In Re The Dependency Of: K.b., Marcine Brown v. Dshs ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of ) No. 79044-7-I
) consolidated with
K.B., DOB: 07/25/2008, and ) No. 79045-5-I
F.B., DOB: 08/12/2009,
Minor Children. )
)
WASHINGTON STATE )
DEPARTMENT OF CHILDREN, )
YOUTH & FAMILIES, )
Respondent,
v. )
) UNPUBLISHED OPINION
MARCINE BROWN, )
) FILED: August 5, 2019
Appellant. )
VERELLEN, J. —The juvenile court terminated Marcine Brown’s parental
rights to her two children. Brown left her children with a relative more than six
years before the court terminated her rights. She lived out of state throughout the
dependency. Brown has significant mental health problems and was involuntarily
committed to an inpatient psychiatric treatment center for almost half of the
dependency period. Brown claims the trial court violated her right to due process
by terminating her parental rights based on a lack of insight into her children’s
needs, a parental deficiency of which she did not receive adequate notice before
No. 79044-7 & No. 79045-5-1/2
the fact-finding hearing. But the court did not identify lack of insight as a parental
deficiency or terminate the mother’s rights on that basis. And according to the
court’s findings, the mother’s mental health instability alone warranted termination
of her parental rights. Also, the Department of Children, Youth, and Families
(Department) was not required to notify the mother in advance of trial that it would
potentially argue that services it failed to offer her would have been futile under
RCW 13.34.180(1)(d). Brown fails to establish a due process violation. Also,
because substantial evidence supports the court’s finding that the Department
provided all reasonably necessary services capable of correcting the mother’s
predominant parental deficiency within the foreseeable future, we affirm.
FACTS
Brown is the mother of K.B., a son born on July 25, 2008, and F.B., a
daughter born on August 12, 2009.1 Brown has a long history of mental illness,
dating back to her teenage years. She has been diagnosed with schizoaffective
disorder, bipolar type. When inadequately treated, these conditions cause Brown
to suffer hallucinations and delusions. Brown has experienced numerous cycles of
short periods of stability followed by periods of instability after she would cease
1 This appeal does not involve the parental rights of the children’s alleged
biological father or the mother’s parental rights to her other two children The
mother has not parented either of her other children for any significant length of
time. The eldest child was removed from her care at six months of age and later
adopted. The other child was removed from the mother’s care at birth and
remains in the custody of the maternal grandmother.
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No. 79044-7 & No. 79045-5-113
treatment or stop taking medication. Since 2006, she has been involuntarily
committed to mental health treatment facilities approximately five times.
Around 2011 when K.B. was approximately two years old, the mother left
both children in the care of her father.2 Around five years later, in April 2016,
when K.B. was seven years old and F.B. was six years old, the Department took
the children into protective custody based on signs of neglect and disclosures of
abuse in the grandfather’s home. The grandfather claimed he adopted the
children, but there was no documentation of his legal custody. The mother was
living in Alabama, where she remained throughout the dependency.3
The foster parent described the children as “feral” when they moved into
her home in 2016.~ They were “very wild,” lacked social skills, and were unable to
use utensils or eat at a table.5 K.B. was very underweight, commonly went to the
bathroom outside, and had limited verbal skills. The foster mother, an elementary
school teacher, estimated that both children were close to two years behind
educationally.
2 Contrary to all the other evidence in the record, the mother testified that
she left the children with her father in 2015. Report of Proceedings (RP) (Aug. 28,
2018) at 34.
~ It is not clear from the record when the mother moved to Alabama, but she
told a Department social worker in late 2017 or early 2018 that she had not seen
K.B. and F.B. in six or seven years. RP (July 17, 2018) at 127.
~ RP (July 16, 2018) at 43.
~ Id.
