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NO. 17377-1-III
COURT OF APPEALS, DIVISION III OF THE STATE OF WASHINGTON
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IN RE THE DEPENDENCY/ADOPTION OF
DRUCILLIA GAWITH,
STATE OF WASHINGTON,
_____________________________________________ BRIEF OF AMICUS CURIAE*
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Amicus represents Jessica M. H. (DOB 12/27/88), Bryon L. H. (DOB 3/5/90), and Bradley M. (DOB 1/18/93), hereinafter "siblings". All three are in the legal custody of their maternal grandmother, Appellant Drusillia Gawith. Jessica and Bryon are half-siblings to the child, Elizabeth M., and Bradley is a full sibling. The state obligation to protect children does not, after termination of parental rights, necessarily include severing the child's familial ties. The relationships between siblings, and between a child and other relatives, is protected by constitution, caselaw and statute. The grandmother and siblings should be allowed to intervene and present evidence for placement of the child with them.1 All things being equal, the state has no legitimate place to object to the child's placement with the grandmother and the siblings. Its current adversarial stance toward the grandmother and the siblings is evidence it has lost sight of its proper role in the matter.
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| I. POLICY CONSIDERATIONS UNDERLYING
DEPENDENCY AND
TERMINATION SUPPORT THE SIBLINGS' RIGHTS TO A FAMILY RELATIONSHIP WITH THEIR SISTER. It appears to be an unwritten assumption that the purpose of a termination case is to destroy not only a child's bonds with one or both parents, RCW 13.34.200(1), but with all her other relatives as well, even those within the close consanguinity listed in RCW 74.15.020(2)(a). This misguided approach is in contrast to the more limited goals of the dependency and termination statutes. It is thus critical that the purposes of a dependency and/or termination action be continually before the court and the parties. Though the present case is a termination, one must look at the purposes and limitations of a dependency, which is the foundation of a termination. A dependency is the "helping" intervention of the government, Krause v. Catholic Community Services, 47 Wn.App. 734, 744, 737 P.2d 280 (1987), when "a child's right to conditions of basic nurture, health, or safety is jeopardized." RCW 13.34.020 (emphasis added). Dependency is not meant to provide optimal parents for a child. Dependency is not meant to
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| provide average parents to a child. Rather, the state is justified
in intervening in a family's life only when and so long as the care
provided by the family unit falls below basic nurture, basic health or
basic safety. (See also, RCW 26.44.010,
using the term "minimum".) Dependency must be dismissed when parental deficiencies--which
brought their care of the child below the line of basic/minimum nurture,
health or safety--are alleviated, mitigated or cured. In re Churape,
43 Wn.App. 634, 638, 719 P.2d 127 (1986); RCW 13.34.130(7)(a).
A dependency is not an opportunity for a caseworker or judge to impose their concept of proper parenting on a family. See, Custody of Smith, 137 Wn.2d 1, 18, 20-1, 969 P.2d 21 (1998) (not state's province to make significant decisions regarding children "merely because it could make a 'better' decision"); Custody of Anderson, 77 Wn. App. 261, 890 P.2d 525, 527 (1995). A dependency is not a means to redistribute attractive children through termination and adoption. A dependency is not meant to supplant other relatives when they are capable of providing protection for the children. See, RCW 26.10.030(1); Custody of Stell, 56 Wn.App. 356, 365, 783 P.2d 615 (1989) (nonparent may obtain custody by establishing parental unfitness).
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| Nor is dependency a procedure where the state
has "rights" for itself. Rather, the child has rights; the state
has authority to intervene when a child is receiving sub-basic care. RCW
13.34.020.
C. Termination is necessary when the parent fails to provide basic care. Termination is only necessary when, notwithstanding
the efforts of the state to assist, the parent is unable to rise to the
level of providing the child basic/minimum nurture, health or safety, such
that it is in the best interests of the child to terminate its relationship
with its parent(s).
Churape, 43 Wn.App. at 639. Termination
should not be looked on as a positive thing, but rather an unwanted, but
unavoidable, circumstance that is necessary2
for protecting the child.
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It is critical not to confuse the government's
underlying obligation to ensure safety with the need
for a caretaker to provide that safety. In ensuring that safety, the government,
unless
no other family members exist, should in fact not be the caregiver.3
There is nothing inherent in the government's obligation to protect that
requires it to subsequently place the child with a non-familymember.
Any other contention is not only contrary to Washington law, it is also
antagonistic to fundamental principles of liberty upon which our society
is founded.4 The court made that distinction
in State ex rel Michelson v. Superior Court, 41 Wn.2d 718, 721,
251 P.2d 603 (1952)(termination); and with the child as its top priority,
said:
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| If, however, the government is unsuccessful
in its "backup" role of assisting the parents (because the parents are
incapable of correcting the deficiencies that led to the dependency), the
government's role changes character. Rather than seeking to assist, the
government takes on an adversarial role and attempts to terminate parental
rights.
2. Government role after termination. After termination, the government should also take a "backup" or secondary role in placement of the child. If there are appropriate relatives available, the government should not "fly in the face of nature," Michelson, supra, but should assist the grandparents, or any other appropriate relatives, in exercising their "preferential status" for obtaining custody/adoption of the child. In re Schulz, 718 Wn.App. 134, 144, 561 P.2d 1120 (1977) The government's goal should be to assist the relative, again in a "backup" role. The department will be successful when transition is made to the relative's home and care. The underlying obligation to ensure the child receives a safe, stable and permanent home should be secondary to the child's right to continuity of family relationships; and the government's role should only ripen into a primary obligation, contrary to the family unit and
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| other relatives, when continuity of such relationships is harmful to
the child.
