In the Matter of the Parental Rights to: M.A.S., I.L.S. & R.S. (Wash. Ct. App. 2017). · Go Syfert
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In the Matter of the Parental Rights to: M.A.S., I.L.S. and R.S.
34484-3.
Court of Appeals of Washington.
Sep 26, 2017.
Unpublished

FILED SEPTEMBER 26, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill

IN THE COURT OF.APPEALS OF TH~ STATE OF WASHINGTON DIVISION THREE In re the Parental Rights to ) ) No. 34484-3-111 M.A.S. ) (consolidated with No. 34486-0-111, ) No. 34485-1-111) ) ) In re the Parental Rights to ) UNPUBLISHED OPINION ) I.L.S. ) ) ) In re the Parental Rights to ) ) R.S. ) SIDDOWAY, J. - The petitioning m?ther seeks to revoke her April 2014 relinquishment of parental rights to three children, based on a claim of fraud first asserted almost two years later. RCW 26.33.160 foreclos~s relief. We affirm the dismissal of her petitions. No. 34484-3-111 (consolidated with No. 34486-0-lllr No. 34485-1-111) In re Parental Rights to MA.S. I FACTS AND PROCEDURALIBACKGROUND i The petitioner is the biological mother of thrf e children whose future is at issue in this appeal. In July 20 12, the Department of Social Iand Health Services (Department) filed dependency proceedings as to all three childrep. At the time, the oldest child, a I daughter, was seven, the middle child, also a daughfer, was three and a half, and the I youngest, a son, was two. The juvenile court enter9d an order of dependency in October ! 2012. i I Over a year later, in December 2013, the D+artment filed petitions to terminate I the mother's and father's parental rights. By that tire, the children were ages eight and a half, nearly five, and three. All three children were] residing in the same foster home, and ! their permanency plan called for adoption by the fofter parents. Almost five months later, on April 24, 2014! the mother, represented by counsel, relinquished her rights to all three children and confented to their adoption. The children's father did as well. The consent docume+s that the mother signed three times-one for each child-included strongly-wor4ed acknowledgments of the permanent effect of her action and that her decisio1 was "an extremely important one" that would provide the basis for an order "permaneptly terminating all of [her] parental I rights to the child," meaning that it would "take rrdm [her] all legal rights and obligations I I with respect to the child." Clerk's Papers (CP) at ~7, 116, 209. I No. 34484-3-111 (consolidated with No. 34486-0-111· No. 34485-1-111) In re Parental Rights to MA.S. I

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The documents spelled out her extremely li+ted opportunity to change her mind, stating: I 7. This Consent is given subject to the a proval of the Superior Court of the State of Washington and it is to have no force or effect until approved by the Court and will not b presented to the Court until a minimum of forty-eight (48) hours fter it is signed .... 8. I understand that this Consent is revo4able by me at any time prior to approval by the Court. I also unde~~tand that if I wish to revoke my Consent, I must revoke it in one of the following ways: I i) Written revocation may be delivered or mailed to the Clerk of the Court before approval of the Consent by the Court. i ii) [Wr]itten revocation may be d!livered or mailed to the Clerk of the Court after approval, bu only if it is delivered or mailed within forty-eight (48) ours after a prior notice of revocation that was given with'n forty-eight (48) hours after the birth of the child. The priqr notice of revocation must be given to the agency or person }ho sought the Consent and may be either oral or written. I I !

10. I understand that after this Consent is a not revocable exce t for fraud or dur ss practiced by the person, department or agency requesting the onsent or for lack of mental competency at the time the Consent no circumstances later than one Court. I CP at 27-28, 116-17, 209-10 (emphasis added). Fifally, the three documents signed by ' the mother stated that her consent was "given freelt, voluntarily and with full I knowledge of the consequences and the Consent is /not the result of fraud or duress, nor fI am I acting under the influence of anyone." CP at 8, 117, 210. Approximately two No. 34484-3-111 (consolidated with No. 34486-0-lllf No. 34485-1-111) In re Parental Rights to MA.S. !

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I I

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weeks after the mother executed her consents, the j1venile court signed orders I terminating the mother's parental rights to the threelchildren. I The children's adoption was delayed by a coptract dispute between the I Department and a home study evaluator and therea,er by a petition for nonparental custody filed by the children's maternal grandmothtr. See In re Custody of MS., I.S., i and R.S., No. 33132-6-111, slip op. at pp. 3-4 (Washl Ct. App. June 14, 2016) I (unpublished), https://www.courts.wa.gov/opinions pdf/331326.unp.pdf The trial court dismissed the grandmother's petition and this court affirmed the dismissal in June 2016. I See id. An untimely petition for discretionary revieiw was dismissed by the Washington ! Supreme Court in February of this year. In re Cust~dy of MS., 187 Wn.2d 1010 (2017). I Meanwhile, in March 2016, the mother, actibg prose, filed the petitions to ! reinstate her parental rights to the three children th1t are the subject matter of this appeal. I She employed a juvenile court petition form that is ~o be used when a child seeks reinstatement of terminated parental rights under RFW 13 .34.215 . 1 She asserted that she was requesting reinstatement of her parental rights ('because my civil rights were violated within my 4th and 14th [A ]mendments, also l was talsely accused of doing I I I I i I

