In Re The Dependency Of C. G. R. Aundrea Kopp v. Dshs ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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OF SOCIAL & HEALTH SERVICES,
Respondent
v.
ROBERT RADDER; UNPUBLISHED OPINION
AUNDREA KOPP,
FILED: June 27, 2016
Appellants.
Verellen, C.J. — Aundrea Kopp and Robert Radder appeal from an order
terminating their parental rights to their son, C.G.R.
Kopp contends the Department of Social and Health Services (Department)
failed to give adequate notice that her mental health could constitute a parental
deficiency supporting termination. But in supplemental findings, the trial court has
clarified that Kopp's substance abuse issues alone support termination. Sufficient
evidence supports the supplemental findings and the trial court's determination that the
Department adequately offered mental health services.
No. 73399-1-1/2
Both parents contend they were denied due process because the court
appointed special advocate (CASA) failed to conduct an adequate investigation. But
the CASA gathered detailed information about the parents and C.G.R. The alleged
deficiencies go to the weight of the CASA's testimony, not to its admissibility. The
parents were not denied due process.
As to the remaining arguments, visitation is not a service, the trial court did not
abuse its discretion in limiting cross-examination about prospective adoption plans, and
the record adequately supports the remaining elements for termination.
Therefore, we affirm the trial court's termination order as to both parents and lift
the existing stay.
FACTS
Aundrea Kopp and Robert Radder are the parents of C.G.R., a boy born in July
2011. In May 2012, Radder's sister contacted Child Protective Services. She reported
that Radder saw Kopp using drugs in their home with a drug dealer. Kopp left with the
drug dealer and took C.G.R. with her. Radder admitted to the Department that he and
Kopp had recently used methamphetamines. Radder failed three urinalyses between
May 2012 and July 2012. Kopp pleaded guilty to attempted prescription forgery for
oxycodone in August 2012. C.G.R. was removed from his parents' custody later that
month.
On October 24, 2012, the trial court entered agreed dependency orders for both
parents. The court ordered both parents to provide clean, not missed, and undiluted
urinalyses twice per week for 90 days and to complete a substance abuse assessment
No. 73399-1-1/3
and to follow any recommended treatment. The court also ordered Radder to complete
a domestic violence assessment and to follow any recommended treatment.
Although she participated in several substance abuse programs, Kopp was not
successful. She repeatedly relapsed and never satisfied the 90-day urinalysis
requirement. Kopp received multiple referrals for substance abuse assessment,
urinalysis testing, and recommended treatment.
In April 2013, Intercept Associates, an outpatient substance abuse program,
evaluated Kopp. Kopp was self-medicating with daily marijuana use in part to control
her anxiety and depression. Kopp began a recommended nine-month outpatient
substance abuse treatment program at Intercept. After "progressing well," she
struggled with consistent attendance.1 Kopp relapsed. In June 2013, Intercept
recommended Kopp for inpatient treatment. A month later, she was discharged from
the Intercept program.
When the Division of Behavioral Health and Recovery evaluated Kopp in early
April 2013, Kopp indicated that treatment for her "psychological problems" was
extremely important, that she was "in need" of mental health services, and that she had
experienced "serious anxiety/tension" in the past 30 days.2 Social worker Amanda
Potter recommended a Foster Care Assessment Program (FCAP) reunification
assessment. Both parents agreed. In July 2013, social worker Paula Solomon
completed the FCAP reunification assessment report. Solomon met with Kopp several
times and noted that Kopp "demonstrated positive parenting skills and a strong bond"
1 Ex. 79.
2 Ex. 74 at 6.
No. 73399-1-1/4
with C.G.R.3 Solomon recommended that Kopp complete substance abuse treatment,
engage in mental health treatment using cognitive behavioral therapy, and receive a
psychiatric assessment for mental health medications. Kopp had "participated in mental
health at Valley Cities in the past, and she had indicated she would be interested in
going there again."4 Solomon read the FCAP report recommendations to Kopp "about
being able to get cognitive behavioral therapy at Valley Cities where she had been
before."5 At the time of the termination trial, Kopp was in the process of applying for
services with Valley Cities, but had not completed the process. Kopp did not enroll for
mental health treatment at Valley Cities or elsewhere. She did not seek a psychiatric
evaluation.
Beginning in September 2013, Kopp began 30 days of inpatient treatment at
Sundown M Ranch. Social worker Potter advised Kopp to follow Sundown's treatment
recommendations and recommended that Kopp engage in mental health treatment
using cognitive behavioral therapy and obtain a psychiatric evaluation. Sundown
referred Kopp to Evergreen Manor for long term inpatient treatment. In October 2013,
Kopp began inpatient treatment at Evergreen Manor, but left a week later. Evergreen
recommended that Kopp complete long term residential treatment and mental health
services. Kopp declined to participate further in treatment at Evergreen.
In November 2013, Kopp reentered outpatient treatment at Intercept. Intercept
recommended that Kopp complete an eight-month outpatient treatment program. For
the next month, Kopp had "perfect attendance" with group treatment sessions and
3 Ex. 67 at 10.
4 Report of Proceedings (RP) (Mar. 12, 2015) at 736.
5 Id. at 759.
No. 73399-1-1/5
established a support system, but failed a urinalysis.6 In December 2013, Kopp failed
two urinalyses. In January 2014, Kopp missed two urinalyses and failed two more. In
March 2014, Kopp was placed in phase two of Intercept's treatment program in an
attempt to provide her tools to establish sober support in the community. In April 2014,
Intercept discharged Kopp from outpatient treatment because she relapsed, stopped
responding to letters, and missed several urinalyses.
