Matter of Welfare of Key

Durham, J.

(dissenting) — The dependency action in this case arose because the Department of Social and Health Services (Department) misinterpreted a federal funding statute. The Department thought that dependencies were necessary to maintain federal funds, when in fact, funding can easily be preserved through other means.

Recognizing the harshness of the Department's approach, the majority attempts to find other grounds for justifying dependency actions. First, it suggests that the parent here might have consented to the dependency. The record is clear: she did not. Second, the majority uncovers a statute relating to placement, and uses it to announce a new test for dependency determinations involving disabled children. As a result, serious due process and equal protection questions are raised. Ironically, it is now more difficult to remove non-*614disabled children from abusive homes, than disabled children from loving homes. Accordingly, I dissent.

The majority's factual recitation is largely correct, but some important facts are omitted and others require clarification. On December 9, 1982, Kirsten Key was bom to parents Kelly and Kim Key. Kirsten was bom with her umbilical cord wrapped twice tightly around her neck which ultimately resulted in severe cerebral palsy with spastic quadriplegia, a condition which ensured severe, lifelong physical and mental problems. As a result, the doctors urged the Keys to place their daughter in an institution — "there were places for children like [Kirsten]".

For Kelly, however, institutionalization conflicted with her duty to love and care for her daughter's needs. Tb prepare for Kirsten's homecoming, Kelly learned how to care for handicapped children and received special training in CPR, heart monitors, and gavage feeding.7 In late January 1983, Kelly was able to bring Kirsten home.

Dining the first 2 years of Kirsten's life, she required monthly trips to the doctor, weekly trips to physical therapists, and periodic emergency room visits. All of this was paid for through medical insurance provided by Kim Key's employer. Kelly stayed home to care for Kirsten, and by the age of months, had her daughter drinking from a bottle.

Unfortunately, however, the Keys' marriage was not able to withstand the stresses of caring for a handicapped child and the couple separated in the middle of 1985. For a short period of time, Kirsten continued to receive private medical insurance coverage, but then Kim quit his job. This left Kelly with no means of paying for Kirsten's extensive medical bills.

Determined not to go on welfare, Kelly sought other means of caring for her daughter's needs. For a few months, she was able to care for Kirsten by working nights while a friend baby-sat, but this solution was not a permanent one. Eventually, her friend could no longer baby-sit. Kelly next sought in-*615home nursing care from the State, to watch over Kirsten while Kelly worked. All the Department could offer was voluntary foster care, which Kelly vehemently opposed because she wanted her daughter to remain at home.

It soon became apparent, however, that foster care was her only option. In September 1985, after having depleted all her financial resources, Kelly was forced to place Kirsten in temporary foster care. The difficulty of her decision was evidenced by Kelly's testimony that she cried herself to sleep every night that her daughter was not at home. The placement lasted about 3 months. During this period, Kirsten faced several severe medical crises, including double pneumonia. Each time, despite the foster placement, Kelly was the one who admitted her daughter into the hospital, stayed with her, and directed her medical care.

Over the ensuing years, Kirsten's deteriorating condition and the accompanying financial burdens necessitated additional periodic foster care placements. On one occasion, foster care was required after the social security office abruptly cut off supplemental medical payments. Other times, Kelly used foster care as a means of child care while she worked at various jobs. In all cases, however, foster care was not her first choice, but her last resort.

Eventually, though, Kelly reached an accommodation with the Department. She conditioned Kirsten's foster placement on the availability of Mrs. Lawrence, a foster care provider who was also an old family friend. Kelly even went so far as to move next door to Mrs. Lawrence so that she could help with Kirsten's care. Through this arrangement, Kelly maintained the right to make basic decisions regarding Kirsten's well-being.8 Clerk's Papers, at 43. Decisions regarding her *616daughter's medical care, education and comfort remained within Kelly's ultimate discretion.

This compromise between Kelly and the State ended on January 22, 1990, when the Department served her with the dependency petition which forms the basis for this action.9 The dependency was not motivated by any belief that Kelly was an unfit mother — to the contrary, all parties agree that she is an exceptional mother. Nor was the dependency designed to serve Kirsten's best interests. The only reason for removing this child from the care and control of her mother was to comply with the Department's erroneous interpretation of a routine federal funding statute — a sad excuse for separating mother and daughter.

