The due process clause of the United States Constitution requires that in a proceeding to permanently terminate parental rights the State must prove a child's parent unfit by "clear, cogent, and convincing evidence" in order to terminate that parent's rights to the child. The United States Supreme Court has been very clear. Using the three-part balancing test originally set forth in Mathews v. Eldridge, 424 U.S. 319, 335,96 S.Ct. 893, 47 L.Ed.2d 18 (1976), it concluded:
Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388,71 L.Ed.2d 599 (1982).In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. . . . [U]se of a "fair preponderance of the evidence" standard in such proceedings is inconsistent with due process.
The majority today denies Washington parents this safeguard of a heightened burden of proof by misinterpreting the relevant statute and case law and turning a blind eye to the constitution. To reach this result, the majority defines unfitness as failure to remedy conditions, and then requires clear and convincing proof only of "failure to remedy" and no additional proof whatsoever of "conditions." I dissent because I believe adherence to the constitution requires more than clever word play.
The statute at question here, RCW 13.34.180, lists six factors which must be established by clear, cogent, and convincing evidence in order to terminate parental rights. None explicitly use the words "parental unfitness," but unfitness is normally proved under RCW 13.34.180(5). Krause v. Catholic CommunityServs., 47 Wn. App. 734, 742, 737 P.2d 280, review denied,108 Wn.2d 1035 (1987); *Page 149 see also In re Hall, 99 Wn.2d 842, 848, 664 P.2d 1245 (1983). RCW 13.34.180(5) provides: "That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. . . ." The majority reads this language to require only proof of the parent's failure to remedy without proof of the underlying condition being remedied. The majority would allow that condition to be proved by the fact of the earlier dependency. Because that condition was proved by the lower preponderance standard at the dependency stage, however, the majority's approach allows the State to substitute less reliable evidence for the constitutionally required "clear, cogent, and convincing" evidence.
The majority's reading of RCW 13.34.180(5) ignores prior case law interpreting the statute. In Krause, the court held that RCW 13.34.180(5) required proof that "parental deficienciesstill exist which are not likely to be remedied. . . ." Krause,47 Wn. App. at 742 (emphasis added). In Hall, we found the statute required proof "the parents had fallen below minimalstandards and would be unable to correct their deficiencies in the near future." Hall, 99 Wn.2d at 848 (emphasis added). In both cases, the State was required to show at the termination proceeding not only that the parents had not taken corrective action but also what behaviors they had been expected to correct. The majority would allow the State to substitute the earlier dependency order for a showing of deficient behavior by the higher evidentiary standard.
The facts of this case illustrate the injustice of the majority's approach. The majority says the State only needed to establish by clear, cogent, and convincing evidence that the girls' mother, Patsy, failed to take all the remedial steps required of her in the dependency order. The State need not prove by clear, cogent, and convincing evidence that Patsy had sexually abused K.R. However, without the latter finding, there was no basis for corrective action. Moreover, Patsy's continued denial of the sexual abuse charge was used against her as part of the proof of *Page 150 her failure to remedy. Again, without a finding of sexual abuse, there was no basis for the court to conclude Patsy's denial was the result of sexual deviancy rather than innocence.
The behavior upon which Steven's parental rights were terminated was a failure to protect the children because he did not believe his wife had abused K.R. Without a finding of sexual abuse, there was no basis for the court to conclude the children should have been protected. Thus, adjudicating the underlying sexual abuse accusation is critical to determining whether both of the parents are currently unfit.
The original finding of sexual abuse by Patsy in the dependency proceeding was based on a preponderance of the evidence. At the time of the termination proceedings nearly two years later, K.R.'s testimony had changed. Patsy's treating therapist testified she did not believe Patsy had abused K.R. Had the State been required to prove the underlying sexual abuse by clear, cogent, and convincing evidence it is doubtful whether it could do so. Rather than dictating a legal approach making the State's job easier, these facts dictate that the parental rights of Patsy and Steven not be terminated.
As the Supreme Court held in Santosky:
"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'". . . [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.Santosky, 455 U.S. at 754-55 (quoting in part Addington v.Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068,25 L.Ed.2d 368 (1970) (Harlan, J., concurring))). In *Page 151 allocating this risk in the particular context of termination of parental rights, the Court said:
Santosky, 455 U.S. at 768 (citation omitted) (quotingAddington, 441 U.S. at 427).The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. . . . Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable.
The majority here has allocated Patsy and Steven Jones a near equal share of the risk of being wrong about the underlying sexual abuse by a strained reading of our termination statute. The majority has ignored our precedent and, more importantly, our constitution, both of which require far more care be taken when depriving parents of their children.
DURHAM, C.J., and ALEXANDER, J., concur with JOHNSON, J.
Reconsideration denied January 19, 1996.