In its April 2014 Individual Service and Safety Plan report, the Department "highly
recommended" that Kopp engage in mental health treatment as an "important part of
[her] recovery process."7 Kopp missed many urinalyses in subsequent months. From
April to June 2014, Kopp "missed 16 out of the 22 scheduled urinalysis drug screens."8
In May 2014, Kopp admitted using controlled substances. She had not
completed substance abuse treatment or satisfied the 90-day urinalysis requirement.
Because C.G.R. had been "in out-of-home care for 15 of the last 22 months," the court
recommended that the Department file a termination petition.9
Kopp again reentered treatment at Intercept. Potter sent Kopp a service letter
recommending that she engage in mental health treatment using cognitive behavioral
therapy and that she obtain a psychiatric evaluation. A counselor at Intercept provided
Kopp "with cognitive behavioral techniques to manage her mental health.10
6 Exs. 86-87.
7 Ex. 118 at 9, 22.
8 Ex. 96.
9 Ex. 27 at 3.
10 Clerk's Papers (CP) at 468 (Finding of Fact (FF) 2.8.36).
No. 73399-1-1/6
In June 2014, Intercept again discharged Kopp from treatment. She had not
shown significant behavioral changes necessary to be successful in her recovery. The
Department filed a termination petition. Potter sent Kopp service letters informing her to
enroll in substance abuse treatment and urinalysis testing. Potter again referred her to
mental health treatment. Kopp did not provide urinalyses from June to October 2014 or
in February 2015.
Social worker Micah Kurtz was assigned to the case in July 2014. Kurtz told
Kopp to continue doing her urinalyses and substance abuse treatment. That same
month, Kopp pleaded guilty to theft.
Social worker Sihnae Moore was assigned to the case in September 2014.
Moore sent Kopp several service letters referring her to a substance abuse assessment
and urinalysis testing. Moore stated in the letters that the FCAP program recommended
mental health treatment using cognitive behavioral therapy and a psychiatric evaluation.
As of November 2014, Kopp had not completed any urinalyses since June 2014.
The Department had problems scheduling visitation for Kopp. From September
2013 to November 2013, Kopp had only two visits with C.G.R. The Department tried to
set up visitations while Kopp was in inpatient treatment, but visitation was allowed only
on weekends, and C.G.R. became ill once. When Kopp abruptly left Evergreen Manor,
visitation was delayed because the visitation plan had to be reworked. After the
Department found a new visitation provider, Kopp denied the visitation offer due to
scheduling conflicts. The Department agreed that Kopp was "owed" visitation and
proposed increasing her visitation hours.11
11
Ex. 14 at 3.
No. 73399-1-1/7
In December 2013, the court found that Kopp was entitled to 117 hours of make
up visits. Kopp had only two visits with C.G.R. between July 2013 and December 2013,
even though she was available for visits. Kopp's visitation with C.G.R. up to that point
had been "positive," she had provided "stable, consistent, and appropriate care" for
C.G.R.12 In January 2014, the court ordered that the Department provide Kopp 159
hours of make-up visits. In February 2014, the court entered an agreed order to permit
unsupervised visitation after four weeks of monitored visitation.
Radder worked as a commercial fisherman in Alaska for years. His work
schedule varied with the fishing season. He usually signed "a two-month contract" and,
when working, he was usually out at sea for "three to twelve days."13 Between October
2012 and the termination trial in March 2015, Radder made eight trips to Alaska.
Radder received multiple referrals for substance abuse and domestic violence
assessments and recommended treatment. He completed the assessments, but not
the treatment.
In 2012, social worker Monica Barry referred Radder to Social Treatment
Opportunities in Puyallup for urinalysis testing and a substance abuse assessment.
Barry also gave Radder "a list of service providers where he could get his domestic
violence assessment done."14 She referred him to services in Puyallup because he
wanted to engage in services near his home once he returned from Alaska. Radder
never indicated that he did not understand the services that he had to complete.
12 Ex. 14at1.
13RP(Mar. 19, 2015) at 1259.
14RP(Mar. 9, 2015) at 226.
No. 73399-1-1/8
Radder's domestic violence assessment recommended participation in a one-
year outpatient treatment program. The assessment also revealed that Radder recently
failed a urinalysis. Radder reported using methamphetamines and driving under the
influence. From late December 2012 to early January 2013, he failed two urinalyses.
In March 2013, social worker Potter was assigned to the case. Potter sent
Radder a letter informing him of her contact information. Potter referred Radder to a
substance abuse assessment and informed him of other urinalysis sites more
convenient for his work schedule. Potter contacted Radder to determine if he needed
assistance with his referrals. Radder's substance abuse assessment recommended
outpatient treatment. As of June 2013, Radder had given some urinalyses and had
completed a substance abuse and domestic violence assessment, but was notfollowing
treatment recommendations.
In July 2013, social worker Solomon recommended that Radder engage in
domestic violence and substance abuse treatment. Solomon did not meet with Radder
because he was in Alaska.
In August 2013, Potter sent Radder a service letter referring him to a substance
abuse assessment, urinalysis testing, and domestic violence treatment and to ensure
he had all the information necessary to complete the court-ordered services. Radder
"expressed that he knew what he needed to do and where to access services and how
to do it."15
Radder had another substance abuse assessment, but never returned for
recommended treatment. Radder failed a urinalysis and missed several others in
15 Id. at 349.
No. 73399-1-1/9
October 2013. In late November 2013, social worker Potter sent Radder a service letter
referring him to substance abuse and domestic violence treatment and urinalysis
testing. In the letter, Potter included phone numbers for the services he needed to
access and her contact information. Radder missed scheduled urinalyses.
