                                                                         FILED 

                                                                       NOV 19,2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


In the Matter of:                            )
                                             )        No. 32638-1-111
L.R.C.,                                      )
                                             )
                                             )
                                             )        UNPUBLISHED OPINION
                                             )

       KORSMO, J. ­   RC, mother ofLRC, challenges the default termination of her

parental rights. We conclude that she had notice of the hearing and lacked a good excuse

for vacating the subsequent default judgment against her. Accordingly, we affirm.

                                         FACTS

       In late 2012, RC gave birth to a daughter, LRC. At the time, RC tested positive

for methamphetamine, but voluntarily agreed to services and retained custody ofLRC.

Over the next several months, medical staff became concerned by RC's interactions with

her daughter and her failure to bring the child to a number of medical examinations.

When the two were located, LRC had developed an infection and was placed in

protective custody. The Department of Social and Health Services (DSHS) then brought

a dependency petition. The court entered a dependency order on April 19, 2013.
No. 32638-I-II1
In re L.R.C.


       At the start of dependency, a psychologist evaluated R.C. and determined that it

would be unlikely that she could adequately protect and nurture a child without two years

of therapy. She was also offered a parenting assessment and, following additional

positive tests for controlled substances, referred for a chemical dependency assessment.

While R.C. consistently visited her daughter throughout the dependency, she refused to

participate in any of the offered services. DSHS subsequently petitioned for termination

on September 4,2013.

       On October 7, the social worker assigned to the case, Dolores Cantu, met with

R.C. and gave her the termination petition and summons. Ms. Cantu explained to R.C.

that her parental rights would be terminated if she failed to appear at the termination

hearing on October 28. Ms. Cantu also offered to give R.C. a ride to the hearing. On the

28th, R.C. failed to attend. The court held an evidentiary hearing on November 20 and

entered a termination order two days later.

      Five months later R.C. set about bringing a motion to vacate the default

judgment. I Along with the motion, she submitted a declaration claiming to have

continued participating in parenting services, to have completed some parenting

education, and to have provided clean drug tests for those five months. She also asserted



       I She met with her attorney on April 28, 2014. All the necessary papers were
prepared at that time. However, the motion was not actually filed until June.



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No. 32638-I-II1
In re L.R.C


that she was unable to prepare the motion any sooner because she lives in Wapato and

April was the first opportunity for her to get in to Yakima in order to sign a declaration.

The trial court denied the motion. She then appealed to this court.

                                        ANALYSIS

       R.C. challenges the trial court's denial of the motion to vacate the default

judgment. Additionally, she argues for the first time on appeal that the termination order

was entered in violation of her due process rights and is void for defective service and for

lack of notice under CR 55. We conclude that these contentions are without merit and

will first treat the motion to vacate before turning to her additional arguments.

Motion to Vacate

       Well settled standards govern the resolution of this appeal. A denial of a motion

to vacate a default judgment will be affirmed absent an abuse of discretion. Pedersen v.

Klinkert, 56 Wn.2d 313,314,352 P.2d 1025 (1960), Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v. Junker,

79 Wn.2d 12,26,482 P.2d 775 (1971). A trial court will grant a motion to vacate a

default judgment where the moving party has shown that (1) there is substantial evidence

to support a prima facie defense to the claims asserted by the opposing party, (2) the

moving party's failure to appear in the action was occasioned by mistake, inadvertence,

surprise, or excusable neglect, (3) the moving party acted with due diligence after notice




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No. 32638-I-III
In re L.R.C.


of the entry of default, and (4) no substantial hardship will result to the opposing party.

White v. Holm, 73 Wn.2d 348, 352,438 P.2d 581 (1968).

       While R.C. presented some limited evidence that she had engaged in services and

was working to correct her parental deficiencies, she failed to make any showing under

the remaining factors. Her only excuse for not appearing at the termination hearing was

that she did not understand its import, despite mUltiple written warnings and a direct

verbal warning by Ms. Cantu, informing her of the consequences of failing to attend.

       She learned of the termination within the week and contacted her attorney to find

out how to go about vacating the judgment. She then waited five months before acting,

ostensibly because it took that long before she was able to travel the 14 miles to her

attorney's office in order to sign the necessary paperwork. This does not evince due

diligence. See, e.g., In re Welfare o/S.1., 184 Wn. App. 531,544-545,337 P.3d 1114

(2014), review denied, 183 Wn.2d 1002 (2015); In re Estate a/Stevens, 94 Wn. App. 20,

35,971 P.2d 58 (1999).

       Furthermore, in the intervening time L.R.C. has continued to age and was placed

in a permanent home with a family that is near to finalizing an adoption. 2 Given all of




       2 Although L.R.C. is not an opposing party, she is a party to the action. Because
of the nature of a termination, it is appropriate to consider the potential hardship to the
child in addressing a motion to vacate a default judgment.

                                              4

No. 32638-I-III
In re L.R.C


this, the trial court's denial of the motion comports with the law and was not an abuse of

discretion.

