In re the Interest of: S. W. ( 2015 )

FILED
OCTOBER 8, 2015
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 re the Matter of the Interest of: )
) No. 32519-9-III
S.W. and J.W., )
)
)
) UNPUBLISHED OPINION
)
KORSMO, J. - G.W. and D.W., respectively the father and mother ofS.W. and
J.W., appeal from an order terminating their parental rights. 1 We affirm.
FACTS
The Department of Social and Health Services (DSHS) received reports in the
spring of 2009 that the appellants were dealing drugs out of their home. A social
worker's visit showed unsafe conditions. The parents initially voluntarily placed the
children in out-of-home care, but revoked that placement and DSHS returned the children
to D.W. and filed a dependency petition. D.W. worked with DSHS to remedy conditions
and the children were returned in August 2009. The dependency was dismissed.
1 D.W. has another son, whose initials are also D.W., from an earlier relationship.
He is not a subject of this action.
No. 325l9-9-III
In re S. W. & J W.
In November 2010 the children were in D.W.'s sole care as G.W. was in prison in
Nevada. D.W. failed to pick up D.W. and S.W. after school one Friday. Police were
called and the children were turned over to Child Protective Services (CPS). A deputy
sheriff also found the younger child, lW., at the home ofa known drug user. lW. also
was taken to CPS. The following Monday afternoon, D.W. contacted DSHS. She
explained that a friend was supposed to pick the children up for her.
A child abandonment charge was filed against D.W. and another dependency
action was filed involving S.W. and lW.2 Orders of dependency and disposition orders
were entered in the spring of2011 against both G.W. and D.W.3 The orders required
both G.W. and D.W. to undergo chemical dependency treatment, random urinalysis
testing, domestic violence evaluations, and psychological and mental health evaluations.
With respect to G.W., the order took effect when he was released from prison in Nevada
in late 2011.
The children went through a series of foster homes during the two years of the
dependency, finally ending up in a home in Oregon interested in adopting the children.
The children showed little attachment to either of their parents and, on occasion, fear of
them. The parents both initially participated in supervised visitation with the children,
2 Son D.W. went to live with his father and was not a subject of the dependency.
3 D.W. also was convicted of third degree abandonment of a dependent person.
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but some of the supervised visitation providers banned the couple from their services
after threatening and abusive behavior, some of which occurred in the presence of the
children. By May 2013, D.W. had stopped visiting.
G.W. took part in three classes while in the Nevada prison, but DSHS did not
credit him for any of them as it had no knowledge of the curriculum. G.W. took part in
couples counseling for two months 4 upon his release and also mental health counseling
with Dr. Robinson through Tapio Counseling. Dr. Robinson evaluated G.W. for
domestic violence and recommended a 52-week treatment program. G.W. sought to also
use Dr. Robinson for domestic violence treatment, but DSHS policies did not permit the
same provider to address both mental health and domestic violence treatment. It referred
him to Social Treatment Opportunities Program (STOP) for domestic violence treatment,
but G.W. refused to engage with STOP. He also refused to undergo urinalysis. He did
complete a psychological evaluation with Dr. Scott Mabee who diagnosed an antisocial
personality disorder (with unstable mood and egocentric features), mild mood
disturbances, depression, and opiate dependency.
The guardian ad litem (GAL) assigned to the children was Linda Whitaker. Ms.
Whitaker or someone from her agency visited the children in their first foster home. She
visited the children in their second foster home both in person and via Skype. She also
4 Sometime during the dependency, G.W. and D.W. decided to end their marriage.
3
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No. 32519-9-111
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met with each child individually during September 2013. She did not visit the parents in
their homes and did not see them interact with the children during the supervised
visitations.
Trial was held in Ephrata over eight days 5 beginning September 12, 2013 and
ending January 30, 2014. 6 Counsel for G.W. was from Ellensburg, counsel for D.W. was
from Spokane, the assistant attorney general representing the State was from Wenatchee.
Both G.W. and D.W. were living in Spokane at the time of trial. Counsel for D.W. never
had contact with her and D.W. did not attend the trial. G.W. had difficulties traveling to
Ephrata. DSHS arranged for volunteers to drive to Spokane and bring G.W. to the trial.
G.W. did not have a stable address and would have to notify his counsel where he needed
to be picked up. The system failed on one occasion in November when the volunteer
went to the wrong address. The trial judge compensated for this absence by not hearing
testimony. G.W. also missed the two October hearing dates due to his incarceration in
Spokane.