Radder did not complete the recommendations in the FCAP assessment report.
Radder was "not really involved" with C.G.R.16
In April 2014, the Department issued its Individual Service and Safety Plan report
stating that Radder needed to follow through with treatment recommendations. The
report noted that Radder's visits had been sporadic. Later that month, Potter sent
Radder a service letter referring him to reengage in substance abuse and domestic
violence treatment.
In June 2014, the Department filed a termination petition.
Social worker Micah Kurtz was assigned to the case in July 2014. Kurtz did not
have any contact with Radder. In the fall of 2014, new social worker Sihnae Moore sent
Radder a service letter referring him to substance abuse and domestic violence
treatment and urinalysis testing. Moore made several unsuccessful attempts to contact
Radder "to find out where his location was so that [she] could make a referral to
[urinalyses] that were in his area."17
Moore met Radder for the first time in October 2014 and gave him a service
letter. Moore called Radder several times, to no avail. Radder never tried to contact
Moore. Nor did Radder ask Moore for a referral to services in Alaska. Radder never
16 Ex. 68.
17RP(Mar. 10, 2015) at 393.
No. 73399-1-1/10
began domestic violence treatment. He did not satisfy the 90-day urinalysis
requirement.
Nine months after having filed a termination petition, trial begin on March 9,
2015, and lasted eight days. In April 2015, the trial court entered an order terminating
Kopp's and Radder's parental rights. The court found that the Department proved the
elements of RCW 13.34.180(1), concluded that both parents were currently unfit to
parent C.G.R., and entered a termination order as to both parents.
Kopp and Radder appeal the termination order.
ANALYSIS
Standard of Review
We review an order terminating parental rights to determine if substantial
evidence supports the court's findings and if those findings in turn support its
conclusions.18 "'Substantial evidence is evidence sufficient to persuade a fair-minded
rational person of the truth of the declared premise.'"19 "Unchallenged findings are
verities on appeal."20 The trier offact alone makes credibility determinations.21
The Department must prove six statutory elements—only three of which are at
issue here—by clear, cogent, and convincing evidence:
(1) the services ordered have been expressly and understandably
offered or provided and all necessary services, reasonably
available, capable of correcting the parental deficiencies within the
18 In re Welfare of K.M.M., 187 Wn. App. 545, 564, 349 P.3d 929 (2015), review
granted, 184 Wn.2d 1026 (2016).
19 IdL (quoting In re Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846(2006)).
20 In re Dependency of M.S.R.. 174 Wn.2d 1, 9, 271 P.3d 234 (2012).
21 In re Dependency of A.M.M.. 182 Wn. App. 776, 786, 332 P.3d 500 (2014).
10
No. 73399-1-1/11
foreseeable future have been expressly and understandably offered
or provided;
(2) there is little likelihood that conditions will be remedied so that the
child can be returned to the parent in the near future; and
(3) continuation of the parent and child relationship clearly diminishes
the child's prospects for early integration into a stable and
permanent home.[22]
"Clear, cogent, and convincing evidence exists when the ultimate fact in issue is 'highly
probable.'"23 The Department "must also prove by a preponderance of the evidence
that termination of parental rights is in the child's best interests."24
Lack of Notice That Kopp's Mental Illness May be Grounds for Termination
Kopp argues she was not given adequate notice that her mental health was an
alleged parental deficiency that may support termination. The Department recognized
that Kopp had "a long history of mental illness."25 As early as April 2013, the
Department knew that Kopp could benefit from mental health treatment.26 The
Department sent Kopp many referral letters for mental health treatment.27 Solomon
read the FCAP recommendations to Kopp "about being able to get cognitive behavioral
therapy at Valley Cities where she had been before."28 The Department and the FCAP
report recommended mental health treatment for Kopp. The FCAP report noted that
22 RCW 13.34.180(1 )(d)-(f); In re Dependency of K.D.S., 176 Wn.2d 644, 652
n.3, 294 P.3d 695 (2013).
23 K.M.M., 187 Wn. App. at 564-65 (quoting In re Dependency of K.C.S., 137
Wn.2d 918, 925, 976 P.2d 113 (1999)).
24 Id at 565.
25 CP at 117.
26 Ex. 74.
27 See Exs. 58, 64, 65, 103, 109; CP at 467-68 (unchallenged FF 2.8.31-35).
28RP(Mar. 12, 2015) at 759.
11
No. 73399-1-1/12
Kopp presented "two major risk areas in terms of her substance abuse and mental
health."29 In closing at trial, Kopp's counsel argued that "[n]obody ever explained to Ms.
Kopp what [cognitive-behavioral therapy] was, why it was important, [and] that it was
supposed to change her behavior."30
The court found in its termination order that Kopp "did not engage in mental
health treatment,"31 her "past and continuing mental health problems are serious
deficiencies,"32 and her "parenting deficiencies" prevent her from "providing [C.G.R.]
with basic nurture, health, or safety."33 In its oral ruling, the court also stated that there
is little likelihood Kopp's parental deficiencies, including her mental health issues, would
be remedied.34 The court made extensive findings about Kopp's substance abuse
problems and her failure to consistently engage in treatment.35 In supplemental
findings, the trial court has now clarified that Kopp's substance abuse issues alone
support its decision to terminate Kopp's parental relationship with C.G.R.
