In re K.W.

504 P.3d 207

In the MATTER OF the DEPENDENCY OF K.W., a minor child.

No. 99301-7

Supreme Court of Washington.

Argued September 28, 2021

Filed: February 17, 2022

Jennifer M. Winkler, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Petitioner.

Patricia Lee Allen, Office of The Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, Tera Marie Heintz, Office of The Attorney General, 1125 Washington Street Se Box 40100, Olympia, WA, 98504-0001, for Respondent.

Jennie Mayberry Cowan, Attorney at Law, 401 4th Ave. N., Kent, WA, 98032-4429, for Guardian(s) Ad Litem.

D'Adre Beth Cunningham, Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Wa Defender Association.

Nancy Lynn Talner, Antoinette M. Davis, Kendrick Washington, American Civil Liberties Union of WA, P. O. Box 2728, Seattle, WA, 98111-2728, Crystal Andrea Pardue, Ziontz Chestnut, 2101 4th Ave. Ste. 1230, Seattle, WA, 98121-2323, Colleen Shea-Brown, Legal Counsel For Youth and Children, P. O. Box 28629, Seattle, WA, 98118-8629, for Amicus Curiae on behalf of ACLU of WA.

Sade Ada Smith, Smith Law LLC, P. O. Box 2767, Renton, WA, 98056-0767, for Amicus Curiae on behalf of Smith Law, LLC.

Robert S. Chang, Jessica Levin, Melissa R. Lee, Seattle University School of Law, 901 12th Ave., Korematsu Center For Law & Equality, Seattle, WA, 98122-4411, for Amicus Curiae on behalf of Korematsu Center.

Sungah Annie Chung, Legal Counsel For Youth and Children, P. O. Box 28629, Seattle, WA, 98118-8629, for Amicus Curiae on behalf of Legal Counsel for Youth and Children.

Tara Urs, La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of Salina Simpson.

MONTOYA-LEWIS, J.

¶1 The Department of Children, Youth, and Families (Department) and the dependency court system serve to provide protection for children who are in unsafe situations with caregivers who are unable to provide safe and stable parenting. When children have to be removed from their parents, the legislative scheme requires that children be placed with relatives first to reduce the disruption children face upon parental removal. In this case, K.W. was removed from his long-term placement with his relative, "Grandma B.," after she took a one-day trip and did not notify the social worker of the trip. The consequence of this removal resulted in tremendous upheaval in K.W.’s life and violated the requirements of RCW 13.34.130. Though K.W. was legally free, the placement preferences set out in the statute still applied, and the court erred in failing to apply them and failing to place K.W. with relatives. We reverse.

FACTS AND PROCEDURAL HISTORY

A. Factual Background

¶2 K.W. is fortunate to have an extensive support system of relatives and family friends who have been closely involved in his life since he was born in 2013. He is closely bonded with dozens of family members, including his siblings, cousins, and older relatives across generations who all live in the Seattle area. His cousins are like siblings to him, and two women relatives have helped raise him since he was a baby. K.W. and his family are Black. K.W. regularly spent time with his extended family from a young age, attending family gatherings and significant cultural events together, like the annual Martin Luther King Jr. march and rally.

¶3 In 2014, when K.W. was about a year old, his mother reached out to her cousin for help caring for K.W. K.W. refers to this woman as his "grandma," and we refer to her as "Grandma B." Grandma B. welcomed K.W. into her home, and he remained in her care without interruption until December 6, 2019. In 2016, when K.W. was about three and a half years old, a juvenile court found K.W. and his siblings dependent. The dependency court continued K.W.’s placement with Grandma B. at shelter care and disposition in 2016, and repeatedly throughout the next several years of the dependency. Grandma B. has effectively raised K.W. since infancy, with the love and support of many other relatives.

¶4 Grandma B. has extensive experience working with children both professionally and at home. She has decades of experience as a teacher at an early childhood learning center for children experiencing the traumatic effects of homelessness. In addition to raising her own children, she has helped care for other children of friends and family. Grandma B.’s adult son, Mr. W., lived with her for several years and also helped raise K.W. since he was an infant; one of Mr. W.’s children is the same age as K.W., and the two children are very close.

¶5 In 2018, Grandma B. expressed interest in being a permanent placement for K.W. However, in early 2019, she told the Department she could not be a permanent placement for K.W. because she needed to go back to school to get a certificate in order to keep her job. The Department approved continued placement with her.