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No. 79044-7 & No. 79045-5-1/4
The Department filed petitions for dependency. In January 2017, following
a hearing, at which the mother failed to appear, the court found the children
dependent under RCW 13.34.030(c) because they had no parent, guardian, or
custodian capable of adequately caring for them. The court ordered Brown to
participate in medication management, a psychological evaluation, mental health
counseling, and parenting classes. The court later modified the order to require
parenting classes only if the mother wanted the children to be placed in her care.
The court also later ordered Brown to participate in a domestic violence victim
support program.6
After the Department placed the children in licensed care, they made
specific disclosures of sexual and physical abuse by both the maternal grandfather
and his spouse.7 The children told the foster parents and the guardian ad litem
(GAL) about the abuse, and F.B. made disclosures to law enforcement. The
Department informed the mother’s attorney of the allegations. The Department
also held a meeting for the purpose of discussing the allegations. The mother
participated by telephone. When Department staff told the mother that the
children said the grandfather touched them inappropriately, the mother responded
6 The court ordered participation in a domestic violence victim support
group based on the Department’s recommendation because its records indicated
that Brown spent a brief period in a domestic violence shelter in 2006.
~ Prior to April 2016, the children’s disclosures involved only the maternal
grandfather’s spouse. According to the Department’s case notes, law
enforcement investigated, but there is nothing in the record to indicate whether the
State charged either the children’s grandfather or his spouse with any crime
stemming from the disclosures.
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No. 79044-7 & No. 79045-5-1/5
that the allegations were untrue and that the children were liars. The mother then
began talking nonsensically about the mafia, about Elvis being alive, and about
various things being “Obama’s fault.”8
In June 2017, the Department filed a petition to terminate the mother’s
parental rights. At that time, the mother’s whereabouts were unknown. During the
dependency, the mother sporadically visited with the children by telephone, but
she was often unreachable. In several telephone conversations, the mother
brought up inappropriate upsetting topics or made little sense. After an October 1,
2017 telephone call with the children, neither the foster parent nor the Department
was able to contact the mother for approximately six months.
In January 2018, the Department learned that the mother had been
involuntarily committed to an inpatient psychiatric treatment center in October
2017. At the time of the commitment, Alabama law enforcement found the mother
burning her clothes in the street and insisting she had 65 children who were killed
in the 9/11 terrorist attack. Five months later, mental health treatment providers
were still unable to stabilize Brown, and she continued to struggle with
hallucinations and delusions. According to the mother, she was medicated during
this time for psychosis, depression, bipolar disorder, and anxiety. In March 2018,
the juvenile court found Brown legally incompetent and appointed a GAL to
represent her in the dependency proceeding.
8 RP (July 17, 2018) at 183.
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No. 79044-7 & No. 79045-5-1/6
In March 2018, after reading a court report, the mother contacted the
Department and reiterated her belief that the abuse allegations were false,
explaining that the “mafia” was “out to get her family and make them look stupid.”9
The mother once told a Department employee that she wanted her father to bring
the children to Alabama so that they could live with her. Otherwise, Brown
consistently expressed a preference for the children to be returned to her father.
In June 2018, a month before the hearing on the Department’s petition, the
mother was transferred to outpatient care. She began participating in outpatient
mental health counseling and medication management. At the outset of trial, the
court engaged in a colloquy with Brown, found her to be competent, and
discharged the GAL.
The fact-finding hearing took place over four days in July and August 2018.
By the time the hearing concluded, KB. was ten years old and F.B. was nine
years old. Except for period of a few months in the summer of 2017, when K.B.
temporarily stayed with his maternal aunt, the children had been in the same
licensed care placement for more than two years. Both children had intensive
needs. K.B. had been diagnosed with severe posttraumatic stress disorder
(PTSD) and attention deficit hyperactivity disorder (ADHD), and F.B. was
scheduled to have a psychological evaluation because of attention deficits. Both
children received individual and family therapy and had individual education plans
~ RP (July 17, 2018) at 117.