In In re Dependency of A.M.M., the court concluded the parent's due process
right to adequate notice was violated because the trial court ordered termination based
in part on her lack of knowledge about her children's developmental needs even though
29 CP at 314.
30RP(Mar. 19, 2015) at 1355.
31 CPat471 (FF 2.9.2).
32 Id (FF 2.9.1).
33 Id at 474 (FF 2.10.5).
34 RP (Apr. 23, 2015) at 1400-01.
35 CP at 464-69.
12
No. 73399-1-1/13
she was not notified that this would be considered a basis for termination.36 The court
remanded for a determination "whether termination is appropriate on the basis of the
parental deficiencies of which [the mother] was given adequate notice.37 Here, Kopp
does not dispute she had notice that her substance abuse was an alleged parental
deficiency that could support termination. But even if the Department did not give Kopp
adequate notice that her mental illness was a deficiency that could support termination,
the trial court's recent supplemental findings resolve this issue. Because Kopp's
substance abuse deficiencies alone support termination, lack of notice that mental
illness was an deficiency does not warrant additional relief on appeal.
Integrated Mental Health Treatment
Related to her lack of notice argument, Kopp contends that services for
integrated substance abuse and mental health treatment were reasonably necessary for
her to successfully engage in substance abuse treatment. According to Kopp, the
Department failed to understandably offer her integrated treatment, therefore, the
termination order must be reversed. We disagree.
The Department must expressly and understandably offer or provide all court-
ordered services and "all necessary services, reasonably available, capable of
correcting the parental deficiencies within the foreseeable future."38 "A service is
36182 Wn. App. 776, 791-93, 332 P.3d 500 (2014); see also In re Termination of
F.M.O., No. 33339-6-III, slip. op. at 8-9 (Wash. Ct. App. May 24, 2016) (lack of notice of
recurring incarceration as parental deficiency requires remand to determine whether
termination is appropriate based on deficiencies of which the mother was given
adequate notice.)
37 Id at 792-93.
38 RCW 13.34.180m(d); In re Dependency of T.L.G., 126 Wn. App. 181,200,
108P.3d 156(2005).
13
No. 73399-1-1/14
'necessary'... if it is needed to address a condition that precludes reunification of the
parent and child."39 "The services offered must be individually tailored to a parent's
specific needs."40
First, the record supports that Kopp did receive some integrated treatment.
Intercept provided Kopp "with cognitive behavioral techniques to manage her mental
health" and "to help with negative self talk."41 Counselor Rick Sherman testified that
Kopp benefited from cognitive behavioral techniques taught at Intercept.42 Kopp also
acknowledged that mental health treatment at Intercept and Sundown was helpful:
[T]he counseling through Intercept and as well as Sundown helped a lot
with mental health. I learned at Sundown, even, why I am an addict or. . .
what causes that or. . . why . . . certain behaviors was [sic] a character
flaw. I mean, I learned a lot through the programs and a lot of it does—it's
mental.!43!
Second, Kopp argues that Potter and Moore did not explain to her what cognitive
behavioral therapy meant.44 But the multiple referrals expressly mention mental health
treatment. For example, social worker Potter advised Kopp in writing that she could
obtain "Evidence Based Mental Health Treafrnenf—utilizing cognitive behavioral therapy
(CBT)" and a psychiatric evaluation "to determine medications to address mental health
concerns" at either Valley Cities or Sound Mental Health.45 The FCAP report expressly
39 A.M.M.. 182 Wn. App. at 793.
40 In re Dependency of D.L.B.. 188 Wn. App. 905, 920, 355 P.3d 345 (2015),
review granted, 184Wn.2d 1034 (2016); see also In re Termination of S.J., 162 Wn.
App. 873, 881, 256 P.3d 470 (2011) (same).
41 CP at 468 (FF 2.8.36).
42 RP (Mar. 16, 2015) at 836-37.
43 ]d at 901.
44 See RP (Mar. 10, 2015) at 485-86; RP (Mar. 12, 2015) at 690.
45 Ex. 64 (emphasis added).
14
No. 73399-1-1/15
recommends "evidence based mental health treatment' utilizing cognitive behavior
therapy and to get a psychiatric evaluation to determine medications to address "mental
health concerns (anxiety). "46 Social worker Solomon specifically read those
recommendations to Kopp and told her she could obtain those services at Valley Cities,
where she had previously received counseling.47 Yet despite her own declarations that
she knew she needed mental health treatment, Kopp failed to follow up on those
repeated referrals. She waited until just before the termination trial to even apply to
Valley Cities.
Third, Kopp notes that her testimony suggested she did not understand the
difference between a psychological and psychiatric evaluation, but the referrals
expressly stated that the recommended psychiatric evaluation was to determine
possible mental health medications. Early in the dependency, Kopp admitted she had
been self-medicating to address her depression and anxiety. Referrals to seek possible
mental health medications do not seem confusing.
Fourth, Kopp testified that if the court had ordered her to engage in cognitive
behavioral therapy and to obtain a psychiatric evaluation, she would have done so. But
early in the dependency, Kopp acknowledged her need for mental health services. It is
inconsistent to suggest that lack of a court order precluded her from obtaining
necessary services offered by the Department.
Finally, Kopp's reliance upon In re Termination of S.J, is unpersuasive.48 In S.J.,
the Department failed to provide needed and court-ordered mental health services
46 Ex. 67 at 10 (emphasis added).
47RP(Mar. 12, 2015) at 759.
