In Re The Welfare Of C.h-k., A Minor Child ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
October 18, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Welfare of No. 47783-1-II
C.H-K.,
Minor Child,
T.K. and I.H.,
Appellants, UNPUBLISHED OPINION
v.
DEPARTMENT OF SOCIAL AND HEALTH
SERVICES,
Respondent.
JOHANSON, J. — IH and TK, both of whom have cognitive disorders that affect their
ability to parent, appeal the juvenile court’s order terminating their parental rights to CH-K.1 They
argue that the juvenile court erred in finding that clear, cogent, and convincing evidence supported
its termination order. IH also argues that the juvenile court violated her due process rights. We
disagree and hold that substantial evidence supports the juvenile court’s findings and that IH’s due
process rights were not violated. Accordingly, we affirm.
1
To provide some confidentiality, we use the minors’ and their family members’ initials in the
case caption and in the body of the opinion.
No. 47783-1-II
FACTS
I. BACKGROUND2
IH and TK have five children. Between 2009 and 2012, the parents’ three older children
were declared dependent on the State and the parents participated in court-ordered services. The
parents’ rights to these children were terminated in 2013.
In July 2012, CH-K was born. In October 2012, CH-K was declared dependent. In
November 2013, CH-K’s younger brother, AH-K, was born and since February 2014, AH-K was
placed in in-home dependency. During CH-K’s and AH-K’s dependencies, the parents were
provided with a Safe Care referral, mental health counseling, multiple rounds of counseling from
Family Preservation Services, and Home Builders’3 30-day intensive in-home coaching. TK and
IH were each provided a parent mentor.
Safe Care is a hands-on parenting education coaching program offered in the home setting
and is designed to increase understanding of safety hazards, health and safety issues, and how to
foster positive parent-child interactions. Typically, Safe Care is offered once a week for 40
minutes to an hour for 18 to 22 weeks. The juvenile court found that the failure to use a video
component did not invalidate the Safe Care’s service. Safe Care uses a variety of instructional
approaches and the juvenile court concluded it was just the sort of adapted service appropriate for
TK and IH.
2
We rely primarily on the juvenile court’s findings of fact following the bench trial.
3
Home Builders is an intensive, in-home service addressing the same issues as Safe Care but is
offered for 10 hours per week or more for one month or more.
2
No. 47783-1-II
The parents received many services that were adequately adapted to address their learning
disabilities. Although many providers appropriately tailored services and provided information
and tools in a variety of ways and through a variety of modes, the parents were unable to make
long-term, sustained improvement. IH and TK received supervised visits for up to 37 hours per
week including overnight supervised visits.
II. PARENTAL DEFICIENCIES
A. IH
During the dependency, it was established that IH suffers from a cognitive disorder
affecting her attention, concentration, sequencing, and executive functioning. She was diagnosed
as borderline intellectually disabled, with mixed personality disorder with dependent, avoidant,
and schizoid features and with mild paranoia. IH has difficulty learning and remembering new
parenting skills and does not understand children’s normal or typical developmental stages and
needs. IH often lacks empathy and expresses rigid ideas about how children should act. She has
weak nurturing skills and lacks flexibility in dealing with children’s behaviors. This led to harsh
criticism of the children and damaging actions towards them. Service providers observed that IH
also did not always accurately perceive what occurred, which affected her parenting.
For example, IH persisted in using a shower spray nozzle to quickly bathe CH-K even
though it caused CH-K anxiety. She also blamed CH-K and spoke harshly to CH-K for normal
behavior like spilling drinks or wetting her pants.
B. TK
During the dependency it was also established that TK has cognitive disorders that impair
his ability for executive decision making, his ability to prioritize, and his ability to understand
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No. 47783-1-II
consequences. TK has a paranoid personality, shows limited ability to process basic information,
and has a lack of knowledge of general principles of child rearing and basic developmental
concepts. TK’s disorders and cognitive limits negatively impacted his parenting. He was rigid in
his approach to CH-K and to IH. He did not communicate effectively with IH or with service
providers. TK was compromised in his ability to manage stress, anger, and to deal with anxiety.
TK also lacked personal insight in regard to his and IH’s limitations that place CH-K’s safety and
healthy development at risk.
C. HOME CONDITIONS AND PARENTING ARRANGEMENT
Service providers found the home environment posed a risk to CH-K. The cluttered home
created tripping hazards, fall hazards, and restricted the normal movement of CH-K within and
outside the home. TK and IH had numerous cats in the home—more than five at a time—that
created an unsanitary environment for the children. The Department of Social and Health Services
(DSHS) worked with TK and IH to address the risks posed by the home environment and offered
services to address the issues. Although at times the home environment improved, the conditions
recurred. TK and IH failed to recognize that the home conditions interfered with child
development and posed a significant safety risk.
This safety risk heightened when IH had to care for more than one child, as she was not
capable of the focus necessary to keep multiple children safe in the home environment. In 2014
and 2015, TK began spending more time at home with IH and AH-K and with CH-K during her
visits. TK was higher functioning than IH and his presence mitigated some of her deficiencies,
but TK failed to acknowledge IH’s deficiencies. TK and IH did not communicate well with each
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No. 47783-1-II
other, which negatively impacted their parenting. If CH-K and AH-K had been returned to their
care, TK’s plan was to work outside the home with IH as the primary caretaker.
III. TERMINATION FACT FINDING
On March 15, 2013, DSHS filed a petition to terminate IH and TK’s parental rights to CH-
K. The termination trial was continued five times between 2013 and 2015. In March 2015, the
fact-finding hearing was held. CH-K was three years old at the time of trial. Several service
providers who worked with TK and IH between 2010 and 2015 testified. Seven of those service
providers testified that TK and IH were not capable of remedying their parental deficits and could
not adequately provide care for CH-K in the foreseeable future.
