IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 18.13A-ACCELERATED REVIEW OF JUVENILE DEPENDENCY DISPOSITION ORDERS TERMINATING PARENTAL RIGHTS

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ORDER NO. 25700-A-977

     The Office of Public Defense having recommended the adoption of the proposed amendments to RAP 18.13A-Accelerated Review of Juvenile Dependency Disposition Orders Terminating Parental Rights, and the Court having approved the proposed amendments for expedited publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below hereto 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 April 30, 2011. 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 3rd day of February, 2011.

	For the Court
	Madsen, C.J.
	CHIEF JUSTICE

     The purpose of this suggested change is to eliminate jurisdictional confusion and to protect the appellate courts' ability to provide effective review of a termination order while adoption proceedings are 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 of the termination could require the adoption to be vacated, disrupting the permanency established by the adoption. Alternatively, if the appellate court's reversal could be characterized as moot, the trial court could attempt to uphold the prematurely entered adoption order. This presents an undesirable jurisdictional conflict between the two actions that is causing great uncertainty in the judicial system.

     This problematic situation has been realized at least twice last year alone. See In re A.B., 168 Wn.2d 908 (2010); In re B.R., 239 P.3d 1120 (2010); see in addition In re J.M., 130 Wn. App. 912 (2005). In these cases, the termination order was reversed after the adoption had been finalized, leaving the parties to deal with the prospect of vacating a final adoption order in light of the reversal. We have learned that adoption proceedings have been filed and are pending in at least five other termination appeals up for review last year. More cases like these likely exist, but remain unknown because parents in a termination appeal are not parties to the adoption and therefore do not receive notice of those proceedings.

     The notice requirement in OPD's proposal would inform the appellate court and the parties to a termination appeal of any pending adoption proceedings and provide the opportunity to stay a termination order to the extent that it is used to authorize a final adoption. The stay procedure would follow the existing supersedeas procedure under RAP 8.1.

     Notice of the adoption is the critical element in these cases in order to make possible a request for a stay of the termination order to prevent the adoption from being finalized. The State or supervising agency is the most appropriate party to provide notice because it has the authority to consent to the adoption, pursuant to the termination order.

     This suggested rule change protects the child's interest in permanency with his or her parents if they are fit, and if not, with the adoptive parents. The notice and stay procedure would not interfere with State's ability to set up the filing of an adoption, or prevent the child from placement with the adoptive parents during the pendency of the adoption, as is commonly the case. It would merely prevent the State from consenting the finalization of the adoption before the termination appeals has been decided. Other states have similarly adopted court rules to require a limited stay of enforcement of the termination order until the appeal is decided. See ILCS S.Ct. Rule 305 (Illinois); and see F. R. App. P. Rule 9.146 (Florida).

     (k) Termination Appeals - Notice of Adoption Proceedings. (1) When an order terminating parental rights is under review in an appellate court, notice of the initiation of any adoption proceedings, under RCW 26.33, must be filed with the appellate court by the State or supervising agency that has been granted custody pursuant to the termination order. The State or supervising agency shall file notice and proof of service on all parties to the appeal within 30 days from the initiation of adoption proceedings or 30 days from the filing of the notice of appeal, whichever is later, but in all cases before entry of a final adoption order.

     (2) The appellate court shall, upon its own motion, or motion by any party to the appeal, determine whether to stay enforcement of the termination order to the extent that it authorizes the custodian to consent to entry of a final adoption order. 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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