In the Matter of the Parental Rights to: M.W. ( 2019 )

FILED
JULY 2, 2019
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: ) No. 36110-1-III
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M.W. ) UNPUBLISHED OPINION
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PENNELL, J. — C.W. appeals an order terminating her parental rights to M.W.
We affirm.
FACTS
C.W. gave birth to her daughter, M.W., in 2014. Seven months later, M.W. was
presented at the hospital with severe burns sustained during a house fire. Child Protective
Services launched an investigation and removed M.W. from C.W.’s care. At the time of
M.W.’s removal, the Department of Social and Health Services suspected C.W. of
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methamphetamine use, based on her prior history, 1 her appearance, and the circumstances
of M.W.’s injuries. Department social workers were concerned C.W.’s struggles with
substance abuse and resistance to treatment impaired her ability to provide for M.W.’s
basic needs.
In August 2015, the parties entered into an agreed order of dependency. C.W.’s
primary parental deficiencies were identified as substance abuse and mental health issues.
The trial court directed C.W. to participate in several remedial services, including drug
and mental health treatment. Things did not go well. For the next two years, C.W. failed
to avail herself of any court-ordered services. She also refused to comply with court-
ordered urinalysis testing. On August 31, 2017, the Department petitioned to end C.W.’s
parental rights over M.W.
Trial took place in April 2018. At trial, the Department’s staff had difficulty
recalling some of the dependency’s details. Notably, the Department had difficulty
recounting the specifics of C.W.’s referrals for services. However, C.W. testified and
admitted to knowing of each referral except for the mental health evaluations.
1
In addition to the Department’s involvement with M.W., C.W.’s older child was
involved in dependency proceedings based on C.W.’s drug use. C.W. failed to follow
through with services and substance abuse treatment during her older child’s case. By the
time of trial regarding M.W., C.W.’s rights to her older child had been terminated and the
older child had been adopted.
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In addition, a Department social worker testified that, based on her review of the file and
case notes, she had no doubt C.W. had been provided referrals for a psychological and
neuropsychological evaluation. The trial testimony also established C.W. had received
service referrals during the dependency for her older child that overlapped with M.W.’s
dependency.
Despite evading most departmental services, C.W. claimed to have corrected her
parental deficiencies on her own. C.W. testified she no longer had a substance abuse
problem. She also maintained that she was not suffering from mental illness, only
situational depression related to parent-child separation. C.W. pointed out that she had
obtained a substance abuse evaluation in February 2018 and a mental health evaluation in
March 2018. Although C.W.’s substance abuse evaluation indicated she had a severe
substance abuse disorder and needed intensive outpatient treatment, C.W. testified that
she did not agree with the evaluation’s analysis. At the time of trial, C.W. was not yet
engaged in any treatment services.
C.W. testified that her positive turnaround was largely attributable to the
supportive living environment provided by her new boyfriend. C.W.’s boyfriend also
took the stand at trial and corroborated at least some of C.W.’s testimony. C.W.’s
boyfriend explained he had been living with C.W. since August 2017, and since that time
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he had observed C.W. to be sober and working through her depression. C.W.’s boyfriend
did admit that C.W. had never discussed her substance abuse disorder with him.
The Department’s representative testified she was skeptical of C.W.’s boyfriend.
C.W. had refused to provide the name and address of her boyfriend until a few days
before trial. When the Department was finally able to run a background check on the
boyfriend’s name, he did not pass.
At the close of her trial testimony, C.W. was asked how the court could be assured
she would engage in recommended services, should the court opt to continue with the
dependency in lieu of termination. C.W. testified, “I don’t really know. I can just say
that it will happen.” Report of Proceedings (RP) (Apr. 16, 2018) at 150.
The court found C.W.’s assurances unpersuasive. It terminated her parental rights,
finding that C.W. had been offered all necessary services and C.W.’s parental deficiencies
could not be remedied in the time appropriate for M.W.’s needs. C.W. appeals the
termination order.
ANALYSIS
An order terminating parental rights is subject to two statutory prerequisites.
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First, the Department must prove the six elements outlined in RCW 13.34.180(1) 2
by clear and convincing evidence. RCW 13.34.190(1)(a)(i); In re Dependency of
T.L.G., 126 Wn. App. 181, 197, 108 P.3d 156 (2005). Second, a preponderance
of the evidence must establish that termination is in the child’s best interests.
RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
2
The statute reads, in relevant part:
(1) A petition seeking termination of a parent and child relationship
may be filed in juvenile court by any party to the dependency proceedings
concerning that child. Such petition shall conform to the requirements
of RCW 13.34.040, shall be served upon the parties as provided in RCW
13.34.070(8), and shall allege all of the following unless subsection (3) or
(4) of this section applies:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
(c) That the child has been removed 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 conditions will be remedied
so that the child can be returned to the parent in the near future.