On June 25, 2015, the juvenile court ordered termination of TK and IH’s parental rights to
CH-K. Based on its findings, the juvenile court concluded that the elements of RCW
13.34.180(1)(a) through (f) had been established by clear, cogent, and convincing evidence. The
juvenile court also concluded that the State established that the mother and father were currently
unfit and unable to parent and that termination of the mother and father’s parental rights was in
CH-K’s best interest.
ANALYSIS
I. SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS
A. STANDARD OF REVIEW AND RULES OF LAW
The juvenile court may order termination of a parent’s rights if DSHS establishes the six
elements in RCW 13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence. RCW
13.34.190(1)(a)(i). “Clear, cogent and convincing evidence exists when the evidence shows the
ultimate fact at issue to be highly probable.” In re Dependency of K.S.C., 137 Wash. 2d 918, 925,
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No. 47783-1-II
976 P.2d 113 (1999). In addition to the statutory elements of RCW 13.34.180(1), due process
protections require that a court make a finding of unfitness before parental rights can be terminated.
In re Dependency of K.R., 128 Wash. 2d 129, 142, 904 P.2d 1132 (1995). This finding does not need
to be made explicitly because satisfying all of the statutory elements raises an implied finding of
parental unfitness. In re Dependency of K.N.J., 171 Wash. 2d 568, 577, 257 P.3d 522 (2011). DSHS
also must prove by a preponderance of the evidence that termination of parental rights is in the
child’s best interests. RCW 13.34.190(1)(b).
We uphold the juvenile court’s factual findings if those findings are supported by
substantial evidence. In re Parental Rights to M.J., 187 Wash. App. 399, 406, 348 P.3d 1265 (2015).
Where a party is required to establish its case by “‘clear, cogent, and convincing evidence,’” we
incorporate that standard of proof into our review. In re Dependency of P.D., 58 Wash. App. 18, 25,
792 P.2d 159 (1990) (quoting RCW 13.34.190). Thus, the question to be resolved is not merely
whether there is substantial evidence to support findings but whether there is substantial evidence
in light of the “highly probable” test. In re Welfare of Sego, 82 Wash. 2d 736, 739, 513 P.2d 831
(1973). Because the juvenile court has the advantage of observing the witnesses, deference to the
juvenile court is particularly important in termination proceedings. K.S.C., 137 Wash. 2d at 925. We
do not review credibility determinations or weigh the evidence. In re Welfare of A.G., 155 Wn.
App. 578, 588, 229 P.3d 935, remanded, 169 Wash. 2d 1032 (2010).
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No. 47783-1-II
B. SUBSTANTIAL EVIDENCE THAT ALL NECESSARY SERVICES PROVIDED
1. DSHS TAILORED SERVICES TO MEET PARENTS’ NEEDS
Both TK and IH argue that the juvenile court’s finding that all necessary services were
appropriately tailored is unsupported by substantial evidence.4 We disagree.
Under RCW 13.34.180(1)(d), DSHS must prove “[t]hat 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.” “Necessary services” are those
services “needed to address a condition that precludes reunification of the parent and child.” In re
Dependency of A.M.M., 182 Wash. App. 776, 793, 332 P.3d 500 (2014).
The Americans with Disabilities Act (ADA) requires public entities to make reasonable
accommodation for disabled persons, but does not require public entities to provide the disabled
with services not offered to others. 42 U.S.C. § 12132; In re Welfare of H.S., 94 Wash. App. 511,
521, 973 P.2d 474 (1999). A termination should be upheld and the ADA is not violated where all
reasonably available services are provided to the parents, the services were modified by the
individual providers to accommodate parents’ special needs, and the juvenile court’s finding that
the best interests of the child were met by termination of parental rights is amply supported by
clear, cogent, and convincing evidence. In re Welfare of A.J.R., 78 Wash. App. 222, 230, 896 P.2d
1298 (1995); see also H.S., 94 Wash. App. at 521.
4
The parties do not dispute that the first three elements of RCW 13.34.180(1) were met: (a) CH-
K was found dependent, (b) the juvenile court entered a dispositional order, and (c) CH-K had
been removed for over six months. RCW 13.34.180(a)-(c).
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No. 47783-1-II
The juvenile court found that while some providers throughout the years failed to provide
ideally adapted services, many service providers appropriately tailored their services for TK and
IH. Brenda Sullens, a parent coach, met with both TK and IH from March 2011 to July 2012 while
they were trying to parent their three older children. Sullens identified the specific needs of the
family and tailored her approach based on TK’s and IH’s learning style. Stephen Harding, TK’s
therapist from January 2012 to June 2012, testified that he had experience working with parents
with cognitive impairments and that the therapy he provided was appropriate for TK. Laura
Gustavson, IH’s therapist from May 2011 to January 2012, testified that she was aware of IH’s
cognitive deficits and accommodated her treatment accordingly. Parenting Protection Group
instructor Christa Sommerfeld worked with both TK and IH from September 2012 to May 2013.
Sommerfeld testified that she allowed them to progress through the program, despite their inability
to complete assignments to the program’s specifications, as an accommodation for their
disabilities.
From December 2013 until 2015, Denise Johnson, a Child Protective Services (CPS)
investigation unit supervisor, oversaw TK and IH’s case. Johnson has a degree in education and
training in working with and designing service plans for parents with developmental delays.
Johnson spoke to all of TK’s and IH’s service providers when she was on the case and evaluated
their methods. She instructed the service providers to offer their instructions in multiple forms,
including in writing, so TK and IH could review the information more than once and seek advice
about it. Johnson also reviewed a report containing recommendations to DSHS about working
with adults with developmental disabilities. From this report, Johnson learned that for a family
like TK and IH’s, it was important to offer hands-on education using different methods that would
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No. 47783-1-II
allow them to review the material multiple times, to establish trust through openness and
transparency, and to consider the economic status and support system available to the family.
