INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON 

### Inthe Matter ofthe Dependency of K.L.P., STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,

v. ANTHONY PANARELLO, 

### Appellant. No. 72554-8-1 (consolidated with No. 73156-4-1) DIVISION ONE :J

- 

## UNPUBLISHED OPINION:" r'-

c., FILED: September 28, 20*5
Appelwick, J. — Panarello relinquished his parental rights and consented to K.L.P.'s adoption. After the Department determined K.L.P.'s adoptive placement, Panarello contended that his consent was involuntary. The trial court denied his motion to revoke his relinquishment and vacate the orderterminating his rights. We affirm.
FACTS K.L.P. is three years old and has been a dependentchild ofthe state for nearly her entire life. The DepartmentofSocial and Health Services (Department) provided services to K.L.P.'s parents to improve their parenting ability. After the Department found these services to be unsuccessful, it filed a petition to terminate theirparental rights on April 11, 2013. K.L.P.'s mother's parental rights were terminated on July 9, 2013. Anthony Panarello, K.L.P.'s father, objected to the petition. On June 20, 2014, shortly before the trial date, Panarello voluntarily signed a relinquishment of custody and consent to termination/adoption and waiver of notice (Consent). Fourdays later, the parties presented the Consentto the trialcourt. Panarello 

### appeared by telephone. After questioning Panarello and his attorney regarding theNo. 72554-8-1/2
voluntariness ofthe Consent, the court entered an orderterminating Panarello's parental rights. 

### Atthe time Panarello relinquished his parental rights, the Department had not yet 

### determined K.L.P.'s adoptive placement. Itwas considering both Panarello's sister, Gina 

### Searle, and K.L.P.'s foster parents as potential adoptive placements. A selection committee later concluded that itwould be in K.L.P.'s best interest to be adopted by her 

### foster parents, rather than Searle. The Department notified Searle of this decision on August 5, 2014. 

### Panarello filed an untimely appeal to the order terminating his parental rights. He also filed a motion to revoke the Consent and vacate the trial court's orderterminating his 

### parental rights. The court denied Panarello's motion on February 3, 2015. Panarello appeals. DISCUSSION 

### Panarello argues thatthetrial courterred indenying his CR60(b) motiontorevoke the Consent and vacate the order terminating his parental rights. He contends that he 

### relinquished his parental rights in reliance onfraudulent statements by the Department and an erroneous statement by thetrial court. Panarello also challenges several of the 

### trial court'sfindings offact. Hecontests thefinding that, as amatteroffact, Panarello did 

### not rely onits misstatement oflaw in deciding torelinquish his parental rights. He also 

### challengesthefindingthatPanarello'sattorneystatedPanarellohaddecidedtorelinquish "with full understanding of itslegal effect." Panarello also disputes the finding that the court's own error was harmless.No. 72554-8-1/3 Additionally, Panarello has moved to extend the period of time in which to file an 

### appeal to the original orderterminating his parental rights.1
I. Fraud Panarello first argues that the trial court erred in denying his CR 60(b)(4) motion to revoke the Consent due to fraud. CR 60(b)(4) permits a court to vacate an order for fraud, misrepresentation, or misconduct of an adverse party. We review a trial court's denial of a CR 60 motion to vacate a relinquishment of parental rights for an abuse of discretion. In re the Welfare ofJ.N.. 123 Wn. App. 564, 570, 95 P.3d 414 (2004). A trial court abuses its discretion when itmakes a decision that is manifestly unreasonable or 

### based on untenable grounds. Mitchell v. Wash. State Inst, ofPub. Policy, 153 Wn. App. 803, 821, 225 P.3d 280 (2009). Panarello contends that his relinquishmentofparental rights was secured by fraud


### or misconduct, because the Department represented that his sister would be K.L.P.'s adoptive placement. He argues that he agreed to relinquish his parental rights based on 

### this misrepresentation. Additionally, he claims that the Departmentdeceived him by not disclosing its adoption placement procedures.

1Panarello raises several issues on appeal regarding thatoriginal order. He claims 

### the trialcourterred inconcluding that his relinquishment ofparental rights was voluntary. 

### He also challenges the trial court's finding of fact that terminating Panarello's parental rights was inthe best interests ofthe child. Because we ultimately deny his motion to extend time, we do not review the merits ofthese issues.No. 72554-8-1/4

Inthe context ofvacating a party's relinquishment and consent to adoption, fraud has a broad meaning. See In re Infant Child Perry. 31 Wn. App. 268, 272, 641 P.2d 178 (1982). For these purposes, fraud is anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust or confidence, justly reposed, resulting in damage to another, or by which an undue or unconscientious advantage is taken of another. In re Adoption of Hernandez, 25 Wn. App. 447, 455, 607 P.2d 879 (1980). To succeed on a CR 60(b)(4) motion, a party must prove the claim of fraud by clear, cogent, and convincing evidence. J.N., 123Wn. App. at573. The trial courtconcluded thattherewas 

