In The Matter Of The Dep. Of: A.a., Dob: 2/4/15, Andre Ash v. Dshs
76346-6
| Wash. Ct. App. | Dec 18, 2017Background
- Father Andre Ash was criminally charged and later convicted of second-degree assault of his infant son (fractures). He remained incarcerated throughout the dependency and termination proceedings.
- The Department of Social and Health Services (DSHS) filed a dependency petition; the juvenile court entered dependency and ordered services (domestic violence assessment and mental health counseling).
- Ash requested delay in participating in services "pending the outcome of [his] criminal matter," citing Fifth Amendment concerns; he remained largely disengaged until after conviction and incarceration transfers.
- After conviction and sentencing (31 months), the Department attempted to arrange services (referral for domestic violence assessment, provided provider contact information, contacted counsel when transfers occurred); some providers would not travel to his prison.
- Juvenile court terminated Ash’s parental rights, finding the Department offered necessary services, made reasonable efforts, and considered incarceration-related barriers; Ash appealed claiming Fifth Amendment penalty and insufficient evidence as to services and barriers.
Issues
| Issue | Ash's Argument | Department/Respondent's Argument | Held |
|---|---|---|---|
| Whether Ash was penalized for invoking the Fifth Amendment by being required to engage in services and then terminated for not doing so | Ash: juvenile court relied on his refusal to participate in services (based on Fifth Amendment) and thus penalized him for asserting the privilege | DSHS: Ash never affirmatively invoked the privilege by refusing to answer specific questions; failure to engage in services is not the same as asserting the Fifth Amendment | Court: No Fifth Amendment violation—Ash did not expressly invoke the privilege, so termination did not penalize protected conduct |
| Whether DSHS offered or provided all necessary services after conviction | Ash: DSHS failed to engage him post-conviction and thus did not satisfy RCW 13.34.180(1)(d) | DSHS: social worker met him, provided referrals and contact information, submitted domestic violence referral, and attempted to arrange services after learning of transfer | Court: Substantial evidence supports that DSHS offered/provided required services |
| Whether DSHS made reasonable efforts to provide remedial services to an incarcerated parent | Ash: DSHS unreasonably delayed re-engagement, relied on him to schedule despite jail phone limits, and failed to locate providers after transfer to Shelton | DSHS: waited for counsel’s instruction (consistent with prior delay request), met him promptly when informed, attempted to secure providers and contacted counsel after transfer; Ash never informed DSHS of phone limits or asked for help | Court: DSHS made reasonable efforts; evidence supports trial court findings |
| Whether the juvenile court improperly faulted Ash for incarceration-related barriers in assessing RCW 13.34.180(1)(f) | Ash: Findings show the court penalized him for barriers and used other findings improperly across statutory factors | DSHS: Court separately considered barriers and explicitly addressed access/communication limitations; finding of no improvement addresses different statutory element | Court: Trial court properly considered incarceration barriers as required; findings do not show impermissible penalization |
Key Cases Cited
- Lefkowitz v. Turley, 414 U.S. 70 (1973) (Fifth Amendment privilege may be asserted in civil proceedings where testimony could incriminate)
- Minnesota v. Murphy, 465 U.S. 420 (1984) (Fifth Amendment is not self-executing; must be invoked in response to specific questioning)
- State v. Post, 118 Wn.2d 596 (1992) (discussing exceptions where Fifth Amendment may be self-executing)
- In re Parental Rights to K.M.M., 186 Wn.2d 466 (2016) (standard of proof and due process requirements in parental termination cases)
- In re Dependency of J.C., 130 Wn.2d 418 (1996) (consideration of incarcerated parents and statutory factors)
- In re Welfare of Hall, 99 Wn.2d 842 (1983) (termination may proceed where services would have been futile)