In re the Termination of: E. R. D., 33762-6

Background

Mother adopted child; child placed in foster care after findings of abuse/neglect and an agreed dependency (March 2013). Mother had long-standing substance abuse and mental-health issues and inconsistent engagement with services.
DSHS filed a petition to terminate parental rights (July 2014). Social worker Maura Brown testified she personally served the mother with notice and summons at a visitation on August 21, 2014 and told her of an October 23, 2014 hearing.
At the October 23, 2014 hearing the mother did not appear; dependency attorney Cathy Busha attended and said she was "willing to represent" the mother but did not assert an appearance or that she had been appointed for the termination proceeding. The court continued dates; an order of default was entered November 5, 2014.
Trial on the termination petition proceeded December 11, 2014 in the mother’s absence; the court entered an order terminating parental rights on December 18, 2014. Mother moved to vacate the default and judgment in March 2015; evidentiary hearing held July 30, 2015. The trial court denied the motion (order entered Oct. 7, 2015).
Mother appealed from the order denying vacation of the default. Majority reviewed only the denial of the CR 60/CR 55 motion for abuse of discretion and affirmed; dissent argued Busha had appeared for the mother and the default was void for lack of notice to counsel, so it should have been vacated.

Issues

Issue	Mother’s Argument	DSHS’s Argument	Held
Whether the default and termination should be vacated for lack of proper service/notice	Mother: she was not properly served and therefore did not have notice of the hearing	DSHS: social worker served mother; proof and case notes support service	Majority: substantial evidence supports service; no abuse of discretion denying vacatur
Whether Busha ‘‘appeared’’ for the mother at Oct. 23 hearing such that counsel and notice were required before default	Mother/Dissent: Busha’s statements that she could/was "willing to represent" the mother amounted to an appearance; thus counsel should have been treated as appearing and given notice	DSHS/Majority: Busha never affirmatively appeared or was appointed for the termination proceeding; mother did not intend Busha to represent her then	Majority: mother did not appear through Busha; finding supported; Dissent: would find an appearance and reverse
Whether the mother’s homelessness and substance abuse amounted to excusable neglect justifying vacatur	Mother: homelessness, lack of phone/mail and recent sobriety justify setting aside default	DSHS: mother had long-standing service offers and instability not excusable; child’s need for permanency weighs against vacatur	Majority: trial court reasonably concluded neglect not excusable given history and child’s interests; no abuse of discretion
Scope of appellate review — whether appeal may challenge underlying default/termination vs. only denial of motion to vacate	Mother: may challenge both the denial and the underlying default/order; constitutional errors may be raised	DSHS: appeal limited to order denying motion to vacate; earlier challenges untimely	Majority: only two assignments (denial of motion and one finding) are properly before court; review limited to whether trial court abused discretion in denying vacatur; affirmed

Key Cases Cited

In re Dependency of JMR, 160 Wn. App. 929 (2011) (appeal from denial of CR 60 motion limited to propriety of denial)
In re Parenting & Support of C.T., 193 Wn. App. 427 (2016) (appellate review of denial of motion to vacate is confined to the denial, not underlying merits)
In re Welfare of S.I., 184 Wn. App. 531 (2014) (appearance in dependency does not automatically carry over into termination proceedings)
In re Dependency of C.R.B., 62 Wn. App. 608 (1991) (parental absence from courtroom does not bar termination; child’s interest in permanency significant)
In re Welfare of MG., 148 Wn. App. 781 (2009) (review of denial of CR 60 motion is for abuse of discretion)
Griggs v. Averbeck Realty, 92 Wn.2d 576 (1979) (default judgments disfavored; controversies should be decided on merits)
Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights implicates fundamental liberty interests)