Department of Social & Health Services v. H.O. , 186 Wash. 2d 292 ( 2016 )

Gordon McCloud, J.

¶1 Petitioner H.O. asks us to reverse the Court of Appeals’ decision affirming the termination of her parental rights. She argues that the State failed to prove two prerequisites to termination, one statutory and one constitutional. The statutory prerequisite is codified at RCW 13.34.180(1)(d); it requires the State to prove that it has offered and provided “all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future.” The constitutional prerequisite is a finding (express or implied) of parental unfitness. We agree with H.O. that the State failed to prove the first prerequisite by the necessary evidentiary standard (clear, cogent, and convincing evidence). We therefore reverse the Court of Appeals and reverse the order terminating H.O.’s parental rights.¹

ISSUE PRESENTED

¶2 The mother in this case, H.O., suffered from drug addiction, depression and other mental health issues, and the effects of long term childhood trauma. The child in this case, B.P., suffered as well: she was born addicted to methamphetamine, endured withdrawal, was abandoned by H.O. during infancy, and experienced multiple disruptions when forming attachments with H.O. and various foster parents. On the other hand, after several tries, H.O. achieved sobriety; benefited from treatment in a structured environment; and became an attentive and caring mother to another child, A., in that structured environment. She also engaged in partially supervised, therapeutic visitation with B.P, and the two began to form what witnesses at the termination hearing called a social relationship with an emerging emotional attachment.

¶3 The significance of this attachment is the central disputed issue in this case. H.O. maintains that B.P. would have formed a stronger attachment to her if the Department of Social and Health Services (Department) had fulfilled its duty to provide “necessary services,” RCW 13.34.180(1)(d), to facilitate reunification. (It is undisputed that the Department provided B.P.’s foster parents with attachment therapy services.) The Department argues that it fulfilled this obligation but the services were futile. It maintains that the absence of a stronger attachment bond and H.O.’s risk of relapse now make her unfit to parent B.P. The trial court agreed with the Department.

¶4 The trial court is certainly in the best position to weigh the evidence presented about H.O.’s fits and starts, B.P.’s needs, and the Department’s attempts to fulfill its responsibilities. And if those were the only issues presented by the tragic facts of this case, we would certainly defer to the trial court’s judgment.

¶5 Our court, however, must resolve a legal question about the framework the trial court should use to make decisions in a parental rights termination hearing.

¶6 As discussed above, the legislature mandated that the Department provide all “necessary services” to parents like H.O. to try to move toward the goal of family reunification. RCW 13.34.180(1)(d). The trial court may not terminate a parent’s rights unless it determines that the Department fulfilled that duty or that services would be futile. The legislature did not specify how to implement this mandate where, as here, the Department identifies a child’s special needs and provides the foster parents, but not the biological parent, with the tools to try to address those needs. But recent precedent from this court and the Court of Appeals has addressed that issue, and we reaffirm that precedent now: where a child has special needs (here, special attachment needs), and where, as here, those special needs are exacerbated by the State’s failure to timely provide necessary services to the biological parent, then the State has failed to prove this legislatively mandated prerequisite to termination (absent futility, which was not shown here). See discussion of In re Welfare of C.S., 168 Wn.2d 51, 225 P.3d 953 (2010), and In re Welfare of S.J., 162 Wn. App. 873, 256 P.3d 470 (2011), infra pp. 313-16. Because we adhere to the holdings of C.S. and S.J., we reverse the decision of the Court of Appeals.

FACTS

1. Dependency proceedings

¶7 Petitioner H.O. gave birth to B.P. on July 8, 2011. Because H.O. was a methamphetamine user throughout her pregnancy, B.P. was born addicted and the hospital placed a “hold” on her. Clerk’s Papers (CP) at 180. B.P. was released into foster care July 13, 2011. In August 2011, an order of dependency was entered for B.P. That order and subsequent review orders required H.O. to complete random urinalysis (UA) testing, mental health treatment, chemical dependency evaluation and treatment, hands-on parenting training, therapeutic visitation, and family therapy. H.O. participated in mental health counseling and parenting services, and, in September 2011, B.P. was placed with her at Isabella House, a six-month residential chemical dependency program. Isabella House is a highly structured program: residents follow a regular schedule of chores, group therapy, exercise, and educational classes. Isabella House provides child care while residents participate in these activities. Residents of Isabella House follow a curfew, must sign in and out when they leave the facility, and must get permission to visit with any outsiders. H.O. successfully completed treatment at Isabella House in January 2012 and moved into the organization’s “[t]ransition [h]ouse” located next door. CP at 182. The transition house required residents to submit to UAs, observe a curfew, and participate in outpatient treatment and self-help groups.

¶8 H.O. relapsed, and B.P. was again removed from her care in July 2012, when B.P. was one year old. H.O. was allowed visitation with B.P. immediately upon her removal, but H.O. frequently arrived high for visits or missed them altogether. The dependency court suspended visitation in October 2012 after H.O. missed 10 scheduled visits and B.P. began displaying aggression and disorganized behavior toward H.O. during the visits she did attend. The court ordered that visitation would not resume unless H.O. obtained another court order reinstating visits. In November 2012, B.P. was placed into her fourth and final foster home, with her paternal aunt and uncle. B.P. did well in this placement, but when there was a change in her routine she showed significant distress. She displayed “disorganized” attachment behavior and was unable to regulate her emotions. 2 Verbatim Report of Proceedings (RP) at 161 (Feb. 11, 2014).

¶9 H.O. became pregnant again in the fall of 2012 and continued to use methamphetamine for most of the pregnancy. The Department filed a petition to terminate H.O.’s parental rights to B.P. When she was eight months pregnant, however, in May 2013, H.O. returned to Isabella House. H.O. gave birth to A. in June 2013, and the Department agreed to an in-home dependency so that A. could remain with H.O. at Isabella House. H.O. remained sober through the time of trial in this case, and A. has never been removed from her care.

