by Lonnie Burton
In January 26, 2017, a divided Washington Supreme Court held that a trial court could not terminate the parental rights of an incarcerated father without considering the facts of his incarceration as required by legislative amendments to the statutes governing termination of parental rights. The 5-4 decision sent the case back to the trial court for reconsideration of its decision.
K.J.B. was born in April 2012. The child was immediately removed from the care of her biological mother due to the mother’s methamphetamine use. K.J.B. was then placed in foster care and never lived with her mother or biological father, J.B. Despite participating in regular visits with his daughter, the state moved to terminate J.B.’s parental rights in 2013, alleging that his “substance abuse addiction prevents him from parenting his child.”
The termination proceedings lasted for nearly two years. At the time of the hearing, J.B. had been locked up for 52 days on charges for which he was later sentenced to 74 months in prison. The trial court granted the state’s motion to terminate J.B.’s parental rights, holding that his drug problem alone rendered him an unfit parent.
J.B. appealed, arguing that the trial court failed to consider additional factors relevant to incarcerated parents, as required by the 2013 legislative amendments to the parental rights statutes. [See: PLN, June 2017, p.41; June 2013, p.26].
The Court of Appeals ruled against J.B., finding the trial court’s failure to consider those factors was harmless since J.B.’s parental rights were terminated independently on other grounds.
On petition for review, the Washington Supreme Court reversed and remanded. The Court ruled that the use of the word “shall” in the legislative amendments was instructive, and required the trial court to consider incarceration factors despite the fact that J.B.’s incarceration had played no role in the trial court’s decision. Under the amended law – RCW 13.34.145(5)(b) – before terminating the rights of an incarcerated parent, a court must, among other things, assess the parent’s attempts to maintain contact with the child, the parent’s cooperation with authorities and whether the continued involvement of the parent in the child’s life is in the child’s best interests.
“The legislature has mandated that the trial court ‘shall consider’ certain contextual factors relevant to incarceration when terminating the rights of incarcerated parents,” the majority wrote. “Here ... we lack any evidence that the [trial] court was aware of, let alone considered, the statutory incarceration factors. In light of the significant rights at stake, we reverse and remand for the trial court to consider and apply the mandatory factors.” See: In the Matter of the Parental Rights to K.J.B. v. State of Washington, 187 Wn.2d 592, 387 P.3d 1072 (Wash. 2017).
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