In each step of involvement in a child's life, the government should thus take a secondary role whenever possible, preferring to have problems resolved by the family unit. This approach means that government should use the least restrictive means when dealing with the problems surrounding dependencies and terminations. II. THE SIBLINGS HAVE RIGHTS TO A RELATIONSHIP WITH
THEIR
In Roberts v. United States Jaycees, 468 U.S. 609, 618-20 (1984), the U.S Supreme Court said:
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| constitutional protection. In addition to a biological relationship,
the Court has explained that family relations
stem from "emotional attachments that derive from the intimacy of daily
association" and have their "origins entirely apart from the power of the
state." Smith
v. Organization of Foster Families, 431 U.S. 816, 843-845 (1977).6
Some lower courts have also recognized the child's entitlement to maintain a family unit. See, In re Arturo A., 10 Cal. Rptr. 2d 131, 138 (Ct.App. 1992) (U.S. Supreme Court "very broadly defines rights of personality as protected by the Fourteenth Amendment" in Planned Parenthood v.
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| Casey,
505 U.S. 833 (1992)).7
The siblings suggest that the level of scrutiny to be applied by the court in evaluating their (and a grandparent's or other relative's) constitutionally protected right to associate with their sibling/grandchild/relative is strict scrutiny test. Severing of the non-parental familial bonds after parental termination is justified only if the state can show that it has a compelling interest and that such action is narrowly drawn to meet only the compelling state interest involved. Custody of Smith, 137 Wn.2d at 15. The degree of scrutiny should be virtually identical with that of a parent for two reasons: (1) there is no competition with a parent, contrary to Custody of Smith, id. at 20,
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| because parental rights have been terminated, and (2) there being no
parent, the remaining family relationships take on greater importance.
See,
James
M. v. Maynard, infra, n. 8.
B. State courts recognize the importance of sibling relationships. In Hathaway v. Hathaway, 23 Wn.2d 237, 241, 160 P.2d 632 (1945), the court spoke of a sibling group as distinct from their parents, stated:
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| C. Washington statutes show the
importance of sibling relationships.
1. Sibling relationships are within the protected "family unit". The goal of dependency is to preserve the "family unit". RCW 13.34.020. The siblings of a dependent child are part of the family unit9 and have a relationship with each other separate from
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| and independent of the relationship of the child to its parent.
Hathaway,
supra
at 13. The family unit thus includes not only parent-child relationships,
but sibling-sibling relationships as well.
Termination of parental rights is in a sense,
a legal fiction, for nothing can change the fact of
biological relationship. Extending the legal fiction of termination of
parental rights to the termination of sibling relationships is something
the statute does not address.10 Absent statutory
authority, it should not be done.
The legislature gives unequivocal intent that:
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| hearing, which is the beginning of a dependency action. RCW 13.34.060(1)(as
amended).11
Though Laws 1999, Ch. 17, § 1. addresses care of a child, the underlying reason would apply to placement with siblings as well. Specifically:
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| siblings for the above two reasons: (1) the gravamen of the statutory
requirement is familial bonds, and (2) siblings participate in a very real
way in the care of a younger sibling.
3. Dependency
and termination law follows prior caselaw
The Washington court, recognizing grandparent custody after termination of parental rights, said:
Price v. Kitsap Transit, 125 Wash.2d 456, 463, 886 P.2d 556 (1994).
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| Schulz recognized the "preferential
status of grandparents", 17 Wn.App. at 144, who "everything else being
equal, . . . will be favored in a custody proceeding against someone other
than a parent." The failure to allow Ms. Gawith and the siblings to intervene
"at the proper time" was thus error. The dependency statutes follow the
clear and strong preference set forth in the cases for grandparents, and
have enlarged the preference to include relatives listed in RCW 74.15.020(2)(a).
RCW 13.34.130(1)(b).
The current statutory amendment only serves to underscore that policy.
Laws
1999, Ch. 17.
III. THE STRONG POLICY FAVORING GRANDPARENTS APPLIES
The interests of Elizabeth and her siblings to the "continuance of those ties which, by the inscrutable providence of God, bind man to his own flesh," Michelson, 41 Wn.2d at 722, is similar in strength and purpose to the ties between grandparent and grandchild. If the family unit must be nurtured,12 then the state cannot uncritically de-
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| stroy the sibling bonds that exist.
See, Dependency of J.B.S.,
123 Wn.2d at 11.
In In re Dependency of J.H., 117 Wn.2d 460, 477-8, 815 P.2d 1380 (1991), the court discussed whether foster children have a due process right to hearing on change of placement. Because the hearing had in fact occurred, at which the child was represented by a guardian ad litem, the court did not decide the issue. In the present case, however, even if Elizabeth is represented by a GAL, the siblings' interests would still go unprotected. Gradually, an insidious outlook and practice, contrary to both common law and statute, have been allowed to develop and fester in the DSHS/CPS. Though nothing in statute requires DSHS to sever sibling bonds, the agency has come to look upon that outcome as its inherent right. In so doing, the government has disregarded its affirmative obligation to preserve the "family unit", which of necessity must include sibling bonds. Given the common law "preferential status of grandparents" and the statutory recognition of that principle in RCW 13.34.130, the thoughtless, careless, and unthinking destruction of the sibling relationship is contrary to the obligations of the department to preserve the "family unit".
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The state can give no foundation in policy,
law or regulation that requires it to break the bonds of the family unit
or to sever the familial bonds between a child and all her relatives. Indeed,
such practical disregard of the agency's obligation not only goes beyond
the limits of necessary protection, it is a subtle attack upon the liberty
of the individual. The court must diligently resist any such depredations,
keeping in mind the timeless warning of Justice Brandeis:
The court should reverse the findings denying
intervention status to the grandmother and the siblings, and should reinstate
the grandmother's adoption petition or allow custody.
Respectfully submitted this 7th day of July, 1999.
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