48 162 Wn. App. 873, 256 P.3d 470 (2011).
15
No. 73399-1-1/16
because it required a "sequential approach" in which the mother had to first address her
substance abuse problem.49 Despite knowing of her mental health issues, the
Department did not refer the mother to mental health services until late in the
dependency period. After failing three times in a year to complete inpatient drug
treatment, she succeeded soon after receiving mental health services.50
The mother argued on appeal that "coexistent mental health services were
necessary for successful early treatment."51 The S.J, court determined the mother's
inability to complete inpatient treatment was linked to her mental health issues.52 Had
the Department offered the mother coexistent treatment sooner, the court determined
she would have been able to recover in time to properly parent her child.53 The court
noted the legislative finding that "'integrated treatment of co-occurring disorders is
critical to successful outcomes and recovery.'"54 The court concluded the Department
failed to offer and timely provide the mother all necessary services because, by not
integrating the ordered services, the Department did not tailor the services to her "co-
occurring problems."55
Here, the Department did not take a sequential approach. Throughout the
dependency, several social workers and evaluators recommended that Kopp undertake
both substance abuse and mental health treatment, but she did not follow up on those
49 Id at 881-82.
50 ]d
51 jd at 882.
52 id at 881-82.
53 id
54 id at 882 (quoting Laws of 2005, ch. 504, § 101).
55 Id.
16
No. 73399-1-1/17
referrals. Unlike S.J., Kopp was not denied mental health services until she
successfully completed substance abuse treatment.56
Therefore, we conclude the record supports the trial court's determination that
the Department adequately offered or provided all necessary services, reasonably
available, capable of correcting Kopp's parental deficiencies within the near future.
CASA's Failure to Investigate
Both parents challenge the adequacy of the CASA's investigation. Specifically,
Kopp contends the CASA's failure to "conduct a timely, independent investigation
regarding C.G.R.'s best interests and Kopp's parental deficiencies" violated her due
process rights.57 Radder argues the CASA's failure to speak to him and to observe him
with C.G.R. violated his due process rights. We disagree.
The parents did not raise this due process issue below. A party may raise for the
first time on appeal a "manifest error affecting a constitutional right."58 The error must
be "truly of constitutional magnitude."59 An error is "manifest" if it had "practical and
56 The court in S.J, also relied on the mother's success in becoming sober once
she received mental health treatment late in the dependency. "The situation suggests
the mental health services helped her get sober." id Here, there is no such correlation
between the mental health counseling Kopp received and any progress in substance
abuse treatment.
57 Appellant's Br. at 26.
58 RAP 2.5(a); see also In re Dependency of A.W.. 53 Wn. App. 22, 27, 765 P.2d
307 (1988) ("errors of constitutional magnitude may be raised for the first time in the
appellate court") (citing RAP 2.5(a)(3)); A.M.M.. 182 Wn. App. at 790 (same).
59 State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988).
17
No. 73399-1-1/18
identifiable consequences in the case," i.e., actual prejudice.60 The error must be "'so
obvious on the record'" that it warrants appellate review.61
In dependency proceedings, a guardian ad litem (GAL) and a CASA have similar
responsibilities.62 They advocate on behalf of the child's best interests.63 A CASA must
(1) investigate, collect relevant information about the child's best interests, and report
such information to the court; (2) meet with, interview, or observe the child, and report to
the court any views or positions expressed by the child on issues pending before the
court; (3) make recommendations based upon an independent investigation of the
child's best interests; and (4) represent and be an advocate for the child's best
interests.64 A CASA must "make reasonable efforts to become informed about the facts
of the case and to contact all parties" and "examine material information and sources of
information, taking into account the positions of the parties."65
Here, the CASA Pamela Beatty read the dependency file and all the social
workers' reports. She spoke to social workers Barry, Moore, and Porter. Beatty met
C.G.R. and regularly observed him at his caregivers' home until February 2015. Beatty
spoke to C.G.R.'s caregivers. Beatty collected information from several family
members, including Radder's mother and his girlfriend. Beatty attended the
dependency hearings and spent 130 hours on the case before trial. Beatty
60 State v. Schaler, 169 Wn.2d 274, 284, 236 P.3d 858 (2010).
61 id (quoting State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)).
62 RCW 13.34.030(11).
63GALR2(a); RCW 13.34.100(1): see also In re Dependency of J.B.S., 122
Wn.2d 131, 139, 856 P.2d 694 (1993).
64 RCW 13.34.105(1 )(a)-(h); GALR 3.
65 GALR 2(g).
18
No. 73399-1-1/19
unsuccessfully tried to call Radder once. Beatty found it "challenging catching up with
him" because of his work in Alaska.66 Beatty did not observe and had not read any
reports about Radder's visitation with C.G.R.
Importantly, neither parent challenged the foundation or admissibility of the
CASA's testimony. Both parents had a full opportunity to cross-examine her and to
expose any potential weaknesses in her testimony, but did not cross-examine her about
the adequacy of her investigation. Nor did counsel argue below that Beattyfailed in her
duty. The parents do not indicate what helpful information Beatty may have found if she
had done a more thorough investigation.
The parents rely upon general due process requirements for a termination such
as "notice, an opportunity to be heard and defend, and the right to be represented by
counsel."67 A CASA has a duty to investigate the case and meet with or observe the
child, but the particulars of the investigation are left to the CASA. And even if a CASA
violates statutory requirements, relief on appeal is not necessarily warranted.68
Consistent with her duties, Beatty investigated the case in detail related to C.G.R.'s best
interests. She gathered extensive information about both parents and C.G.R.