Due Process

       R.C. raises a due process argument for the first time on appeal. Thus, in order for

us to address the issue, it must be a manifest constitutional error. RAP 2.5(a). Because

of the substantial rights at issue in a termination proceeding, due process requires an

evidentiary hearing on the merits of the case to establish the statutory requirements for

termination prior to any default judgment. s.J., 184 Wn. App. at 542; In re Dependency

o/CR.B., 62 Wn. App. 608, 616,814 P.2d 1197 (1991). In order to terminate parental

rights, the state must present evidence establishing that (1) the child has been found to be

dependent, (2) the court has entered a dispositional order, (3) the child has been removed

from the custody of the parent for at least six months, (4) all the necessary services have

been afforded to the parent to correct the parental deficiencies, (5) there is little

likelihood of remedying the parental deficiencies, and (6) continuation of the parent child

relationship clearly diminishes the child's prospects of permanent placement. RCW

13.34.180(1).

       Relying on CR.B., R.C. asserts that the termination hearing was deficient because

the testimony merely "parroted" the statutory language. In CR.B., the hearing consisted

essentially of the caseworker giving legal conclusions as to whether each statutory factor

was satisfied. CR.B., 62 Wn. App. at 618-619. That approach failed because the court

                                               5

No. 32638-1-III
In re L.R.C.


must be presented with factual evidence to support its conclusions. Id. Unlike C.R.B.,

here the evidence meets the statutory requirements.

       The social worker, Ms. Cantu, testified that the dependency orders were entered

on April 19, 2013 and that L.R.C. had been outside her mother's custody since that date.

She testified that R.C. suffered from a chemical dependency and mental health issues,

and that remedial services had been provided in the form of a psychological examination,

psychological treatment, parenting and anger management classes, chemical dependency

treatment, and random urinalysis. Ms. Cantu then testified that R.C. completed her first

chemical dependency assessment, but following positive tests for methamphetamine,

failed to participate in any additional assessments or treatment. Ms. Cantu then testified

to her opinion concerning whether R.C. would further participate in services and whether

those parental deficiencies could be rectified. Finally, the guardian ad litem testified to

the present situation and best interests ofL.R.C. This testimony did not merely parrot the

statutory factors, but simply detailed the underlying facts necessary to support

termination. Consequently, the evidence presented was sufficient to support the court's

findings.

       As a secondary assertion, R.C. claims that her due process rights were violated by

the court's reliance on hearsay evidence. However, she has failed to show that either of

these asserted errors prejudiced the proceeding in any way. In order for an asserted

constitutional error to be manifest, it must cause actual prejudice, which entails having a

                                              6

No. 32638-1-III
In re L.R.C.


practical effect on the trial of the case. State v. O'Hara, 167 Wn.2d 91,99,217 P.3d 756

(2009).

       Pertinently, the examining psychiatrist who made the treatment recommendation

did not testifY at the hearing. Rather, the social worker testified based on the

psychiatrist's written recommendations in the dependency file. R.C. challenges this as

inappropriate hearsay evidence. However, hearsay is ordinarily objectionable because

the opposing party does not have the opportunity to confront the witness. Since R.C.

absented herself from the hearing, there is no identifiable consequence to admitting

hearsay rather than requiring testimony from the psychiatrist.

Service and Notice

       R.C. contends that the judgment was void for defective service because the

termination petition and summons was not handed directly to her, but was instead given

to the man with her at the meeting. This contention hinges entirely upon reading a

handwritten word as "man," where the State argues that the word reads as "mom."

However, given the surrounding context the meaning of the word is clear. Ms. Cantu

stated in a declaration:

       I met and served [R.C.] that evening. She was present with a gentleman
       friend. I served [man/mom] the paperwork and explained to her again the
       purpose of the hearing. I informed her that if she did not appear her rights
       would be terminated and she indicated she would be present.




                                             7

No. 32638-l-III
In re L.R.C


Clerk's Papers at 22 (emphasis added). Taken as a whole, this statement indicates that

the papers were served directly on R.C. Furthermore, she states in her own affidavit that

the papers were "handed to me." Consequently, she has failed to meet her burden of

establishing by clear and convincing evidence that service was improper. In re

Dependency ofA.G.,93 Wn. App. 268, 276-277, 968 P.3d 424 (1998).

       R. C. also contends that the judgment is void because an appearance in the

predicate dependency proceeding should constitute a prior appearance in the subsequent

termination, so that a party is entitled to notice prior to any hearing on a motion for a

default judgment per CR 55(a)(3). This court recently rejected that argument. In re s.l.,

184 Wn. App. at 540-542. This case also is distinguishable from s.l. in that R.C. did not

raise the issue to the trial court in her motion to vacate.

       The record here establishes that notice was sufficient under CR 55. The findings

of fact on the order for termination state that R.C. was given notice of the hearing but

failed to appear, and she confirms that fact in her motion to vacate and in her affidavit in

support of that motion. Consequently, the judgment is not void.

       Affirmed.




                                               8

No. 32638-1-111
In re LRe


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR: 





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