Ronnie L. Sego was permanently deprived of the custody of his two children by the juvenile court. The Court of Appeals reversed and remanded the case with
The basic issues are: (1) the standard of proof required to support an order permanently depriving a natural parent of his minor children; and (2) whether there is substantial evidence to support the trial court's order of permanent deprivation.
It is with the welfare of the children in mind that the rights of the parents are examined. Before a natural parent can be permanently deprived of the right to care, custody and control of his minor children the facts supporting permanent deprivation must "clearly show that the welfare of the children will be substantially subserved by such action." State ex rel. Cummings v. Kinne, 8 Wn.2d 1, 111 P.2d 222 (1941). We have also referred to the proof necessary for permanent deprivation as that supported by "the most powerful reasons" (In re Day, supra), "imperatively demanded" (In re Neff, supra), and, a "plain showing" (In re Ward, 39 Wn.2d 894, 239 P.2d 560 (1952)).
A synthesis of our cases, as well as some from other jurisdictions
Considering the trial court's role and the proper role of appellate review, we are convinced that there is "substantial evidence" to support the trial court's order of permanent deprivation in this case. The requisite standard of proof has been met.
The record reveals that while in the service Mr. Sego developed a habit of excessive drinking which continued unabated after his honorable discharge in 1960. A history of marital discord ended tragically when Mr. Sego murdered his wife, the mother of his 2-year-old daughter and 9-month-old son who are the subjects of the deprivation order herein. Mr. Sego testified that while intoxicated he
(Finding of fact 3.)
After murdering his wife, Mr. Sego pleaded guilty to second-degree murder, armed robbery and escape. In March 1969, he was sentenced to concurrent prison terms, 25 years for each of the first two charges and 10 years for the third. Mr. Sego has been serving his sentences at the state penitentiary at Walla Walla.
After Mr. Sego was arrested for murdering the children's mother, the Clallam County Juvenile Court held an emergency hearing on January 9, 1969. Acting upon the assumption that the Sego children were "dependent" within the meaning of the juvenile court act, the court declared the children wards of the court and temporarily placed them in a foster home. After a hearing on January 24, 1969, at which Mr. Sego was represented by counsel, the juvenile court reaffirmed the children's dependent status and continued their foster home care. An additional hearing was held on April 25, 1969, at which Mr. Sego was again represented by counsel. At this time the Clallam County Juvenile Court reaffirmed the dependency and wardship status of the children and awarded their temporary custody to Mr. and Mrs. W.L. Johnson, a maternal aunt and uncle, who resided in Skagit County, Washington. Further, jurisdiction over the children was transferred to the Juvenile Department of the Skagit County Superior Court.
A December 3, 1970 report, prepared by Mr. Paradis of the Department of Social and Health Services, Division of Public Assistance, recommended that Mr. Sego be "permanently and totally deprived of all rights to care for said minors" and that the children be placed in an adoptive status.
On February 24, 1971, the Skagit County Juvenile Court's probation officer and Mr. Paradis filed a petition
On October 26, 1971, the juvenile court entered findings, conclusions and an order permanently depriving Mr. Sego of the custody of his children and placing them in an adoptive status. On December 27, 1971, the court denied Mr. Sego's petition for visitation rights with his children pending review of the case by the Court of Appeals.
After a review of the record, the Court of Appeals concluded that the juvenile court's order of permanent deprivation was not supported by clear, cogent and convincing evidence. It reversed the order and remanded the case with directions to hold further proceedings to obtain additional evidence in order to remove any serious doubt concerning the propriety of the deprivation order.
The record indicates that while in prison Mr. Sego has taken advantage of available counseling and therapy services, has become active in Alcoholics Anonymous, has attended bible classes and has enrolled in a class to help qualify himself as a machinist. As a result, his sentences have been reduced 5 years which means that, if he becomes entitled to time off for good behavior, he may be released from prison in November 1980. In addition, he was scheduled for a progress hearing in April of 1972 which could result in an earlier release. Further, there was evidence that he might soon qualify for minimum security status which could, if granted, enable him to visit his children from time to time, outside the prison.
Concerning the foregoing, the trial court made finding of fact 5 as follows:
The juvenile court's order of permanent deprivation was predicated in part upon a finding that permanent deprivation is required "if permanent damage [to the children] is to be avoided." (Finding of fact 8.) The finding of fact rests partially upon expert testimony introduced on behalf of the petitioners seeking permanent deprivation. While there is testimony regarding Mr. Sego's progress in rehabilitation at the penitentiary, it does not obliterate the expert opinion that the children's welfare would be best served by immediate permanent deprivation.
Much of the Court of Appeals' opinion is concerned with the weight to be given to testimony of the various experts. It is possible, as the Court of Appeals has done, to diminish or enhance the weight to be attached to various evidentiary facts. As we said in Hollingbery v. Dunn, 68 Wn.2d 75, 82, 411 P.2d 431 (1966):
In this regard, the Court of Appeals has quoted at length from a report of Dr. Kaufman, admitted by agreement of the parties. At first blush the report seems to indicate that the children should not be removed from Mr. Sego's custody and that he should be given an opportunity to provide a suitable home. However, another portion of the report states as follows:
This portion of the report provides further evidence to support the court's ultimate findings, obviously based upon disputed facts and conflicting expert opinion.
At the conclusion of the hearing the trial judge filed a memorandum decision stating in part: "This Court does not reach this decision easily nor with peace of mind." Thereafter the trial judge entered findings of fact, conclusions of law and an order permanently depriving Mr. Sego of the custody of his children. The Court of Appeals has treated the quoted statement as an expression of doubt depreciating the requisite clear, cogent and convincing determination. We do not so read the court's memorandum decision. We see therein no more than a judge's natural reluctance to make such a difficult decision. It is not an indication that the judge's decision, however reluctantly made, was reached on the basis of inadequate evidence or that the trial judge was in doubt as to the correct course of action required.
We conclude that there is substantial evidence to support the findings of the trial court and that there is the requisite clear, cogent and convincing evidence to support the order of permanent deprivation.
Accordingly, the Court of Appeals is reversed and the order of the trial court is affirmed.
HALE, C.J., ROSELLINI, HUNTER, HAMILTON, WRIGHT, UTTER, and BRACHTENBACH, JJ., concur. FINLEY, J. (dissenting)
Murder can never be countenanced lightly. This is not a case of murder.
We face here the ordered separation of a father and his two children. The only real evidence in support of permanent deprivation of child custody is an earlier crime which the trial court and now this court have decided should
In re Sego, supra at 471. It was upon the basis of these recommendations that the trial court reached its decision, in spite of its own conclusions as follows:
In re Sego, supra at 461-62.
To mildly state the matter, it is unthinkable that an order forever separating a father from his children should be based — even in part — upon the unsupported, arbitrary recommendations of supposed "experts" who have never bothered to meet or talk with the man whom they so readily condemn. As suggested by the Court of Appeals, alternatives to the "drastic irreversible remedy of deprivation"
For the reasons indicated, I would affirm the ruling of the Court of Appeals reversing the judgment of the trial court with directions for further evidentiary proceedings.