Proposed Rules ArchivesRAP 18.13A - Accelerated Review of Juvenile Dependency Disposition Orders Terminating Parental Rights
Suggested Rule Change
PURPOSE: The Office of Public Defense (OPD) is suggesting a change to the Rules of Appellate Procedure, RAP 18.13A, to require notice to be filed in the appellate courts when adoption proceedings have initiated while a termination order is under review.
The purpose of this suggested change is to eliminate jurisdictional confusion and to protect the appellate courts’ ability to provide effective review of a termination order while adoption proceedings are pending. Currently, if an adoption is filed while a termination order is under review, the adoption may be finalized before the termination appeal is decided. If the appeal is reversed after the adoption is finalized, the reversal of the termination could require the adoption to be vacated, disrupting the permanency established by the adoption. Alternatively, if the appellate court’s reversal could be characterized as moot, the trial court could attempt to uphold the prematurely entered adoption order. This presents an undesirable jurisdictional conflict between the two actions that is causing great uncertainty in the judicial system.
This problematic situation has been realized at least twice last year alone. See In re A.B., 168 Wn.2d 908 (2010); In re B.R., 239 P.3d 1120 (2010); see in addition In re J.M., 130 Wn. App. 912 (2005). In these cases, the termination order was reversed after the adoption had been finalized, leaving the parties to deal with the prospect of vacating a final adoption order in light of the reversal. We have learned that adoption proceedings have been filed and are pending in at least five other termination appeals up for review last year. More cases like these likely exist, but remain unknown because parents in a termination appeal are not parties to the adoption and therefore do not receive notice of those proceedings.
The notice requirement in OPD’s proposal would inform the appellate court and the parties to a termination appeal of any pending adoption proceedings and provide the opportunity to stay a termination order to the extent that it is used to authorize a final adoption. The stay procedure would follow the existing supersedeas procedure under RAP 8.1.
Notice of the adoption is the critical element in these cases in order to make possible a request for a stay of the termination order to prevent the adoption from being finalized. The State or supervising agency is the most appropriate party to provide notice because it has the authority to consent to the adoption, pursuant to the termination order.
This suggested rule change protects the child’s interest in permanency with his or her parents if they are fit, and if not, with the adoptive parents. The notice and stay procedure would not interfere with State’s ability to set up the filing of an adoption, or prevent the child from placement with the adoptive parents during the pendency of the adoption, as is commonly the case. It would merely prevent the State from consenting the finalization of the adoption before the termination appeals has been decided. Other states have similarly adopted court rules to require a limited stay of enforcement of the termination order until the appeal is decided. See ILCS S.Ct. Rule 305 (Illinois); and see F. R. App. P. Rule 9.146 (Florida).
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