Statutory Authority

Under Washington law, a child can be declared a dependent of the State whenever one of four dependency definitions is satisfied. See RCW 13.34.030(2)(a)-(d). Kirsten was found dependent solely under the terms of the statute's handicapped child provision, RCW 13.34.030(2)(d), which defines a "dependent child" as one:

Who has a developmental disability . . . and whose parent, guardian, or legal custodian together with the department determines that services appropriate to the child's needs can not be provided in the home.

(Italics mine.) Under the plain language of this statute, a finding of dependency is appropriate only when the parent together with the Department determines that the child's needs cannot be met in the home. This language envisions a consensual determination by both the parent and the Department; a dependency cannot result where one party thrusts its will upon the other.

*617The majority misapplies this statute. Nothing in the record supports a consensual agreement. Although the majority characterizes Kelly's views of the dependency proceeding as a "difficult question", her position could not be more clear. From the outset, Kelly explicitly objected to the dependency with all the force she could bring to bear.10 She continues to fight it to this day. Moreover, Kelly has never agreed that she was unable to care for her daughter. As the majority admits, Kelly "testified she is fully capable of caring for Kirsten's psychological and physical needs." Majority, at 605. Maintenance of her parental authority, despite the challenges of Kirsten's disabilities, has been Kelly's goal from the beginning.

Furthermore, without explanation, the majority relies upon a statute which is irrelevant to the dependency determination. Finding no support in RCW 13.34.030(2)(d), it claims that its finding of dependency is justified by RCW 13.34.130(1)(b)(iv), the statute governing disposition orders. The majority holds that a dependency for handicapped children is appropriate whenever "the 'parent . . . has determined that the child would benefit from placement outside of the home.'" Majority, at 606 (quoting RCW 13.34.130(1)-(b)(iv)).

I cannot emphasize this point strongly enough: the language in RCW 13.34.130(1)(b)(iv) has nothing to do with an initial finding of dependency. RCW 13.34.130(1)(b)(iv) applies only "after ... it has been proven by a preponderance of the evidence that the child is dependent within the meaning of RCW 13.34.030(2)". (Italics mine.) RCW 13.34.130. The dis*618position statute cannot be used to modify the specific language of the statute governing the initial dependency finding. In essence, the majority would have us pass through the door without ever having crossed the threshold.

Moreover, the test proposed by the majority is far too vague. It would allow a dependency to be declared every time a child might benefit — whatever that means — from placement outside the home. This is a careless measurement which is destined for abuse. For working parents in particular, few would dispute that day-care workers are "more capable" of caring for children during the workday. Such a reasoned approach to child care should not leave parents vulnerable to dependency actions. It runs contrary to public policy to punish those parents who provide for a child's care by seeking the help of others.

The majority's interpretation of federal funding requirements is equally flawed. Simply put, review of foster placements by the juvenile courts is not necessary to maintain federal funding. Federal law mandates only that a foster placement be subject to periodic review by the courts or an administrative body. 42 U.S.C. § 675(5)(B). The State has no particular interest in court review as opposed to administrative review since either option preserves federal funding. See RCW 13.70 (establishes a limited administrative review board system).

Even if the State does prefer court review, a finding of dependency is not necessary to achieve this purpose. The dependency statute itself, specifically RCW 13.34.145(1), can be interpreted broadly enough to allow review of voluntary foster placements without a prior finding of dependency. Not only is this approach consistent with the juvenile jurisdiction statute itself, it represents a far less intrusive method of preserving federal funding.

Fourteenth Amendment

The majority's statutory interpretation creates constitutional conflict where none existed before. One result of the majority's reasoning surely could not have been intended. *619Now, the State can more easily prove a dependency involving disabled children than a dependency involving non-disabled children. For non-disabled children the State faces the difficult task of proving some type of parental unfitness or other serious risk to the child. See RCW 13.34.030(2)(a)-(c). But according to the majority, disabled children can be declared dependent whenever the State shows that the child "would benefit" from placement outside the home.