On January 29, 2014, G.W. contacted his attorney in the late afternoon to advise
that he would need a ride to the following day's trial and gave the address where he could J
be picked up. Counsel promptly contacted DSHS, but was advised that it was too late in
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5 The seven trial dates in 2013 were September 12, 13,26, October 24,25,
November 7, and December 5.
6 S.W. was nine years old and J.W. five years old at the beginning of trial.
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No. 32519-9-111
In re S. W & J. W
the day to find a volunteer. G.W. did not appear for trial the next day and his counsel
sought a continuance, pointing out that this was the day for G.W. to put on his case. 7
Counsel did not make an offer of proof concerning any proposed testimony by her client.
The court denied the request and had counsel call her client and determine if he would
appear telephonically. She reached him, but he declined to appear by telephone. 8 The
court explained at some length why the continuance would be denied, noting the
numerous accommodations made for G.W. during the trial and indicating that the
difficulty of gathering counsel together made it likely another month or two would pass
before the trial could resume.
G.W.'s counsel then called two witnesses, telephonically, before resting. There
were no additional witnesses and the case proceeded to argument. The guardian ad litem,
Ms. Whitaker, made a brief statement recommending termination of the parent-children
relationship as being in the best interests of both children. With respect to G.W., she
stated that the children did not feel safe around him and that he was scary. Report of
Proceedings (RP) (Jan. 30, 2014) at l360.
7G.W. had been called to testify by the State early in the trial, but his counsel had
declined to examine her client and reserved his testimony to the defense case.
8 No explanation was given for this decision, but the record suggests that he did
not have permission to use the telephone at which his counsel was able to reach him.
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The court took the matter under advisement and returned its decision before
counsel in the courtroom three weeks later. In a 27 page summary of findings and
reasoning on the record, the court did not mention the guardian ad litem at all. The court
ordered that the parent-child relationship be terminated with respect to each parent and
each child. He cited numerous deficiencies that G.W. had been unable to address and
would not be able to address in a timely manner despite appropriate services being
offered or provided. Specifically, the court found that G.W. had not started on chemical
dependency or domestic violence treatment. The court also detailed several deficiencies
that left G.W. unable to parent his children. In particular, the court noted that his bond
with the children was nonexistent and that his parenting skills were unlikely to be fixed.
He also had no empathy for the children and it was unlikely that any bond could develop
because both children suffered from reactive attachment disorder.
Appropriate findings in support of the decision were entered. Each parent then
timely appealed to this court.
ANALYSIS
D.W. presents a single issue in this appeal; she alleges a due process violation
based on the guardian ad litem's alleged failure to provide adequate services. G.W.
alleges that he was denied due process because he did not attend the final day of trial,
takes issue with whether he was offered all appropriate services, arid also contends that
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the court prematurely terminated the parent-child relationships. We address the claims in
the order listed, beginning with the mother's contention.
Guardian ad Litem Services
D.W. contends that her due process right and her children's due process rights
were violated by the guardian ad litem allegedly conducting an inadequate investigation
of the case. 9 The State raises several responses to this argument, including lack of
standing and lack of manifest constitutional error. While we question standing, 10 we do
not address it (or any of the State's other responses) because we agree that there was no
manifest constitutional error.
This issue is framed by RAP 2.5(a). That rule provides that an appellate court will
not consider an issue on appeal which was not first presented to the trial court. RAP 2.5(a);
State v. Scott, 110 Wash. 2d 682, 685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3) permits
a party to raise initially on appeal a claim of "manifest error affecting a constitutional
9 D.W. also takes issue with the corresponding finding of fact, no. 2.17, that the
GAL had regular contact with the children throughout the dependency and termination
case. We believe that the evidence does support the finding, noting the evidence cited
earlier concerning the visits with the children, and will not further address the issue in
light of our resolution of the primary issue.
\0The GAL represents the children, not the parents. RCW l3.34.105(1).
Accordingly, we question D.W.'s standing to present a challenge to the performance of
the GAL for the first time on appeal as a parent's personal due process right. We also
question whether a parent has standing to assert the children's interests in a termination
action. E.g., In re Marriage ofAkon, 160 Wash. App. 48, 59,248 P.3d 94 (2011)
(stepparent could not assert children's rights in dissolution).
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In re S. W. & J W.
right." Id. at 684. The error must be both (1) manifest and (2) truly of constitutional
magnitude. Id. at 688. A claim is manifest if the facts in the record show that the
constitutional error prejudiced the defendant's triaL State v. McFarland, 127 Wash. 2d 322,
333,899 P.2d 1251 (1995). However, if the necessary facts are not in the record, "no
actual prejudice is shown and the error is not manifest." Id.
