In re Welfare of B.H.

In the Matter of the Welfare of B.H. and G.H., Minor Children.

In the Matter of the Welfare of G.H., A Minor Child.

No. 54304-4-II

No. 54314-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

January 20, 2021

(Consolidated)

UNPUBLISHED OPINION

WORSWICK, J. — T.H. appeals a juvenile court's denial of his motion to vacate a default judgment terminating his parental rights to his two children. He argues that the juvenile court abused its discretion and denied him due process. T.H. had failed to appear at a termination hearing, and the juvenile court entered an order of default pending a later evidentiary hearing on termination. T.H. became incarcerated before this termination hearing. While T.H. was still incarcerated, the juvenile court held an evidentiary hearing and terminated T.H.'s parental rights. T.H. later obtained legal representation and moved to vacate the default order and default judgment, but the juvenile court denied his motion. Because the juvenile court did not abuse its discretion in denying T.H.'s motion to vacate and because T.H.'s due process rights were not violated, we affirm.

FACTS

I. BACKGROUND

T.H. is the biological father of B.H., born in 2010, and G.H., born in 2007. In July 2017, while B.H. and G.H. were in the physical care of their father and living in the home of their paternal grandmother, the Department of Children, Youth, and Families placed B.H. and G.H. into protective custody, deeming their living situation to be "completely unsafe." Clerk's Papers (CP) at 90, 53. The children were later found to be dependent and were placed in foster care. Michael Wenndorf, a social service specialist with the Department, was the assigned social worker on the case.

T.H. was released from incarceration in July, 2018.¹ Approximately six months later, in January 2019, the Department filed petitions to terminate T.H.'s parental rights to both B.H. and G.H. The petitions asserted that although T.H. had been incarcerated for significant periods of time during the dependency, such incarceration had not been a barrier to T.H.'s ability to demonstrate that he had a "meaningful role in the child's life during the dependency." CP at 6. However, T.H. had failed to maintain a meaningful role in his children's lives despite opportunities to do so. The petition alleged that T.H.'s deficiencies included "unresolved issues around: substance abuse; mental health; domestic violence victimization; limited parenting skills; lack of stability; lack of involvement with child[ren]; long-term/frequent incarceration; lack of understanding of [children's] needs." CP at 5. During January, T.H. became noncompliant with his probation, and a warrant was issued for his arrest. T.H. also incurred new criminal charges.

In February, Wenndorf personally served T.H. with notices and summonses and petitions for termination of his parental rights. The notices and summonses informed T.H. that a fact-finding hearing would be held on March 22, 2019, that T.H. was required to attend the hearing, and that his absence could result in permanent termination of his parental rights. The notices further instructed T.H. of his parental rights in a termination proceeding, including his right to counsel at public expense. The documents instructed T.H. to contact the Department if he wished to have a lawyer appointed.

Later in February, T.H. notified the Department by text message that he was in chemical dependency treatment and "on blackout," meaning he was unable to use electronic communications or have visitors. CP at 66. On March 12, T.H. sent an email to the Department stating that he was at American Behavioral Health Systems (ABHS), an inpatient treatment facility in Chehalis. He claimed to have special permission to use e-mail communications while at ABHS. T.H. stated that he could not attend the March 22 hearing due to being in treatment. Wenndorf, in what was the first of many attempts to obtain verification of T.H.'s treatment at ABHS, asked T.H. to sign a release of information for verification of participation in the program, but no release was ever signed.

On March 13, Wenndorf called T.H. at an arranged time, but T.H. did not answer. On March 14, Wenndorf spoke with a program supervisor at ABHS, who advised Wenndorf they could not confirm or deny that T.H. was in the facility. When Wenndorf explained that T.H. reported being at ABHS, and had been e-mailing him, the supervisor told Wenndorf that "at no time would a patient be allowed access to a personal cell phone for texting or emailing." CP at 67.

On March 20, T.H. sent Wenndorf a series of text messages stating that T.H. was leaving treatment. T.H. further stated that he was "in the Olympic forest outside of Olympia," and he made comments alluding to suicide. CP at 67. However, on March 23, one day after the scheduled termination hearing, T.H. sent another text stating, "LOL, I'm not going anywhere." CP at 67.