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No. 79044-7 & No. 79045-5-1/7
at school. K.B. was taking medication for ADHD, which was helpful to him, and
both children had made progress with respect to their challenging behaviors and
academics during the dependency.
Brown testified by telephone. She explained that she was forced to leave
K.B. and F.B. with her father because of “enemies” who were “stalking” her.’° She
insisted that she had “no idea” why the children were no longer living with her
father.1’ Brown continued to insist that the foster parents had “bribed” the children
to make false allegations.’2 She was living with her mother, and testified that she
was taking psychotropic medication and participating in monthly mental health
counseling. Brown relied on her mother for transportation and indicated that as
soon as her mother purchased a vehicle, she could attend parenting classes. She
again said she wanted the children to be returned to her father so he could bring
them to Alabama. The mother acknowledged that the Department offered to pay
her expenses to travel to Washington to visit her children and participate in person
at the trial, and that she refused because it was “too scary” and ‘dangerous” to
travel because of “murderers.”3
At the conclusion of the fact-finding hearing, after considering the testimony
of six witnesses and 43 exhibits, the court entered extensive findings and orders
10 RP (Aug. 28, 2018) at 49.
~ Id. at 35.
12 Id. at 36.
‘3k1.at42-43.
7
No. 79044-7 & No. 79045-5-1/8
terminating Brown’s parental rights. Specifically, the court found that the mother’s
mental health instability was her most significant deficit and that there were no
services the Department could offer to remedy that deficiency within a timeframe
appropriate to her children’s needs. Brown appeals the termination orders.
Standard of Review
To terminate parental rights, the Department must satisfy a two-pronged
test.14 The Department must first prove the statutory elements set forth in
RCW 13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence.15
Evidence is clear, cogent, and convincing if it established the ultimate fact in issue
as “‘highly probable.”16 If the juvenile court finds that the Department has met its
burden under RCW 13.34.180, it may terminate parental rights if it also finds by a
preponderance of the evidence that termination is in the “best interest” of the
child.17
Where the court below has weighed the evidence, our review is limited to
determining whether the court’s findings of fact are supported by substantial
evidence and whether those findings support the court’s conclusions of law.18
“Substantial evidence’ is evidence in sufficient quantity to persuade a fair-minded,
14 In re Dependency of K.N.J., 171 Wash. 2d 568, 576, 257 P.3d 522 (2011).
15 k~. at 576-77.
16 In re Dependency of KR., 128 Wash. 2d 129, 141, 904 P.2d 1132 (1995)
(quoting In re Secio, 82 Wash. 2d 736, 739, 513 P.2d 831 (1973)).
17 K.N.J., 171 Wash. 2d at 577.
18 In re Dependency of P.D., 58 Wash. App. 18, 25, 792 P.2d 159 (1990).
8
No. 79044-7 & No. 79045-5-1/9
rational person of the truth of the declared premise.”19 The determination of
whether the findings of fact are supported by substantial evidence “must be made
in light of the degree of proof required.”2° In determining whether substantial
evidence supports the trial court’s findings, this court does not weigh the evidence
or assess the credibility of witnesses.21
Due Process
Parents have a fundamental liberty interest in the care and welfare of their
children.22 Parental rights cannot be abridged without due process of law.23 Due
process requires “that parents receive notice of the specific issues to be
considered” at a termination hearing.24 Such notice is required “to prevent
surprise, helplessness and disadvantage.”25
In re Welfare of TB., 150 Wash. App. 599, 607, 209 P.3d 497 (2009)
19
(quoting World Wide Video, Inc. v. City of Tukwila, 117 Wash. 2d 382, 387, 816 P.2d
18(1991)).
20 PD., 58 Wash. App. at 25.
21 In re Dependency of E.L.F., 117 Wash. App. 241, 245, 70 P.3d 163 (2003).
22 In re Dependency of Schermer, 161 Wash. 2d 927, 941, 169 P.3d452
(2007).