Therefore, we conclude on this record that the CASA's investigation does not present
an issue of manifest constitutional error.
66RP(Mar. 17, 2015) at 989.
67 In re Welfare of L.R., 180 Wn. App. 717, 723, 324 P.3d 737 (2014); see also
RCW 13.34.090.
es see In re Dependency of P.H.V.S., 186 Wn. App. 167, 180-81, 339 P.3d 225(2014) (failure ofan incapacitated parent's GAL to appear at the morning session ofthe
third day of a dependency hearing in violation of statute was a due process violation,
but was harmless error).
19
No. 73399-1-1/20
Even if the CASA violated a statutory duty or court rule, any error was harmless.
Only one of the more than 100 trial court findings related to the CASA. The court found
the CASA's testimony credible that Kopp is unable to manage her own needs, cannot
keep her own life stable and safe, and therefore is unable to keep C.G.R. safe on a full-
time basis. As to Rudder, the CASA concluded he was an absent parent, without a
clear plan to be available to care for C.G.R. He has not addressed his chemical
dependency and domestic violence issues. The trial court agreed with the CASA's
conclusion that termination was in the best interests of C.G.R. But there is ample other
evidence addressing each of these points, especially the testimony of the social
workers. And the court expressly found Kopp and Rudder were not credible when they
alleged they would promptly address their deficiencies and provide a safe environment
for C.G.R.
We normally expect evidence of efforts by the CASA to contact a parent in
writing as well as by relaying messages through friends, relatives, and counsel. But
Rudder had contact information for the social workers and the CASA and did not
maintain contact with any of them. Any deficiencies in the CASA's investigation here go
to the weight, not the admissibility, of her testimony. And we defer to a trial judge's
credibility determinations.
Therefore, we conclude the parents fail to establish any manifest constitutional
error or actual prejudice arising from the alleged deficiencies in the CASA's
investigation.
20
No. 73399-1-1/21
Likelihood of Remedying Deficiencies
Both parents contend the Department failed to prove that there was little
likelihood their parental deficiencies would not be remedied in the near future. Kopp
specifically contends the Department failed to prove a nexus between her drug use and
her fitness to parent. We disagree.
The primary purpose of a dependency is "to alleviate the problems that prompted
the State's initial intervention."69 There must be a relationship between the deficiencies
and parenting ability.70 The focus of RCW 13.34.180(1 )(e) is if "'parental deficiencies
have been corrected.'"71 The Department must prove there is little likelihood that
parental deficiencies can be remedied in the near future.72 To satisfy this burden, the
Department must prove that the parent's current deficiencies prevent the parent from
providing the child with "basic nurture, health, or safety."73 The court may consider a
parent's documented failed treatment attempts.74 "If all necessary services reasonably
capable of correcting the parental deficiencies within the foreseeable future are offered
or provided, and the parental deficiencies are not substantially improved within 12
69 In re Dependency of T.L.G.. 126 Wn. App. 181, 203, 108 P.3d 156 (2005).
70 id
71 In re Dependency of T.R., 108 Wn. App. 149, 165, 29 P.3d 1275 (2001)
(guoting In re Dependency of K.R., 128Wn.2d 129, 144, 904 P.2d 1132(1995)).
72 RCW 13.34.180(1 )(e).
73 In re Welfare of A.B.. 181 Wn. App. 45, 61, 323 P.3d 1062 (2014); see also
C.B., 134 Wn. App. at 953 (the Department "may not rely solely on past performance" to
prove present parental unfitness).
74 RCW 13.34.180(1 )(e)(i).
21
No. 73399-1-1/22
months of the dependency order, a rebuttable presumption arises that this factor is
established."75
Radder sporadically participated in and failed to complete required treatment
within 12 months of the dependency order. While Social Treatment Opportunities
recommended Radder complete a one-year domestic violence treatment program,
Radder never undertook such treatment.
The trial court found, and it is unchallenged on appeal, that Radder's "past and
continuing absence from the child and his past and continuing untreated substance
abuse problems are serious deficiencies that prevent him from being able to provide
adequate parenting services to the child."76 The court also found that Radder "had not
consistently provided for the child's basic needs throughout this case."77 Social worker
Potter testified that she was concerned about Radder's domestic violence and his "use
of drugs and alcohol and how that impairs his judgment and ability to safely parent."78
Potter was also concerned about Radder "perpetrating domestic violence" and "how that
affects his ability to safely parent and how that would affect [C.G.R.]."79 Potter testified
that there was little likelihood Radder's parental deficiencies would be remedied in six
months. Beatty testified that C.G.R.'s "near future" was six months.80 Radder took no
meaningful steps to address his parental deficiencies and offered no evidence to rebut
75 LfL, 108 Wn. App. at 165 (citing RCW 13.34.180(1 )(e)).
76 CP at 472 (unchallenged FF 2.9.3).
77 id (unchallenged FF 2.9.5).
78RP(Mar. 10, 2015) at 498.
79 id
80 RP (Mar. 17, 2015) at 980; RP (Mar. 18, 2015) at 1226.
22
No. 73399-1-1/23
the presumption that his parental deficiencies would not be remedied in the near future.
