FILED
SEPTEMBER 26, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF.APPEALS OF TH~ STATE OF WASHINGTON
DIVISION THREE
In re the Parental Rights to )
) No. 34484-3-111
M.A.S. ) (consolidated with No. 34486-0-111,
) No. 34485-1-111)
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In re the Parental Rights to ) UNPUBLISHED OPINION
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I.L.S. )
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In re the Parental Rights to )
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R.S. )
SIDDOWAY, J. - The petitioning m?ther seeks to revoke her April 2014
relinquishment of parental rights to three children, based on a claim of fraud first asserted
almost two years later. RCW 26.33.160 foreclos~s relief. We affirm the dismissal of her
petitions.
No. 34484-3-111 (consolidated with No. 34486-0-lllr No. 34485-1-111)
In re Parental Rights to MA.S.
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FACTS AND PROCEDURALIBACKGROUND
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The petitioner is the biological mother of thrf e children whose future is at issue in
this appeal. In July 20 12, the Department of Social Iand Health Services (Department)
filed dependency proceedings as to all three childrep. At the time, the oldest child, a
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daughter, was seven, the middle child, also a daughfer, was three and a half, and the
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youngest, a son, was two. The juvenile court enter9d an order of dependency in October
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2012. i
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Over a year later, in December 2013, the D+artment filed petitions to terminate
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the mother's and father's parental rights. By that tire, the children were ages eight and a
half, nearly five, and three. All three children were] residing in the same foster home, and
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their permanency plan called for adoption by the fofter parents.
Almost five months later, on April 24, 2014! the mother, represented by counsel,
relinquished her rights to all three children and confented to their adoption. The
children's father did as well. The consent docume+s that the mother signed three
times-one for each child-included strongly-wor4ed acknowledgments of the
permanent effect of her action and that her decisio1 was "an extremely important one"
that would provide the basis for an order "permaneptly terminating all of [her] parental
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rights to the child," meaning that it would "take rrdm [her] all legal rights and obligations
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with respect to the child." Clerk's Papers (CP) at ~7, 116, 209.
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No. 34484-3-111 (consolidated with No. 34486-0-111· No. 34485-1-111)
In re Parental Rights to MA.S.
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The documents spelled out her extremely li+ted opportunity to change her mind,
stating: I
7. This Consent is given subject to the a proval of the Superior Court
of the State of Washington and it is to have no force or effect until
approved by the Court and will not b presented to the Court until
a minimum of forty-eight (48) hours fter it is signed ....
8. I understand that this Consent is revo4able by me at any time prior
to approval by the Court. I also unde~~tand that if I wish to revoke
my Consent, I must revoke it in one of the following ways:
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i) Written revocation may be delivered or mailed to the Clerk
of the Court before approval of the Consent by the Court.
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ii) [Wr]itten revocation may be d!livered or mailed to the Clerk
of the Court after approval, bu only if it is delivered or
mailed within forty-eight (48) ours after a prior notice of
revocation that was given with'n forty-eight (48) hours after
the birth of the child. The priqr notice of revocation must be
given to the agency or person }ho sought the Consent and
may be either oral or written. I
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10. I understand that after this Consent is a
not revocable exce t for fraud or dur ss practiced by the person,
department or agency requesting the onsent or for lack of mental
competency at the time the Consent
no circumstances later than one
Court.
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CP at 27-28, 116-17, 209-10 (emphasis added). Fifally, the three documents signed by
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the mother stated that her consent was "given freelt, voluntarily and with full
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knowledge of the consequences and the Consent is /not the result of fraud or duress, nor
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am I acting under the influence of anyone." CP at 8, 117, 210. Approximately two
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No. 34484-3-111 (consolidated with No. 34486-0-lllf No. 34485-1-111)
In re Parental Rights to MA.S. !
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weeks after the mother executed her consents, the j1venile court signed orders
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terminating the mother's parental rights to the threelchildren.
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The children's adoption was delayed by a coptract dispute between the
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Department and a home study evaluator and therea,er by a petition for nonparental
custody filed by the children's maternal grandmothtr. See In re Custody of MS., I.S.,
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and R.S., No. 33132-6-111, slip op. at pp. 3-4 (Washl Ct. App. June 14, 2016)
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(unpublished), https://www.courts.wa.gov/opinions pdf/331326.unp.pdf The trial court
dismissed the grandmother's petition and this court affirmed the dismissal in June 2016.
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See id. An untimely petition for discretionary revieiw was dismissed by the Washington
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Supreme Court in February of this year. In re Cust~dy of MS., 187 Wn.2d 1010 (2017).
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Meanwhile, in March 2016, the mother, actibg prose, filed the petitions to
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reinstate her parental rights to the three children th1t are the subject matter of this appeal.
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She employed a juvenile court petition form that is ~o be used when a child seeks
reinstatement of terminated parental rights under RFW 13 .34.215 . 1 She asserted that she
was requesting reinstatement of her parental rights ('because my civil rights were violated
within my 4th and 14th [A ]mendments, also l was talsely accused of doing
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RCW 13.34.215 authorizes a petition by"~] child ... to reinstate the previously
terminated parental rights of his or her parent" undfr certain circumstances. It has no
application in this case.
