In re the Parental Rights to: D.W.T. ( 2018 )

FILED
JUNE 7, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN THE MATTER OF THE PARENTAL )
RIGHTS TO D.W.T. ) No. 35117-3-III
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) UNPUBLISHED OPINION
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FEARING, J. — We affirm the trial court’s termination of parental rights of a father
to his young son.
FACTS
Michael Tresh appeals an order terminating his parental rights to his son Doug.
Both names are pseudonyms. All of our facts come from the testimony of Department of
Children and Family Services (DCFS) Social Worker Heather Schrader during the
parental rights termination trial and from exhibits entered during the trial.
DCFS removed infant Doug Tresh from his mother, due to the mother’s
incarceration and controlled substance use during October 2013 and within a month of
Doug’s birth. DCFS then exerted multiple unsuccessful attempts to locate Doug’s father,
Michael Tresh, by calling his only known phone number. At some unknown date before
January 7, 2014, DCFS found Tresh. On January 7, 2014, the trial court signed an order
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of dependency and disposition, which order Tresh approved.
The January 2014 order of dependency listed Michael Tresh’s parental
deficiencies as drug abuse, domestic violence, criminal behavior, and homelessness. The
order required Tresh to engage in a chemical dependency assessment and treatment, a
parenting assessment and parental education, a psychological evaluation, and a domestic
violence and anger management assessment and treatment. The 2014 order directed that
a social worker submit referrals to various providers for the services Tresh required.
Finally, the order demanded that Tresh maintain contact with DCFS.
On September 8, 2014, DCFS social worker Kendra Cox visited Michael Tresh at
the Grant County Work Release Center and handed him contact information for services.
We do not know the steps that Tresh exerted to procure services between September 8,
2014 and April 2016. DCFS made no additional referrals for services until September
2016. On December 4, 2014, Tresh appeared at a DCFS office to procure a bus pass, but
he lacked any contact information to leave with DCFS. Except for the appearances on
September 8 and December 4, DCFS lost contact with Michael Tresh after the January
2014 dependency order in part as a result of Tresh’s periodic incarceration. After
December 4, 2014, Tresh never contacted DCFS or notified it of his location.
Heather Schrader assumed the role of DCFS social worker in the dependency of
Doug Tresh on October 11, 2015. Schrader has never met Michael Tresh in person or
visited his home.
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In December 2015, a third party informed Heather Schrader that Michael Tresh
resided at the Yakima Work Release facility. In January 2016, Schrader twice
telephoned Tresh’s correctional officer at the release facility in order to speak with Tresh,
but Schrader received no return call from the facility. Schrader called again
unsuccessfully in March 2016. Schrader did not send any correspondence to the facility
in an effort to contact Tresh. Tresh left the facility on April 18, 2016.
After Michael Tresh’s release from incarceration in April 2016, Heather Schrader,
discussed a service plan with Tresh. This testimony may conflict with Schrader’s other
testimony that she never met with Tresh. According to Schrader, Tresh knew of the
ordered services. Nevertheless, Schrader made no referrals for court ordered services
then because of a pending parental rights termination trial scheduled for June 2016. In
June, the court postponed the trial until October 2016. Schrader still made no referrals
based on her belief in the futility of services.
Michael Tresh underwent chemical dependency treatment while under State
Department of Corrections’ supervision. Otherwise, Tresh engaged in no other services
listed in the January 2014 dependency order. In September 2016, Heather Schrader
respectively referred Tresh for a parenting assessment, a domestic violence evaluation,
and a psychological evaluation in his hometown of Yakima. Schrader acknowledged that
the provision of services beginning in September 2016 would not enable Tresh to
successfully parent by October.
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Michael Tresh’s counsel astutely questioned Heather Schrader why she scheduled
services in September 2016 despite a trial date in October but failed to schedule services
in April 2016 because of an impending trial date in June. Schrader responded:
So he—I mean, he did indicated [sic] that he wanted to do services,
like he wanted to visit his child. And it’s our—it is part of my job to offer
those, even if he’s not willing to do them or if he cannot rectify those
parental deficiencies.
Report of Proceedings (RP) at 55.