### not clear, cogent, and convincing evidence that the Department committed fraud or attempted to deceive Panarello The record shows that Panarellofirmlybelieved thathis sisterwould be considered


### as a possible adoptive placement. He expressed this hope to his attorney when signing the Consent. He emphasized it to the court during the termination hearing, agreeing that 

### relinquishing his parental rights was in the best interest of the child, so long as Searle
would be considered. 

### But, while Panarellofervently hoped Searlewould be K.L.P.'s adoptive placement, 

### he also recognized that once he relinquished his parental rights, the decision was in the Department's hands. Panarello signed the Consent, which clearly stated that the Department would have full authority to place K.L.P. with her adoptive parents and that Panarello would have no right to notice of adoption proceedings nor a right to contest 

### those proceedings. At the hearing, Panarello's attorney assured the court, "He understands thatthe Department is not required to place the child with his sisterand thatNo. 72554-8-1/5


### is Ithink the thing that made it most difficultfor him to go forward, butIthink he is satisfied that every good faith effort will be made." Panarello confirmed that this was a correct
statement of his views. 

### Despite the evidence in the record, Panarello asserts that the Department's misrepresentations are analogous to those found to be fraud in In re A.S., 65 Wn. App. 631, 829 P.2d 791 (1992). Inthatcase, a nurse noticedA.S. walking on hertiptoes, which could indicate cerebral palsy. Id. at 633. She told the caseworker that A.S. should be reevaluated in several months to rule out cerebral palsy. Id. The caseworker, however, told A.S.'s parents that there was a strong possibility that their daughter had cerebral palsy. Id. The parents understood this statement to mean that their daughter had cerebral palsy, and the caseworker did not correct them. Id. at 633-34. Because they could not afford to care for A.S.'s cerebral palsy, Mr. and Mrs. S. decided to relinquish their parental rights. ]d_, The court held the caseworker's deception to be clear, cogent, and convincing evidence offraud. ]d_. at 635-36. But, this case is distinguishable from A.S. Despite Panarello's claims, no one guaranteed himthat Searle would be K.L.P.'s adoptive placement. Panarello asserts that his attorney relayed a message from Assistant Attorney General Sara Kooistra. He claims that Kooistra told his attorneythat so long as Searletraveled to Washington to visit K.L.P. and their visit went well, the Department would place K.L.P. with Searle. Yet, Panarello did not have personal knowledge of this conversation. Kooistra's sworn 

### declaration, though, asserts that she never guaranteed placement with Searle. Rather, she indicated that itwould be beneficial for Searle to visitwith K.L.P., and the DepartmentNo. 72554-8-1/6


### would considerthese visits when making its decision. This evidence does not resemble the indisputable facts presented in A.S. Panarello now also contendsthatthe Departmentshould have informed himabout 

### the proceduresthroughwhich itwould make an adoption decision. Heargues his decision would have been different had he known the adoption committee was anonymous. Yet there is no evidence inthe record that Panarello asked how the Departmentwould make its decision. Nor is there evidence that the Department represented to him that K.L.P.'s social workerwould decide. And, nothing inthe record indicatesthat Panarello expressed to his attorney or the trial courtthat his decision was based on a beliefthat K.L.P.'s social 

### workerwould make the decision regarding adoptive placement. The Department'sfailure to disclose information itwas not asked to provide or legally obligated to reveal does not constitute clear, cogent, and convincing evidence offraud. 

### There is not clear, cogent, and convincing evidence that the Department guaranteed K.L.P.'s adoptive placement or deceived Panarello in any way. Therefore, the trial court did not abuse its discretion when itdenied Panarello's CR 60(b)(4) motion. II. Mistake, Irregularity, or Any Other Reason Justifying Relief Panarello also maintains that the trial court erred in denying his CR 60(b)(1) and 

### CR 60(b)(11) motions to revoke the consent due to mistake or other reason. He argues that the trial court made an erroneous statement of law that perpetuated his mistaken belief that K.L.P. would be placed with his sister. He construes this misstatement as 

### either a mistake or, alternatively, an extraordinary reason to revoke the Consent and vacate the orderterminating his parental rights.No. 72554-8-1/7
A court may order relief from judgment under CR 60(b)(1) because of "[mjistake, 

### inadvertence, surprise, excusable neglector irregularity inobtaining ajudgmentor order." CR 60(b)(11) permits relief fromjudgmentfor "[a]nyother reasonjustifying relief fromthe operation ofthejudgment." 