The Fourteenth Amendment does not allow this result. Under equal protection analysis, Kelly cannot be more readily deprived of her parental rights simply because she is the mother of a disabled child. A deprivation of fundamental rights can only be justified where the law is narrowly tailored to serve a compelling state interest. Kramer v. Union Free Sch. Dist. 15, 395 U.S. 621, 632, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969). Here, the majority advances an interpretation of the statute which creates a double standard for disabled and non-disabled involuntary dependency actions. No state interest is identified to justify this discriminatory treatment.

The majority interpretation of RCW 13.34.030(2)(d) also conflicts with substantive due process by allowing Kirsten to be declared dependent without Kelly's consent and absent any finding of parental unfitness.11 See U.S. Const. amend. 14. As this court has consistently recognized, "[t]he liberty and privacy protections of the due process clause of the Fourteenth Amendment establish a parental constitutional right to the care, custody, and companionship of the child." (Citations omitted.) In re Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980). Parental rights are some of the most fundamental known to our society. Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Franz v. United States, 707 F.2d 582, 602 (D.C. Cir. 1983). As such, restrictions can be supported only if they further compelling state interests, and are narrowly drawn to serve *620those interests. State v. Farmer, 116 Wn.2d 414, 429, 805 P.2d 200, 812 P.2d 858 (1991); In re Schuoler, 106 Wn.2d 500, 508, 723 P.2d 1103 (1986).

The majority does not deny the fundamental nature of parental rights, but rather discounts the impact of a dependency finding on those rights and invents special dependency statute procedures for "concerned parent[s], such as Ms. Key". Majority, at 607. None of its efforts are persuasive. No authority exists for the majority's proposition that dependency orders entered with the consent or agreement of the parties may be terminated by a parent, at any time, upon the withdrawal of consent.12 Majority, at 612. Likewise, the majority's assertion that a "dependency hearing is 'a preliminary, remedial, nonadversary proceeding' that does not permanently deprive a parent of any rights", majority at 609, ignores past cases where we have emphasized the significant effects of a dependency hearing on parental rights. See, e.g., In re Sumey, 94 Wn.2d at 763; In re Myricks, 85 Wn.2d 252, 254-55, 533 P.2d 841 (1975); In re Luscier, 84 Wn.2d 135, 524 P.2d 906 (1974).

Even less successful is the majority's attempt to minimize the impact of dependency by labeling it merely a nonpermanent deprivation of rights. Majority, at 609. "[W]here the potential consequence is termination of parental rights on a temporary or permanent basis, the ultimate nature of the abridgement of parental constitutional rights necessitates an extremely substantial justification." (Italics mine.) In re Sumey, 94 Wn.2d at 763; see also In re Myricks, supra at 254-55. Furthermore, no comfort can be found in the majority's characterization of RCW 13.34.030(2)(d) as merely a jurisdictional statute. Majority, at 607-08. Dependency is not some jurisdictional artifact, but a state-enforced diminishment of the substantive legal relationship between a parent *621and child. Regardless of the reason for the dependency, parents lose the right to make ultimate decisions determining the care, education and housing of a dependent child.13 See RCW 13.34.130(1); In re Sumey, 94 Wn.2d 757, 763, 621 P.2d 108 (1980).

Given the significant impact of the dependency on Kelly's parental rights, the State can prevail only if it can demonstrate a narrowly tailored, compelling state interest. The majority identifies two state interests to support the necessity of a dependency finding: the desire to maintain federal funding, and the parens patriae interest.

According to the majority, the fiscal state interest can be divined from "the complex labyrinth of federal funding regulations" which require periodic review of foster placements as a condition of federal funding. Majority, at 607-08. The road to dependency from here is a serendipitous one: (1) to retain funding, foster placements must be reviewed by either an administrative body or a court, (2) Washington decided to do this via the courts, and therefore, (3) the "only way" the juvenile court can exercise its legislatively required review of foster children is to initiate a dependency action. Majority, at 608. The majority labels the State's supposed decision to review placements through dependency actions a "reasonable choice". Majority, at 608-09. Unfortunately, this choice is neither reasonable, correct, nor compelling. As discussed above, funding regulations do not require such an anomalous process.