Michael Tresh visited Doug Tresh once when Doug was an infant. The January
2014 dependency order offered Tresh visitation rights. In April 2016, Heather Schrader
arranged for visits but, while Tresh called ahead for a few visits, he failed to appear.
Heather Schrader testified that the arrangement of visitation between a child and
an incarcerated parent generally exhausts three months and requires completion of
paperwork and a background check. Each correctional center demands a different
process for approval of visitation. She did not contact the Yakima release facility to learn
of its process.
One month before trial, the foster home, in which Doug Tresh resided, opted not
to adopt Doug. Thus, Doug lacks a permanent home. DCFS attempted placement with
Doug’s older siblings.
Doug Tresh turned the age of three a week before the termination trial. At trial,
Heather Schrader testified that DCFS offered to Michael Tresh all services capable of
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remedying his parental deficiencies in the foreseeable future. During trial, Heather
Schrader averred that Michael Tresh made no progress toward remedying his parental
deficiencies. Schrader testified that, even if Tresh had commenced services in April
2016, he would have lacked significant progress in parenting skills by the time of the
termination trial. Based on Tresh’s history, she predicted that Tresh would not engage in
any services in the future.
According to Heather Schrader, the near or foreseeable future for Doug was
“now.” RP at 42. Schrader further testified that, by the time of Michael Tresh’s release
from prison, time had expired for Tresh to correct his deficiencies.
Heather Schrader opined that Tresh is not a fit parent for Doug. Tresh would not
become a fit parent in the near future because of his failure to participate in services, his
failure to visit Doug, and a lack of bonding with his son. Tresh lacks a motivation to
parent. Schrader advised that termination of Tresh’s parental right served Doug’s best
interests.
PROCEDURE
The State of Washington filed its termination of parental rights petition on
February 10, 2016. The trial court terminated Doug Tresh’s mother’s rights to the child
in April 2016.
The superior court first scheduled a trial for June 12, 2016, on the State’s petition
to terminate Michael Tresh’s rights to his son. The court periodically postponed the trial
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until the court entered an agreed order, on October 4, 2016, that rescheduled the trial date
as October 14. Michael Tresh’s attorney appeared in superior court on October 14, 2016
and requested the court to continue the trial again because Tresh could not be absent from
work in part due to the need to gain wages to pay child support. The trial court denied
the motion and conducted a trial in Tresh’s absence. The trial court noted that Tresh’s
inability to attend trial would likely continue. Michael Tresh does not challenge the
refusal to grant a trial continuance.
During the October 14 trial, the State only called social worker Heather Schrader
to testify. The trial court did not perfunctorily listen to the testimony of Schrader but
asked its own questions and challenged the State to supply additional details concerning
the dependency of Doug Tresh. At the conclusion of the testimony, the trial court ruled
to terminate Michael Tresh’s parental rights.
On January 9, 2017, the court entered written findings of fact and conclusions of
law and an order terminating parental rights to Doug. The findings of fact read, in part:
2.12 Services Offered or Provided. All services ordered pursuant to
RCW 13.34.130, and RCW 13.34.136, and all necessary services
reasonably available, capable of correcting the parental deficiencies within
the foreseeable future, have been expressly and understandably offered or
provided. These services included:
2.12.1 For the father these services include substance abuse
evaluation, parenting/bonding assessment and education, psychological
evaluation, domestic violence/anger management assessment. These
services were tailored to address the father’s parental deficiencies of
substance abuse; a history of domestic violence, lack of parenting skills and
lack of bond with the child. The father also has a history of physical abuse
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and neglect prior to this dependency and was periodically incarcerated
throughout the dependency. The father was released from prison on April
18, 2016 and was not incarcerated at the time of termination trial. The
Department social worker met with Mr. [Tresh] on September 18, 2016 to
discuss the service plan.
2.12.2 The father signed an agreed order of dependency and
disposition on January 7, 2014. The Department was unable to locate the
father throughout most of the dependency. The Department first received
information regarding his whereabouts between December of 2015 and
January of 2016, approximately two years after the child was found
dependent. The Department used best efforts to offer services to the father.