23 In re Dependency of A.M.M., 182 Wash. App. 776, 790-91, 332 P.3d 500
(2014).
24ki. at 791 (quoting In re Welfare of Martin, 3 Wash. App. 405, 410, 476
P.2d 134 (1970)).
25jd.(quoting Martin, 3Wn. App. at4lO).
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No. 79044-7 & No. 79045-5-1/10
Brown alleges a due process violation because the Department neglected
to inform her during the dependency that her lack of insight into her children’s
needs could be considered as a basis for terminating her parental rights.26
Brown relies on A.M.M. During the dependency hearing in A.M.M., the
Department focused on the mother’s substance abuse issues.27 But during the
termination hearing, the mother became aware of another parental deficiency that
could support termination when a social worker testified that she lacked an
understanding of her children’s needs.28 This court reversed the termination order
and remanded for the trial court to strike the finding that the mother’s parental
deficiencies included a lack of knowledge about her children’s developmental
needs.29 While there were extensive findings about the mother’s substance
abuse, the trial court did not indicate that substance abuse alone was sufficient to
warrant termination. On remand, we instructed the trial court to consider whether
“termination is appropriate on the basis of the parental deficiencies of which [the
mother] was given adequate notice.”3°
26 Pretrial, Brown sought to exclude evidence of any parental deficiency not
alleged in the termination petition. The Department did not object, agreeing that
the mother’s “main deficiencies” were those outlined in the petition. RP (July 16,
2018) at 14. The Department stated that, to the extent the evidence suggested
additional deficits, the Department would not rely on them and asked the court to
disregard evidence of other deficiencies. ~ at 14-15.
27 A.M.M., 182 Wash. App. at 783, 792.
28ki.at784.
29 frJ at 792.
Id. at 793.
10
No. 79044-7 & No. 79045-5-I/li
This case is different from A.M.M. The petition to terminate Brown’s
parental rights alleged that her parental deficiencies were “significant mental
health issues, lack of parenting skills, and lack of safe and stable housing.”31 The
court’s finding of parental deficiencies mirrors the Department’s allegations. The
court expressly identified Brown’s parental deficiencies as “mental health issues,
lack of parenting skills, and lack of safe and secure housing.”32
The court discussed the mother’s “lack of insight” but not in the context of
describing parental deficiencies. Several of the Department’s witnesses
expressed concerns that the mother was unable or unwilling to protect the children
because she strenuously rejected their allegations out-of-hand and appeared
unable to appreciate the trauma they suffered. The court, however, was not
persuaded that the Department made sufficient efforts to inform the mother of the
details of the children’s allegations. Therefore, the court found that it was
disingenuous for the Department to blame the mother for her lack of awareness or
insight as to the sexual abuse allegations. Nevertheless, the court determined the
mother still lacked insight into her children’s significant needs, regardless of the
cause, and this was partly due to the Department’s failure to clearly communicate
those needs to the mother.33
31 Clerk’s Papers (CP) at 194.
32 CP at 19, 215.
~ CP at 21, 217.
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No. 79044-7 & No. 79045-5-1/12
The court also explained the mother’s lack of insight and inability to
appreciate her children’s issues affected the likelihood that conditions could be
“remedied” so that the children could be “returned to the parent in the near
future.”34 The court explained:
2.94 The mother, as a non-offending parent, is not a direct danger to
her children; she did not assault them. But in order to gain the skills
through services that will enable her to help her children and be a
placement option, she must acquire the ability to perceive the
problem. She has consistently failed to do so since at least March of
2017.
2.95 Unless the mother begins to change her view, there is no
solution as to how she can acquire the necessary skills to provide a
stable home for her children in the foreseeable future.~35~
Reading the court’s findings in context and as a whole, the court did not find that
Brown’s lack of insight constituted a parental deficiency and did not rely on it as a
basis to terminate her parental rights.