¶10 In August 2013, H.O. obtained a court order provisionally reinstating visitation with B.P. The order granted her “1 visit in [a] therapeutic setting” and provided that “[a]ny additional visits shall be based upon [the] therapist’s [r]eport.” Ex. P-11, at 3. In August 2013, H.O. and B.P. had a visit supervised by Lori Eastep, a family therapist. At that point, the termination trial was set for September 16, 2013. Eastep reported that the visit went well, but she found it “contraindicated to begin visitation if the Department is moving toward termination,” and recommended at that time that visitation continue only if the State did not intend to seek termination.² 1 RP at 64 (Feb. 10, 2014). On August 28, 2013, the trial court denied further visitation because the case was proceeding toward termination.

¶11 On September 13, 2013, however, the trial court reversed that order and continued the termination hearing four months, until January 13, 2014. That continuation order stated, in relevant part:

2.1 The parties have shown good cause for a continuance of the termination hearing scheduled for September 16, at 9:00 a.m., in that: the parties agree that the mother needs to have some visitation in order to determine if the parent child relationship can be repaired.

The parties agree that the trial should be continued to the first available date in January 2014.

Despite the court order entered on August 28, 2013, the mother should begin to have weekly therapeutic contact with the child. A parenting assessment should also be scheduled for sometime in November 2013. After the assessment is completed, the parties should hold a staffing to assess the current case plan.

CP at 66 (emphasis added).

¶12 As a result of this new order, H.O. had 22 two-hour visits with B.P. between October 2013 and February 2014, all supervised by Eastep. By November 2013, the supervised visits occurred twice a week, consistent with the trial court’s order. By December, Eastep decreased supervision to once a week because H.O. was handling the visits well on her own.

¶13 H.O. also progressed in treatment during this time. She successfully completed her treatment program at Isabella House in December 2013 and moved into transitional housing. During her treatment at Isabella House, H.O. committed only one violation of house rules: she accepted a ride from B.P.’s foster father. This violation resulted in H.O.’s spending an additional six weeks at Isabella House, but H.O. self-reported it and continued to test clean afterward.

¶14 She therefore moved to continue the termination trial on December 6, 2013. She filed a declaration explaining that she had not yet had sufficient visitation with B.P. and was still seeking stable housing.

¶15 Of most relevance to this appeal, H.O.’s declaration stated:

At this time I feel that I have not had enough one on one time with [B.P.] .... [W]hile I understand that [B.P.] could come to [my current transitional housing] and live there with me[,] if I am going to be moving to a more permanent home[ ] then I think that is where her transition should occur. I think it would be difficult for her to come home to me and then move to a different home. I want to do a transition in a thoughtful and careful manner. I want to be in a stable place so that I can focus on [B.P.] and her needs as she transitions to my care.

I know that a transition to my care is going to be difficult for [B.P.]. I know that I let her down in the past, but I am doing everything that I can to make that right for her. I missed out on a lot of time with her. A lot of that is my responsibility, but there is also some that is the Department’s responsibility. At a recent shared planning meeting, our therapist Lori Eastep stated that [B.P] would not attach to me unless she was forced to do it. My understanding of that is that if she were moved to my care and had to depend on me then she would start attaching to me. I have also learned, at my family therapy appointment on December 10, 2013 that the foster parents are doing family preservation services with [B.P. ] because they have started, detaching from her. This is very distressing to me. At this point I feel that I just need a bit more one on one time with [B.P] and a more stable home for my daughter to which my daughter can come home.

CP at 81-82 (emphasis added).

¶16 In response to H.O.’s report that she discovered the Department was providing family preservation services to the foster parents, but not to H.O., Marcey Monohan, the social worker assigned to B.P.’s dependency, filed a declaration. Monohan denied that B.P. had ever started to detach from her foster parents, but acknowledged that an attachment therapist had been working with the foster family. She explained that this was necessary because “[B.PJ’s ability to form a healthy attachment has been compromised by her mother’s relapse and subsequent removal from her care, especially given the important developmental age when this occurred.” CP at 90.

¶17 At the time of the final dependency review hearing on December 18, 2013, H.O. was compliant with all ordered services and the court ordered her to continue family therapy with Eastep. At the termination hearing, however, Eastep testified that she never provided “family therapy” for H.O.; she instead provided only what she called “therapeutic visits.” 1 RP at 67 (Feb. 10, 2014). These were aimed at helping H.O. identify B.P.’s “cues and boundaries” and allowing Eastep to assess “[B.PJ’s social/emotional relationship with [H.O.] and her sibling, [A.].” Id. Eastep distinguished these aspects of the therapeutic visits from “family therapy” and “bonding and attachment work” and testified that she was not a “certified attachment person.” Id. at 94-95. She also testified that “when you have a young child, you don’t ever really do family therapy,” but instead help the parent “process! ] external.. . and internal factors.” Id. at 100.

¶18 At the time of the termination hearing, H.O. was living in a transitional housing facility with a curfew, random UAs, weekly chore assignments, and various other rules. She had been living there for a little over two months.

2. Termination trial

¶19 Eleven witnesses testified at the termination trial in February 2014, 9 for the State. H.O. and her case manager in the transitional facility testified for H.O. All of the witnesses testified primarily about H.O.’s progress in addiction recovery and B.P.’s potential for attachment with H.O. The State’s theory was that H.O. was a fit parent to A., but was unfit to parent B.P. due to B.P.’s potential for developing an attachment disorder. According to the State, H.O. would need to be stable and “in tune with her own emotions” in order to help B.P. grieve the detachment from her foster parents and reattach to H.O. 3 RP at 407 (Feb. 20, 2014). The State maintained that H.O. lacked these qualities, and it argued that B.P. needed permanence immediately or her mental health would be “at great risk.” Id. at 413.