II. MARCH 22 HEARING

Neither T.H. nor the mother of B.H. and G.H. appeared in person or through counsel at the March 22 hearing, but K.H., who is T.H.'s mother, appeared. K.H. told the court that T.H. could not appear because he was in an inpatient treatment program in Chehalis. The Department acknowledged that T.H. had notified Wenndorf that he was in an inpatient treatment program, and that the Department had been unable to confirm this fact because T.H. had not signed a release of information. Although the Department could have proceeded with a default termination against T.H. at that time, it instead asked the court to hold T.H. in default and set a date in the future to give T.H. "an opportunity to get in touch with Mr. Wenndorf and actually provide releases of information to demonstrate that he is in an inpatient facility." CP at 48.

The juvenile court agreed, and entered a default order against T.H. The court then scheduled a hearing for further proceedings on April 12. The court stated:

[T.H.] needs to get in touch and if he wants an attorney appointed . . . he can get that, but then he needs to have the matter heard on the merits if he intends to contest it.

. . . .

. . . if he's not, . . . formally appeared in the case, appearing meaning expressing an intent to contest the case exercising his right to an attorney, something like that, then if the State wishes and they wish to present testimony...he's got three weeks to sort of get into the case if you will.

CP at 48.

The Department said that if T.H. signed a release to "confirm his status," they could "see if [sic] how differently this could go forward," implying that the Department was willing to agree to vacate the default order upon receiving verification of T.H.'s treatment. CP at 49. After the hearing, K.H. contacted T.H. and told him that the proceedings had been held over to April 12.²

On March 23, T.H. sent text messages to Wenndorf inquiring about a guardianship plan and asking if his children could live with K.H. Wenndorf advised T.H. to make an appointment to meet in person or speak on the phone.

On March 28, T.H. sent text messages to Wenndorf telling him that T.H.'s dependency attorney was "dropping him" and asked if that means everything can "start over." CP at 67. Wenndorf advised T.H. in a reply text message that they should meet or speak over the phone, but T.H. declined.

On April 5, T.H. texted Wenndorf that he did not know who his attorney was, and asked about his children. Wenndorf responded that they should meet or speak over the phone, but T.H. declined. On April 7, T.H. texted Wenndorf to call him the next day. Wenndorf called the next day but there was no answer.

On April 9, almost four weeks after the default order was entered, T.H. was arrested on the outstanding warrant issued in January. On April 10, K.H. called Wenndorf and told him that T.H. was in custody at the Clark County Jail and that T.H. would not be able to be present at the upcoming proceedings.

III. APRIL 19 HEARING

On April 19, the juvenile court held an evidentiary hearing regarding the termination of T.H.'s parental rights. At the time, T.H. was incarcerated in Clark County Jail. Wenndorf testified about his contact with T.H. throughout the dependency process. Although K.H. had told Wenndorf that T.H. was in custody, Wenndorf testified only about T.H.'s prior incarceration, stating that T.H. had been released from custody in February. When asked about contact with T.H., Wenndorf testified:

I have been involved with this case since November. [T.H.] has been in consistent contact with the Department, um, he was in custody up until July of 2018. He was in contact with the Department while he was in custody and then he was released from custody [inaudible, court shuffles papers] February of this year and then in February of this year [T.H.'s] contact with the Department has become very inconsistent and intermittent. . . .

CP at 54.

Wenndorf testified that the Department offered services to T.H., and also testified regarding the incarcerated parent factors. Wenndorf described T.H.'s parental deficiencies, including his chronic substance abuse, his involvement with criminal activity, and his inability to maintain a positive, healthy relationship with the children. Wenndorf said that the Department had offered services to T.H. for substance abuse, mental health, parenting skills training, visitation, transportation, and housing, but that T.H.'s contact with the Department was inconsistent and intermittent, and that T.H. stopped complying with services altogether in February. Wenndorf did not notify the juvenile court that T.H. was currently incarcerated.

The juvenile court found that the Department had proven the statutory termination factors by clear, cogent, and convincing evidence and entered default judgments terminating T.H.'s parental rights to B.H. and G.H.

IV. POST TERMINATION

On April 23, T.H. called Wenndorf from the Clark County Jail. During the call, T.H. explained to Wenndorf that he was incarcerated. T.H. asked...