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No. 34484-3-111 (consolidated with No. 34486-0-llil No. 34485-1-111)
In re Parental Rights to MA.S. f
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methamphetamines and threatened into signing ovet my parental rights." CP at 37, 131,
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219. Both the Department and the children's lawyer opposed the petitions.
At a hearing on the petitions that took place jn May 2016, the mother appeared pro
se. The only information she offered that appeared elated to the timing of her petitions
was her report to the court that she had found out " cently" that the biological father of
the children had been allowed to have contact with hem a year earlier, "even after
signing over his rights." Report of Proceedings (1) I
at 6. She told the court that she,
too, "really want[ ed] to see my kids and have contaft with them" but the foster parents-
the prospective adoptive parents-"told [her] no." fd.
Invited to elaborate on the basis for her F ou1h and Fourteenth Amendment claims,
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the mother told the court:
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When I met with [the caseworker] and [my ttomey] on April 24th, they
told me that if I came to court it would be a losed adoption and I would
never see my kids again. But if I signed ov my rights they would make
it an open adoption, and I, after a year, I wo ld be able to have contact
with my kids again. 1
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RP at 7. And even though she claimed to have bee~ given these assurances, she claimed
to have also tried to revoke her consent immediate!~ but was told by her lawyer that she
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could not: !
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When I signed over my rights, I called the v~ry next morning saying I
didn't want to sign over my rights, and my ~ttorney at the time told me
it was too late.
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No. 34484-3-111 (consolidated with No. 34486-0-111 No. 34485-1-111)
In re Parental Rights to MA.S.
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RP at 5. These representations were unsupported bt any sworn declaration of the mother,
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let alone any declaration from her former lawyer or lthe Department lawyer who allegedly
misled her. I
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After giving the mother an opportunity to exf lain why she believed she was
entitled to revoke her relinquishment of rights, the trial court stated it did not see any
remedy available to her and orally denied her petititns. In written findings and an order
entered thereafter, the trial court found that the motµer had provided no factual basis to
support her claims of fraud or duress, that the time ,o request a reinstatement under RCW
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26 .3 3.160 had long passed, and that reinstatement tas not in the children's best interest.
The mother appeals.
ANALYSIS
Represented by counsel in this appeal, the rnpther makes two arguments: first, that
it was error for the trial court to fail to appoint co~sel to represent her in the proceedings
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below, and second, that she was entitled to rely on the more forgiving limitations periods
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provided by RCW 4.16.080(4) and CR 60(b) rathetjthan being foreclosed by the one-year
limitation period provided by RCW 26.33.160. Wq reject both arguments. 2
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The children's attorney argues that the mof er's arguments are meritless and
warrant sanctions. A commissioner of our court or ered that counsel be appointed for the
mother in this appeal. We recognize the challenge sometimes faced by counsel
appointed to represent parents in dependency and t rmination proceedings. We find
nothing approaching sanctionable conduct by the n}other's attorney.
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No. 34484-3-III (consolidated with No. 34486-0-IIIt No. 34485-1-III)
In re Parental Rights to MA.S. r I
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Appointment of co~nsel
The mother argues for the first time on appef that her statutory and constitutional
rights were violated when the trial court failed to a~oint counsel to represent her in the
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proceedings below. She argues that although she c~ose to enter into a voluntary
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termination, because it was the Department that init~ated the dependency and termination
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proceedings, her petitions were a stage of"' a procCfding in which a child is alleged to be
dependent,"' which entitles her to counsel. Br. of tppellant at 9 (quoting RCW
13.34.090(2). I
RCW 13.34.090(2) provides: !
At all stages of a proceeding in which a chil is alleged to be dependent,
the child's parent, guardian, or legal custodi n has the right to be
represented by counsel, and if indigent, to h ve counsel appointed for him
or her by the court. Unless waived in court, ounsel shall be provided to
the child's parent, guardian, or legal custodi n, if such person (a) has
appeared in the proceeding or requested the ourt to appoint counsel and
(b) is financially unable to obtain counsel be ause of indigency.
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Because this right to counsel has been held by Wasrington courts to be rooted in the due
process clause of the Washington Constitution and re Fourteenth Amendment to the
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United States Constitution, see In re Dependency o G.G., 185 Wn. App. 813,826,344
P .3d 234 (2015), the mother argues that this assignrent of error implicates an issue of
constitutional dimension. She treats it as appealablf even though not raised in the trial
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court. See RAP 2.5(a)(3) (exception to error preset,ation requirement for manifest errors
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affecting a constitutional right).
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No. 34484-3-III (consolidated with No. 34486-0-III~ No. 34485-1-III)
In re Parental Rights to MA.S. ·
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In this case, however, the three children wer4 not alleged to be dependent at any
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stage of the mother's pursuit of her petitions. The t~rmination proceedings had been
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completed nearly two years earlier. RCW 13.34.o9p does not apply and the mother
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identifies no other authority supporting a parent's ri~ht to counsel in an action to revoke a
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relinquishment of parental rights. We will not consjder this unpreserved error further.