The record also supports that Kopp's parental deficiencies prevented her from
providing C.G.R. with basic nurture, health, or safety. Kopp has a history of multiple
failed treatment attempts and failed urinalyses. Kopp admitted she was "currently
smoking marijuana."81 Social worker Moore testified that a parent's drug use impacts
the ability to provide safety and supervision to a child. Moore testified that "individuals
who have substance abuse issues may have difficulty with judgment and making good
decisions. . . . especially with raising a child."82 Potter testified that Kopp's drug use
impacted her judgment ability to safely care and to be fully present for C.G.R., and she
worried about C.G.R. "being in [Kopp's] care when she's not sober and her ability to
make safe judgment calls and to keep him safe."83 Kopp tested positive for oxycodone
in May 2014 and at the time of termination in March 2015, had not completed any
urinalyses since June 2014. Kopp consistently failed urinalyses and failed to complete
treatment. Intercept counselor Rick Sherman testified that marijuana and opiate use
affect a person's mental state and decision making. At no time since C.G.R. was found
dependent in October 2012 has Kopp completed her 90-day urinalysis requirement.
Therefore, substantial evidence supports that trial court's determination that there
was little likelihood Kopp's and Radder's parental deficiencies would be remedied in the
near future.
81 RP (Mar. 16, 2015) at 849, 896; RP (Mar. 18, 2015) at 1202.
82RP(Mar. 12, 2015) at 707.
83RP(Mar. 10, 2015) at 515.
23
No. 73399-1-1/24
Kopp: Visitation as a Necessary Service
Kopp contends visitation is a "necessary service" that must be provided under
RCW 13.34.180(1 )(d), focusing upon recent amendments to federal law.84 But
Washington courts have consistently held that visitation itself is not a service for
purposes of proving RCW 13.34.180(1 )(d), and recent decisions reject the same federal
law argument made by Kopp.85 Here, visitation is not a service that must be provided or
offered.
Kopp: Restricting Cross-Examination of Adverse Witness
Kopp contends the trial court violated her due process rights by restricting her
cross-examination of an adverse witness. We disagree.
We review a trial court's evidentiary rulings for abuse of discretion.86 During
cross-examination, Kopp's counsel asked social worker Moore if the plan was for
C.G.R. "to be adopted by his current caregivers."87 CASA's counsel objected, arguing
the testimony was "not relevant to the parents' fitness."88 Kopp's counsel argued it was
relevant to whether termination diminished C.G.R.'s prospects for early integration into
a stable and permanent home. The court sustained the objection, stating that C.G.R.'s
possible move to or adoption by another relative was not relevant:
84 Appellant's Br. at 35.
85 K.M.M.. 187 Wn. App. at 572-73 (citing In re Dependency of T.H.. 139 Wn.
App. 784, 791-92, 162 P.3d 1141 (2007)); see also In re Dependency of O.R.L., 191
Wn. App. 589, 598-600, 364 P.3d 162 (2015).
86 In re Welfare of AngeloH., 124 Wn. App. 578, 588, 102 P.3d 822 (2004).
87RP(Mar. 12, 2015) at 697.
88 Id.24
No. 73399-1-1/25
What happens after this hearing is another issue and presumably other
proceedings will decide that. Right now the question is whether or not
these requirements of Section 180 are met. And I don't see anything in
Section 180 that requires the Department to prove or CASA to prove that
this child will go in any particular home if parental rights are terminated.[89]
Kopp's counsel made an offer of proof:
[If Moore] would have been permitted to testify, she would have testified
that the Department is currently investigating another relative for potential
placement of this child at the request of the grandfather, who is currently
the caregiver; that if the child were to be moved, that placement in the
home of another relative and adoption by another relative would take a
minimum of six months, which is the Department's policy; and that an
adoption cannot be finalized by the Department until the child has been in
the home of a new placement for a minimum of six months.[90]
A party in a termination proceeding has a right "to introduce evidence" and "to
examine witnesses."91 But the "right to cross-examine witnesses is not absolute" and is
"limited by general considerations of relevance."92 Evidence that has "any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence" is relevant.93
The offer of testimony about the time required for C.G.R.'s potential adoption by
another relative or the current caregivers was not relevant. Whether C.G.R. may be
adopted by his current caregivers or moved to a new placement is not of consequence
to whether the parents' deficiencies would have been remedied in the near future under
RCW 13.34.180(1 )(e). Nor does the excluded testimony tend to prove whether
continuing Kopp's relationship with C.G.R. impedes his prospects for early integration
89 id at 698.
90 id at 699.
91 RCW 13.34.090(1).
92 State v. Darden. 145 Wn.2d 612, 620-21, 41 P.3d 1189(2002).
93ER401.
25
No. 73399-1-1/26
into a stable and permanent home under RCW 13.34.180(1 )(f). The Department need
not prove that an adoptive home is available at the time of termination.94 In fact, the
court excluded similar testimony two days earlier. Kopp's counsel asked Potter if
C.G.R.'s current caregivers would adopt him if the termination petition were granted.
CASA's counsel objected, and the court sustained the objection.95 In this setting, the
timeframe for a potential adoption is not of consequence.
Therefore, we conclude the trial court did not abuse its discretion in restricting
Kopp's cross-examination of social worker Moore.
Radder: Provision of Services
Radder contends the Department failed to prove that all reasonably available
services capable of correcting parental deficiencies in the near future have been
expressly and understandably offered or provided. We disagree.