Johnson also referred TK and IH to Safe Care for a second time. The Safe Care program
is designed to increase understanding of child development, home safety and health, and to foster
positive parent/child interaction. Johnson stated that these were key areas of concern for TK and
IH and that Safe Care was an appropriate program to meet their needs and increase their skills.
When AH-K was returned to the home, Johnson also recommended the Home Builders program,
an intensive family preservation service which provides at least 10 hours a week of support.
Johnson noted that while typically there are funding challenges associated with offering Home
Builders and Safe Care at the same time, she accommodated for TK’s and IH’s needs and ensured
they received both. Johnson also referred them each to a foster parent mentor, and in order to
serve TK’s and IH’s needs, she requested additional mentorship for each of them so the program
would extend six months longer than usual.
Megan Kirshbaum, Ph.D in clinical psychology, testified that Tina Santiago, an in-home
therapist for Institute for Family Development, worked with the family from September 2012
through May 2013 and appropriately tailored her services to TK’s and IH’s needs by being
respectful and using creative, concrete, and varying approaches. Kirshbaum further testified that
Katie Smigaj, who worked with the family from May to July 2013 and from July to December
2014, also adapted her work to TK’s and IH’s needs. Smigaj did so by praising strengths and
combining written and verbal instruction. Kirshbaum also noted that the Safe Care program that
the family received includes safety scenarios that are appropriate for parents with intellectual
disabilities.
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No. 47783-1-II
Thus, substantial evidence supports the juvenile court’s finding that DSHS provided all
necessary, reasonably available services and that services were appropriately tailored to TK’s and
IH’s needs. A.J.R., 78 Wash. App. at 230.
2. DSHS WAS NOT REQUIRED TO OFFER ADDITIONAL SERVICES
TK and IH also argue that DSHS should have provided additional services in order to meet
the requirements of RCW 13.34.180(1)(d). We disagree.
DSHS does not have to provide services when the parent is unable or unwilling to make
use of them. In re Dependency of Ramquist, 52 Wash. App. 854, 861, 765 P.2d 30 (1988). And
even if DSHS “inexcusably fails” to offer services to a willing parent, termination is still
appropriate if the services “would not have remedied the parent’s deficiencies in the foreseeable
future.” In re Dependency of T.R., 108 Wash. App. 149, 164, 29 P.3d 1275 (2001); In re Welfare of
Hall, 99 Wash. 2d 842, 850-51, 664 P.2d 1245 (1983).5
a. VIDEO RECORDED SERVICES
TK argues that he should have been offered video recorded services. The juvenile court
found there was a misunderstanding regarding whether, after initially refusing to be videotaped,
TK later consented to video use. But the juvenile court found that failure to use the video
component in the Safe Care program did not invalidate the service. Safe Care used a variety of
instructional approaches and was an adapted service appropriate for TK and IH. TK may have
been willing to participate in a video service through Safe Care or another program. But TK has
5
DSHS’s responsibility is not fulfilled by a mere offer of services. See In re Dependency of D.A.,
124 Wash. App. 644, 653-54, 102 P.3d 847 (2004) (holding that DSHS must follow up if a party
who once declined services expresses a willingness to participate later and cannot point to the
efforts of others to seek out or offer certain services where DSHS did not).
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No. 47783-1-II
not shown that the addition of video recorded services would have remedied his parental
deficiencies in the near future.
b. ADDITIONAL EVALUATIONS AND MULTIPLE CHILDREN SERVICES
IH argues that DSHS should have offered her a learning style evaluation or services to help
care for two children.6 But substantial evidence shows that it would have been futile to offer TK
and IH additional services. DSHS offered IH a parenting evaluation and a neuropsychological
evaluation with parenting components. IH also received individual counseling, cognitive
behavioral therapy, and couples’ counseling. Additionally, IH was offered therapy and parent
coaching during the dependencies of her three older children addressing how to care for multiple
children at once.
Substantial evidence supports the finding that despite being offered evaluations and
multiple services, TK and IH were still unable to make long-term, sustained improvements. The
service providers who worked with TK and IH from 2011 to 2013 reported that their progress in
developing parenting skills was stagnant, TK and IH failed to acknowledge their parenting
deficiencies, and most of the 2013 to 2015 service providers stated that TK and IH could not parent
two children at once.
6
IH also argues, “The failure to tailor the mother’s services to meet her learning needs violated
the ADA.” Br. of Appellant at 15. However, the ADA is not violated where all reasonably
available services are provided to the parents, the services were modified by the individual
providers to accommodate parents’ special needs, and the juvenile court’s finding that the best
interests of the child were met by termination of parental rights is amply supported by clear, cogent,
and convincing evidence. A.J.R., 78 Wash. App. at 230. As shown above, substantial evidence
shows that services were reasonably tailored to meet the parents’ special needs. And IH does not
offer analysis or argument based on the ADA; rather, she argues about whether substantial
evidence supports the finding under RCW 13.34.180(1)(d). For these reasons, her argument fails.
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No. 47783-1-II
None of the 2013 to 2015 service providers recommended unsupervised visitation; rather,
they recommended additional services. In 2015, based on comments from the 2013 to 2015 service
providers and her own evaluations of TK and IH, Johnson testified that IH and TK regressed to
old ways of thinking or functioning and it would take years before CH-K could be in their care.
Multiple providers noted that TK’s and IH’s progress was stymied by their refusal to acknowledge
their parental deficiencies and their belief that DSHS took their children away to profit from the
adoptions. TK and IH have failed to show that additional evaluations or additional services would
have remedied the parental deficiencies in the near future. T.R., 108 Wash. App. at 164; Hall, 99
Wash. 2d at 850-51. Thus, substantial evidence supports the juvenile court’s finding that all
necessary services were expressly and understandably offered.