....
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.
RCW 13.34.180(1).
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In addition to these two statutory requirements, due process also requires the court to
make a finding of current parental unfitness. In re Parental Rights to K.M.M., 186 Wn.2d
466, 479, 379 P.3d 75 (2016).
C.W. does not substantively challenge the court’s finding that termination of her
parental rights is in M.W.’s best interests. 3 Her appeal focuses on the statutory elements
provided by RCW 13.34.180(1) and parental fitness.
Statutory prerequisites for termination
One of the statutory requirements for termination is that the parent has been
“expressly and understandably offered or provided” all court-ordered remedial services.
RCW 13.34.180(1)(d). C.W. claims the Department failed to meet its burden of proving
this requirement because the trial evidence never demonstrated C.W. was notified of
court-ordered chemical dependency and mental health services.
C.W.’s criticism of the Department’s proof is unconvincing. The purpose of
notification is to confer knowledge. C.W. admitted at trial that she knew of the
3
C.W. assigns error to—but presents no argument on—the trial court’s finding
(finding of fact 2.17) that termination is in M.W.’s best interests. Clerk’s Papers at 83.
On appeal, parties are required to support their arguments with “citations to legal
authority and references to relevant parts of the record.” RAP 10.3(6). Failure to do so
constitutes a waiver of the assigned error. In re Marriage of Fahey, 164 Wn. App. 42, 59,
262 P.3d 128 (2011). This court does not analyze an issue where the party raising it has
declined to do so. See West v. Thurston County, 168 Wn. App. 162, 195, 275 P.3d 1200(2012). C.W.’s lack of argument waives her challenge to finding of fact 2.17.
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Department’s referral for substance abuse treatment. That admission was sufficient
to prove the Department had notified her of the referral, regardless of whether the
Department documented the referral process. In addition, a Department social worker
testified she was confident C.W. had been provided a referral for a mental health
evaluation. This testimony was corroborated by the fact that C.W. eventually obtained
an evaluation shortly before trial. The trial court therefore had ample bases to find that
requisite referrals had been made.
Even if the Department had failed to provide C.W. a timely referral for a mental
health evaluation, this failure would be excused as futile. See In re Dependency of T.R.,
108 Wn. App. 149, 164-65, 29 P.3d 1275 (2001) (affirming termination of mother’s
parental rights when she failed to make timely progress during dependency). By the time
of trial, M.W. was three years old and had been living away from C.W. for most of her
life. During the time C.W. and M.W. were apart, C.W. failed to address her primary
obstacle to reunification—untreated substance abuse disorder. After over two years of
dependency proceedings, C.W. had not attended a single treatment session and had never
submitted to a verified urinalysis test. According to the trial testimony, C.W. would need
six to nine months to make strides in treatment and show she had made a lasting
lifestyle change. This was too long for M.W, who needed permanency “now.” RP (Apr.
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16, 2018) at 85. Substantial evidence supports the trial court’s findings that
the Department had provided sufficient services.
Current parental fitness
Due process requires the Department to prove current parental unfitness prior to
entry of a termination order. A.B., 168 Wn.2d at 918-19. C.W. claims this burden was
not met at trial because she presented evidence that she had addressed her substance
abuse and mental health problems. We are unpersuaded by C.W.’s position.
C.W. failed to obtain either a substance abuse or mental health evaluation until
shortly before trial. She never substantively participated in any services. The testimony
from C.W.’s boyfriend that C.W. did not appear to be using drugs was unconvincing
evidence that C.W. had finally achieved sobriety, particularly in light of C.W.’s absolute
refusal to engage in drug testing. See In re Welfare of A.G., 155 Wn. App. 578, 591,
229 P.3d 935 (2010) (Failure to participate in urinalysis testing justifies a finding that
“substance abuse has not been corrected.”).
There was ample evidence at trial linking C.W.’s failed efforts at services to her
inability to parent. C.W. herself admitted that her depression would cause her to shut
down and fail to communicate. In addition, the trial testimony showed C.W.’s substance
abuse disorder inhibited her ability to meet M.W.’s day-to-day needs. C.W.’s refusal to
work with the Department and participate in services prohibited the Department from
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independently assessing whether C.W. had made the types of changes necessary for
M.W. 's safe return to C.W. 'scare. Given these circumstances, the trial court had every
reason to believe C.W. 's parental deficiencies were ongoing and posed a barrier to
reunification in M. W.' s foreseeable future.
CONCLUSION
The order of termination 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:
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