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In re Welfare of H.S.3/9/1999
hows the decision was arbitrary. In re Welfare of Aschauer, 93 Wn.2d 689, 697-98, 611 P.2d 1245 (1980) (vagueness challenge to the terms "proper parental care" and "proper maintenance"). The provisions of the statute are taken as a whole. Id. at 697.
The court's written findings include specific language describing the nature of the parents' impairments and the effect on their parenting capabilities. The oral ruling discusses the specific testimony on which the decision relies. The term "conditions" clearly refers to present and continuing objective deficits in B.S.'s and L.S.'s parenting skills. The termination was based on present inability to correct the parenting problems that were litigated throughout the dependency. See A.W., 53 Wn. App. at 29. As the court observed in denying B.S. and L.S.'s motion to dismiss, B.S. and L.S. were at all times informed of the nature of the issues and the Department's position thereon.
Notice: Due process requires notice that is "reasonably calculated, under all the circumstances," to apprise the parties of the pendency of the action and enable them to present a defense. Duskin v. Carlson, 136 Wn.2d 550, 557, 965 P.2d 611 (1998). B.S. and L.S. contend that they were denied due process because they did not have notice of the specific issues to be considered. In re Welfare of Martin, 3 Wn. App. 405, 410, 476 P.2d 134 (1970).
Notice must permit adequate preparation for the hearing. Cross, 99 Wn.2d at 384. The State complied with LJuCR 3.9 provisions governing notice for review hearings. B.S. and L.S. had the Individual Service Plans which provided notice of the agency's position and plans with regard to developing issues. B.S. and L.S. do not dispute that these were filed, served and received. The issues underlying the termination are the same issues that were repeatedly litigated throughout: inability to meet the child's emotional and developmental needs, inability to respond outside the concrete, lack of flexibility and inability to react to new scenarios, and poor Judgement.
Even if defective notice does implicate due process, it is harmless beyond a reasonable doubt when the complaining party subsequently participates in dependency review hearings and the termination adjudication. A.W., 53 Wn. App. at 27.
Notice is a matter of personal jurisdiction, objection to which was waived when B.S. and L.S. repeatedly appeared and litigated these issues. A.W., 53 Wn. App. at 26-28. Collateral attacks based on notice are disfavored, and CR 12(h)(1) waiver provisions are applied a fortiori to dependency proceedings. A.W., 53 Wn. App. at 26. Moreover, failure to seek review of the resulting orders waives notice for all but the April 16, 1996 review proceedings.
In the hearing, B.S. and L.S. were apprised of and litigated the issues underlying the termination. The court was satisfied that B.S. and L.S. knew at every stage of the proceeding what the State's position was. Due process was satisfied by notice and an opportunity to be heard. In re Welfare of Key, 119 Wn.2d 600, 611, 836 P.2d 200 (1992), cert. denied, 507 U.S. 927 (1993).
Burden of proof: B.S. and L.S. next contend that the court's reliance on a dependency whose basis no longer existed violated due process by reversing the constitutional burden of proof, shifting the burden of persuasion with respect to facts the State is required to prove. State v. Dault, 19 Wn. App. 709, 713-14, 578 P.2d 43 (1978).
Termination must be based on current unfitness, as established by RCW 13.34.180(1) through (6). K.R., 128 Wn.2d at 142. The burden of proof is clear, cogent and convincing evidence. S
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