C. SUBSTANTIAL EVIDENCE OF LITTLE LIKELIHOOD CONDITIONS WILL BE REMEDIED
TK and IH argue that the juvenile court’s finding that there was little likelihood that
conditions could have been remedied to permit CH-K to return home in the near future is
unsupported by substantial evidence.7 We disagree.
DSHS must show that there is little likelihood that conditions will be remedied so that the
child can be returned to the parent in the near future. RCW 13.34.180(1)(e). In determining
7
IH argues also that there was evidence showing that she could overcome parenting issues and
without provision of properly tailored services, it is impossible to determine if she could have
parented CH-K in the near future, while TK argues that there was concrete evidence he progressed
with remedying his deficits. These arguments are best characterized as arguments about the weight
placed on the evidence. But we do not review credibility determinations or weigh evidence on
appeal. A.G., 155 Wash. App. at 588. Thus, we do not review the juvenile court’s decision to give
greater or lesser weight to certain evidence.
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No. 47783-1-II
whether RCW 13.34.180(1)(e) has been met, the focus is on whether parenting deficiencies have
been corrected. A.G., 155 Wash. App. at 590.
If DSHS offers or provides all necessary services reasonably capable of correcting
parenting deficiencies within the foreseeable future and the parent does not substantially improve
his or her deficiencies within a year of the dispositional order, a rebuttable presumption arises that
DSHS has sufficiently proven there is little likelihood conditions will be remedied in the near
future. RCW 13.34.180(1)(e). Once the rebuttable presumption applies, it shifts the burden of
production to the parent, but DSHS must still convince the juvenile court that it is highly probable
the parent would not improve in the near future. In re Welfare of C.B., 134 Wash. App. 942, 956,
143 P.3d 846 (2006).
Even where evidence shows that a parent may eventually be capable of correcting
deficiencies, termination is appropriate if those deficiencies will not be corrected in the near future.
A.G., 155 Wash. App. at 590. A determination of what constitutes “near future” depends on the
child’s age and the circumstances of the placement. Hall, 99 Wash. 2d at 844, 850-51 (finding eight
months not in the foreseeable future for a four-year-old); see also In re Dependency of A.W., 53
Wash. App. 22, 24, 32, 765 P.2d 307 (1988) (one year not in near future of three-year-old). The
juvenile court may consider the parent’s history of parenting and compliance with services to
determine whether conditions are likely to be remedied in the near future. In re Dependency of
J.C., 130 Wash. 2d 418, 428-29, 924 P.2d 21 (1996).
The juvenile court here found there was little likelihood conditions could be remedied so
CH-K could be returned to TK’s and IH’s care in the near future. Specifically, the juvenile court
found that
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No. 47783-1-II
[b]oth parents have participated extensively in services for a number of years
spanning this child’s dependency as well as the dependencies of the parents’ older
children. Though the parents have, at times, demonstrated the ability to implement
new parenting skills, the evidence showed that even after repeating services,
progress by both parents has not been sustained. While there is little evidence of
imminent risk to the child, the parents are not able to maintain and apply new
parenting skills in the long-term.
Clerk’s Papers (CP) at 833.
1. IH’S LIKELIHOOD TO REMEDY PARENTAL DEFICIENCIES
Substantial evidence supports the juvenile court’s finding that IH was unlikely to remedy
her deficiencies to parent CH-K. From 2012 to 2015, IH did not consistently progress in her
services to remedy parental deficiencies and service providers who worked with her during various
periods from 2011 to 2015 stated that CH-K should not be placed in her sole care.
Johnson and the mid-2012 to 2014 social worker, Joel Pettit, both testified that IH
consistently struggled to give CH-K emotional feedback and connection. From October 2013 until
March 2015, Jody Smetak was IH’s state-provided mental health therapist. Smetak also worked
with TK and IH together in couples’ sessions. Smetak testified that IH did not acknowledge how
her parental deficiencies lead to her children’s dependencies, did not relate to CH-K in a
developmentally appropriate way, bathed CH-K in a traumatic way, and could not focus on CH-K
and AH-K at the same time. Smetak noted IH regressed or did not progress during treatment. IH
also told Smetak on more than one occasion that she could not meet the needs of both children at
the same time.
Erica Toth, who supervised IH’s visitation before trial from 2014 to 2015, testified that IH
had difficulty focusing on two children at once, had age-inappropriate conversation and play with
CH-K, and yelled at CH-K for peeing on the floor. This substantial evidence supports the juvenile
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No. 47783-1-II
court’s finding that although IH may not have posed an imminent risk to CH-K even after receiving
services, IH’s progress was not sustained and there was little likelihood that she could remedy her
parental deficiencies in the near future.
2. TK’S LIKELIHOOD TO REMEDY PARENTAL DEFICIENCIES
Substantial evidence supports the juvenile court’s finding that TK was unlikely to remedy
his deficiencies to parent CH-K. TK’s reliance on C.B. to support his argument that substantial
evidence does not support the juvenile court’s finding is unpersuasive. In C.B., this court found a
mother’s primary parenting deficit was drug and alcohol addiction. 134 Wash. App. at 948. The
mother entered a treatment program that she almost completed by the time of trial. C.B., 134 Wn.
App. at 948. While DSHS in C.B. argued that this was not enough progress to show the mother
would improve conditions within six months to a year, 134 Wash. App. at 958, this court held that
where a parent produces evidence that she has been improving over a four-month
period after the State files a termination petition but before the termination hearing,
the State may not rely solely on past performance to prove that it is highly probable
that there is little likelihood that the parent will be reunited with her children in the
near future.
134 Wash. App. at 953.
C.B. is distinguishable from TK’s case. There, the State presented no evidence, other than
past evidence, and testimony from a social worker that the mother would need to engage in anger
management, demonstrate ongoing sobriety, and keep a safe, stable home. C.B., 134 Wash. App. at
956. Here, the juvenile court was presented with substantial, past and recent evidence that T.K.’s
deficiencies were ongoing and would take more than a year to improve.