The termination of parental rights statute provides a two-step process: the first step
focuses on the adequacy of the parents, which must be proven by clear, cogent, and
convincing evidence, and the second step focuses on the child's best interests, which need
only be proven by a preponderance of the evidence; only if the first step is satisfied may
the court reach the second. In re Welfare ofA.B., 168 Wash. 2d 908, 911, 232 P.3d 1104
(2010). When assessing the adequacy of the parents, RCW 13.34.180(1) lists six elements
that the State must prove.
The best interest of the child is represented by the GAL. See In re the Dependency
ofJ.B.S., 122 Wash. 2d 131, 856 P.2d 694 (1993) (in a dependency proceeding, it is the duty
of the guardian ad litem to represent the best interest of the child). In performing this
function, a GAL must meet the requirements ofRCW 13.34.105(1), which include:
(a) To investigate, collect relevant information about the child's
situation, and report to the court factual information regarding the best
interests of the child;
(b) To meet with, interview, or observe the child, depending on the
child's age and developmental status, and report to the court any views or
positions expressed by the child on issues pending before the court;
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In re S. W. & J. W.
(t) To represent and be an advocate for the best interests of the child;
RCW 13.34.105(1)(a), (b), (t).
Guardian ad litems are also subject to the Guardian Ad Litem Rules (GALR). These
rules provide GALs with minimum requirements, including: acting on behalf of the best
interest of the child, maintaining independence and the appearance of fairness, and
informing the court. GALR(2)(a), (b), (i). Additionally, the rules speak to the sufficiency
ofa GAL's investigation. A GAL must:
(g) Become informed about case. A guardian ad litem shall make
reasonable efforts to become informed about the facts of the case and to
contact all parties. A guardian ad litem shall examine material information
and sources of information, taking into account the positions of the parties.
GALR(2).1I
A GAL's performance of these duties is considered in light of heightened due
process requirements afforded to parents and children alike in termination proceedings.
See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Due
process includes the procedural right to be heard and the substantive right to have an
accurate determination by the court. State v. Santos, 104 Wash. 2d 142, 147-149, 702 P.2d
11 "These measures are intended to assure that the welfare of the children whose
parents are involved in litigation concerning them remains the focus of any investigation
and report, and that acrimony and accusations made by the parties are not taken up by an
investigator whose only job is to report to the court after an impartial review of the
parties and issues." In re Marriage ofBobbitt, 135 Wn. App. 8,25,144 P.3d 306 (2006).
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InreS.W &J.W
1179 (1985). In determining whether a procedure violates due process, a court considers
three factors: (1) the parents' interest, (2) the risk of error created by the procedures used,
and (3) the countervailing government interest supporting use of the challenged
procedures. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,47 L. Ed. 2d 18
(1976). A GAL's violation ofa mandatory statutory requirement and GALR does not
necessarily amount to a due process violation. See In re Dependency ofP.H. VS., 186 Wn.
App. 167, 182-183,339 P.3d 225 (2014) (failure of an incapacitatedparent's GAL to
appear at the morning session of the third day of a dependency hearing in violation of
statute was also a due process violation, but harmless error).
With these principles in mind, we conclude that this allegation does not present an
issue of manifest constitutional error. First, it does not appear that there was any error
here. The GAL was an active participant at trial, testifying and examining witnesses as
well as giving a brief statement during closing argument. Counsel for D.W. cross-
examined the GAL briefly, but did not ask any questions concerning her investigation. 12
D.W.'s argument on appeal addresses how well the GAL did her job, but no evidence was
presented at trial concerning whether the GAL was required to do other than she did. The
statute imposes a duty to investigate, but the particulars of the investigation are left to the
12Counsel for G.W. did question the GAL about the fact that she had not observed
the parents' visitation with the children (GAL was afraid of making volatile situation
worse) and had not interviewed the parents. Report of Proceedings (RP) 951-953.
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No. 32519-9-111
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GAL, other than a duty to meet with or observe the child. RCW 13.34.105(1). D.W. has
not established that the GAL had an obligation to meet with the parents or observe them
interact with the children. On this record, we doubt that there was any error.