But even if the court’s references to Brown’s lack of insight are
characterized as a parental deficiency separate and distinct from her mental health
issues and lack of parenting skills, her reliance on A.M.M. is still unavailing. In
contrast to the findings in A.M.M., the findings here indicate that the mother’s
mental health instability was sufficient to warrant termination of her parental rights.
For instance, the court found that the “essential services for the mother” were
those directed toward addressing her mental health.36 And although the mother
~See RCW 13.34.180(1)(e).
~ CP at 22, 218.
36 CP at 216.
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No. 79044-7 & No. 79045-5-1113
engaged in mental health services and was no longer “decompensated,” the court
found that she was not able to function independently and her testimony revealed
that something was “terribly wrong’ with her thought processes.37
The court found that “[s]ince 2006, the mother has not show[nj even 9 to 12
months of mental health stability.”38 The court determined that Brown had
demonstrated “no ability” to obtain treatment when she clearly needs it since “[ajIl
of her commitments have been involuntary.”39 And the court found that Brown
would have to demonstrate at least a year of stability before she could be
considered as a potential placement for her children. Critically, the court found:
2.85 The fact remains that the mother and her mental health is her
own most significant problem.
2.86 There are no services the Department can offer that will
remove the mother’s mental health deficiency.[40]
Brown fails to establish a due process violation based on the court’s
consideration of her lack of insight.
Brown also claims the termination order violates her right to due process
because the Department failed to inform her in a timely manner that it would rely
on the futility doctrine to excuse its failure to provide all court-ordered services.
Pretrial, Brown moved to exclude any testimony regarding the futility of providing
~ CP at 217, 218.
38 CP at 21, 217.
39CPat218.
40CPat217.
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No. 79044-7 & No. 79045-5-1/14
services because the Department failed to include any such allegation in its
pleadings. At several points, the court reserved ruling on the defense motion.41 At
the conclusion of the fact-finding hearing, the court rejected the mother’s due
process claim. The court found:
2.70 Social worker Haley Johnston offered reasons as to why
services might be futile, citing the mother’s cognitive ability,
substance abuse, unstable mental health, and lack of insight.
2.71 It should come as no surprise that a social worker supervisor,
and perhaps even a line social worker, would be able to testify as to
the facts that would form the basis for an opinion that the offered
services were futile.~421
In the petition to terminate Brown’s parental rights, the Department alleged
that it had offered or provided all necessary and reasonably available services
capable of correcting the mother’s parental deficiencies within the foreseeable
future.43 Contrary to the mother’s position, this allegation notified her that the
Department could potentially assert that its failure to offer services was excusable
because those services were not capable of correcting her parental deficiencies
within the foreseeable future.
Brown’s reliance on A.M.M. is misplaced here too because, as explained,
the juvenile court did not terminate her parental rights based on a parental
deficiency that she was not made aware of prior to trial. Nothing in A.M.M.
41 The Department filed a memorandum on the last day of trial asserting it
was not precluded from arguing that the provision of services would have been
futile. CP at 26-29.
42CPat216.
See RCW 13.34.180(1)(d); Ex. 29, ~ 3.4.
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No. 79044-7 & No. 79045-5-1/15
suggests that the Department is required to specify before trial how its provision of
particular services to the parent satisfies its burden under RCW 13.34.180(l)(d).
Offer or Provision of Services
Separate from Brown’s claimed lack of notice of futility, she challenges the
juvenile court’s finding that the Department met its burden under
RCW 13.34.180(1)(d) because any additional services beyond those directed
toward addressing her mental health were futile. To meet its burden under
RCW 13.34.180(1)(d), the Department must prove 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.” While the legislature has not defined
“necessary services,” case law has defined the term to mean “those services
‘needed to address a condition that precludes reunification of the parent and
child.”44 The Department is excused from providing otherwise required services if
doing so would be futile.45 Even when the Department “inexcusably fails” to offer
all necessary services, termination may still be appropriate if the service would not
~ K.M.M., 186 Wash. 2d at 480 (quoting A.M.M., 182 Wash. App. at 793).