There is a notable difference, too, between parental deficiencies due to drug and alcohol
addiction as in C.B. and cognitive developmental disabilities as presented here. Michael O’Leary,
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No. 47783-1-II
Ph.D. in clinical and forensic psychology, testified and his evaluation was admitted into evidence.
O’Leary evaluated both parents in 2010 and opined that because the parents’ deficiencies involve
developmental, cognitive issues, it is unlikely that they will ever be able to remedy their resulting
parenting deficits. O’Leary concluded that TK’s inabilities interfere with his ability to learn,
retain, and implement new parenting behaviors.
According to service providers and TK’s own testimony, TK failed to acknowledge his
parental deficiencies that led to his children’s dependencies. O’Leary predicted in 2010 that TK’s
deficiencies would prevent him from providing his children with a safe, stable home and from
anticipating hazards. Parent coaches Sullens from 2011 to 2012 and Shaune Putas from 2013 to
2104 assisted TK with developing parenting skills and cleaning up hazards in the home. But when
Johnson visited the home a week before trial, the home was even more cluttered and hazardous
than before.
Although TK showed more child development awareness than IH, he did not prevent IH
from engaging in inappropriate behaviors with CH-K in his presence. And while TK decreased
his work hours before the termination trial to help IH with the children, he planned to return to
work full time if both CH-K and AH-K were returned to his and IH’s care, leaving IH as the
primary parent. Several providers who worked with TK between 2011 and 2015 also testified that
TK was unable to make sustained progress from his services and could not parent two young
children at once.
3. REMEDY NOT IN THE NEAR FUTURE
Substantial evidence supports the finding that at the time of dependency, neither TK nor
IH was likely to remedy their deficiencies in the near future. Johnson testified that as of the time
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No. 47783-1-II
of trial, both TK and IH had regressed to old ways of thinking or functioning and it would take
“years” before CH-K could be in their care. 9 Report of Proceedings (RP) at 1638. And O’Leary
predicted in 2010 that because TK’s and IH’s deficiencies are developmental, cognitive issues, it
is unlikely they will ever be able to remedy their resulting parenting deficits. A year or more is
not in the near future for a three-year-old—CH-K’s age at the time of trial. A.W., 53 Wash. App. at
24, 32. We hold that substantial evidence supports the juvenile court’s finding that there was little
likelihood conditions could be remedied so CH-K could be returned to TK and IH’s care in the
near future under RCW 13.34.180(1)(e). J.C., 130 Wash. 2d at 428.
D. DIMINISHED PROSPECTS FOR EARLY INTEGRATION
IH argues that the juvenile court improperly conflated the best interest factor and a finding
that termination would help achieve permanent placement in the near future. TK argues that
evidence before the juvenile court undermined the juvenile court’s finding that he and IH placed
CH-K into anxiety-inducing settings. We disagree.
Under RCW 13.34.180(1)(f), DSHS must prove that “continuation of the parent and child
relationship clearly diminishes the child’s prospects for early integration into a stable and
permanent home.” DSHS can prove RCW 13.34.180(1)(f) in one of two ways: (1) that prospects
for a permanent home exist, but the parent-child relationship prevents the child from obtaining that
placement or (2) that the parent-child relationship has a damaging and destabilizing effect on the
child that would negatively impact the child’s integration into any permanent and stable home. In
re Welfare of R.H., 176 Wash. App. 419, 428, 309 P.3d 620 (2013).
Under the first method, “[RCW 13.34.180(1)(f)] is mainly concerned with the continued
effect of the legal relationship between parent and child, as an obstacle to adoption; it is especially
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a concern where children have potential adoption resources.” In re Dependency of A.C., 123 Wn.
App. 244, 250, 98 P.3d 89 (2004). Under the second method, the juvenile court considers whether
the child is emotionally and psychologically prepared to integrate into a stable and permanent
home should one become available. R.H., 176 Wash. App. at 428 (quoting In re Dependency of
K.D.S., 176 Wash. 2d 659, 294 P.3d 695 (2013).
Here, the juvenile court found that
[c]ontinuation of the parent/child relationship clearly diminishes the child’s
prospects for early integration into a stable and permanent home. [CH-K] has been
out of the parents’ care for nearly her entire life. During this time, the parents have
not corrected their deficiencies so that she can be returned to their care. The parents
have repeatedly put their child into anxiety-inducing and emotionally-distraught
settings. This child needs permanency and without termination of parental rights,
the child will not be able to find a permanent home in the near future.
CP at 833.
First, contrary to IH’s argument, the juvenile court made separate findings regarding RCW
13.34.180(1)(f) and CH-K’s best interests. The best interest finding includes that “[t]ermination
will allow [CH-K], as soon as possible, to enter into a stable family relationship where her
individual needs can be met.” CP at 834. But the inclusion of this language in the best interest
finding does not mean the juvenile court conflated the best interest and RCW 13.34.180(1)(f)
analyses: finding of fact 2.25 specifically addresses the juvenile court’s findings in support of
RCW 13.34.180(1)(f), and the juvenile court’s best interest finding is supported by the juvenile
court’s eight-page ruling.
Second, TK’s challenge to the juvenile court’s finding that a continued relationship with
the parents negatively affected CH-K goes to the weight placed on the evidence. TK argues that
substantial evidence does not support the finding that TK and IH repeatedly placed CH-K into
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No. 47783-1-II
anxiety-inducing and emotionally distraught settings where other evidence showed that he was a
nurturing presence and offset IH’s “less sensitive parenting.” Br. in Supp. of Mot. for Accelerated
Review at 47. But we do not weigh evidence on appeal. A.G., 155 Wash. App. at 588.
