In thе Matter of the Welfare of DENNIS FERGUSON. THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. FRANK FERGUSON, Appellant.
No. 4471-8-III
Division Three
August 24, 1982
865
Arthur R. Eggers, Prosecuting Attorney, and M. Scott Wolfram, Deputy, for respondent.
Reese, Baffney, Schrag & Siegel, P.S., by Larry Siegel, as guardian ad litem.
DSHS initiated termination of Mr. and Mrs. Ferguson‘s parental rights to Dawn, approximately 12 years of age, and Dennis, approximately 9 years of age.1 The record indicates the following: Mr. Williams of DSHS first contacted the Ferguson family on November 6, 1979, because of Dennis’ behavior in school. Mr. Williams’ second contact with the family occurred on December 6, 1979, when Dawn‘s schoolteacher called DSHS concerning alleged abuse of Dawn. DSHS placed the children in shelter care because of the abuse complaint and because the Ferguson home was unclean. The Fergusons cleaned their home and the children were returned after 5 days.
DSHS provided counseling and homemaker services to help the Fergusons become a stable family unit. Mr. Williams testified Mr. Ferguson was uncooperative with the homemaker; Mr. Ferguson testified he used the homemaker services as much аs possible, but believed it interfered with his school schedule. Mr. Williams testified the Fergusons attended counseling from mid-December until mid-February 1980.
On February 8, 1980, both children were removed from the home because of allegations Dawn had been sexually abused by Mr. Ferguson. There was no allegation of abuse
Dennis was placed in shelter care and, оn March 17, 1980, found dependent based on allegations of abuse and neglect. Mrs. Ferguson was ordered to obtain counseling, change her circle of friends and clean up the family home. Because Mr. Ferguson was absent, he was not mentioned. He returned to the state May 5, 1980, was found guilty of taking indecent liberties with Dawn and incarcerated until early January 1981.
Mrs. Ferguson failed to comрly with the court‘s orders. Finally, after she left the state in late November, DSHS filed petitions to terminate the parental rights of both Mr. and Mrs. Ferguson. The permanent deprivation hearing was held February 17, 1981, approximately 1 month after Mr. Ferguson‘s release from jail.
At the deprivation hearing, Mr. Williams testified concerning emotional abuse and neglect in the Ferguson home, but he did not personаlly know of any incidents where Mr. Ferguson had physically abused Dennis. Dennis testified, in chambers, to one incident of excessive discipline, but also stated he thought his father was “A-okay” and said he loved him. Mrs. Ferguson also related one incident which she witnessed in Illinois where Mr. Ferguson raised a welt on Dennis’ stomach with a belt; she testified Mr. Ferguson was spanking Dennis on the buttocks and Dennis turned over quickly. Mr. Ferguson denied both incidents, but admitted he sometimes lost his temper and struck too hard. These two incidents, combined with the condition of the house, provided sufficient evidence to conclude Dennis and Dawn were abused, neglected and therefore dependent.
The difficult question is whether clear, cogent and convincing evidence was extant concerning the likelihood Mr. Fergusоn‘s parental skills would not improve if provided with “necessary services, reasonably available, capable of correcting the parental deficiencies...” See
The United States Supreme Court recently stated:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
(Footnote omitted.) Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Noting how final and irrevocable a termination of parental rights is, the Court held that parental rights may not be terminated absent clear, cogent and convincing evidence showing “permanent neglect“, i.e., “a judicial determination that the pаrents are unfit to raise their own children.” Santosky v. Kramer, at 760.
Our statutory scheme and case authority parallel the United States Supreme Court‘s position; we have, since In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973), required clear, cogent and convincing evidence of past abuse and future unfitness prior to termination of parental rights. In re Aschauer, 93 Wn.2d 689, 611 P.2d 1245 (1980); In re Becker, 87 Wn.2d 470, 553 P.2d 1339 (1976); In re Day, 189 Wash. 368, 65 P.2d 1049 (1937); In re Tarango, 23 Wn. App. 126, 129-30, 595 P.2d 552 (1979).4
At the close of all testimony, the court terminated the parental rights of both parents to both children. Noting the services that had been provided were limited because of Mr. Ferguson‘s incarceration, the court believed they were all that could reasonably be offered. The court also found “there‘s little likelihood that the conditions will be remedied so the children can be returned to the parents in the near future. Insofar as Mr. Ferguson is concerned, I am really speaking of physical abuse of the child Dennis.” Based on both statutory analysis and applicable case law, we believe the trial court was too hasty.
The language of
Moreover, Mr. Williams testified that Mr. Ferguson, while incarcerated, asked to meet with him on four or five occasions to discuss his future relationship with Dennis. Mr. Ferguson was allowed to see his son once and sent a birthday and Christmas present to him. Finally, Mr. Ferguson testified he wanted to learn new discipline methods, was willing to attend a mental health program, had completed a job training program, and wished for Dennis to remain a dependent for a reasonablе time until he could “partake of the services that are offered that would make me a good parent.”