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RCW 26.33.160 asia bar
The mother also challenges the trial court's 4etermination that RCW 26.33.160
barred her request for relief, arguing that as a victi~ of fraud she was entitled to proceed
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under the general statute oflimitations applicable tq civil fraud, RCW 4.16.080(4), or
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under CR 60(b ). She contends her petitions were ti~ely under both.
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RCW 26.33.160(3), entitled "Consent to adtjption-When revocable-Procedure,"
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requires that a parent provide written consent to he~ child's adoption, dictates matters that
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must be disclosed in a valid consent, and recognizer a short-term, limited right of a parent
to revoke that consent. Relevant here, it states:
Except as provided in subsections (2)(b) an~ (4)(h) of this section and in
this subsection, a consent to adoption may nt·t be revoked after it has been
approved by the court. Within one year afte approval, a consent may be
revoked for fraud or duress practiced by the erson, department, or agency
requesting the consent, or for lack of mental competency on the part of the
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person giving the consent at the time the cotjsent was given. A written
consent to adoption may not be revoked mo~e than one year after it is
approved by the court.
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No. 34484-3-111 (consolidated with No. 34486-0-111~ No. 34485-1-111)
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Neither subsections (2)(b) or (4)(h) of the statute 3 avply to the mother in this case.
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Under RCW 4.16.080(4), a party has three Yfars to commence "[a]n action for
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relief upon the ground of fraud, the cause of action tn such case not to be deemed to have
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accrued until the discovery by the aggrieved party 1f the facts constituting the fraud."
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But that statute is qualified by an earlier provision f chapter 4.16 RCW, RCW 4.16.005,
which states, "Except as otherwise provided in this hapter, and except when in special
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cases a different limitation is prescribed by a statutr not contained in this chapter,
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actions can only be commenced within the periods provided in this chapter after the cause
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of action has accrued." RCW 26.33.160 imposes s*ch a different limitation in the special
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case of fraud or duress practiced in procuring a reli*quishment of parental rights.
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The mother also makes a "public policy" arfment for applying the general civil
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statute of limitations that fails based on the plain lafguage ofRCW 4.16.005. We also
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adopt Division One's explanation for rejecting the $ame argument in an unpublished
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2000 decision:
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[W]hatever merit [the mother's] policy argtent may have is
counterbalanced by an argument at least eq Uy compelling-the purpose
of the adoption statutes is to provide for the est interests of the child. This
requires finality in the adoption process. If the discovery rule applied, such
finality could never be achieved. An allegaf on of recently discovered
fraud could be brought at any time until the hild became an adult. Given
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Those subsections of the statute deal with ~enewal of a revocation that was given
within 48 hours after the birth of a child and with sbecial revocation rights applicable to
Indian children under federal law. I
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No. 34484-3-III (consolidated with No. 34486-0-III~ No. 34485-1-III)
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the emotional cauldron of post-relinquishm~t regret, such allegations
would likely be frequent. The legislature ha made the policy choice in
favor of finality. It is not for the court to su stitute its judgment for that
of the legislature. 1
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In re Dependency ofD.T., noted at 100 Wn. App. 1?31, 2000 WL 426459, at *3 (2000).
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For similar reasons, we find that CR 60(b) c4nnot apply. Under CR 8l(a), the
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Superior Court Civil Rules apply to proceedings "[ tj]xcept where inconsistent with rules
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or statutes applicable to special proceedings." "[S]~ecial proceedings" within the
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meaning of the rule have been described as "those ~roceedings created or completely
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transformed by the legislature," including "actions fnknown to common law ... as well
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as those where the legislature has exercised its poli{e power and entirely changed the
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remedies available." Putman v. Wenatchee Valley tfed. Ctr., P.S., 166 Wn.2d 974, 982,
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216 P.3d 374 (2009). The parties do not address Cf 8l(a) or whether proceedings to
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terminate parental rights and for adoption are specifl proceedings, so we do not have the
ht our state supreme court in 1895,
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benefit of briefing on this issue. But as observed
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"Adoption was not known to the common law, and [is a matter purely statutory. Courts
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have passed upon this question frequently, and hav~ adhered with much strictness to this
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rule." In re Renton's Estate, 10 Wash. 533,542, 39 P. 145 (1895) (citing cases). Our
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review of the handful of Washington decisions that have applied CR 60(b) to motions in
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the parental rights relinquishment or adoption cont~xts reveals that they have done so
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where the rule's application would not be inconsistfnt with applicable statutes. Here,
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No. 34484-3-111 (consolidated with No. 34486-0-11~; No. 34485-1-111)
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however, applying CR 60(b) to extend the time for tevoking a relinquishment of parental
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rights to a "reasonable time" beyond one year woul~ be inconsistent with RCW
26.33.160. We hold that CR 60(b) does not apply.
Affirmed.
A majority of the panel has determined this qpinion will not be printed in the
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Washington Appellate Reports, but it will be filed tpr public record pursuant to RCW
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2.06.040.
WE CONCUR:
Pennell, J.
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