Third, substantial evidence supports the finding that a continued relationship diminished
CH-K’s chances for permanent placement. DSHS proved a permanent home was available to CH-
K, but a continued relationship with IH and TK could prevent her placement there. CH-K was out
of her parents’ care since birth in 2012 and never had unsupervised visits with her parents. CH-K
had only one foster home, which was a preadoptive home. Johnson testified that the parental
relationship between CH-K and her parents affected her ability to integrate into a permanent and
stable home because CH-K would not be “legally free” to be adopted. 7 RP at 1321. Thus,
substantial evidence supports a finding that at the time of dependency, the effect of continuing
CH-K’s legal relationship to her parents was an obstacle to a viable adoption. A.C., 123 Wash. App.
at 250.
Substantial evidence also supports a finding that DSHS proved that the parent-child
relationship had a damaging and destabilizing effect. From 2012 to 2015, TK and IH did not
consistently progress in their services to remedy parental deficiencies and many of the parents’
service providers stated that CH-K should not be placed in their sole care. Johnson testified that
remaining between two home environments stunted CH-K’s development. And Johnson reported
that while in CH-K’s foster home, CH-K was talking, thriving, and developing at an average rate,
but when CH-K was with her parents, there was concern she did not talk as much and regressed
emotionally. TK and IH also repeatedly placed CH-K in distressing situations including bathing
her in a traumatic manner and taking her to an emotional visitation review meeting with DSHS.
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No. 47783-1-II
Substantial evidence thus supports a finding that a continued dependency may have had a
damaging and destabilizing effect on CH-K’s emotional and psychological state, negatively
impacting her integration into a stable and permanent home. R.H., 176 Wash. App. at 428.
E. UNFITNESS TO PARENT
Both TK and IH argue that substantial evidence does not support the juvenile court’s
findings that they are unfit to parent CH-K. We disagree.
DSHS must establish by clear, cogent, and convincing evidence that the parent is currently
unfit. In re Welfare of A.B., 181 Wash. App. 45, 58, 323 P.3d 1062 (2014). To prove current
unfitness, DSHS must show that the parent’s deficiencies prevent the parent from providing the
child with “‘basic nurture, health, or safety.’” A.B., 181 Wash. App. at 61 (quoting RCW 13.34.020);
see also In re Custody of B.M.H., 179 Wash. 2d 224, 236, 315 P.3d 470 (2013) (holding a parent is
unfit “if he or she cannot meet a child’s basic needs”).
The child’s right to basic nurturing includes the right to a safe, stable, and permanent home
and a speedy resolution of the dependency proceeding. RCW 13.34.020; In re Dependency of
J.A.F., 168 Wash. App. 653, 668, 278 P.3d 673 (2012). When the rights of basic nurture, physical
and mental health, and safety of the child and legal rights of the parent are in conflict, the rights
and safety of the child should prevail. RCW 13.34.020. If DSHS proves the elements of RCW
13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence, an implicit finding of
current parental unfitness may be made. K.N.J., 171 Wash. 2d at 577.
Here, the juvenile court found that
the parents are not currently fit to parent this child. The parents have failed to
adequately provide a safe and nurturing environment for this child on a consistent
and sustained basis. The parents have repeatedly demonstrated an inability to put
this child’s emotional and developmental needs first. The parents have failed to
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No. 47783-1-II
consistently provide a safe home environment. Parental support from friends,
family, or community members is not sufficient to overcome the parents’
deficiencies that affect their ability to provide adequate care and supervision for
this child.
CP at 834.
Regarding TK’s deficiencies, the juvenile court also found that he has a cognitive disorder
impairing his ability to make decisions, prioritize, and understand consequences. He is paranoid
and has a “limited abilit[y] to process basic information, and has a lack of knowledge of general
principles of childrearing and basic developmental concepts.” CP at 830. These disorders and
cognitive limits negatively impacted his parenting because he was rigid in his interactions with
CH-K and IH, did not effectively communicate with IH or providers, did not consistently address
his home environment, was compromised in his ability to manage stress, anger, and to deal with
anxiety, and lacked insight into his and IH’s limitations, putting CH-K’s safety and healthy
development at risk. Further, TK’s interactions with CH-K “negatively impact[ed] the child’s
emotional development,” and as he parented, he was unable to account for CH-K’s normal, age-
appropriate behavior. CP at 831.
1. UNFITNESS PRESUMPTION
The first three elements of RCW 13.34.180(1) are undisputed and as addressed above, the
remaining elements of RCW 13.34.180(d) through (f) were also proven by clear, cogent, and
convincing evidence. Thus, an implicit finding of current parental unfitness may be made. K.N.J.,
171 Wash. 2d at 577. However, the parties’ arguments related to unfitness are addressed below.
2. UNFITNESS AS NONCUSTODIAL PARENT NOT A NECESSARY FINDING
IH argues that the juvenile court did not have substantial evidence to “prove she was
currently unfit to be a noncustodial parent.” Br. of Appellant at 20.
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No. 47783-1-II
3. SUBSTANTIAL EVIDENCE SUPPORTS FINDING THAT IH WAS UNFIT
Even if we address IH’s arguments on the merits, substantial evidence supports the finding
that IH is unfit. Service providers testified that despite services offered between 2009 and 2015,
IH lacked the ability to emotionally connect with CH-K, she put CH-K into distressing situations,
interacted with CH-K in age-inappropriate ways, failed to remedy the safety and sanitation hazards
in the home, and stated and exhibited that she cannot parent two children at once. And from 2012
to 2015, IH did not consistently progress with her services to remedy parental deficiencies and
several of her service providers stated that CH-K should not be placed in her sole care. Thus,
substantial evidence supports the juvenile court’s finding that at the time of dependency IH was
unfit to meet CH-K’s basic needs.