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I No. 34484-3-111 (consolidated with No. 34486-0-llil No. 34485-1-111) In re Parental Rights to MA.S. f I I methamphetamines and threatened into signing ovet my parental rights." CP at 37, 131, ! 219. Both the Department and the children's lawyer opposed the petitions. At a hearing on the petitions that took place jn May 2016, the mother appeared pro se. The only information she offered that appeared elated to the timing of her petitions was her report to the court that she had found out " cently" that the biological father of the children had been allowed to have contact with hem a year earlier, "even after signing over his rights." Report of Proceedings (1) I at 6. She told the court that she, too, "really want[ ed] to see my kids and have contaft with them" but the foster parents- the prospective adoptive parents-"told [her] no." fd. Invited to elaborate on the basis for her F ou1h and Fourteenth Amendment claims, I the mother told the court: I When I met with [the caseworker] and [my ttomey] on April 24th, they told me that if I came to court it would be a losed adoption and I would never see my kids again. But if I signed ov my rights they would make it an open adoption, and I, after a year, I wo ld be able to have contact with my kids again. 1

i RP at 7. And even though she claimed to have bee~ given these assurances, she claimed to have also tried to revoke her consent immediate!~ but was told by her lawyer that she I could not: ! i When I signed over my rights, I called the v~ry next morning saying I didn't want to sign over my rights, and my ~ttorney at the time told me it was too late.

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No. 34484-3-111 (consolidated with No. 34486-0-111 No. 34485-1-111) In re Parental Rights to MA.S.

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RP at 5. These representations were unsupported bt any sworn declaration of the mother, i let alone any declaration from her former lawyer or lthe Department lawyer who allegedly misled her. I

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After giving the mother an opportunity to exf lain why she believed she was entitled to revoke her relinquishment of rights, the trial court stated it did not see any remedy available to her and orally denied her petititns. In written findings and an order entered thereafter, the trial court found that the motµer had provided no factual basis to

support her claims of fraud or duress, that the time ,o request a reinstatement under RCW i 26 .3 3.160 had long passed, and that reinstatement tas not in the children's best interest.

The mother appeals.

ANALYSIS

Represented by counsel in this appeal, the rnpther makes two arguments: first, that it was error for the trial court to fail to appoint co~sel to represent her in the proceedings ! below, and second, that she was entitled to rely on the more forgiving limitations periods I I provided by RCW 4.16.080(4) and CR 60(b) rathetjthan being foreclosed by the one-year limitation period provided by RCW 26.33.160. Wq reject both arguments. [2]

I I No. 34484-3-III (consolidated with No. 34486-0-IIIt No. 34485-1-III) In re Parental Rights to MA.S. r I I United States Constitution, see In re Dependency o G.G., 185 Wn. App. 813,826,344

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P .3d 234 (2015), the mother argues that this assignrent of error implicates an issue of constitutional dimension. She treats it as appealablf even though not raised in the trial I court. See RAP 2.5(a)(3) (exception to error preset,ation requirement for manifest errors I affecting a constitutional right).

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No. 34484-3-III (consolidated with No. 34486-0-III~ No. 34485-1-III) In re Parental Rights to MA.S. ·

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In this case, however, the three children wer4 not alleged to be dependent at any !

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No. 34484-3-111 (consolidated with No. 34486-0-111~ No. 34485-1-111) In re Parental Rights to MA.S. i !

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I I No. 34484-3-111 (consolidated with No. 34486-0-11~; No. 34485-1-111) In re Parental Rights to MA.S. ·

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I however, applying CR 60(b) to extend the time for tevoking a relinquishment of parental I I