¶20 Overall, Eastep testified in positive terms about H.O.’s insight into the facts that (1) she was a stranger to B.P. before visitation began and (2) B.P. would not bond with her solely because she was B.P.’s biological mother. She praised H.O. for preparing well for the visits and asking a lot of good questions about B.P.’s behaviors and needs. She also testified that H.O. was “A[.]’s primary attachment person” and that A. appeared to be “a very healthy, happy little girl.” 1 RP at 70, 73 (Feb. 10, 2014).

¶21 Eastep’s testimony about B.P.’s attachment was more ambiguous: she said that although B.P. had an “emerging emotional connection” with H.O., B.P. did not identify H.O. as her primary attachment person and might never do so. Id. at 75. She said that over the four to five months she worked with H.O. and B.P, their relationship had “moments where it... improved,” but was overall “a bit up and down.” Id. at 70. She testified that the research on infant attachment shows that it tends to occur at 11 months, and that if a child attaches to another person, “it makes it very difficult from an attachment strategy to change that without forcing it” Id. at 71. She explained that no one can be sure which children will have the resilience needed to repair a disrupted attachment with an adult. She opined that it generally takes “hundreds and sometimes thousands of contacts for children to establish a secure attachment,” and likened it to the process of a child becoming comfortable with a babysitter over the course of a year or two. Id. at 77-79. She also explained that in order for B.P. to form an attachment to H.O., she would need to sever her attachment to her foster parents. Finally, Eastep explained that when children return home from a foster home where they have formed an attachment, therapists usually recommend ongoing contact with the foster family to help the child handle the transition.³

¶22 When asked whether B.P. would be able to return to H.O.’s care in the near future, Eastep responded that it was not a “yes/no question.” Id. at 84. She said that the State would be taking a “calculated risk” by placing B.P. with H.O. because H.O. had not demonstrated the ability to parent a child older than A. and did not have a long track record of sobriety. Ultimately, she recommended a guardianship, in which B.P. would remain with her foster family but H.O. would retain her parental rights. Other parts of her testimony indicate that H.O.’s treating professionals viewed the supervised visits as preparation for B.P.’s possible, eventual return to H.O.’s care. E.g., id. at 96 (testifying that H.O.’s individual therapist and counselor encouraged H.O. to bring A. to every supervised visit “because [H.O.] would be parenting both if [B.P] were to go home”).

¶23 On cross-examination, Eastep acknowledged that she is not certified in attachment work but that evidence-based attachment work is offered in Spokane, where H.O. and B.P. lived.

¶24 Carol Thomas, a child therapist and evaluator, testified at length about attachment theory and the consequences of failing to form a secure attachment in infancy. She explained that B.P. had experienced multiple disruptions just as she was forming attachments to H.O. and to various foster parents, and that when a child suffers too many disrupted attachments, that child may “detach completely” and stop trying to connect emotionally or socially. Id. at 115. She also testified that she conducted a parenting assessment with H.O., B.P, and A. in November 2013 and determined that B.P. was developing a social relationship with H.O., which lacked any characteristics of an attachment. She said that H.O. “did well” managing both children and responding to their cues. Id. at 128. She opined that ending contact between B.P. and H.O. would have a minimal effect on B.P.’s well-being because the two had only a social relationship. She also testified that if B.P. were returned to H.O.’s care, she would be available to provide therapy to help H.O. address B.P.’s disrupted attachment to her foster parents.

¶25 Sandra Gormon-Brown, H.O.’s individual therapist, testified that she was helping H.O. address difficult childhood traumas that H.O. had endured over a long period of time. She stated that she had “very specific and intensive training in the field of attachment, pediatric trauma and grief,” but was working only with H.O., not with H.O. in relation to B.P. or A. Id. at 150. Gormon-Brown did not believe that H.O. had any mental health problems that would “impact her ability to have a child that was removed from her care brought back into her care,” but also said she was unsure whether H.O. could be sufficiently emotionally available to B.P. to reunify with her. Id. at 147. Gormon-Brown testified that she thought B.P. would have more difficulty reuniting with H.O. than H.O. would have reunifying with B.P. She opined that H.O. would need at least another six months of therapy to work through her own trauma. Gormon-Brown acknowledged that H.O. was highly motivated to succeed in therapy and that Gormon-Brown was available to do attachment work with H.O. and B.P. if H.O.’s parental rights were not terminated.

¶26 Amanda Clemons, a therapist specializing in family therapy and attachment services, testified that she had contracted with the Department to assist B.P.’s foster family “in terms of attachment and . . . meeting [B.PJ’s needs.” 2 RP at 159 (Feb. 11, 2014). At the time Clemons testified (February 11, 2014), she had been providing this assistance two to three times per month for about four months. Clemons stated that B.P. generally exhibited a secure attachment to her foster parents, but that during three of eight total sessions, B.P. demonstrated “disorganized” attachment. Id. at 161. According to Clemons, this disorganized behavior always corresponded to some change in B.P.’s routine, including visitation with H.O. She opined that this indicated B.P. had difficulty handling change, that B.P. needed stability, and that this was attributable to the multiple caregiving disruptions B.P. endured during the first months of her life. Clemons explained that the “first three years are critical” for attachment. Id. at 162. She opined that B.P. was at risk for developing an attachment disorder and that it would not be in B.P.’s best interests to experience another disruption. Clemons testified that she could be doing attachment work with H.O. and B.P, but had not received a referral to do such work. She also testified that healthy attachments generally make it easier for children to handle transitions, but that B.P.’s attachment to her foster parents was “not very healthy based on the disruptions.” Id. at 168-69. She also predicted that the attachment work she had done with the foster parents would make it “even more difficult” for B.P. to endure yet another disruption. Id. at 168.