The burden is on the Department to offer services however the father was
unavailable to engage in services for most of the dependency.
2.12.3 There is evidence that the father engaged in substance abuse
services during the dependency as part of his Washington Department of
Corrections supervision requirements.
2.13 Potential for Remedial Action. There is little likelihood that
conditions will be remedied so that the child can be returned to the parents
in the near future.
2.13.1 Which [With] the exception of substance abuse, the father
has failed to engage in services ordered throughout the dependency and
offered after he was located by the Department despite his indication that
he was willing to do so. The father has not made progress in remedying his
parental deficiencies.
2.13.2 The father has visited with the child on one occasion, when
the child was an infant. The father was offered visitation at the beginning
of the dependency matter but the testimony indicates he missed two visits.
The father was offered visits in April of 2016, and he indicated he desired
to visit with the child. A referral was made for visitation services but the
father missed the visits.
2.13.3 The father’s failure to substantially improve parental
deficiencies within twelve months following entry of the dispositional order
gives rise to a rebuttable presumption that there is little likelihood that
conditions will be remedied so that the child can be returned to him in the
near future. The father has failed to rebut the presumption.
2.13.4 At the time the Department located the father the child had
been in care for approximately two years. Social Worker Heather Schrader
testified that the near future for this child is “now.” Even if the near future
for the child is not “now” it is one or two months. Even if the father had
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engaged in services after April of 2016 there is little likelihood that he
would have made significant progress by the date of the termination trial.
The court takes particular note of the father’s unwillingness to visit with the
child in making this finding.
2.13.5 The court finds that the father is currently unfit to parent the
child.
2.14 Child’s Early Integration Prospects. Continuation of the
parent-child relationship diminishes the child’s prospects for early
integration into a stable and permanent home. The permanent plan for this
child is adoption and the child cannot be adopted until parental rights are
terminated.
....
2. 17 Best Interests of the Child. Termination of the parent-child
relationship is in the best interests of the child. The testimony supports that
termination is in this child’s best interest so that he can achieve
permanency.
Clerk’s Papers at 13-15.
LAW AND ANALYSIS
On appeal, Michael Tresh contends that the State failed to prove by clear, cogent,
and convincing evidence the statutory elements required for a parental termination. He
also contends the State failed to show termination of parental rights furthered Doug
Tresh’s best interests.
Both the due process requirements of the Fourteenth Amendment to the United
States Constitution and Washington State Constitution article I, section 3 protect a
parent’s right to the care, custody and companionship of a child. In re Welfare of
Luscier, 84 Wash. 2d 135, 139, 524 P.2d 906 (1974). Before the State may terminate
parental rights, the state must establish the first six factors listed in RCW 13.34.180 by
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clear, cogent and convincing evidence. RCW 13.34.190(1)(a)(i). Clear, cogent and
convincing evidence exists when the ultimate fact at issue is shown by the evidence to be
highly probable. In re Dependency of K.R., 128 Wash. 2d 129, 141, 904 P.2d 1132 (1995).
On appellate review, the trial court’s findings in a parental rights termination
proceeding must be affirmed if supported by substantial evidence from which a rational
trier of fact could find the necessary facts by clear, cogent and convincing evidence. In
re Dependency of K.S.C., 137 Wash. 2d 918, 925, 976 P.2d 113 (1999). Whether
substantial evidence exists to support the superior court’s findings is measured in light of
the “highly probable” test. In re Welfare of Carpenter, 21 Wash. App. 814, 816, 587 P.2d
588 (1978). Under that test, the evidence must be more substantial than in the ordinary
civil case in which proof need only be by a preponderance of the evidence. In re Welfare
of Hall, 99 Wash. 2d 842, 849, 664 P.2d 1245 (1983). The evidence establishes a “high
probability” when permanent deprivation is necessary for the physical and mental welfare
of the child. In re Welfare of Carpenter, 21 Wash. App. at 816. Appellate courts defer to
the trial court’s credibility determinations when reviewing an order terminating parental
rights. In re Dependency of A.M.M., 182 Wash. App. 776, 786, 332 P.3d 500 (2014).
