September 01, 2014

Father Entitled to Competency Hearing to Determine if He Could Voluntarily Relinquish Rights

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re H.Q., 2014 WL 3611295 (Wash. Ct. App.). 

Where father had cognitive limitation and wished to pursue relinquishment and open adoption, court should have held a competency hearing before proceeding with involuntarily termination. Father had substantive due process right to pursue alternative to termination.  

The child’s father suffered a head injury as a child and as a result remained cognitively on a similar level to a six year old. The father’s former foster parent had authority to make legal and financial decisions for him. The father lived alone in a trailer near the home of his former foster parents’ friends’ home and was able to care for himself fairly independently. 

The father’s child had been removed for a period due to physical abuse by the mother. They were later reunified. 

The second removal of the father’s child resulted from unsanitary conditions in the mother’s home. The trial court found the child dependent as to the father due to his cognitive deficits. At the dependency hearing, he was ordered to participate in parenting coaching and allowed weekly visitation. 

Two parenting coaching sessions were conducted, but the instructor reported that further efforts were unlikely to lead to any improvements due to the father’s limited abilities. Thereafter, the only case plan task was visitation. 

At the permanency hearing, the court found the father was complying with the plan, but was unable to provide a home for his child due to his limited cognitive abilities. The plan was changed to adoption and a termination petition was filed. The child’s placement was changed to a paternal aunt out of state. 

At the termination hearing, the father’s counsel presented a voluntary relinquishment document on the condition of entering into an open adoption. His attorney contended the father was not competent to independently relinquish his rights and argued that his equal protection right was violated by the department, preventing the father from relinquishing his rights through his guardian. 

The state argued that, due to the father’s incompetence, he could not knowingly and intelligently waive his rights and the only option was involuntary termination. 

Without addressing the arguments, the trial court proceeded with witnesses. 

The state social worker, father’s guardian and former foster parent, and the child’s guardian ad litem testified. They all agreed the father was unable to care for the child independently but felt that ongoing contact was in the child’s best interests. The aunt agreed with open adoption. 

The juvenile court found a ground for termination due to the father’s incapacity. It further found that open adoption was not available because the father could not voluntarily relinquish his rights. 

The father appealed to the Washington Court of Appeals, which vacated the termination order and remanded the case.

On appeal, the father again argued his due process right was violated by not being permitted to voluntarily terminate his rights. 

In contrast with voluntary cases where there is no state involvement, this case involved a state petitioning to terminate a father’s rights, which triggers a high standard of fundamental fairness. 

The court noted that parents also have a right to present alternatives to termination. Here, the father had a right to agree to a voluntary termination and open-adoption as an alternative. 

Further, the father’s attorney could not waive his right to have his substantive right to the future care and control of his child.  

The appellate court held the juvenile court’s summary dismissal of the father’s motion to voluntarily relinquish his rights violated his substantive due process right without a competency hearing. 

The appellate court instructed the juvenile court on remand to consider guardianship if the father was found incompetent, given the agreement that the father’s continued contact was in the child’s best interests.