### The trial court incorrectly stated the law. During the hearing to execute the Consent, the court stated, "[T]heDepartmentwill be guided bythe law, which gives some 

### priority as Iunderstand it to biologicalfamily members, but ultimatelythe decision is the 

### Department's." This statement, as the court later recognized, is notaccurate. When the 

### Department has filed a terminationpetition, itis required to consider the parent's preferred 

### adoptive placement. RCW 13.34.125. However, it need notprioritize biological family
members. 

### In its order denying Panarello's motion to revoke the Consent, the trial court 

### recognized that it misstated the law. But, it found as a matter of fact that its incorrect statement did not affect Panarello's decision to relinquish his parental rights. The trial 

### court based thisfinding onfive discrete factualfindings. The courtfound that Panarello made the decision four days before the hearing, his attorney submitted the Consent beforethe court's misstatement of law, the court confirmed that Panarello was not basing 

### his decision on a guarantee regarding K.L.P.'s adoption placement, Panarello's attorney stated that Panarello made his decision with full understanding of its legal effect, and 

### Panarello was present and confirmed that his attorney's statements were accurate. The trial court also found that its error was harmless. Panarello challenges three of these 

### findings: that themisstatementoflawdid notaffectPanarello'sdecision, thatPanarello'sNo. 72554-8-1/8
attorney stated he made the decision with full understanding of its legal effect, and that the trial court's error was harmless.2 

### We uphold findings of fact that are supported by substantial evidence. Welfare of J.N.. 123 Wn. App. at 576. Evidence is substantial when a rational, fair-minded person would be persuaded that the finding is true. Id. We review conclusions of law de novo. Robel v. Roundup Corp.. 148 Wn.2d 35, 42-43, 59 P.3d 611 (2002). We do so even if 

### they are erroneously labeled as findings of fact. Id. at 43. Substantial evidence in the record supports the court's finding that Panarello did 

### not rely on the court's misstatement oflaw.3 Panarello came before the court having 

### already signed the Consent on June 20, 2014. He had decided that relinquishing his parentalrights was in the best interests of hischild. He hadacknowledged thatallfuture 

### decisions regarding K.L.P.'s adoptiveplacementwouldbe made bytheDepartment. Four 

### dayslater, Panarello was presentbytelephone at thehearing on theissue. Theparties presented the signed Consent to the court and announced Panarello's considered decision torelinquish hisparental rights. All of thisoccurred before the court misstated
the law.



### 2Specifically, Panarello objects tofindings of fact 7, 7d, and 9. Panarello further asserts thatfindings of fact 7 and 9 should be construed as conclusions of law 

### 3Panarello alleges thatfinding of fact 7 should be construed as a conclusion of law because itaffects the ultimate issue inthis case. But, whether Panarello relied upon 

### the trialcourt's erroneous statementof law is a factual question that can be answered by 

### looking at thecontextofthestatement. Therefore, thetrial courtdid noterroneouslylabel this as a finding offact. Wereview for substantial evidence. Welfare ofJ.N., 123Wn. App. at 576.
8No. 72554-8-1/9 

### During the hearing, the court questioned Panarello and his attorney to ensure Panarello had made this decision voluntarily. The misstatement of law was included in such a question: Did you talk with your client
. . . about the fact that ifparental rights are terminated that the welfare of the child will be in the hands of [the Department] and ofcourse the Departmentwill be guided bythe law, which gives some priority as I understand it to biological family members, but ultimately the decision is the Department's and so Mr. Panarello should know that his relinquishment is not conditioned on any commitment by the Department or the Court as to what the placement of [K.L.P.] should be? Thus, the court also stressed that neither itnorthe Departmentwas guaranteeing K.L.P.'s adoptive placement. Panarello's attorney responded that he had spoken at length to Panarello about this issue, and though it was difficult for Panarello to accept, he understood it. Panarello confirmed thatthis was an accurate representation of his views. As such, the trial court's erroneous statement did not affect Panarello's decision to relinquish his parental rights. Substantial evidence also supports the court's finding that Panarello's attorney 

### clearly stated that Panarello made his decision to relinquish withfull understanding ofthe consequences. Panarello's attorney assured the court, "Mr. Panarello knows what he's doing
... he has reluctantly decided thatthis is the bestthing that can happen." He also acknowledged that Panarello knew that the Department was not require to place K.L.P. with her aunt. Additionally, when the court asked Panarello directly if his attorney had accurately stated his views on the matter, Panarello replied, "Yes." Panarello had also read the Consent and signed it four days earlier. That documentexplicitly stated, "I have read or have had read to me the foregoing and I hereby understand the same. The 

### foregoing consent has been given freely, voluntarily, and with full knowledge of theNo. 72554-8-1/10 

### consequences." Therefore, substantial evidence supports the trial court's finding that Panarello knew the full legal effect of his actions when he decided to relinquish his parental rights. 