¶27 B.P.’s and A.’s guardian ad litem, Karen Schweigert, testified that H.O. was a remarkably attentive mother when B.P. was returned to her care at Isabella House from fall 2011 to spring 2012. Schweigert recalled that during this period, H.O. was able to get B.P. “onto a nursing-on-demand schedule, which took an unbelievable amount of dedication and patience.” Id. at 223. She also testified that B.P. appeared more stressed and less happy when she and H.O. moved out of Isabella House and into the less structured transitional housing, and that when H.O. relapsed and B.P. was removed from her care, the change was “horrifying for this little girl.” Id. at 226. Schweigert described B.P.’s behavior since that time as changing from “meltdowns,” so serious that her caregivers suspected a medical cause, to “happy, healthy” behavior that seems “[d]evelopmentally ... on track.” Id. at 228, 230. She continued, however, that by December 2012, H.O. had stopped returning her calls, making it difficult for Schweigert to schedule visits with H.O. and A., and that H.O. had also started lying to her. She opined that H.O. was a “really good mother,” but only when she was sober and “under a microscope.” Id. at 240. Schweigert stated that she did not think H.O. was capable of putting B.P.’s needs above her own, providing a consistent schedule for B.P., or reading B.P.’s emotional cues. She opined that it was unlikely B.P. would be able to reattach to H.O., “especially without significant trauma,” but also admitted that she had not seen H.O. and B.P. together since August 2013. Id. at 245. She also acknowledged that B.P. might reattach to H.O. if she were returned to H.O. full time because “anything is possible.” Id. at 246.

¶28 Kolleen Seward, H.O.’s chemical dependency treatment counselor, testified that H.O. began intensive outpatient drug treatment with Seward’s organization, Partners with Families and Children (Partners), in December 2013. She explained that Partners requires participants in intensive outpatient treatment to come to three group therapy sessions per week, one or two individual sessions per month, and two outside support meetings per week. She stated that the purpose of the outside group requirement was to help participants build “clean and sober peer support network[s],” and that participants can, if they choose, fulfill half of the requirement by attending one church service per week. Id. at 172. The other group meeting must be “something surrounding recovery.” Id. at 176. She stated that H.O. had not verified her participation in the outside group meetings, but also said she had no current concerns about H.O.’s recovery.

¶29 Carla Paullin, who provided H.O. with weekly one-on-one chemical dependency therapy from October 2011 until July 2012, testified to H.O.’s history of childhood abuse, criminal activity, incarceration, failed relationships, depression, and drug addiction. She testified that although she had not seen a psychiatric evaluation of H.O., she felt H.O. had “personality disorder traits” and “due to the time she’d spent incarcerated . . . some antisocial stuff.” Id. at 188-89, 194. She also opined that H.O. was “institutionalized” and that she did well in Isabella House’s highly structured environment but “f [e]ll apart” when she graduated and moved to the less structured transition house. Id. at 191. Paullin opined that someone with H.O.’s history of drug abuse would probably need two years of structured “wrap-around” treatment therapy before she would “feel good” about H.O.’s prospects for continued sobriety. Id. at 198. She also indicated that that type of therapy was not available in Spokane. Paullin also opined that a support network would be crucial to H.O.’s sobriety outside a structured living situation. Finally, Paullin admitted that she had not worked with H.O. since July 2012.

¶30 Marcey Monohan, the social worker assigned to monitor B.P.’s dependency, testified that she was surprised to hear Eastep say she had not provided family therapy for B.P. and H.O. Monohan said that the Department had used Eastep for family therapy referrals in other cases and that Eastep’s reports for H.O.’s case indicated to Monohan that Eastep was providing what the Department regarded as typical “family therapy.” Id. at 274. Monohan described A. as a happy and expressive baby who was developmentally on track; she said that H.O. was patient with B.P. during the visits that Monohan observed. But she also said that B.P. was anxious and confused around H.O. during visits. Monohan opined that B.P. could not be safely returned to H.O.’s care at that time because H.O.’s substance abuse and mental health were still concerns “in regards to her ability to be emotionally available for a child like [B.P.].” Id. at 275. She said that she did not think H.O. understood the nature of the trauma her relapse had caused B.P. She testified that when she asked H.O. whether she had any insight into what the visitation process was like for B.P, H.O said, “ 1 don’t know how to answer that question. I don’t know what you want me to say.’ ” Id. at 280. Monohan expressed concern that H.O. had not verified her participation in all of the chemical dependency group work that Partners required because a similar failure had preceded H.O.’s prior relapse. She said that H.O. would need to demonstrate 18 months to 2 years of sobriety before Monohan would be comfortable that H.O. was in solid recovery. Finally, Monohan opined that B.P. did not treat H.O. like a mother, that B.P. could not wait any longer for permanent stability, and that H.O.’s legal parenthood was a barrier to that stability. On cross-examination, Monohan admitted that she had not seen H.O. and B.P. together since late December (about seven weeks before her testimony).

¶31 Paige Beerbohm, a licensed chemical dependency counselor employed at Isabella House, testified that at the time of trial H.O. was in “early recovery” from her addiction, meaning that she had not yet demonstrated an ability to sustain her sobriety. 1 RP at 35 (Feb. 10, 2014). She said that she was not aware of any period of time during B.P.’s life that H.O. was able to sustain sobriety in an unstructured setting. But Beerbohm also testified that she had worked hard to create a better treatment plan for H.O. during her second stay at Isabella House and that H.O. appeared to be “much more open, . . . willing, . . . [and] honest” about treatment than during her first stay. Id. at 43. Beerbohm said she did not have any current concerns about H.O.’s sobriety.