*622As a fall-back position, the majority suggests that the State's action in finding Kirsten dependent without any showing of parental unfitness is supported by its parens patriae interest.14 In evaluating this interest, it cannot be overemphasized that the lower court did not challenge Kelly's fitness as a parent. Without a finding of unfitness or some other serious risk to the child, the State's parens patriae interest does not even come into play. Santosky v. Kramer, 455 U.S. 745, 767 n.17, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Instead, the interest cuts the opposite way. As the Supreme Court stated in Santosky, "while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds." 455 U.S. at 766-67; accord, Stanley, 405 U.S. at 652-53. When a parent is fit, the parent's interest is "cognizable and substantial", and "[t]he State's interest in caring for [that parent's] children is de minimis". Stanley, at 651-52, 657; accord, Quilloin v. Walcott, 434 U.S. 246, 248, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978).

In sum, the integrity of the family unit is held in high regard by both statutory and constitutional jurisprudence. By treating dependency like a routine, momentary inconvenience in the process of parenting, the majority neglects, and thereby denigrates one of our most fimdamental values. Even worse, it does so in a way that misconstrues the statute, discriminates against disabled children, and violates parental rights. I would, therefore, reverse the trial court's finding of dependency.

Brachtenbach and Andersen, JJ., concur with Durham, J.

"Gavage feeding" entails placing a tube into the child's stomach and dropping milk into the tube with a syringe.

The importance to Kelly of maintaining fundamental control over her daughter cannot be overstated. For example, on one occasion when Mrs. Lawrence was unavailable, Kelly allowed the Department to place Kirsten for 3 weeks with foster parents in Benton City, Washington. While visiting Kirsten at the foster home, Kelly noticed that Kirsten's hair had been cut and the end of her nose was burned. Even though Kirsten is not ambulatory, the foster mother claimed that Kirsten had burned herself by coming too close to the fireplace. Concerned for her daughter and acting on her own initiative, Kelly immediately terminated the foster placement. Kirsten did not return to foster care until Mrs. Lawrence again became available.

Unlike voluntary foster care, where the purpose is to provide parents aid in caring for the proper needs of a child, see RCW 74.13.010; RCW 74.13.020, a dependency action is designed to temporarily remove the child from a parent's authority. A dependency typically lasts for a minimum period of 6 months, and may result in a permanent termination of the parental relationship. See RCW 13.34.130; RCW 13.34.180.

Realizing that Kelly would never consent to a dependency, the Department also claimed that Kirsten was dependent because she "has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development”. RCW 13.34.030(2)(c). This contention was added despite a lack of supporting evidence. It was specifically rejected by the trial court after a State's witness admitted that it was fabricated, and added only because the Department knew Kelly would never consent to an RCW 13.34.030(2)(d) dependency. Report of Proceedings, at 72-73.

Although raised by appellant, the majority ignores this deprivation of a substantive constitutional right, and instead applies a procedural due process analysis not raised by either party.

In fact, this holding is directly contrary to specific statutory safeguards which require a court order to terminate a dependency, and mandate periodic court review following the termination. RCW 13.34.130(5)(a).

The majority interprets RCW 13.34.260 to allow a change in Kirsten’s placement against Kelly's wishes only where the Department proves by clear, cogent and convincing evidence that its proposed placement is in the "best welfare of the child". Majority, at 602-03, 607. No authority is cited for this statement. The statute itself states only that parental authority is "appropriate" and "should be integrated through the foster care team.” RCW 13.34.260. The majority interpretation effectively overrides In re Eaton, 110 Wn.2d 892, 757 P.2d 961 (1988), In re Lowe, 89 Wn.2d 824, 576 P.2d 65 (1978), and In re Gakin, 22 Wn. App. 822, 592 P.2d 670 (1979), which held that a juvenile court may not order treatment of a child in a specific placement.

It is unclear exactly how this state interest is implicated. The trial court found only that Kirsten's best interests were served by continuing the foster placement, not the dependency. See Clerk's Papers, at 8.