In re the Termination Of: S. E. & A. E. ( 2016 )

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FILED
SEPTEMBER 22, 2016
I In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
! IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
II In the Matter of the Parental Rights to )
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No. 33307-8-111
(consolidated with
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No. 33308..;6-III)
' In the Matter of the Parental Rights to
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UNPUBLISHED OPINION
A.E. )
PENNELL, J. - L.P. appeals an order terminating her parental rights to A.E. and
S.E. We affirm.
BACKGROUND
In 2013, L.P.' s children were placed in dependency proceedings after being found
unattended. According to the dependency petition, L.P.' s unresolved substance abuse and
inability to provide appropriate supervision subjected her children to abuse, neglect, and
substantial harm to their well-being. L.P.' s children were removed from her home and
placed with relatives. Dependency disposition and review orders required L.P. to obtain a
1 chemical dependency assessment, participate in recommended treatment, and submit to
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random urinalysis testing. L.P. was also required to comply with ( 1) a parenting
assessment and any recommendations, (2) hands-on parent training or parent-child
.l interactive therapy (PCIT), and (3) individual counseling and any recommendations, with
No. 33307-8-111 (consol. w/ No. 33308-6-111)
In re Parental Rights to S.E. and A.E.
the counseling being reserved until L.P.' s chemical dependency needs were addressed.
Services were provided to L.P. and her children over the course of approximately
18 months. During that time, L.P. frequently fell out of contact with her social worker
and failed to show for numerous service appointments, visitation sessions, and review
hearings. Despite the substance abuse concerns recited in the initial dependency petition,
L.P. never participated in any substance abuse treatment. During the course of the
dependency, L.P. submitted just two urine samples, both of which produced results
positive for amphetamine and methamphetamine. L.P. denied current drug use to various
service providers. She claimed her refusal to participate in urinalysis testing was due to a
fear of false positive test results.
The termination trial was held in January and February 2015. The Department of
Social and Health Services (DSHS) presented multiple witnesses, including visit
facilitators, service providers, the social worker, the guardian ad litem (GAL), and a
representative from the Colville Confederated Tribe of Indians (Colville Tribe). A.E. and
S.E. are considered members of the Colville Tribe through their father, D.E. 1 L.P. did not
testify, but she called one witness, a legal nurse consultant, who provided her opinion that
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D.E. relinquished his parental rights prior to the termination trial and is not a
party to this appeal.
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In re Parental Rights to S.E. and A.E.
termination was improper based on statistical research.
DSHS' s witnesses testified in support of its request for termination. One witness
was social worker Buffy Nicholson, the Colville Tribe's coordinator with regard to the
Indian Child Welfare Act of 1978, 25 U.S.C. sections 1901-1963, and the Washington
State Indian Child Welfare Act, chapter 13.38 RCW (collectively the "ICWA"). Ms.
Nicholson was not personally familiar with L.P. or her children. Her testimony was based
on a review of discovery and other documentation as well as contact with L.P.'s social
worker and the GAL. Consistent with other witnesses, Ms. Nicholson opined that
continuation ofL.P.'s parental relationship would seriously harm the children. She
testified that L.P. had not addressed her mental health or substance abuse issues. She also
noted that although there was evidence ofL.P.'s affection toward the children, L.P.'s
visits with them led to stress, anxiety, agitation, and confusion, causing the children to act
out.
An order terminating L.P.' s parental rights was entered in March 2015. The order
concluded that L.P.' s problems with substance abuse constituted her primary parental
deficiency and a barrier to safely parenting her children. The termination order made all
applicable statutory findings, including a finding that Ms. Nicholson was a "Qualified
Expert Witness" under the ICWA. Clerk's Papers (CP) at 182. L.P. appeals.
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ANALYSIS
Factual challenges under generally applicable termination standards
L.P. challenges the sufficiency of the evidence supporting several of the trial
court's factual findings necessary for termination. Specifically, L.P. challenges the
court's findings that:
• DSHS established a factual nexus between L.P.' s substance abuse and her parental
deficiencies;
• DSHS provided necessary services (RCW 13.34.180(l)(d));
• In light of the services provided, there was little likelihood for parent-child
reunification in the near future (RCW 13.34.180(l)(e)); and
• Termination of parental rights was in the best interests ofL.P.'s children (RCW
13 .34.190).
Ample evidence justified the trial court's findings regarding substance abuse. L.P.
tested positive for drugs each time she was tested. Her failure to participate in a drug
evaluation and treatment along with approximately 50 missed urine tests provided strong
evidence of on-going drug use. See In re Welfare ofA.G., 155 Wash. App. 578, 591-92,
229 P.3d 935 (2010). L.P.'s social worker and service providers testified that L.P.'s drug
use negatively impacted her ability to supervise her children and to correct her parental
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In re Parental Rights to S.E. and A.E.
deficiencies. L.P.' s behavior was indicative of someone who was prioritizing drugs over
.parenting. The facts presented at trial provided sufficient justification for linking L.P. 's
drug use and her current unfitness to parent.
The trial court was justified in finding all necessary services were provided. L.P.
complains DSHS improperly withheld services in the form of hands-on parent training.
