Family and Child Services-Initiated Guardianships in Washington and the “Little Likelihood of Return to the Parents” Question – If the Parent’s Problem is Remedied, the Child Can Be Returned

In 2010, Washington amended its laws governing state intervention to protect children. If the Department of Family and Child Services does not want to fully terminate a parent’s rights, it can instead ask the courts to create a guardianship in favor of a foster parent or other placement of the child. One of the requirements before a guardianship can be sought is that there is little likelihood conditions will improve to the point that the child can be returned to the parents in the near future. A recent case discusses how this requirement is applied.


In the case in question, the father had a drug problem, and DFCS took custody of the child. (The child had previously been removed from the mother and placed in the father’s custody. She did not object.) The father underwent drug treatment, met regularly with the child and did well enough that the social worker recommended the child be returned to his custody. Unfortunately, the father was detained for immigration violations and deported to Mexico before DFCS could follow through on the recommendation. The father then requested the child be returned to his custody in Mexico. Instead, DFCS requested the court appoint the foster parents as guardians.


Nobody seriously disputed that the father had remedied his drug problem, and that Mexico’s child welfare agency reported favorably on the father’s home. The child’s mental health counselor recommended at the guardianship hearing that if the child was returned to the father, the transition should take several months to enable the child to adjust. On the other hand, he and the social worker both recommended that in the interest of stability, the child should not be returned to the father. Effectively, as the social worker conceded, the only real issue with the father’s condition was that he was no longer in Washington.


The trial court ruled that the problems leading to DFCS taking the child had been remedied. It also ruled, however, that for the child, “near future” was two to three months, and that the child could not effectively be returned to the father in that time frame. As a result, it appointed the foster parents as guardians. The father appealed.


The Court of Appeals noted that the “little likelihood” standard for appointment of a guardian was taken from the law for termination of parental rights. As a result, it applied the pre-2010 interpretation in termination cases, which focused only on whether, in the near future, the problems that led to the removal of the child could be remedied. In this case, the problems had been remedied. The question of whether it might be logistically difficult to return the child in the near future did not matter; had the legislature intended it to matter, it could have written the law differently.


Sometimes, in a child welfare case, the best response is not to fight the original intervention, but instead to correct the problem the state has noted. I understand that this can be a wrenching decision for parents, and that sometimes it is not easy to accept that there are problems that need to be remedied. In deciding how to proceed, a parent should consult not only a lawyer, but also counselors to help decide if it is feasible to make the changes the state may want.





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