~ In re Welfare of M.R.H., 145 Wash. App. 10, 25, 188 P.3d 510 (2008).
15
No. 79044-7 & No. 79045-5-1/16
remedy parental deficiencies within the foreseeable future.46 The timeframe for
“foreseeable future” is dependent on the child’s age.47
Brown argues that the Department did not meet its burden under
RCW 13.34.180(1 )(d) because it failed to timely provide her with the opportunity to
participate in parenting classes or a support program for victims of domestic
violence.48 She contends that, in addition to being court-ordered, these services
were necessary to correct conditions that precluded reunification; namely, lack of
insight into her children’s needs and lack of parenting skills.
It is undisputed that the Department did not provide Brown with information
to facilitate her engagement in parenting classes or a domestic violence victims’
support group in Alabama until August 2018, during a break in the termination
proceedings.49 This was approximately two months after Brown’s release from
inpatient treatment. She claims that because she actively participated in services
“throughout the dependency,” the Department failed to show that the timely
provision of these services would have been futile.5° The mother further argues
46 K.M.M., 186 Wash. 2d at 486.
~ In re Hall, 99 Wash. 2d 842, 851, 664 P.2d 1245 (1983).
48 Brown does not argue that the Department failed to offer or provide any
services related to mental health treatment.
~ Ex 30. The Department sent Brown two service letters in 2017, providing
information to assist the mother in accessing court-ordered mental health services
in Alabama. Exs. 19, 20.
50 Appellant’s Br. at 29.
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No. 79044-7 & No. 79045-5-1/17
that the court erroneously found that because of her mental health conditions, she
could not benefit from parenting classes or services related to domestic violence.
The mother’s arguments overlook significant aspects of the court’s findings
and the factual record. With respect to parenting classes, following an April 2017
permanency planning hearing, the court ordered the mother to participate in
parenting classes only if she wanted to “be a future parenting resource.”51 As
explained, apart from one instance, the mother consistently expressed a
preference for the children to be placed with her father.
Following a review hearing in October 2017, the court added a domestic
violence victim support group to the list of required services.52 But around the
same time, the mother was involuntarily committed. As the court noted, neither
parenting classes nor domestic violence victim programs were available at the
inpatient treatment facility where the mother resided between October 2017 and
June 2018. And even assuming the Department unreasonably delayed providing
information to Brown about services after her release from inpatient treatment, the
court found that parenting classes were not an essential service, that the
predominant issue precluding reunification was the mother’s chronic mental health
instability, that mental health services were provided to the mother, and the
provision of any additional services would have been futile.
In this regard, the court found:
51 Ex. 9, ~ 3.9.
52Ex 10,~3.10.
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No. 79044-7 & No. 79045-5-1/18
2.76 The essential services have been provided but it has not made
the mother ready for reunification and she will not be ready for
reunification in the children’s foreseeable future.
2.78 As Ms. Johnston testified to, the mother would have to
demonstrate at least a year of stability before she could be under
consideration as a stable parent. This is the problem. Additional
services would have been futile.
2.86 There are no services the Department can offer that will remove
the mother’s mental health deficiency.
2.87 The mother’s mental health deficiency was not removed by
seven to eight months of involuntary treatment.
2.89 It took seven to eight months to stabilize the mother; this is a
staggering reality.
2.90 Even if the mother was to start all services now, she cannot
demonstrate sufficient stability in the foreseeable future to justify
denying termination.[53~
The court did not find that the mother could not benefit from parenting
classes or domestic violence services. Instead, the court found there was no
service capable of correcting the primary deficiency, mental health instability,
within the foreseeable future. This finding is supported by evidence in the record
that it took seven to eight months of inpatient treatment to stabilize Brown in 2017
and 2018. There was also evidence of several prior involuntary commitments and
53CPat2l, 217.
