] is currently unfit to parent the child.... He has acknowledged that he is not able to care for his child due to his own issues and wants the child to be placed in a guardianship.

[Finding of Fact] VII

Continuance of the parent-child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. The Department can prove this element in one of two ways. In re Welfare of R.H , 176 Wash.App. 419, 428, 309 P.3d 620 (2013). First, the Department can prove that prospects for a permanent home exist but the parent-child relationship prevents the child from obtaining that placement. Second, the Department can prove the parent-child relationship has a damaging and destabilizing effect on the child that would negatively impact the child's integration into any permanent and stable placement. A guardianship is material under R.H. as to whether the Department has established this element. The parents have filed a guardianship petition ... naming [AB] and [SB] as proposed guardians, and the court has reviewed RCW 13.36 and the case law on this statute.

....

Children already being in the [grandparents'] home is not the standard. Removing children from a home versus establishing a guardianship is not the same thing. No parent or custodian is perfect, but the home must be safe and stable for children. The court does find that the [parents and grandparents] are family and that they love [JB, Jr.]. Family is important. But, the court is not convinced that the[y] have the skills necessary to care for the child or that they have a home that is appropriate for the child.

....

The child, [JB, Jr.] is a toddler and has been in foster care placements with maternal relatives and then his current placement the majority of his life. He has been in his current placement for a year, and it is safe, stable and appropriate. This placement is meeting his needs and is a potential adoptive home. The Department has proven that prospects for a permanent home exist but that the parent-child relationship prevents the child from obtaining that placement. The only option for a permanent, safe and stable home for the child is by an adoption. That home will not be able to adopt [JB, Jr.] if the parents retain their parental rights.

[Finding of Fact] VIII

An order terminating all parental rights is in the best interests of the minor child. [JB, Jr.] needs a permanent and stable home and his current placement is safe, stable and appropriate. [KB] and [JB, Sr.] have not been able to care for this child and indicated that they wanted [AB and SB] to care for the child. The needs of the child are being met by the current home for the child, and not by the parents.

....

[Conclusion of Law] II

That it would be in the best interest of the minor child, including the child's health and safety, that the parent-child relationship between the above-named child and [KB] mother, and [JB, Sr.], father, be terminated and that the child be placed in the custody of the [DSHS] for placement as best suits the needs of the child.

....

[Conclusion of Law] IV

That an order terminating the parent and child relationship between [KB], mother. [JB, Sr.], father and [JB, Jr.], child, is in the best interests of the child. An order establishing a guardianship under RCW 13.36 is not in the best interests of the child.

Clerk's Papers (CP) at 97-99. The juvenile court's guardianship order substantially mirrored the above findings and conclusions.

¶ 9 JB, Sr. appeals.

ANALYSIS

¶ 10 JB, Sr. argues that the juvenile court erroneously considered the child's best interest under RCW 13.34.190(1)(b) before making the prerequisite determination on parental unfitness under RCW 13.34.180. We disagree.

¶ 11 Under RCW 13.34.180, a party seeking termination of a parent-child relationship must establish the following:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to RCW 13.34.130 ;(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future.

....

(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.

In addition, a court must also find that termination "is in the best interests of the child." RCW 13.34.190(1)(b).

¶ 12 In support of his argument, JB, Sr. cites In re Welfare of A.B. , 168...