Without a showing that Mr. Ferguson is incapable of changing after receiving adequate help from the State, we cannot find it “highly probable” he will not learn to be a parent to Dennis. In re Sego, supra. Here, there is no evidence the offer would be futile and we are loath to affirm thе termination of Mr. Ferguson‘s parental rights without such evidence. We hold that neither
We reverse with orders that Dennis be maintained in foster care while DSHS provides “reasonably available” services to help Mr. Ferguson correct “his parental deficiencies“.
ROE, A.C.J., concurs.
GREEN, J. (dissenting)—I am compelled to dissent. Dennis had three sets of foster parents by the time of trial. He has been in dependent status for 2 1/2 years. Now we ask
The record shows a history of abuse of both children—reports of bruises on their buttocks, legs, welts on Dennis’ stomach—all variously explained away by Mr. Ferguson. The Department became involved with the family when complaints were received by the school of bruises on Dawn and disciplinary problems with Dennis. The home was reported as being in “deplorable condition with dirt, filth.”5 The children were without proper clothes and were not eating “as well аs they could.” Mr. Ferguson refused to cooperate with the homemaker services which were offered, and the condition in the home remained unchanged. He thought the home was adequate. Counseling sessions were set up but were interrupted, not through the fault of the Department, but because of another complaint—this time for sexual abuse of Dawn, a process which had been ongoing since she was 2 1/2 to 3 years of age. Mr. Ferguson then left the jurisdiction. He eventually returned, was convicted of indecent liberties with Dawn, and was incarcerated. He
Despite Mr. Ferguson‘s denials and his contention the services offered by the Department were inadequate, the court found he physicаlly abused both children and the services offered were reasonable in light of his incarceration. As the majority recognizes, the pattern of abusive and violent behavior here was sufficient evidence that Mr. Ferguson was an unfit parent.6 Nevertheless, it holds Mr. Ferguson should be given additional time to demonstrate he can be a fit parent. It is not suggested what services should be providеd or why postponing disposition for an additional 6 months will correct parenting deficiencies, which apparently have existed throughout the children‘s lives, and which Mr. Ferguson refuses to recognize exist. In my opinion, the evidence sufficiently shows the futility of offering further services to him. The majority‘s holding incorrectly places Mr. Ferguson‘s desires over Dennis’ welfare.
In In re Aschauer, supra, the court addressed facts similar to this case. There the Court of Appeals, although recognizing the mother had emotional problems, reversed a trial court‘s termination of her parental rights to give her further opportunity to demonstrate her parenting caрabilities. The Supreme Court reversed the Court of Appeals, stating at pages 694-95:
To postpone [the children‘s] access to stability in the hope that the mother will be able to correct deep-seated emotional problems and assume the obligations of parenthood, when all the evidence shows that she lacks the capacity to do so, is to ignore the desperate needs of the children.
In J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child 43 (1973), the authors criticize extending the period of uncertainty for a child in making what are often difficult decisions in child custody matters:
The procedures of child placement are not designed to assure a prompt final decision. The process is characterized by extended periods of uncertainty caused by overcautious and overworked administrative agencies; by courts with overcrowded dockets, extended and oft-postponed hearings; and by judges who are inclined to procrastinate before rendering their decisions at trial or on appeal.
Whatever the cause of the time-taking, the costs as well as the benefits of the delay to the child must be weighed. Our guideline would allow for no more delay than that required for reasoned judgment. By reasoned judgment we do not mean certainty of judgment. We mean no more than the most reasonable judgment that can be made within the time available—measured to accord with the child‘s sense of time. Therefore, to avoid irreparable psychological injury, placement, whenever in dispute, must be treatеd as the emergency that it is for the child.*
*Three months may not be a long time for an adult decisionmaker. For a young child, it may be forever.
The trial court here considered the effect of leaving custody of Dennis with either or both his parents, retaining him in dependent status for a longer period, separating him from his sister, and his potential for being adopted. In light of all those considerаtions, the court found it was in Dennis’ best interest that Mr. and Mrs. Ferguson‘s parental rights be terminated and that Dennis be placed in a foster home with his sister or in a situation where he could maintain a reasonably normal brother-sister relationship with her. The court further ordered Dennis’ status be reviewed every 6 months until he was adopted. The court‘s resolution was based on all the facts and was designed tо bring emotional stability into Dennis’ life. My colleagues’ decision undoes this resolution based on a restrictive interpretation of the statute.
While our statutes and judicial opinions may set forth the goal, the criteria for establishing the best interests for the welfare of the child are conspicuous by their absence. The complexity of the cases and the need for careful individual treatment militates against the mandatory consideration of certain specified factors in every case. . . . [T]he courts have broad discretion and are allowed considerable flexibility to receive and evaluate all relevant evidence in reaching a decision that recognizes both the welfare of the child and parental rights.
. . .
. . . As an appellаte court, we are constitutionally unable to substitute our findings for those of the trial court in any case. . . . This is particularly true in child deprivation cases . . .
. . . As the State Supreme Court has expressed it, “we have often noted what we think is a realistic and rational appellate policy of placing very strong reliance on trial court determinations of what course of actiоn will be in the best interests of the child.”
In re Schulz, supra at 139-41.
I conclude there was substantial evidence here showing that the necessity for permanent deprivation was highly probable and would affirm the trial court‘s resolution of the difficult issues presented in this case.
Reconsideration denied September 15, 1982.
Review granted by Supreme Court December 3, 1982.