¶32 Amber Eggert, H.O.’s case manager in the transitional housing facility where H.O. lived at the time of trial, testified that H.O. was in compliance with all the facility’s rules.

¶33 Finally, H.O. testified that she received different and much better treatment at Isabella House during her second stay than she received during her first stay. She also testified that she was approaching her treatment differently this time, with more active engagement and dedication. She explained that she had attended every outside group support meeting that Partners required, but had documented only half the meetings because she was confused about whether one of the meetings she was regularly attending counted as “church” or treatment. 3 RP at 367 (Feb. 13, 2014). She said that she had cleared up the misunderstanding with her treatment provider.

¶34 H.O. continued that she had a strong support network of relatives, including her father, and friends from church. She described her relationship with B.P. as improving as their visits continued. She said that she could not completely understand what B.P. had experienced due to her relapse, but knew she had caused hurt and confusion for B.P. H.O. believed that she could address B.P.’s problems because she loved her, was committed to fixing their relationship, and knew that the best place for B.P. was with her sister and mother. She acknowledged the testimony regarding the risks that reunification posed for B.P.’s emotional development, but testified that she thought “those were all things that could change if services like attachment therapy had been something that [Ms. Clemons] had been working on with me and not the foster family.” Id. at 383.

¶35 The trial court terminated H.O.’s parental rights to B.P. Of most significance to this appeal, the trial court found that

all necessary services, reasonably available, capable of correcting parental deficiencies within the foreseeable future have been offered or provided including: chemical dependency inpatient treatment, outpatient treatment, UA/[blood alcohol] monitoring, individual counseling, parenting assessment, parenting services including family preservation services and therapeutic visits with Ms. Eastep in part to address the mother child relationship. . . .

... Ms. Eastep found that while [H.O.] demonstrated insight, “she was a stranger to [B.P.] and that her absence created challenges. [H.O.] maintained an adult perspective that [B.P.] would love her because she loved [B.P.]. Ms. Eastep indicated this was not realistic.... Ms. Eastep indicated [B.P] would not form a healthy attachment to [H.O.] without being forced. She also testified that forcing [B.P] to do this would significantly impact her mental health in a negative manner.

. . . The coui't was concerned about what attachment services were offered to [H.O.]. However . . . [B.P] was only at a social relationship with [H.O.] at the time of trial, the emotional relationship was just emerging. The court finds that the services necessary to build the type of relationship necessary to meet [B.P.J’s needs would take one year or more and that is too long.

... At the time of trial, [B.P.] was at risk of an attachment disorder.

. . . The mother is currently unfit to parent [B.P.]. . . . [H.O.] is responsible for the stops and starts in her parenting. She does not understand [B.P.] ’s needs for permanency or the risk she faces if she develops an attachment disorder. [H.O.] cannot claim that because [A.] is in her care, that she must be fit to parent. [B.PJ’s needs are different and her attachment issues are the result of her mother’s actions. [H.O.] has not demonstrated an ability to understand her own feelings, or those of [B.P.]. Thus, the Department has established that [H.O.] is currently unfit to parent.

CP at 181-88.

3. Appeal

¶36 H.O. appealed the termination of her parental rights, assigning error to five of the trial court’s factual findings: (1) that all necessary services were expressly and understandably offered or provided to her, (2) that little likelihood existed to remedy conditions so B.P. could be returned to her in the near future, (3) that her continued parent-child relationship diminished B.P.’s prospects for early integration into a stable and permanent home, (4) that terminating her parental rights was in B.P.’s best interests, and (5) that she was unfit to parent B.P. In re Parental Rights to B.P., 188 Wn. App. 113, 117, 353 P.3d 224 (2015), review granted, 184 Wn.2d 1039, 366 P.3d 932 (2016). In this court, H.O. challenges only two of those findings: (1) that all necessary services were offered and provided and (2) that H.O. was currently unfit to parent B.P.

¶37 The Court of Appeals affirmed in a split decision. B.P., 188 Wn. App. 113.

ANALYSIS

¶38 Before a court can terminate a parent’s rights, the State must prove six statutory elements by clear, cogent, and convincing evidence. In re Dependency of K.D.S., 176 Wn.2d 644, 652, 294 P.3d 695 (2013) (citing RCW 13.34.180(1)(a)-(f)). These elements are:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;

(c) That the child has been removed . . . from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; . . . [and]

(f)That continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home.

RCW 13.34.180(1). The only statutory prerequisite at issue in this appeal is (d): the provision of all necessary and reasonably available services capable of correcting parental deficiencies.

¶39 The other prerequisite to termination at issue in this case is the nonstatutory prerequisite of parental unfitness. The State may not terminate a parent’s rights without showing that the parent is currently unfit to parent the child in question. In re Welfare of A.B., 168 Wn.2d 908, 918, 232 P.3d 1104 (2010) (A.B. I). Terminating a parent’s rights in the absence of such a finding, either express or implied, violates due process clause protections. Id.; see Wash. Const. art. I, § 12. The fact of unfitness must also be proved by clear, cogent, and convincing evidence. A.B. I, 168 Wn.2d at 919.

¶40 In order to prove unfitness, the State must show that the parent’s deficiencies make him or her incapable of providing “ ‘basic nurture, health, or safety.’ ” In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014) (A.B. II) (quoting RCW 13.34.020). Where a trial court finds that the six statutory prerequisites have been met, this constitutes an implicit finding of unfitness. In re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011).