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No. 79044-7 & No. 79045-5-1/19
no evidence that the mother had experienced any significant period of mental
health stability in more than 10 years. One former Department supervisor testified
that the mother would need to show consistent engagement and mental health
stability for a year in order to establish long-term success in treatment and that, for
her children, three months was beyond their foreseeable future.54 Another
Department supervisor testified that the mother would need to remain stable in
mental health treatment for a minimum of nine to twelve months to be considered
as a placement for her children and that six months was almost beyond the near
future for the two children.55 The GAL also testified that Brown had not sufficiently
addressed her mental health condition to enable her to parent the children and
that the near future for the children was six months, at the very latest.56
Furthermore, while the mother claims that she participated in services
throughout the dependency, she glosses over the fact that, for the most part, her
participation in court-ordered mental health services was not voluntary. And at
trial, while the mother claimed she was interested in participating in parenting
classes and services related to domestic violence, she also testified that she was
not currently prepared to begin any new services until her mother purchased a
new vehicle.
~ RP (July 17, 2018) at 121-22.
ki. at 208-10.
56 RP (Aug. 28, 2018) at 82-86.
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No. 79044-7 & No. 79045-5-1/20
Although the mother challenges the court’s finding that she participated in
mental health services “to no avail,” she misinterprets the finding. The court found
that the mental health treatment succeeded to the extent that Brown was
eventually stabilized and no longer “decompensated.”57 Nevertheless, because
Brown was released from inpatient treatment only a month before the fact-finding
hearing began, it remained to be seen if she could maintain stability. And while
the mother exhibited “some degree” of mental “evenness,” the court also found
that she exhibited some delusional thinking.58
Brown also claims that the court erroneously applied a rebuttable
presumption to RCW 13.34.180(1)(d) and therefore unlawfully placed a burden of
production on her “to prove that circumstances would improve in the foreseeable
future.”59 RCW 13.34.180(1)(e) requires proof “[t]hat there is little likelihood that
conditions will be remedied so that the child can be returned to the parent in the
nearfuture.”6° RCW 13.34.180(1)(e) also provides that if the Department meets
its burden under RCW 13.34.180(1)(d) by showing that all necessary services
reasonably capable of correcting the parental deficiencies within the foreseeable
future have been clearly offered or provided and the parent has failed to
substantially improve his or her parental deficiencies within 12 months following
57CPat217.
58 CP at 22; 218.
~ Appellant’s Br. at 33.
60 (Emphasis added.)
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entry of the dispositional order, then a rebuttable presumption arises that there is
little likelihood that return of the child in the near future will be possible.
Here, the court found:
2.92 It has been well over 12 months since a dispositional order has
entered and the Department has offered or provided all services.
The rebuttable presumption applies.[61~
Nothing in this finding indicates that the court mistakenly applied a
presumption to find the Department satisfied its burden under RCW 13.34.180(d).
In order for the presumption under RCW 13.34.180(1)(e) to apply, the Department
must first make a showing that necessary services reasonably capable of
correcting the parental deficiencies within the foreseeable future have been clearly
offered or provided. The next finding, 2.93, states that the Department met its
burden under RCW 13.34.180(1)(d) in part, because “[nb other services would
have remedied the mother’s parental deficiencies in the foreseeable future.”62
These findings do not suggest any confusion about the statutory factor to which
the rebuttable presumption applies.
Substantial evidence supports the court’s findings that the Department met
its burden under RCW 13.34.180(1)(d) by offering or providing mental health
services and that any additional services were futile because they were not
capable of correcting Brown’s chronic mental health condition in the foreseeable
future.
61 CPat22,218.
62 kI. (emphasis added)
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No. 79044-7 & No. 79045-5-1/22
We affirm the termination orders.
WE CONCUR:
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22