To prevail in a termination proceeding, the State must first prove the following six
factors:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
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(c) That the child has been removed or will, at the time of the
hearing, have been removed from the custody of the parent for a period of
at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
(e) That there is little likelihood that the conditions will be remedied
so that the child can be returned to the parent in the near future. A parent’s
failure to substantially improve parental deficiencies within twelve months
following entry of the dispositional order shall give rise to a rebuttable
presumption that there is little likelihood that conditions will be remedied
so that the child can be returned to the parent in the near future. The
presumption shall not arise unless the petitioner makes a showing that all
necessary services reasonably capable of correcting the parental
deficiencies within the foreseeable future have been clearly offered or
provided. . . .
....
(f) That the continuation of the parent and child relationship clearly
diminishes the child’s prospects for early integration into a stable and
permanent home. If the parent is incarcerated, the court shall consider
whether a parent maintains a meaningful role in his or her child’s life based
on factors identified in RCW 13.34.145(5)(b); whether the [DCFS] or
supervising agency made reasonable efforts as defined in this chapter; and
whether particular barriers existed as described in RCW 13.34.145(5)(b)
including, but not limited to, delays or barriers experienced in keeping the
agency apprised of his or her location and in accessing visitation or other
meaningful contact with the child.
RCW 13.34.180(1). If the State establishes the six factors by clear and cogent evidence,
the court must also determine whether termination is in the best interest of the child.
RCW 13.34.190.
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Michael Tresh does not challenge the State’s having established the first three
factors listed in RCW 13.34.180(1). Tresh argues that the State failed in its proof of the
last three factors found in (d) (e) and (f).
One of the six statutory requirements is the State’s provision of services needed to
correct deficient parenting skills. When the State seeks to terminate a parent’s rights, it
must show, in part, that it offered or provided all services ordered under RCW 13.34.136
and all necessary services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future. RCW 13.34.180(1). To meet this statutory
burden, the State must tailor the services it offers to meet each individual parent’s needs.
In re Dependency of T.R., 108 Wash. App. 149, 161, 29 P.3d 1275 (2001).
Even when DCFS “inexcusably fails” to offer services to a willing parent, the
court may still terminate parental rights if the services would not remedy the parent’s
deficiencies in the foreseeable future, which depends on the age of the child. In re
Dependency of T.R., 108 Wash. App. at 164. When the record establishes that the offer of
services would be futile, the trial court can also find that the State offered all reasonable
services. In re Welfare of M.R.H., 145 Wash. App. 10, 25, 188 P.3d 510 (2008); In re
Welfare of Ferguson, 32 Wash. App. 865, 869-70, 650 P.2d 1118 (1982), rev’d on other
grounds, 98 Wash. 2d 589, 656 P.2d 503 (1983).
The trial court found that the State offered or provided all ordered services and all
necessary services. We observe evidence that supports this finding. The superior court
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ordered Michael Tresh to engage in a chemical dependency assessment and treatment, a
parenting assessment and parental education, a psychological evaluation, and a domestic
violence and anger management assessment and treatment. The dependency order
directed that a social worker submit referrals to various providers for the services Tresh
required.
Michael Tresh contends that DCFS never referred him for services until thirty-five
months after the dependency order. Nevertheless, DCFS encountered impediments in
arranging for services because of Tresh’s intermittent incarcerations and failure to inform
DCFS of his whereabouts. Despite these impediments, on September 8, 2014, within one
year of the dependency, DCFS social worker Kendra Cox visited Michael Tresh at the
Grant County Work Release Center and handed him contact information for services.
Tresh suggests the testimony failed to establish that Cox referred Tresh for services at
that time. We question whether handing a list of services providers to the parent
constitutes a referral for services that satisfies DCFS’s duty to provide services.
Nevertheless, the trial court, after hearing all the testimony concluded that DCFS satisfied
its duty, and we conclude that inferences from the testimony and other evidence support
this conclusion.