¶6 K.W.’s great aunt, whom we refer to as "Aunt H.," also helped raise K.W. since he was an infant. Aunt H. worked as a bus driver and as a certified home care aide worker for Seattle and King County's Aging and Disability Services. She also helped relatives and friends manage their finances and Social Security benefits. Like Grandma B., Aunt H. had helped raise children of family members, as well as her own. Aunt H. also expressed interest in being a permanent placement for K.W., but in mid-2019, she informed the Department she could not be a permanent placement for him because of her work schedule, which required early morning driving shifts.

¶7 K.W.’s father's parental rights were terminated in 2018. In March 2019, K.W.’s mother's parental rights were terminated,¹ and K.W. was declared legally free.² The Department began to search for adoptive families for K.W. because no relative could be a permanent placement option at that time. In November 2019, the Department identified two couples as potential adoptive placements. Throughout this process, K.W. continued to be placed with Grandma B.

1. The Department Removes K.W. from Relative Care

¶8 On Friday, December 6, 2019, after putting K.W. on the bus to school, Grandma B. left for a day trip to attend her niece's graduation, about three hours away in northwest Oregon. She planned to return later that evening and arranged for her son, Mr. W., to pick up K.W. Mr. W.’s daughter and K.W. attended the same after-school day care, and Mr. W. was on K.W.’s approved pickup list. They planned for K.W. to stay at Mr. W.’s house until Grandma B. returned later that evening.

¶9 While Grandma B. was driving to Oregon, a department social worker sent her a text message to see if she would be available to meet the following Wednesday. Grandma B. responded, "I am out of town but I will connect with you when I am back next week." 4 Clerk's Papers (CP) at 802. As it was Friday afternoon, Grandma B. intended to get back in touch with the social worker the following Monday. The social worker texted Grandma B. back, "Who is [K.W.] with while you're out of town?" Id. Grandma B. did not respond immediately because she was driving. The social worker did not call Grandma B. or any other relative at that point, but she contacted K.W.’s school. The school staff said K.W. had already gotten on the bus to day care but mentioned that he had a cell phone and tried to call a person labeled "Mom" that day. 4 CP at 795. The social worker went to the day care and spoke with K.W., who said he was staying with Aunt H. for six days. Concerned that Grandma B. might have left K.W. for six days, that Aunt H. might not have childcare while she was at work, and that K.W. might have contact with his mother, the social worker took him into custody.

¶10 The Department and the court-appointed special advocate (CASA) repeated these allegations multiple times in the record over the next several months. Grandma B. consistently stated that she had always planned to return to Washington the same day and pick up K.W. from her son's house, and she submitted an e-mail from her supervisor confirming that she requested one day off work and a receipt showing that she rented a car for one day.

¶11 When Grandma B. learned that K.W. had been taken into department custody on the afternoon of December 6, she immediately drove back to Seattle. She tried to call the social worker to find out where K.W. was but got no answer, and when she saw the missed text message, she responded that she was on her way back. These events all happened within the span of two hours.

¶12 The Department placed K.W. in respite care for the weekend,³ and the following Monday, moved K.W. to the home of a prospective adoptive family.⁴ Aunt H. contacted the Department that Monday to inform them she was able to be a permanent placement for K.W. because her work schedule had changed. She also pointed out that she was a certified home care aide, submitted a background check, and submitted a home study that had been completed in 2013. The Department informed her that K.W. was already placed with a prospective adoptive family. However, within less than one week, that family informed the Department they would not adopt K.W. and asked for him to be removed from their care.

2. K.W.’s First Request To Return to Relative Care

¶13 On December 20, 2019—two weeks after his abrupt removal from his relatives—K.W. filed a motion to be returned to Grandma B. or, in the alternative, to be placed with Aunt H. or Mr. W. K.W. filed a declaration expressing his strong desire to return to his relatives. Grandma B., Aunt H., and Aunt H.’s son submitted declarations in support of returning K.W. to relative placement.

¶14 The court held a hearing on December 24. K.W.’s attorney underscored that K.W. had lived with Grandma B. for almost his entire life before he was suddenly removed from her care. He stressed K.W.’s strong connections with his family; he also argued there were "no true...