¶41 The trial court’s findings of fact in a termination proceeding will not be disturbed so long as they are supported by substantial evidence in the record. In re Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). However, because the State must prove its case in a termination proceeding by clear, cogent, and convincing evidence, that evidence must be “more substantial than in the ordinary civil case in which proof need only be by a preponderance.” Id. While the record in this case supports certain concerns about H.O.’s parental fitness and amenability to corrective services, those concerns do not amount to clear, cogent, and convincing evidence warranting termination. We therefore reverse the Court of Appeals and reverse the order terminating H.O.’s parental rights.

The Trial Court Erred by Finding That the State Provided H.O. with All Necessary Services Capable of Correcting Parental Deficiencies

¶42 As noted above, before the trial court can terminate a parent’s rights, it is required to find that “all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided.” RCW 13.34.180(1)(d). Washington courts have addressed that requirement in two cases that bear striking factual similarities to this one.

¶43 In C.S., C.S. was found dependent due to his mother’s substance abuse and placed in foster care for the first three years of his life. 168 Wn.2d at 53-54. When C.S. was two, his mother successfully completed an addiction treatment program. Id. at 54. Before entering treatment, she also gave birth to a second child. Id. at 54 n.1. When C.S. was three, his mother was successfully caring for this second child and had been sober for a year, but the State nevertheless filed a termination petition as to C.S. Id. The trial court terminated the mother’s rights, concluding that although she had remedied her only identified parental deficiency, substance abuse, “she lacked ‘the patience, presence of mind, skills, experience, time in a day, and availability to care to [C.S.] - given his special needs.’ ” Id. at 55 (alteration in original). C.S. had been diagnosed with ADHD (attention deficit hyperactivity disorder) and several other disorders, and the trial court deemed his mother unfit to parent a child with so many difficulties. Id. This court reversed the termination because the State had offered training to C.S.’s foster parents in how to deal with his special needs, but had not offered any such training to C.S.’s mother. Id. at 55-56.

¶44 In S.J., S.J. was found dependent when he was two and a half. 162 Wn. App. at 876. His mother’s parental deficiencies were substance abuse, unsanitary living conditions, and mental health issues. Id. Shortly after S.J. was removed from her care, his mother entered treatment for substance abuse but was unsuccessful. Id. When S.J. was three, his mother discovered she was pregnant with another child and entered treatment again. Id. This time, she was successful enough that the trial court allowed supervised visitation with S.J. Id. During these visits, the mother received some parenting education. Id. at 876-77. When S.J. was three and a half, his mother graduated from her treatment program and gave birth to her other child. Id. at 877. She maintained her sobriety, continued with mental health treatment, and successfully parented her other child. Id. When S.J. was four, he began therapeutic visitation with his mother. Id. This went well for a while, but visitation was suspended when S.J. started acting out toward his mother and clinging to his foster parents at visits. Id. The State filed a termination petition, and at the hearing, several witnesses testified that the State could have provided S.J. and his mother with bonding and attachment services but failed to do so. Id. at 877-78. Witnesses also testified that S.J. was unlikely to develop a healthy relationship with his mother in the near future “due to SJ’s entrenched perception of his mother and [her] inability or unwillingness to parent SJ effectively.” Id. at 879. The Court of Appeals reversed the termination for two related reasons: it found that the State delayed provision of mental health treatment, which might have diminished S.J.’s prospects for bonding with his mother, and it found that the State failed to provide any bonding and attachment services whatsoever. Id. at 883-84.

¶45 In both of those cases, appellate courts reversed a termination order because the State failed to provide the mothers with training to help them address their child’s special needs. C.S., 168 Wn.2d at 53-54; S.J., 162 Wn. App. at 877-78. In S.J., as in H.O.’s case, these special needs arose primarily from the child’s separation from his mother and bond with the foster parents, factors that were exacerbated by the State’s failure to timely provide necessary services. 162 Wn. App. at 877-78. And in C.S., the State argued—-just as it did in H.O.’s case—that services would have been futile because of the mother’s substance abuse and mental health problems. 168 Wn.2d at 56 n.2. We rejected this argument because the trial court found the mother had “no lingering deficiency from substance abuse or mental health issues that would preclude her from caring for C.S., much less from successfully completing training to do so.” Id. C.S. impliedly holds that the State may not unilaterally decide that an otherwise fit parent lacks the requisite lifestyle or personality traits to benefit from necessary services.⁴ Instead, absent a showing that services would be futile,⁵ the parent must have the opportunity to benefit from all services available to address a barrier to family reunification.⁶

¶46 In H.O.’s case, the trial court did not make an explicit finding that H.O. had no substance abuse or mental health barriers to parenting. Indeed, the court repeatedly emphasized H.O.’s history of substance abuse and mental health problems.⁷ But none of these deficiencies made H.O. unfit to parent A.—the State conceded that H.O. was fit to parent A. and the testimony about her parenting of A. was entirely positive. Thus, there is only one viable interpretation of the trial court’s findings on substance abuse and mental health: that H.O. lacked the requisite emotional skills to ensure that attachment services would succeed in the near future. Under C.S., this finding is improper. Absent a showing of futility, H.O. was entitled to any available services necessary to facilitate reunification with B.P. It was not her burden to prove that these services would succeed before the State provided them.

¶47 Additionally, the record does not support a finding that attachment services would have been futile in this case. Six witnesses testified for the State regarding attachment. Eastep testified that the court would be taking a “calculated risk” by placing B.P. with H.O. 1 RP at 84 (Feb. 10, 2014). Gormon-Brown testified that she didn’t know whether H.O. had made enough progress in therapy to be able to successfully “work on ... attachment strategies,” but also stated that H.O. was highly motivated to succeed in therapy and that Gormon-Brown was available to do attachment work with H.O. and B.P. if H.O.’s parental rights were not terminated. Id. at 145. Thomas and Clemons testified that another disruption would not be in B.P.’s best interests. But Clemons also testified that she could have been doing attachment work with H.O. and B.P. but had not received a referral to do that work. And Thomas testified that if B.P. were removed from foster care, Thomas would be available to counsel H.O. in how to assist B.P. through the grieving process associated with that disruption. Schwei-gert, who has no formal education in psychology or attachment issues, opined that it was unlikely B.P. could reattach to H.O. “especially without significant trauma.” 2 RP at 245 (Feb. 11, 2014). And Monohan opined that B.P. could not wait any longer for permanent stability.