We may criticize Kendra Cox for taking no action other than handing Michael
Tresh a list of providers. We may also criticize later social worker Heather Schrader for
failing to aggressively contact Tresh while imprisoned and failing to arrange for services
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immediately on Tresh’s release from prison in April 2016. We find this failure, however,
excusable since Tresh failed to participate in any services once DCFS arranged for
services. Clear, cogent and convincing evidence established the futility of scheduling
services.
The fifth of the six initial elements for the State to prove is “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). The focus of RCW 13.34.180(1)(e) is
“whether the identified deficiencies have been corrected.” In re Welfare of M.R.H., 145
Wash. App. at 27 (2008). Even when evidence suggests that the parent may eventually
correct parental deficiencies, termination is still appropriate when deficiencies will not be
corrected within the foreseeable future. In re A.W., 53 Wash. App. 22, 32, 765 P.2d 307
(1988). The State need not give a parent an unlimited time to become a fit parent. In re
Dependency of T.R., 108 Wash. App. at 167 (2001). When it is eventually possible, but not
imminent, for a parent to be reunited with a child, the child’s present need for stability
and permanence is more important and can justify termination. In re Dependency of T.R.,
108 Wash. App. at 166.
“Near future” is a key phrase in RCW 13.34.180(1)(e) and is determined from the
child’s point of view. In re Dependency of A.C., 123 Wash. App. 244, 249, 98 P.3d 89
(2004). What constitutes “near future” depends on the age of the child and the
circumstances of the child’s placement. In re Dependency of T.L.G., 126 Wash. App. 181,
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205, 108 P.3d 156 (2005). The cases support the proposition that the younger the child,
the shorter is the “near future.” “A matter of months for young children is not within the
foreseeable future to determine if there is sufficient time for a parent to remedy his or her
parental deficiency.” In re Welfare of M.R.H., 145 Wash. App. at 28 (2008). Eight months
was not in the foreseeable future of a four-year-old. In re Welfare of Hall, 99 Wash. 2d at
844, 850-51 (1983). One year was not in the foreseeable future of a three-year-old. In re
A.W., 53 Wash. App. at 25-26, 31-32 (1988). Six months was not foreseeable in the near
future of a fifteen-month-old. In re Dependency of P.D., 58 Wash. App. 18, 27, 792 P.2d
159 (1990).
The trial court found little likelihood that Michael Tresh would remedy his
parental deficiencies so that his son can be returned to him in the near future. We
conclude that substantial evidence also supports this finding.
DCFS Social Worker Heather Schrader defined the foreseeable future for Doug
Tresh as “now.” We disagree with this characterization, particularly because of the loss
of an immediate chance for adoption. Still, Michael Tresh showed no initiative over
three years to improve his parenting skills. He visited his son only once shortly after the
son’s birth. He failed to appear for other visitation appointments. He disobeyed the
order of dependency by never sharing his location with DCFS. Tresh failed to engage in
any scheduled services.
Michael Tresh impliedly challenges the termination order under subsection (f) of
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RCW 13.34.180(1) because the record does not show that the trial court considered the
incarceration factors listed in the statutory section. Nevertheless, Tresh remained free at
the time of trial. The trial court need consider the incarceration factors only if the parent
remains imprisoned at the time of trial. In re Dependency of D.L.B., 186 Wash. 2d 103,
118, 376 P.3d 1099 (2016).
In addition to finding the six elements of RCW 13.34.180 by clear, cogent and
convincing evidence, the trial court, before terminating parental rights, must also find by
a preponderance of the evidence that termination of parental rights serves the child’s best
interests. RCW 13.34.190(1). The factors that establish what is in a child’s best interest
depend on the facts and circumstances of each case. In re Dependency of A.V.D., 62 Wn.
App. 562, 572, 815 P.2d 277 (1991).
We conclude that substantial evidence supports the trial court’s finding regarding
Doug Tresh’s best interest. Michael Tresh has demonstrated an unwillingness to father
his son. Despite opportunities, Tresh has failed to engage in services or visit his son. He
made no progress toward correcting the deficiencies found in the dependency order.
CONCLUSION
We affirm the trial court’s order terminating Michael Tresh’s parental rights to his
son, Doug.
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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.
Fearing, J.
WE CONCUR:
Korsmo,J,?
Siddoway, J. ·
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