IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO RAP 18.13A-ACCELERATED REVIEW OF JUVENILE DEPENDENCY DISPOSITION ORDERS AND ORDERS TERMINATING PARENTAL RIGHTS AND RAP FORM 15D

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ORDER NO. 25700-A-990

     The Washington State Bar Association having recommended the adoption of the proposed amendments to RAP 18.13A-Accelerated Review of Juvenile Dependency Disposition Orders and Orders Terminating Parental Rights and RAP Form 15D, and the Court having approved the proposed amendments for an expedited publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

     (b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 4th day of November, 2011.

	For the Court Madsen, C.J.
	CHIEF JUSTICE

     PURPOSE: The WSBA suggests changes to the Rules of Appellate Procedure, RAP 18.13A, Accelerated Review of Juvenile Dependency Disposition Orders and Orders Terminating Parental Rights. These changes would require the Department of Social and Health Services (department) or other supervising agency having the right to consent to an adoption to serve a notice of intent to deliver its consent to an adoption on all parties to any termination appeal, and to file a copy in the appellate court in which the appeal is pending. This proposal is an alternative to a proposal from OPD currently under consideration by the Supreme Court Rules Committee.

     The primary purpose of these suggested changes is to protect (a) children's right to stability and permanency, and (b) the appellate courts' responsibility to provide effective review of a termination order while an adoption proceeding is pending. Currently, if an adoption is filed while a termination order is under review, the adoption may be finalized before the termination appeal is decided. If the appeal is reversed after the adoption is finalized, the reversal could require vacation of the adoption, disrupting the permanency established by the adoption. Alternatively, if the appellate court's reversal were held to be moot, then the trial court could uphold the adoption order, undermining the appellate court's termination reversal. Either way, the child's permanency is threatened.

     BACKGROUND

     Adoptions are comprised of a three-part process under the applicable RCWs:

     1) The out-of-home placement or relinquishment phase;

     2) the termination of parental rights phase; and

     3) the granting of the adoption itself, making the child for all legal purposes the issue and heir of the adopting parent.

     There is a difference between adoption orders entered under RCW 13.34 (dependency statute) on one hand, and RCW 26.33 (adoption statute) on the other. Particularly important here, RCW 26.33 contains a notice provision so that parents appealing the involuntary termination of parental rights would be aware of any hearing to finalize the adoption, but RCW 13.34 does not contain this provision. RCW 13.34 does contain a provision that allows parents whose rights have been terminated to seek a stay of a termination order, but the statute lacks a requirement of notice of an adoption proceeding to the appellant parent in a termination appeal.

     Dependency Statute

     In a dependency under RCW 13.34, a child is generally removed from a parent's custody on an involuntary basis. A process then begins that in most cases requires that services are offered to assist parents in remedying the conditions that caused the removal with a goal of trying to reunify the family.

     At some point in time that varies depending on the circumstances, the focus changes from reunification to another permanent plan, and the process to terminate parental rights is initiated. This typically takes from one to two years after a child has entered state care. Unless a parent voluntarily agrees to termination and signs a consent, a fact-finding hearing is held and, if sufficient grounds are found, an order terminating parental rights is entered.

     After the termination order is entered, the department or other supervising agency is granted permanent custody of the child and given the authority to place the child for adoption and to consent to an adoption. In a typical case, that is accomplished within a few months, and the prospective adoptive parents may hire private counsel to help process an adoption. The department or other supervising agency retains custody of the child until the adoption is finalized.

     Adoption Statute

     Adoptions must be filed in Superior Court under RCW 26.33 and a petition for adoption is prepared and filed with all proper documentation, including documents that verify termination of parental rights has occurred in the Juvenile Court pursuant to RCW 13.34. The required reports also verify the adoptive family is a good placement resource for the child, and a hearing on that adoption petition can be set within a few weeks and a Final Decree of Adoption entered by the superior court. There can be a few delays in this process, but typically counsel for the adoptive parents can process the adoption and have the final hearing set and completed within a few weeks of getting documents from the department or private agency working with the department.

     In a RCW 26.33 adoption where there was no dependency, if a parent has not agreed to termination of parental rights (e.g., a step-parent adoption where the mother is retaining her rights but wants her new husband or partner to adopt her child) a petition for termination of the non-consenting parent's parental rights is filed in superior court. Importantly, notice of the filing of a termination petition and of a hearing on that petition must be given to the parent. Also unlike a RCW 13.34 proceeding, no state services are offered or required under RCW 26.33. But RCW 26.33 does mandate that counsel be appointed for a parent who requests it and cannot afford counsel. The statutory grounds for termination of parental rights must be proven by clear, cogent and convincing evidence and the burden of proof is on the petitioning party.

     There can be a number of varied circumstances and fact patterns in RCW 26.33 adoption cases. But once a case gets to the point of a fact finding or trial, it is basically similar to any other civil trial process.

     COMMUNICATION PROBLEMS

     There are roughly 1,000 terminations a year, out of which about 200 are appealed. In some cases, an appeal can last several years. The reversal rate remains very low. There is a question whether reversal of an order terminating parental rights automatically voids a final adoption. It is not entirely clear how the trial courts have handled these situations on remand, and there may be some inconsistency on the issue across the state.

     Communication among all the players throughout these three phases is a big problem. The Attorney General's office has developed a letter with information notifying the case worker when an appeal has been filed. Use of this letter has perhaps been inconsistent in the past, but it is sent out consistently now. But the state or supervising agency does not always know when adoption proceedings have been initiated. Parents appealing termination orders are not entitled to receive notice of an adoption regardless of whether the termination order is on appeal. The prospective adoptive parent may not know that an appeal from a termination order has been filed.

     If the department or other supervising agency does not give its consent, the adoption process cannot go forward. Thus, we believe that staying the consent to adoption in proper cases would prevent the harms that most people are concerned about here: reversing a parental termination after the adoption has been completed, leaving everyone's rights in question, with the child's stability and permanency hanging in the balance.

     To address these concerns, we propose an alternative version to OPD's pending proposal. See WSBA RAP 18.13A Proposal. We make these suggestions after studying the Court of Appeals' draft suggested changes to OPD's proposal, and in consultation with them. Our proposal focuses on the key step in the process, the custodian's consent to the adoption. It covers all types of adoptions, and all types of custodians. It ensures that the crucial actors will have notice of an appeal in all cases. It also leaves the appellate court with discretion to impose or lift a stay at any point it deems appropriate, in response to an appropriate motion.

     [(b) - (j) unchanged]

     (k) Termination Appeals-Notice of Intent to Deliver Consent to Adoption. When an order terminating parental rights is under review, the department of social and health services or supervising agency having the right to consent to an adoption should serve a written notice of its intent to deliver consent to adoption. The notice of intent should specify the intended delivery date, and should be served on all parties to the appeal and on anyone appointed to represent the interests of the child, no fewer than 30 days before the intended delivery date. A copy of the notice of intent and a proof of service should be filed in the appellate court.

     After service of the notice of intent, any party may move the court in which the appeal is pending to stay the order terminating parental rights, but only to the extent it authorized consent to adoption. The department or supervising agency should not deliver its consent to adoption if any party seeks a stay before the intended delivery date, pending a ruling on the motion to stay. The appellate court will hear the motion to stay on an expedited basis. Any stay of enforcement shall terminate upon issuance of the mandate as provided in Rule 12.5, unless otherwise directed by the appellate court.

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