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1 RCW 13.34.215 authorizes a petition by"~] child ... to reinstate the previously terminated parental rights of his or her parent" undfr certain circumstances. It has no application in this case.
2 The children's attorney argues that the mof er's arguments are meritless and warrant sanctions. A commissioner of our court or ered that counsel be appointed for the mother in this appeal. We recognize the challenge sometimes faced by counsel appointed to represent parents in dependency and t rmination proceedings. We find nothing approaching sanctionable conduct by the n}other's attorney. I I Appointment of co~nsel The mother argues for the first time on appef that her statutory and constitutional rights were violated when the trial court failed to a~oint counsel to represent her in the I proceedings below. She argues that although she c~ose to enter into a voluntary I I termination, because it was the Department that init~ated the dependency and termination I proceedings, her petitions were a stage of"' a procCfding in which a child is alleged to be dependent,"' which entitles her to counsel. Br. of tppellant at 9 (quoting RCW 13.34.090(2). I RCW 13.34.090(2) provides: ! At all stages of a proceeding in which a chil is alleged to be dependent, the child's parent, guardian, or legal custodi n has the right to be represented by counsel, and if indigent, to h ve counsel appointed for him or her by the court. Unless waived in court, ounsel shall be provided to the child's parent, guardian, or legal custodi n, if such person (a) has appeared in the proceeding or requested the ourt to appoint counsel and (b) is financially unable to obtain counsel be ause of indigency. I Because this right to counsel has been held by Wasrington courts to be rooted in the due process clause of the Washington Constitution and re Fourteenth Amendment to the stage of the mother's pursuit of her petitions. The t~rmination proceedings had been ! I completed nearly two years earlier. RCW 13.34.o9p does not apply and the mother i identifies no other authority supporting a parent's ri~ht to counsel in an action to revoke a I relinquishment of parental rights. We will not consjder this unpreserved error further. I ! i RCW 26.33.160 asia bar The mother also challenges the trial court's 4etermination that RCW 26.33.160 barred her request for relief, arguing that as a victi~ of fraud she was entitled to proceed I I under the general statute oflimitations applicable tq civil fraud, RCW 4.16.080(4), or I under CR 60(b ). She contends her petitions were ti~ely under both. I RCW 26.33.160(3), entitled "Consent to adtjption-When revocable-Procedure," ! requires that a parent provide written consent to he~ child's adoption, dictates matters that I must be disclosed in a valid consent, and recognizer a short-term, limited right of a parent to revoke that consent. Relevant here, it states: Except as provided in subsections (2)(b) an~ (4)(h) of this section and in this subsection, a consent to adoption may nt·t be revoked after it has been approved by the court. Within one year afte approval, a consent may be revoked for fraud or duress practiced by the erson, department, or agency requesting the consent, or for lack of mental competency on the part of the j person giving the consent at the time the cotjsent was given. A written consent to adoption may not be revoked mo~e than one year after it is approved by the court. I Neither subsections (2)(b) or (4)(h) of the statute 3 avply to the mother in this case. I Under RCW 4.16.080(4), a party has three Yfars to commence "[a]n action for i relief upon the ground of fraud, the cause of action tn such case not to be deemed to have I accrued until the discovery by the aggrieved party 1f the facts constituting the fraud." t' But that statute is qualified by an earlier provision f chapter 4.16 RCW, RCW 4.16.005, which states, "Except as otherwise provided in this hapter, and except when in special I cases a different limitation is prescribed by a statutr not contained in this chapter, I I actions can only be commenced within the periods provided in this chapter after the cause I of action has accrued." RCW 26.33.160 imposes s*ch a different limitation in the special I. case of fraud or duress practiced in procuring a reli*quishment of parental rights. I The mother also makes a "public policy" arfment for applying the general civil I statute of limitations that fails based on the plain lafguage ofRCW 4.16.005. We also I adopt Division One's explanation for rejecting the $ame argument in an unpublished I ! 2000 decision: ' [W]hatever merit [the mother's] policy argtent may have is counterbalanced by an argument at least eq Uy compelling-the purpose of the adoption statutes is to provide for the est interests of the child. This requires finality in the adoption process. If the discovery rule applied, such finality could never be achieved. An allegaf on of recently discovered fraud could be brought at any time until the hild became an adult. Given I ! I
3 Those subsections of the statute deal with ~enewal of a revocation that was given within 48 hours after the birth of a child and with sbecial revocation rights applicable to Indian children under federal law. I I No. 34484-3-III (consolidated with No. 34486-0-III~ No. 34485-1-III) In re Parental Rights to MA.S. I I the emotional cauldron of post-relinquishm~t regret, such allegations would likely be frequent. The legislature ha made the policy choice in favor of finality. It is not for the court to su stitute its judgment for that of the legislature. 1 i I In re Dependency ofD.T., noted at 100 Wn. App. 1?31, 2000 WL 426459, at *3 (2000). I For similar reasons, we find that CR 60(b) c4nnot apply. Under CR 8l(a), the i Superior Court Civil Rules apply to proceedings "[ tj]xcept where inconsistent with rules I or statutes applicable to special proceedings." "[S]~ecial proceedings" within the I meaning of the rule have been described as "those ~roceedings created or completely I transformed by the legislature," including "actions fnknown to common law ... as well I as those where the legislature has exercised its poli{e power and entirely changed the I remedies available." Putman v. Wenatchee Valley tfed. Ctr., P.S., 166 Wn.2d 974, 982, ! I 216 P.3d 374 (2009). The parties do not address Cf 8l(a) or whether proceedings to I terminate parental rights and for adoption are specifl proceedings, so we do not have the ht our state supreme court in 1895, i benefit of briefing on this issue. But as observed i "Adoption was not known to the common law, and [is a matter purely statutory. Courts i I have passed upon this question frequently, and hav~ adhered with much strictness to this I I rule." In re Renton's Estate, 10 Wash. 533,542, 39 P. 145 (1895) (citing cases). Our i I review of the handful of Washington decisions that have applied CR 60(b) to motions in I the parental rights relinquishment or adoption cont~xts reveals that they have done so . I where the rule's application would not be inconsistfnt with applicable statutes. Here, rights to a "reasonable time" beyond one year woul~ be inconsistent with RCW 26.33.160. We hold that CR 60(b) does not apply. Affirmed. A majority of the panel has determined this qpinion will not be printed in the i Washington Appellate Reports, but it will be filed tpr public record pursuant to RCW I 2.06.040. WE CONCUR: Pennell, J.