4. SUBSTANTIAL EVIDENCE SUPPORTS FINDING THAT TK WAS UNFIT
TK argues substantial evidence does not support the juvenile court’s findings that he was
unfit and its related findings, and he relies on A.B. for support. But TK’s arguments are
unpersuasive. In A.B., this court stated that the existence of cognitive impairments is not proof
that a parent is unfit unless the cognitive impairment directly impacts the ability to parent, and thus
the question is whether the resulting parenting deficiencies can be corrected. 181 Wash. App. at 65.
There, DSHS failed to prove that the mother was unfit because it failed to prove that it was highly
probable that her parenting deficiencies rendered her unable to provide for her child’s basic needs.
A.B., 181 Wash. App. at 64-65.
Here, unlike in A.B., the juvenile court did not rely solely on TK’s cognitive deficits, and
substantial evidence supports the juvenile court’s findings that TK’s deficits rendered him unable
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No. 47783-1-II
to provide for CH-K’s basic needs.8 The juvenile court relied on evidence that TK failed to provide
a safe and nurturing home environment for CH-K on a consistent basis, that TK never recognized
his or IH’s deficiencies, which was problematic because IH would be CH-K’s primary caretaker
while he was at work, that TK could not handle the stress and tasks necessary to parent two children
at once, and that neither parent had support sufficient to overcome their deficiencies. The juvenile
court also relied on evidence that from 2012 to 2015, TK did not consistently progress with his
services to remedy parental deficiencies, and his service providers stated that CH-K should not be
placed in his sole care. Thus, the juvenile court’s finding that TK was unfit is supported by
substantial evidence.
Finally, contrary to TK’s arguments, the related findings detailing TK’s deficiencies were
also supported by substantial evidence. O’Leary’s report and testimony from subsequent providers
support the findings regarding TK’s cognitive disorder, the impediments it caused to his parenting,
and his paranoia. Service providers also testified that he lacked knowledge of parenting and
developmental concepts, that he interacted in a rigid manner with CH-K and IH, that he did not
communicate effectively with IH or providers, that he was compromised in his ability to manage
stress, anger, and to deal with anxiety, that he lacked insight into his and IH’s limitations, and that
his interactions with CH-K negatively impacted her development.
8
TK points to evidence that his impairments and the home conditions posed no immediate or
severe risk to CH-K’s safety, that he acted in a nurturing manner towards CH-K, that he helped IH
interact appropriately with CH-K, that he functioned well and without conflict at work, and that
while he did not acknowledge his parenting deficiencies at trial or to service providers, his actions
to resolve them “offset” his words. But we do not weigh evidence on appeal. A.G., 155 Wash. App.
at 588. Giving greater weight to other evidence rather than the evidence that TK emphasizes is
not a juvenile court decision that we review. A.G., 155 Wash. App. at 588.
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No. 47783-1-II
We conclude that because the six required factors were proved by clear, cogent, and
convincing evidence, the juvenile court’s finding of unfitness is also implicitly supported by clear,
cogent, and convincing evidence.
F. BEST INTERESTS OF CH-K
Both parties challenge aspects of the juvenile court’s “best interest” of the child finding.
We disagree with the parties’ challenges.
Although parents have a fundamental liberty interest in the care and custody of their
children, the paramount consideration in a termination proceeding is the welfare of the children.
In re Welfare of Young, 24 Wash. App. 392, 395, 600 P.2d 1312 (1979).
The juvenile court has broad discretion to determine the best interests of the child and its
decision is entitled to great deference. Young, 24 Wash. App. at 395. Where a parent has been
unable to rehabilitate over a lengthy dependency period, a juvenile court is “‘fully justified’” in
finding termination in the child’s best interests rather than “‘leaving [the child] in the limbo of
foster care for an indefinite period while [the parent] sought to rehabilitate himself.’” T.R., 108
Wash. App. at 167 (alterations in original) (quoting A.W., 53 Wash. App. at 33). The child’s right to
basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of
the termination proceeding. RCW 13.34.020.
Here, the juvenile court stated,
[T]he parents are not currently fit to parent this child. The parents have failed to
adequately provide a safe and nurturing environment for this child on a consistent
and sustained basis. The parents have repeatedly demonstrated an inability to put
this child’s emotional and developmental needs first. The parents have failed to
consistently provide a safe home environment. Parental support from friends,
family, or community members is not sufficient to overcome the parents’
deficiencies that affect their ability to provide adequate care and supervision for
this child.
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No. 47783-1-II
CP at 834. And
[this] court finds by a preponderance of the evidence that termination of the
parent/child relationship is in the best interest of the child. Termination will allow
the child, as soon as possible to enter into a stable family relationship where her
individual needs can be met.
CP at 834.
IH argues that the juvenile court improperly conflated the best interest standard and that
termination would help achieve permanent placement in the near future. First, contrary to IH’s
argument, the juvenile court did not improperly conflate the best interest standard and that
termination would help achieve permanent placement in the near future. Here, as discussed above,
the juvenile court did not conflate the standards but instead made separate findings regarding
impediments to CH-K obtaining permanency and CH-K’s best interests. IH’s argument fails.
TK argues that because “[DSHS] failed to establish each of the allegations under RCW
13.34.180(1), however, the trial court’s ‘best interests’ determination was premature.” Br. in Supp.
of Mot. for Accelerated Review at 48. After proving the elements of RCW 13.34.180, DSHS must
then prove by a preponderance of the evidence that termination of parental rights is in the best
interests of the child. RCW 13.34.190(1)(b); A.J.R., 78 Wash. App. at 228. Contrary to TK’s
argument, the finding that termination is in CH-K’s best interests was not premature because as
shown above, each factor to support termination was established by clear, cogent, and convincing
evidence. Service providers who worked with TK and IH from 2009 to 2015 testified that the
parents’ progress with services was stagnant or would regress and that they did not recommend
either parent have sole responsibility for CH-K.