But, even if there was an obligation to do more, any error also would have been
harmless. The trial judge did not mention the GAL once in the lengthy rendition of the
court'sjudgment. There was no mention of the GAL's investigation. The written
findings only reflect that the GAL did her job. These facts are unsurprising since the
focus of a termination trial is on whether the State established the six elements ofRCW
13.34.180(1), all of which address the parent and the services made available to her, as
well as the parent-child relationship and the best interests of the child. The activities of
the GAL are simply not among the issues of proof at a termination proceeding.
Accordingly, we conclude that D.W. has failed to establish any prejudice from the
alleged deficiencies of the GAL's performance in this case. The alleged error therefore is
not manifest. RAP 2.5(a)(3).
Attendance at Trial
The first issue G.W. presents is whether his due process rights were violated by his
absence from the final day of trial. He does not challenge the court's denial of his request
for a continuance, but does contend that trial should not have finished in his absence. We
conclude that he has not established a due process violation.
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No. 32519-9-111
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As noted previously, these types of due process challenges are adjudged under the
flexible Mathews balancing test. In re Welfare ofL.R., 180 Wash. App. 717, 724, 324 P.3d
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737 (2014). That test looks to the (1) interest at issue, (2) the risk of error created by the
procedure, and (3) the countervailing government interest in using the procedure.
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Mathews, 424 U.S. at 335. In this appeal only the second factor is seriously at issue. The
State concedes that the first factor weighs in G. W. 's favor given his fundamental liberty
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interest in parenting his children, while he concedes that the final factor weighs in the 1
State's favor. The question remaining, then, is whether denying the continuance and
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proceeding in G.W.'s absence created a risk of error. Under these facts, it did not. r
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"The second factor assesses whether the hearing had sufficient procedural
safeguards to ensure that the parent had a full and fair opportunity to defend-Le., to
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present evidence, rebut opposing evidence, and present legal arguments." L.R., 180 Wn. !
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App. at 725. That standard is satisfied here. G.W. had been present for much of the trial
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and already had testified, although he had reserved the right to testify again in his case-in- I,
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chief. The trial court offered G.W. the chance to appear telephonically. He also was t
represented by counsel for the entire trial, which had previously been extended once to I
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accommodate his travel difficulties. His counsel called two additional witnesses on his l"
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behalf on the final day, indicating that the defense was ready to proceed, but made no I
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offer of proof concerning what more G.W. would have testified about or why he could t
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No. 32519-9-III
In re S. W. & J W.
only do so in the courtroom. 13 Under these facts, there simply is no reason to believe that
O.W.'s absence contributed to the risk of an erroneous decision. The trial court provided
him a process to present any additional evidence he might have had. Therefore, we
conclude that this Mathews factor favors the government.
Although O.W. had a fundamental interest in parenting his children, that interest
does not outweigh the fact that his presence on the last day of trial did not increase the
risk of an erroneous decision. In light of the important governmental interest in bringing
finality to the children, extending the then 38-month dependency and the trial, which
itself was in its fifth month, was not justified. The second and third Mathews factors do
not favor O.W.'s argument here. Accordingly, we conclude there was no due process
violation in declining to extend trial to secure O.W.'s presence to testifY about unknown
matters.
There was no due process violation.
Provision ofServices to G. W.
O.W. next raises a series of arguments concerning whether or not he was provided
adequate services that would have allowed him to continue to parent his children. We
agree with the trial court that the appropriate services were offered.
Nor was any post-trial motion for relief filed suggesting what new evidence
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would have been presented ifO.W. had testified. f
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No. 32519-9-II1
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At issue is RCW 13.34.l80(l)(d):
(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.
It is the State's burden to establish this factor by clear, cogent, and convincing evidence.
RCW 13.34.l90(l)(a)(i).
This factor requires DSHS to offer all necessary services capable of correcting
G.W.'s parental deficiencies within the reasonable future. In re MR.H, 145 Wn. App.
10,25, 188 P.3d 510 (2008). DSHS must tailor the services it offers to meet each
individual parent's needs. In re Dependency afT.R., 108 Wash. App. 149, 161,29 P.3d
1275 (2001). It must provide all court ordered and necessary services to the parent. In re
Dependency afD.A., 124 Wash. App. 644, 651,102 P.3d 847 (2004). A service is
"necessary" if it is needed to address a condition that precludes reunification of the parent
and child. In re Welfare afCS., 168 Wn.2d 51,56 n.3, 225 P.3d 953 (2010).
G.W. contends that this factor was not established. He argues (1) DSHS failed to
give him properly tailored services because it did not investigate the courses he
completed in Nevada, (2) failed to provide domestic violence treatment in group therapy,
and (3) failed to offer necessary family therapy and therapeutic visitation. We address
each contention in the order stated.
