### FILED NOV 19,2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III



### INTHE 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UNPUBLISHED OPINION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, challengesthe defaulttermination ofher parental rights. We concludethat she hadnotice ofthe hearing and lacked a good excuse for vacating the subsequent defaultjudgmentagainsther. Accordingly, we affirm. FACTS In

### late 2012, 

### RC gave birthto a daughter, LRC. Atthe time, RC testedpositive for methamphetamine, but voluntarily agreed to services and retained custody ofLRC. Overthe next several months, medical staffbecame concerned by RC's interactions with herdaughter andher failure to bring the childto a number ofmedical examinations. Whenthe two were located, LRC had developed an infection and was placed in protective custody. TheDepartmentofSocial and Health Services (DSHS) then brought
a dependency petition. The courtentered a dependency orderonApril 19, 2013.

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


### At the start ofdependency, a psychologist evaluated R.C. and determined that it would be unlikely that she could adequately protect and nurture a child without two years oftherapy. She was also offered aparenting 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 ofthe 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 herthe termination petition and summons. Ms. Cantu explained to R.C. that herparental rights would be terminated ifshe failed to appear at the termination hearing on October 28. Ms. Cantu also offered to give R.C. a ride to the hearing. Onthe 28th, R.C. failed to attend. The courtheld an evidentiary hearing on November 20 and entered a termination ordertwo 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 continuedparticipating in parenting services, tohave 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.

2

### No. 32638-I-II1 In re

### L.R.C
that she was unable to preparethe motion any sooner because she lives in Wapato and April was the first opportunity for her to get in to Yakima in orderto sign a declaration. The trial court deniedthe motion. Shethen appealed tothis court. ANALYSIS R.C. challenges the trial court's denial ofthe motion to vacate the default judgment. Additionally, she argues for the first time on appeal that the termination order
was entered in violation ofher due process rights and is void for defective service and for lack ofnotice under CR 55. We conclude that these contentions are without merit and will first treat the motionto vacate before turning to her additional arguments. Motion to Vacate 

### Well settled standards govern the resolution ofthis appeal. A denial ofa motion to vacate a defaultjudgmentwill be affirmed absent an abuse ofdiscretion. 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 12,26,482P.2d 775 (1971). A trial court will grant a motion to vacate a defaultjudgmentwherethe movingparty has shown that (1) there is substantial evidence to support a prima facie defense to the claims asserted by the opposingparty, (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

3No. 32638-I-III In re L.R.C.
ofthe entry ofdefault, and (4) no substantial hardship will result to the opposingparty. 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 workingto correct herparental 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 warningby Ms. Cantu, informing her ofthe consequences offailing to attend. She learned ofthe termination within the week and contacted her attorney to find outhow to go about vacating thejudgment. 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 orderto signthe 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 wasplaced in a permanenthome with a family that is near to finalizing an adoption. 2 Given all of

2Although L.R.C. is not an opposingparty, she is a party to the action. Because ofthe nature ofa termination, it is appropriate to considerthe potentialhardship tothe child in addressing a motion to vacate a defaultjudgment. 4

### No. 32638-I-III 

### In re L.R.C this, the trial court's denial ofthe 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 ofthe substantial rights at issue in a termination proceeding, due process requires an evidentiary hearing on the merits ofthe case to establish the statutory requirements for termination priorto any defaultjudgment. s.J., 

### 184 Wn. App. at 542; 

### In re Dependency o/CR.B., 62 Wn. App. 608, 616,814P.2d 1197 (1991). In order to terminateparental rights, the state must present evidence establishing that (1) the child has been found to be dependent, (2) the courthas entered a dispositional order, (3) the child has been removed from the custody ofthe parent for at least six months, (4) all the necessary services have been afforded to the parentto correctthe parental deficiencies, (5) there is little likelihood ofremedying the parental deficiencies, and (6) continuation ofthe parent child relationship clearly diminishes the child'sprospects ofpermanentplacement. 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 ofthe 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 

### 5No. 32638-1-III In re L.R.C.

mustbepresented 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 ofapsychological 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 toparticipate in any additional assessments or treatment. Ms. Cantu then testified to her opinion concerning whetherR.C. would further participate in services and whether thoseparental deficiencies could berectified. Finally, the guardian ad litemtestified to thepresent situation andbest interests ofL.R.C. This testimony did not merely parrotthe 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'sreliance 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 errorto be manifest, it must cause actual prejudice, which entails having a 

### 6No. 32638-1-III In re L.R.C. practical effect onthe trial ofthe case. State v. O'Hara, 167 Wn.2d 91,99,217 P.3d 756 (2009). Pertinently, the examiningpsychiatrist who madethe treatmentrecommendation 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 opposingparty does not have the opportunity to confront the witness. Since R.C. absentedherselffrom the hearing, there is no identifiable consequence to admitting hearsay ratherthan requiringtestimony from thepsychiatrist. Service andNotice R.C. contends that thejudgmentwas void for defective service becausethe termination petition and summons was not handed directly to her, but was instead given to theman withher 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 ofthe 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 ofthe hearing. I informed her that ifshe did not appear her rights would be terminated and she indicated she wouldbepresent.

7No. 32638-l-III In re L.R.C
Clerk's Papers at 22 (emphasis added). Taken as a whole, this statementindicates that thepapers were served directly on R.C. Furthermore, she states in her own affidavit that the papers were "handedto me." Consequently, shehas failed to meet herburden of establishingby clear and convincing evidence that service was improper. In re Dependency 

### of A.G.,93 Wn. App. 268, 276-277, 968 P.3d424 (1998). R.C. also contends that thejudgmentis void because an appearance in the predicate dependencyproceeding should constitute a prior appearance in the subsequent termination, sothat a party is entitled to notice prior to any hearing on a motion for a defaultjudgmentper CR 55(a)(3). This courtrecentlyrejected that argument. In re 

### s.l., 184 Wn. App. at 540-542. This case also is distinguishable from 

### s.l. inthat R.C. didnot 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 offact on the order for termination statethat R.C. was given notice ofthe hearing but failed to appear, and she confirms that fact in her motion to vacate andin her affidavit in support ofthat motion. Consequently, thejudgmentis not void. Affirmed.

8No. 32638-1-111 In re 

### LRe
A majority ofthepanel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:

9