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No. 47783-1-II
The juvenile court had substantial evidence before it to support a finding that termination
was in CH-K’s best interests rather than leaving her in foster care for an indefinite period. T.R.,
108 Wash. App. at 167. We conclude that the parties’ arguments fail and that the juvenile court’s
finding that termination was in CH-K’s best interests was supported by a preponderance of
evidence.
II. NO DUE PROCESS VIOLATION
IH argues that the juvenile court violated her due process rights because the State had no
compelling interest to support termination of her parental rights and termination was not the least
restrictive alternative. We disagree.
The Fourteenth Amendment to the United States Constitution provides that no State shall
“deprive any person of life, liberty, or property, without due process of law.” Parents have a
fundamental liberty interest in the care, custody, and control of their children. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Interference with this fundamental
right is constitutional “‘only if the State can show that it has a compelling interest and such
interference is narrowly drawn to meet the compelling state interest involved.’” In re Dependency
of I.J.S., 128 Wash. App. 108, 116, 114 P.3d 1215 (2005) (quoting In re Custody of Smith, 137
Wash. 2d 1, 15, 969 P.2d 21 (1998), aff’d sub nom. Troxel, 527 U.S. 57). Consideration of whether
an interference is narrowly drawn can include evaluation of whether a lawful alternative and less
restrictive means could have been used. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280
n.6, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986). Establishing the RCW 13.34.180(1) termination
factors, and factor (e) in particular, by clear, cogent, and convincing evidence also satisfies
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No. 47783-1-II
constitutional due process for terminating a parent’s fundamental liberty interest. K.R., 128 Wash. 2d
at 142.
A. COMPELLING STATE INTEREST
IH argues that the government has no compelling interest at stake because the parents do
not pose an imminent risk or threat to CH-K’s welfare. We conclude that the State had a
compelling interest.
In a termination proceeding, the State has a compelling interest to protect and prevent harm
to children and has an obligation to intervene. I.J.S., 128 Wash. App. at 116; see also Santosky v.
Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). When parental actions or
decisions seriously conflict with the physical or mental health of the child, the State has a parens
patriae right and responsibility to intervene to protect the child. I.J.S., 128 Wash. App. at 116.
Establishing the child is dependent under RCW 13.34.180(1)(a) and that it is unlikely conditions
can be remedied so the child can be returned in the near future under RCW 13.34.180(1)(e) is
equivalent to finding harm to the child. I.J.S., 128 Wash. App. at 118.
Here, as stated above, that CH-K was found dependent under RCW 13.34.180(1)(a) is
undisputed. And because substantial evidence supports the finding that it is unlikely conditions
can be remedied so that CH-K can be returned in the near future under RCW 13.34.180(1)(e), harm
to CH-K has been established and the State had a compelling interest to intervene. I.J.S., 128 Wn.
App. at 118.
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No. 47783-1-II
Substantial evidence also supports the State’s compelling interest. Service providers
testified that (1) the parents could not meet CH-K’s emotional needs or relate to her in a
developmentally appropriate way, (2) CH-K was developmentally stunted by straddling two
homes, (3) conditions in the home remained hazardous to CH-K’s safety, and (4) neither parent
could provide sole care to CH-K. Thus, we conclude that IH’s and TK’s actions seriously
conflict with the physical or mental health of the child such that the State had a compelling
interest to intervene. I.J.S., 128 Wash. App. at 116.
B. LEAST RESTRICTIVE MEANS
IH also argues that termination was not narrowly tailored where DSHS could have pursued
the less restrictive alternatives of (1) prolonging dependency to offer continued services, (2)
pursuing a dependency guardianship, or (3) a third party custody order. We disagree.
Children have the right to basic nurture, which includes a speedy resolution of dependency
proceedings. RCW 13.34.020. Thus, a petition for termination of parental rights must be filed
whenever a child has been in foster care for 15 of the past 22 months unless compelling reasons
excuse this requirement. RCW 13.34.145(1)(c). In 2010, the legislature created a more flexible
alternative to parental termination—guardianship under RCW 13.36.040. R.H., 176 Wash. App. at
423. Evidence of the availability of a guardianship is material to whether the State can meet its
burden to prove RCW 13.34.180(1)(f), but it is not necessary for the State to disprove the
availability of a guardianship placement. R.H., 176 Wash. App. at 428. While recent case law does
not appear to establish a requirement for parents to present evidence of a potential guardianship,
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No. 47783-1-II
due process requires that parents have the ability to present all relevant evidence for the juvenile
court to consider prior to terminating a parent’s rights; thus, presentation of evidence regarding a
potential guardianship or third party custodian would be considered by the juvenile court if raised.
See R.H., 176 Wash. App. at 429.
Here, CH-K was in foster care for three years as of 2015. The termination trial was
continued five times between 2013 and 2015 to allow TK and IH to try to progress through the use
of state services. But the 2013 to 2015 service providers did not recommend that the parents even
receive unsupervised visits and reported that the parents regressed such that it would be years still
before CH-K could possibly be in their sole care. IH offers no compelling reasons why the
pretermination period should have been further extended beyond the statutory period in light of
this evidence.
Additionally, the potential for guardianship placement or third party custody was never
established by either parent at or before trial by testimony or petition. DSHS was not required to
disprove the availability of a guardianship placement. R.H., 176 Wash. App. at 428. And IH makes
no argument why the juvenile court would have a similar obligation to disprove the availability of
a third party custodian. IH’s arguments that the State was required to pursue less restrictive means
than termination fails.
We conclude that the juvenile court’s findings were supported by substantial evidence and
that constitutional due process was satisfied. K.R., 128 Wash. 2d at 142.
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No. 47783-1-II
We affirm the juvenile court’s order terminating the parties’ parental rights to CH-K.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, J.
We concur:
BJORGEN, C.J.
MAXA, J.
30