### Panarello challenges the trial court's "finding" that its own erroneous statement of 

### law was harmless.4 But, the unchallenged factual findings supportthe trial court's denial ofPanarello's Cr60(b)(1) motion. The courtfound that Panarello signed the Consentfour days before the hearing. It found that the Consent was submitted before the court misstated the law. Itfound that the court explicitly asked ifPanarello's relinquishment
was conditioned on a beliefabout K.L.P.'s adoptive placement, and Panarello's attorney stated that he had discussed that with Panarello at length. Finally, the court found that Panarello was present at the hearing, did not object, and confirmed that his attorney accurately stated his views. These unchallenged findings would support the conclusion that the misstatement was harmless. In light of this evidence, we conclude that the trial court did not abuse its discretion denying Panarello's CR 60(b)(1) motion due to mistake. Panarello argues, alternatively, that this misstatement of lawjustifies relief under CR 60(b)(11). He points to In re Adoption of Henderson, where the court remanded for
a hearing on a motion to vacate due to a mistake inthe decree. 97 Wn.2d 356, 360, 644 

### P.2d 1178 (1982). There, a provision that misstated the father's rights was accidentally

4 Panarello asserts that finding of fact 9, concluding that the court's erroneous statementof law was harmless, is properly understood as a conclusion of law. We agree. Whetherthe statementwas harmless is a legal conclusion based on the factual findings. See Mid-Town Ltd. P'ship v. Preston. 69 Wn. App. 227, 232, 848 P.2d 1268 (1993) ("Where the issue is what inference shall be drawn from facts where the evidencethereon is not in serious dispute, it is reviewed on appeal as a conclusion of law."). When a 

### conclusion of law is erroneously labeled as a finding of fact, we review itas a conclusion of law, and subject it to de novo review. Robel. 148 Wn.2d at43.

10No. 72554-8-1/11
included in the decree. Id at 359-60. The adoptive father, his attorney, and the court 

### commissionerallmistakenly believed thatthe provision was an accurate statementof the 

### adoptive father's rights. Id. The court found that these unusual circumstances merited a hearing under CR 60(b)(11). ]d at 360. 

### But Panarello has not indicated any similar mutual mistake here. Panarello's 

### mistaken assumptions about K.L.P.'s adoptive placement were not shared by anyone else. Instead, the trial court notified Panarello that the ultimate decision was up to the 

### Department. Panarello's attorney acknowledged this as well. Withoutmore, Panarello's mistaken beliefs do not constitute extraordinary circumstances sufficient to vacate the Consent under CR 60(b)(11). 

### We hold thatthe trial court did not abuse its discretion indenying Panarello's CR 

### 60(b)(1) orCR60(b)(11) motions due to thetrial court's erroneous statementoflaw. III. Motion to Enlarge Time to File Appeal 

### Panarello also moves for an extention of time to file a notice of appeal of the 

## original orderterminating his parental rights. Panarello concedes that his appeal ofthe orderterminating his parental rights wasnottimelyfiled. Even so, he argues that hedid 

### notvoluntarily waive his righttoappeal. He contends thathis prior attorney's failure to communicateinformation should not deprivehim of hisrightto appeal. Hefurtherasserts 

### that hefiled a notice of appeal as soon as he learned ofK.L.P.'s adoptive placement. RAP 5.2 dictates that an appellant mustfile a notice of appeal within thirty days after the trial court order isentered. We will extend that time period only"in extraordinary 

### circumstances and toprevent a grossmiscarriage of justice." RAP 18.8. We havevery

11No. 72554-8-1/12 

### rarely found this test satisfied. Reichelt v. Ravmark Indus.. Inc.. 52 Wn. App. 763, 765, 764 P.2d 653 (1988). Assuming his bare allegation that his attorney failed to communicate to him his right of appeal, Panarello has failed to indicate extraordinary circumstances here. His attorney's failure to communicate information about K.L.P.'s adoptive placement is not an extraordinary circumstance. See Reichelt. 52 Wn. App. at 766 (holding that attorneys' mistake was not extraordinary grounds). Additionally, it is not sufficient that Panarello filed a notice of appeal as soon as he learned of K.L.P.'s adoptive placement. He specifically disclaimed his right to contest and to receive notice of K.L.P.'s adoption by relinquishing his parental rights. The fact that he did not learn of K.L.P.'s adoptive placement until afterthe time to file had expired is not an extraordinary circumstance. 

### Here, the goal offinality outweighs Panarello's desire to extend the time to file an appeal. See Inre Adoption of Baby Girl K.. 26 Wn. App. 897, 906, 615 P.2d 1310 (1980). 

### We deny Panarello's motion to extend time tofile its notice of appeal.5
We affirm.

WE CONCUR: 

# CoXi T

5 Panarello's brief raises several issues concerning the original order terminating 

### his parental rights. Becausewe deny his motion to extend time tofile notice of an appeal, we do not reach these issues.
12