¶48 All of this testimony raises concerns about reunification, some of them grave, but none of it suggests that proper bonding and attachment services were withheld because they would have failed or taken too long. No witness testified to that effect. Instead, the record indicates that the State never considered offering any attachment services to H.O. at all. It facilitated supervised visitation that resulted, predictably, in what the parenting evaluator described as a “social relationship.” 1 RP at 113 (Feb. 10, 2014). The record indicates that Eastep, the therapist who supervised the visitation, was initially confused about the State’s goal and recommended against continuing visitation unless the goal was reunification. Id. at 65 (“[i]f visitation is only to satisfy a service requirement, it would be detrimental to [B.P.] ’s emotional stability and create placement instability and possible upset and would not be in the best interest of [B.P.] ”). After several more weeks of confusion, the trial court finally ordered supervised visitation to continue for another several months “to determine if the parent child relationship can be repaired.” CP at 66. Every witness who observed this visitation said that H.O. handled it exceptionally well. But then, after H.O. had faithfully followed every recommendation her therapists made regarding visitation, the State sought termination anyway, offering testimony that H.O. might not have the emotional wherewithal to handle real attachment work.

¶49 Indeed, the State’s position remains fundamentally confused even on appeal. On the one hand, the State argues that attachment and bonding services would have been futile “because H.O. was unable to recognize her own emotions and express them in a healthy way.” State of Wash.’s Suppl. Br. at 13. On the other hand, the State also argues that H.O. actually received attachment services through Eastep’s therapeutic visitation. Neither argument is supported by the record. If Eastep provided attachment services, then H.O. certainly had the emotional skills necessary to benefit from them: H.O. handled visitation so well that Eastep reduced her supervision by half. But Eastep did not provide attachment services. Eastep testified that she is not an attachment expert, and Clemons testified that she could be doing attachment work with H.O. and B.P., but had not received a referral to do such work. The record contains no testimony whatsoever indicating that H.O. received attachment services, although it does contain evidence that she requested them.

¶50 By ignoring this request and denying H.O. any opportunity to demonstrate her capacities for real attachment work, the State violated its statutory and constitutional obligation to offer or provide “all necessary services, reasonably available, capable of correcting parental deficiencies within the foreseeable future.” RCW 13.34.180(1)(d); see C.S., 168 Wn.2d at 55-56. It encouraged H.O. to participate in months of services that were not designed to address attachment issues, then cited her alleged possible incapacity for attachment work as grounds for termination. This falls short of the duty to offer or provide services.⁸

¶51 Finally, there is insufficient evidence in the record to sustain the conclusion that attachment services would be futile at this point. The dissent credits the State’s argument on appeal that attachment services could not succeed in the “foreseeable future,” RCW 13.34.180(1)(d), because (1) H.O. had not progressed enough in her individual therapy or addiction recovery to help B.P. grieve the loss of her foster family, dissent at 328-30, and (2) “[i]t would take ‘hundreds [or] . . . thousands of contacts’ ” to create a secure attachment between H.O. and B.P., and that would take too long. Id. at 330 (quoting 1 RP at 77 (Feb. 10, 2014)). But both of those theories conflict with the State’s actions in the six months preceding trial.

¶52 During these months, the State encouraged H.O. to participate in the services it did provide, leading her to believe that these services were an avenue to H.O.’s return. Then it pursued termination on the theory that B.P.’s attachment needs were so severe that H.O. could not possibly meet them in the foreseeable future, given her location on the path to full recovery from substance abuse and childhood trauma. If there were evidence that H.O. had not progressed in treatment as expected during the six months preceding trial, then the State’s actions might be reasonable. But H.O.’s only slipups were two technical violations: accepting a ride from B.P.’s foster father while still living at Isabella House (a violation she self-reported to her counselors) and failing to verify participation in two outside support meetings in the first month of transitional housing treatment (something she attributed to her confusion over the program’s definition of an eligible meeting). H.O. never failed a UA during treatment, and no treating professional testified that they had current concerns about her sobriety. H.O. was successfully participating in all of the mental health services the State provided. On this record, the State’s sudden about-face in January 2014 is fundamentally unfair.

¶53 Simply put, the record contains no explanation for the State’s decision to assign H.O. a regimen of individual and family therapy, watch as she progressed in this therapy just as her treating professionals expected, and then argue that no amount of therapy could prepare her for the demands of real attachment work in the foreseeable future. Absent that explanation, the record does not contain clear, cogent, and convincing evidence that attachment services would be futile.⁹

¶54 To be sure, this case does involve testimony that removing B.P. from her foster home and placing her in H.O.’s care poses risks to B.P.’s emotional well-being. But where parental rights are at stake, such risks do not constitute parental unfitness if they might be mitigated through services. See A.B. II, 181 Wn. App. at 64 (substantial evidence supported finding that mother’s cognitive impairments “resulted in a lack of understanding of child development stages and difficulty identifying certain subtle dangers,” but these parental deficiencies did not amount to clear, cogent, and convincing evidence of unfitness; instead, they created a risk of harm warranting participating in services). In this case, numerous expert witnesses testified that they were available to provide services designed to help H.O. address B.P.’s special attachment needs. No witness testified that H.O. was incapable of benefiting from these services or that the services would be futile for some other reason. Thus, the State did not fulfill its obligation to provide “all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future,” RCW 13.34.180(1)(d), and the termination order must be reversed.¹⁰

CONCLUSION

¶55 The trial court’s findings of fact in a termination proceeding will not be disturbed so long as they are supported by substantial evidence in the record. Hall, 99 Wn.2d at 849. However, because the State must prove its case in a termination proceeding by clear, cogent, and convincing evidence, that evidence must be “more substantial than in the ordinary civil case in which proof need only be by a preponderance.” Id. While the State need not provide corrective services to a parent if those services would be futile, services are not futile just because they are not guaranteed to succeed. See C.S., 168 Wn.2d at 56 & n.2.