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No. 32519-9-III
In re S. W. & J. W.
The first argument fails on the record. A social worker testified that she received
the certificates of completion from G.W., but the courses had not been approved by
DSHS and she had never seen the course curricula. RP 1120-1121. G. W. contends that
DSHS should have then investigated the courses and reassessed him. This argument
misses the mark because it was the court, rather than DSHS, that entered the order
requiring G.W. to complete the services. That order was based on the information known
to the court in view of the documented problems uncovered during the dependency. If
G.W. believed that the prison courses were the equivalent of any that DSHS was offering
him, he was free to prove that to DSHS or the trial court and ask for credit and/or a new
assessment. He did not. He presents no authority that either DSHS or the trial court was
required to act on the certificates and attempt to determine if they bore on the existing
court order.
DSHS is not required to offer services outside of the agency or the community.
RCW 13.34.136(2)(b)(vii). Here, DSHS had no control over the out-of-state prison and
no ability to provide services there. Accordingly, the court ordered that services be
provided upon G.W.'s release from prison. We are aware of no authority that required
the court to update that order merely because G.W. completed a prison sentence and may
or may not have made good use of his time there. IfG.W. had any information of
significance to the order, he was free to provide it, but we discern no duty on the part of
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In re S. W. & J. W.
either DSHS or the trial court to reevaluate G.W.'s circumstances at the time of release
from custody.
G.W.'s second argument is that he was not provided group domestic violence
therapy. That claim fails factually. He was offered the services of STOP, but he refused
to go there because he preferred to stay with his existing services with Dr. Robinson. The
statute merely requires DSHS to "expressly and understandably" offer or provide the
necessary services. RCW 13.34.l80(1)(d). DSHS did that here with its referral to STOP,
an approved provider. Nothing in the statute entitles G.W. to require DSHS to pay for
equivalent services with his preferred provider. Although DSHS could have referred
G.W. to Dr. Robinson for that therapy, doing so would have run afoul of a different
DSHS policy. Again, nothing here required that action. This argument is unavailing.
Finally, G.W. argues that the department should have provided therapeutic
visitation and family therapy. This argument fails on several grounds. First, it was not a
requirement of the disposition order. The duties of DSHS extend to those services
ordered by the court rather than services that the parent believes desirable. RCW
13.34. 180(1)(d). Second, G.W.'s failure to make use of the existing referrals excused
DSHS from considering family therapy. Parental "unwillingness or inability to make use
of the services provided excuses the State from offering extra services that might have
been helpful." In re Ramquist, 52 Wash. App. 854, 861, 765 P.2d 30 (1988). Third, the
record here is replete with evidence that forcing additional visitation on the children in
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No. 32519·9-II1
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light of the repeated inappropriate visitation behavior by the parents was not in the
children's best interests. G.W. had to overcome other problems before he was in a
position to interact positively with his children. DSHS was not required to indulge in this
request where he was already failing to progress at other, more basic services.
Accordingly, we conclude that the record supports the trial court's determination
that all necessary services were offered and provided to G.W. The requirements ofRCW
13 .34.180( 1)(d) were satisfied.
Timely Remediation
Finally, G.W. argues that the termination was premature because he was making
efforts and progressing in remedying his deficiencies as a parent. The trial court
correctly applied this statutory factor.
RCW 13 .34.180( 1)(e) requires that the State prove "there is little likelihood that
conditions will be remedied so that the child can be returned to the parent in the near
future." What constitutes "the foreseeable future" is determined from the child's point of
view and depends on the age of the child and the circumstances of the placement. In re
Dependency ofA.C., 123 Wash. App. 244, 249, 98 P.3d 89 (2004). Here, there was
testimony that by the time of trial, the "foreseeable future" had declined to two weeks for
lW. and a month for S.W. RP (Oct. 25, 2013) at 944-945. Both children were in
desperate need of permanency. Clerk's Papers at 182.
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In contrast, G.W. had not even attempted all of his necessary services yet, having
declined some and not started others. In particular, he had a severe drug dependency
problem that had not been addressed and was anticipated to need one year of treatment.
RP (Feb. 18,2014) at 22. The children did not have that time.
The trial court correctly determined that there was little likelihood G.W.'s parental
deficiencies could be remedied in the near future. The evidence amply supported this
determination. There was no error.
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.
WE CONCUR:
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Siddoway, C.J.
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f..n...Lawrence-Berrey,
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