This position fails for two reasons. First, it overlooks the fact that the court orders only
listed hands-on parenting as one of two alternative services. The other alternative was
PCIT. It was provided, but L.P. failed to follow through. Second, even if hands-on
parent training should have been provided, termination would still be appropriate because
L.P. has not shown how this service would have remedied her deficiencies in the
foreseeable future. See, e.g., In re Parental Rights to K.MM, 187 Wash. App. 545, 566,
349 P.3d 929 (2015). The trial court's findings highlight this futility:
While [L.P.] disputes the completeness of the services offered to her by
[DSHS], the Court finds [L.P.'s] ability to parent was so negatively
impacted by her chemical dependency that she could not and would not
correct the parental deficiencies that brought the children into [DSHS's]
care without also addressing her substance abuse.
CP at 181 (Finding of Fact 6.12).
The trial court was similarly justified in finding little likelihood of L.P.' s parental
deficiencies being remedied in the near future. If adequate services have been offered or
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In re Parental Rights to S.E. and A.E.
provided and parental deficiencies are not substantially improved within 12 months of
dependency, a rebuttable presumption arises that this factor is established. RCW
13 .34.180(1 )( e). "A parent's unwillingness to avail herself of remedial services within a
reasonable period is highly relevant to a trial court's determination as to whether the State
has satisfied RCW 13.34.180(l)(e)." In re Welfare of TB., 150 Wn. App. 599,608,209
P.3d 497 (2009). This presumption applies in L.P.'s case.
Over the course of the approximately 18-month-long dependency, L.P. failed to
complete any court ordered services. She did not even attempt to address substance
abuse. Although no witnesses gave a timeline or estimate for L.P. to remedy her parental
deficiencies, a number of L.P. 's service providers identified L.P. 's personal issues and
noncompliance in services as barriers to timely reunification. The social worker also
opined that L.P. would be unable to provide permanency anytime soon. These facts
provided the trial court with a sufficient basis for finding little likelihood that conditions
would be remedied so the children could be returned to L.P. in the near future. RCW
13 .34.180( 1)( e).
Finally, the trial court appropriately found termination to be in the best interests of
L.P. 's children. There is no doubt that L.P. loves her children and shares an attachment
with them. But this is not the applicable focus. The social worker, GAL, and tribal
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representative all concluded that based on the impermanence and uncertainty of foster
care, and the lack of evidence that things would change in the near future, termination
was in the best interests ofL.P. 's children. L.P. was provided sufficient opportunity to
address her deficiencies and show that she was ready to care for her children. She failed
to follow through. Given DSHS' s proof of the allegations of parental deficiency made
under RCW 13.34.180(1) by clear, cogent, and convincing evidence, the trial court was
justified in finding, by a preponderance of the evidence, that termination was in the best
interests of A.E. and S.E. RCW 13.34.190(l)(a)(i).
Challenges under the Indian Child Welfare Act (ICWA)
In the context of Indian children, federal and state statutes place additional burdens
on DSHS prior to termination. 25 U.S.C. § 1912; RCW 13.38.130(1), (3). L.P. makes
two challenges under these provisions.
First, L.P. complains that DSHS failed to prove it made "active efforts" at
providing rehabilitative services, as required by RCW 13.38.130(1). This claim fails for
the reasons set forth above. The trial court's finding regarding necessary services also
supports the "active efforts" requirement under the ICWA. In re Dependency ofA.M,
106 Wash. App. 123, 137-38, 22 P.3d 828 (2001).
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L.P. also contends DSHS failed to meet its burden of proving A.E. and S.E. would
likely be subject to serious emotional or physical damage if placed in her custody, as
required under the ICWA. RCW 13.38.130(3). This argument is largely based on a
challenge to the adequacy ofDSHS's proffered expert witness, Ms. Nicholson. L.P. does
not question Ms. Nicholson's credentials under RCW 13.38.130(4)(b); instead, she
challenges the foundation for her opinions, contending Ms. Nicholson was not familiar
enough with the case after having very limited involvement throughout.
The trial court did not abuse its discretion in finding Ms. Nicholson qualified as an
expert. Ms. Nicholson's opinion was based on facts made known to her prior to the
termination trial. She appeared on behalf of the Colville Tribe, of which L.P.' s children
are considered members. Ms. Nicholson was not required to conduct any particular type
of personal examination prior to providing testimony. In re Marriage of Katare, 175
Wash. 2d 23, 39,283 P.3d 546 (2012) ("an expert is not always required to personally
perceive the subject of his or her analysis"). The fact that Ms. Nicholson's knowledge of
L.P. and her children came from collateral sources instead of direct contact went to
weight, not admissibility. Id.
Apart from the challenge to Ms. Nicholson's qualifications, L.P. also argues Ms.
Nicholson failed to identify the existence of particular conditions likely to result in
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serious emotional or physical damage to the children as contemplated by RCW
13.38.130(3). We disagree. Ms. Nicholson opined that continuation ofL.P.'s parental
relationship would seriously harm the children. She testified that L.P. had not addressed
her mental health or substance abuse issues. She also noted that although there was
evidence ofL.P.'s affection toward the children, the visits led to stress, anxiety, agitation,
and confusion, causing the children to act out. Ms. Nicholson's qualified expert opinion,
together with the other evidence presented to the court, was sufficient to support the trial
court's conclusion that the requirements ofRCW 13.38.130(3) were proven beyond a
reasonable doubt.
CONCLUSION
Based on the foregoing, the decision of the superior court is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, A.CJ.
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