¶56 Consistent with the holdings in C.S. and S.J., testimony that a parent might not have the emotional skills or other personality traits necessary to benefit from services does not amount to clear, cogent, and convincing evidence that the services would be futile or that the parent’s deficiencies are unlikely to be remedied in the near future. Where there is any reasonable possibility of success, the services must be provided.

¶57 The termination order in this case violated these protections. We therefore reverse that order.

Johnson, Fairhurst, Stephens, and Wiggins, JJ., concur.

1 H.O. filed a motion to accept additional evidence on review pursuant to RAP 9.11, which was passed to the merits. We now deny the motion and decline to accept the additional evidence submitted by H.O.

2 1 RP at 65 (Feb. 10, 2014) (“[i]f visitation is only to satisfy a service requirement, it would be detrimental to [B.P.l’s emotional stability and create placement instability and possible upset and would not be in the best interest of [B.P] ”).

3 Eastep also testified that she had counseled H.O. to increase her contact with the foster family prior to the termination hearing, so that B.P. could “see them all together functioning that way.’’ 1 RP (Feb. 10, 2014) at 78. In response to this advice, H.O. set up regular playdates with B.P. and her foster parents, prior to the termination hearing, and sought Eastep’s advice on how to improve their relationship.

4 In C.S., the trial court found that the mother lacked “ ‘the patience, presence of mind, skills, experience, time in a day, and availability to care to [C.S.] - given his special needs.’” 168 Wn.2d at 55. We held that the State could not seek termination until it had offered the mother training in addressing C.S.’s special needs. Id. at 56 (“Since this training, deemed necessary to address C.S.’s behavioral problems, was not offered to [the mother], termination of her parental rights was not warranted (even if this court assumes arguendo, as the State asserts, that [the mother’s] inexperience in addressing C.S.’s conditions can serve as a basis for termination).”).

5 The trial court may make a finding that the Department has offered all reasonable services when “ ‘the record establishes that [an] offer of services would be futile.’ ” Id. at 56 n.2 (quoting In re Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008) (citing In re Welfare of Ferguson, 32 Wn. App. 865, 869-70, 650 P.2d 1118 (1982), rev’d on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983))). But that rule derives from cases in which the State made repeated offers of services but eventually gave up after the parent refused to accept any of those offers. Id. In this case, by contrast, the record shows that H.O. accepted every offer of services and did exceptionally well in the therapeutic visits the State provided (the only service the State provided to address the relationship between H.O. and B.P).

6 See id. at 56 n.3 (“The State is charged with reuniting families where possible and with providing necessary services to achieve that goal. When a ‘condition’ precludes reunion of parent and child, as here, regardless of whether it can be labeled as a “parental deficiency,’ the State must provide any necessary services to address that condition set forth in RCW 13.34.180(1)(d). Otherwise, the State could avoid providing services to preserve the family unit simply by classifying a parental shortcoming as a ‘condition’ instead of a ‘parental deficiency.’ ” (citations omitted)).

7 E.g., CP at 185-86 (“Given the length of her history and the recent nature of her sobriety, the court could not make a long term legal conclusion about [H.O.] sobriety. [H.O.] had not demonstrated any ability to maintain her sobriety outside a structured living environment. . . . [H.O.] also had mental health issues that impacted her ability to parent. [H.O.] has a long trauma history. She does not demonstrate the ability to feel her own feelings. She has not demonstrated the ability to place [B.P.l’s needs above her own. This is a critical skill for a parent.”).

8 The dissent’s contrary conclusion depends on speculation, unsupported by the record, that the “therapeutic visit[s]’’ Eastep facilitated were the best attachment therapy H.O. could hope for, given the nature of her relationship with B.P. Dissent at 326-27 (acknowledging that Eastep is not an attachment expert and that Clemons could have provided actual attachment therapy to H.O. and B.P.; nevertheless concluding that “the services provided ... by Ms. Eastep were similar to those provided [to B.P.’s foster parents] by [the attachment expert] Ms. Clemons’’), 327 (concluding, without citation to the record, that “it would be unreasonable to expect the services provided to H.O. to be identical to those provided to the foster parents’’). This speculation amounts to fact-finding that “exceeds this court’s proper role on review.’’ Id. at 323. And it is only by engaging in such fact-finding—by concluding that H.O. in fact received attachment services from Eastep but that these services “resulted in limited success,’’ id. at 326-27— that the dissent is able to conclude that further attachment therapy would have been futile.

9 Nor does this case involve overwhelming, undisputed testimony that B.P. will suffer an irreparable attachment disorder if forced to separate from her foster parents. And while the Department presented evidence that attachments normally form around age one, it did not present evidence that attachment services would have been futile for this reason—indeed, the Department provided those services for B.P.’s foster parents well after B.P.’s first birthday. Thus, amici are correct that the record does not support the conclusion that if a child is not attached to his or her parent by age one, there are no services that can rectify that problem.

10 Because we reverse on this basis, we do not address H.O.’s arguments regarding parental unfitness.