J.B. v. Department of Social & Health Services

González, J.

(dissenting)

¶42 We could have and should have decided this case months ago. The proper resolution of this appeal is simple. J.B. did not preserve the error, the trial court’s error was harmless, and our collective delay and ultimate remand is harmful to K.J.B. The Court of Appeals filed its opinion June 11, 2015; we granted review eight months later, on February 10, 2016; and now, nearly three years after trial, the majority is sending the case back for the trial court to start all over. K.J.B. may well be an adult before the justice system is done “helping” her. I respectfully dissent.

¶43 I believe the trial court’s failure to explicitly consider the statutory incarcerated parent factors listed in RCW 13.34.180(l)(f) is not, on its own, reversible error. See In re Parental Rights to M.J., 187 Wn. App. 399, 409, 348 P.3d 1265 (2015); cf. In re Dependency of D.L.B., 186 Wn.2d 103, 122, 376 P.3d 1099 (2016). The error was not preserved and should not be reviewed on appeal. J.B. did not object to the court’s failure to explicitly consider the fact that he had been incarcerated for the final two months of a nearly two-year dependency proceeding.

*612¶44 The discretion the majority exercises to review J.B.’s unpreserved claim should have been used to end this prolonged termination. In re Dependency of M.S.R., 174 Wn.2d 1, 11-23, 271 P.3d 234 (2012) (citing RAP 2.5(a) and holding that “children of parents subject to dependency and termination proceedings have due process rights that must be protected”). Instead of invoking RAP 2.5, the majority should be considering the dangers of delay. City of Seattle v. Patu, 147 Wn.2d 717, 722-23, 58 P.3d 273 (2002) (C. Johnson, J., dissenting) (“I would apply [it] ... as we do other prudential doctrines, with discretion and to further specific judicial goals.” (citing RAP 2.5(a))). “[T]he child has a strong interest in the speedy resolution of dependency and termination proceedings, see RCW 13.34.020, and the State has an interest in ensuring such a speedy resolution to ensure that children do not remain in legal limbo.” In re Dependency of M.H.P, 184 Wn.2d 741, 762, 364 P.3d 94 (2015).

¶45 The majority concentrates on RCW 13.34.180(1)(f)’s use of “shall.” Majority at 601.1 agree that the word “shall” generally means mandatory, but a judicious interpretation does not stop at the dictionary. “Shall” should be interpreted in light of our constitution: “Justice in all cases shall be administered openly, and without unnecessary delay.” Wash. Const, art. I, § 10 (emphasis added). Similarly, the legislature provided the framework to interpret RCW 13.34-.180(1)(f )’s use of “shall.”10 Contra majority at 606 (neglecting the legislature’s use of “unless” and “speedy” in RCW 13-.34.020). Justice demands K.J.B.’s speedy permanent placement. E.g., In re Parental Rights to K.M.M., 186 Wn.2d 466, 495, 379 P.3d 75 (2016) (“The alternative to termination is not placing K.M.M. back in her father’s custody, but the continuation of her dependency, which has already spanned *613almost seven years.”); In re Dependency of K.N.J., 171 Wn.2d 568, 584, 257 P.3d 522 (2011) (termination of parental rights was in child’s best interests, after nearly six years of legal uncertainty). But see majority at 603, 605 (“Absent an absurd result, we should be slow to assume that the legislature meant something other than what it said”; “at the time of trial, J.B. had not contacted his social worker or inquired about K.J.B.’s well-being at any point during his incarceration.”).

¶46 By the time of the termination hearing, K.J.B. had been in a safe and stable foster care home for 22 months, her foster parents were planning to adopt her, and they were not interested in a guardianship. Continuation of the parent and child relationship clearly diminished K.J.B.’s prospects for early integration into the stable and permanent home of her adoptive family. The trial court made a detailed oral ruling from the bench with ample justification for the termination. 2 Verbatim Report of Proceedings at 245-51 (Mar. 18, 2014). The judge specifically gave the parties an opportunity to ask questions. Id. at 250. This point in the proceedings would have been the perfect time for J.B. to object to any seeming failure to consider the statutory incarceration factors. Such an objection would have given the trial judge the opportunity to promptly remedy any error and, of course, would have provided a record for the appellate courts to review. Without such an objection, the shadow of uncertainty over this child’s fate has lingered in our courts more than 1,500 days since dependency proceedings started. Suppl. Br. of State of Wash., Dep’t of Soc. & Health Servs. at 2-3 (citing Clerk’s Papers at 9,11). K.J.B. was born on April 20, 2012. How old will she be when this termination ends?

¶47 In matters of juvenile justice, getting to the right result quickly is a priority. The court is well aware of this.11 For example, we recently adopted new internal deadlines *614for drafting opinions related to dependency and termination of parental rights.12 Thus far, it is proving effective— compare the length of time from oral argument to filing in 2016’s D.L.B. (6 months) and K.M.M. (9 months) to 201 l’s K.N.J. (18 months). This progress should not stop; more must be done to minimize delay and achieve permanency for children in dependency proceedings.

¶48 J.B. did not object at trial, and any error was harmless. I respectfully dissent.

[T]he legislature declares that the family unit should remain intact unless a child’s right to conditions of basic nurture, health, or safety is jeopardized. . . . The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter.

RCW 13.34.020 (emphasis added).

See Letter from Justice Bobbe J. Bridge (Ret.) (Aug. 15, 2016) in Alicia LeVezu, Defending Our Children: A Child’s Access to Justice in Washington State (2016) *614(“Only with a data-driven understanding of what actually happens in our courts can we build a system responsive to the needs of the children who are at the heart of our work.’’), https://www.law.washington.edu/Clinics/Child/Projects/Defending OurChildrenAugust2016.pdf [https://perma.cc/SP72-GBCK].

Wash. Supreme Court, Internal Rules, Rule II-5(A)(3) (amended Apr. 28, 2016), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20 Documents/SupremeCourtlnternalRules.pdf [https://perma.cc/C47W-R9VQ]; see also RAP 18.13A.