The Department must expressly and understandably offer or provide all court-
ordered services. The Department must also provide or offer "all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future."96 At a minimum, the Department "must provide a parent with a list
of referral agencies that provide those services."97
The trial court ordered Radder to complete both a substance abuse and domestic
violence assessment and any recommended treatment, as well as 90 days of
94 See In re Dependency of K.S.C.. 137 Wn.2d 918, 927, 976 P.2d 113(1999).
95 See RP (Mar. 10, 2015) at 506 ("I will sustain the objection. I don't know
where the child will end up after this hearing or how the ruling will be.").
96RCW13.34.180(1)(d).
97 In re Dependency of DA., 124 Wn. App. 644, 651, 102 P.3d 847 (2004).
26
No. 73399-1-1/27
consistently clean urinalyses. Many unchallenged findings support that the Department
offered or provided all necessary and reasonably available services capable of
correcting his parental deficiencies in the near future:
-the Department referred him to a substance abuse assessment,
urinalysis testing and any recommended treatment in December 2012;[98]
-the Department referred him to a substance abuse assessment in
January 2013 and March 2013;'991
-the Department referred him to urinalysis testing;'1001
-the Department sent him bus tickets and an ORCA card to access the
court-ordered services;11011
-the Department met with him and sent him letters with referrals for
substance abuse treatment, urinalysis testing, and a domestic violence
assessment and any recommended treatment.'1021
Radder spent several months at a time working in Alaska as a commercial
fisherman. Radder told social worker Barry that he wanted to do the services in
Washington "once he returned."103 Radder told social worker Moore that Puyallup was
"more convenient for him" to complete his services.104 Radder never provided the
Department his work schedule, and he was "hard to reach and hard to contact" while in
98 CP at 469 (FF 2.8.53); RP (Mar. 9, 2015) at 231 ("He was residing in Puyallup
then and this would have been the closest location to him to be able to access the
service so as not to create a burden on him.").
99 id at 469-70 (FF 2.8.54 & 2.8.58).
100 id at 470 (FF 2.8.59).
101 id (FF 2.8.62).
102 id (FF 2.8.63); RP (Mar. 9, 2015) at 226.
103 RP (Mar. 9, 2015) at 226.
104 RP (Mar. 10, 2015) at 394.
27
No. 73399-1-1/28
Alaska.105 Moore assisted Radder in obtaining a substance abuse assessment in
Alaska. Multiple times, the Department expressly provided Radder with a list of referral
agencies that provided his required treatment. Radder acknowledged that "he knew
what he needed to do and where to access services and how to do it."106 And as
recently as December 2014, Moore contacted Radder about "getting services
established."107 Given his remote and isolated work setting and his preference to
engage in services in Washington, the Department did tailor the services to Radder's
specific needs.
Therefore, we conclude substantial evidence supports that the Department
offered or provided all necessary and reasonably available services capable of
remedying Radder's parental deficiencies in the near future.
Radder: Prospects for Integration
Radder contends the Department failed to prove that continuation of the parent-
child relationship clearly diminished C.G.R.'s prospects for integration into a stable and
permanent home. We disagree.
The main focus of this factor is "the parent-child relationship" and if it "impedes
the child's prospects for integration, not what constitutes a stable and permanent
home."108 The Department need not prove that a stable and permanent home is
available at the time of termination.109 This factor concerns "the continued effect of the
105 id at 441.
106 RP (Mar. 9, 2015) at 349; CP at 470 (FF 2.8.66)
107 RP (Mar. 19, 2015) at 1317.
108 K.S.C.. 137 Wn.2d at 927.
109 Id.28
No. 73399-1-1/29
legal relationship between parent and child, as an obstacle to adoption; it is especially a
concern where children have potential adoption resources."110 Here, Potter testified that
at the time of trial C.G.R. had been in an out-of-home placement for two and a half
years. Potter had concerns about Radder's availability to parent because of his work in
Alaska. The trial court found Radder's testimony that "he intends to stop working in
Alaska" to be present in C.G.R.'s life was not credible.111
Therefore, we conclude substantial evidence supports that continuation of the
parent-child relationship clearly diminished C.G.R.'s prospects for integration into a
stable and permanent home.
Best Interests
Both parents contend the trial court erred in concluding termination of their
parental rights was in C.G.R.'s best interests. We disagree.
Once the Department proves the factors in RCW 13.34.180, the trial court then
considers if the Department proved by a preponderance of the evidence that termination
is in the child's best interests.112 This is a fact-specific inquiry.113 "Where a parent has
been unable to rehabilitate over a lengthy dependency period, a court is 'fully justified' in
finding termination in the child's best interests."114 Here, C.G.R. had been dependent
for two and a half years before termination. Social worker Moore testified that C.G.R.
needed stability in his life and that lack of stability can be detrimental to a child. Social
110 In re Dependency of A.C.. 123 Wn. App. 244, 250, 98 P.3d 89 (2004)
(emphasis omitted).
111 CP at 471 (FF 2.8.72).
112RCW13.34.190(1)(b).
113 In re Dependency of A.M., 106 Wn. App. 123, 131, 22 P.3d 828 (2001).
114 LR,, 108 Wn. App. at 167 (quoting A.W., 53 Wn. App. at 33).
29
No. 73399-1-1/30
worker Potter testified that C.G.R. "is in a situation where his future is unknown."115
Beatty testified that adoption was in C.G.R.'s best interests for purposes of stability.
Therefore, we conclude the record supports the finding that termination of Kopp's
and Radar's parental rights is in C.G.R.'s best interests. We affirm the trial court's
termination order and lift the existing stay.
WE CONCUR:
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115 RP (Mar. 10, 2015) at 473.
30