In Re The Welfare Of: L.d. Ashley Dukellis v. Dshs ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of No. 74457-7-I
LAD., d.o.b. 02/18/13,
Minor Child.
WASHINGTON STATE DEPARTMENT
OF SOCIAL & HEALTH SERVICES,
Respondent,
UNPUBLISHED OPINION
FILED: November 14, 2016
ASHLEY DUKELLIS,
Appellant.
Verellen, C.J. — Ashley Dukellis appeals an order terminating her parental
rights to her daughter, L.D. She contends the court entered irreconcilable findings
regarding L.D.'s best interest and that the resulting ambiguity undermines the
termination order and violates her right to due process. Because the challenged
findings are reconcilable and the unchallenged findings support the remaining
prerequisites for termination, we affirm.
No. 74457-7-1/2
FACTS
Ashley is the biological mother of three children, including a daughter, L.D.,
born in February 2013.1 During her pregnancy with L.D., Ashley tested positive for
marijuana and methamphetamine. When L.D. was born, both L.D. and Ashley
tested positive for marijuana. A few days after L.D.'s birth, Ashley admitted using
methamphetamine four times during her pregnancy.
Shortly thereafter, the Department of Social and Health Services filed a
dependency petition. The court entered an order of dependency requiring Ashley to
obtain a chemical dependency assessment, a psychological evaluation with a
parenting component, mental health counseling and medication services, and
domestic violence treatment services. The court also required Ashley to submit to
random urinalysis testing, attend sober support meetings, and engage in parenting
education.
In April 2014, the Department filed a petition to terminate Ashley's parental
rights. Following a trial, the court granted the petition and entered the following
pertinent findings of fact and conclusions of law:
II. Findings
2.11 Since dependency was established, services ordered
under RCW 13.34.130 have been offered or provided and all necessary
services reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been offered or
provided. These services included the following as to the mother:
[rjandom urinalysis, drug and alcohol evaluation, domestic violence
victim's assessment, psychological and mental health assessment,
mental health counseling, parenting assessment and parenting
education.
1 L.D.'s father relinquished his parental rights in January 2015.
No. 74457-7-1/3
a. The delay in the mother receiving mental health services after
the retirement of one of her providers is not compelling to the court as a
basis for asserting that all necessary services have not been provided
because the mother has not substantially engaged in her other services
which would be necessary in order for her to capably parent the child
and adequately address her mental health.
b. There is no demonstration that the mother has engaged in
substance abuse services, or demonstrated ongoing sobriety, where the
significant remaining risk to the child is that substance abuse has
incapacitated her in the past.
c. While not an issue of fault, due to her profound mental health
issues, the mother demonstrates an inability to work with other people,
including her treatment providers, her social workers, and even her own
attorneys; it is difficult to see how the mother could capably parent the
child without an ability to work with others such as teachers, daycare
providers, doctor's therapists, and friends and family. Her mental health
circumstances also subject her to debilitating panic attacks during
which she is not able to care for the child.
d. The mother did not, or was not able to, engage in services
necessary for her to assume care for the child despite those necessary
services being offered.
2.12 Given the 32 months of services offered or provided, there
is little likelihood that the conditions will be remedied so that the child
could be returned to the parents in the near future. The mother is
currently unfit to care for the child.
a. There is no indication that the mother's mental health issues
can or will be remedied in the near future such that the mother will be
able to care for the child on full-time parental basis.
b. There is no demonstration that the mother has remained clean
and sober for any substantial period of time during the life of the
dependency.
2.13 Continuation of the parent-child relationship clearly
diminishes the child's prospect for early integration into a stable and
permanent home. The consensus of expert opinion is that both the
likelihood and the ease with which a child will bond into a new family
setting are increased when the child is placed into a family setting at a
younger age versus a more delayed placement. The continuation of
the status quo is not in the child's best interests and a resolution is
needed as to who will be this child's permanent caretaker. The child's
No. 74457-7-1/4
needs for permanence and stability must, at this point in time, be
accorded priorityover the rights of the biological parents in order to
foster the early integration of the child into a stable and permanent
home as quickly as possible.
a. Termination will facilitate the child's adoption into a stable and
permanent home.
b. While the court recognizes the limitations imposed by statute,
and that the court cannot mandate continued contact between the
mother and the child, the court does believe that continued visitation
between the mother and the child is in the child's best interest.
2.14 Termination of the parent-child relationship is in the best
interests of the child to allow adoption planning to begin and to foster
the creation of a stable and permanent placement for the child.
a. Termination will facilitate the child's adoption into a stable and
permanent home.
2.15 The mother is currently unfit to parent the child. The
mother was notified of her parental deficiencies. Because of these
deficiencies, the mother was unable to understand and was incapable
of providing for the child's emotional, physical, mental and
developmental needs. The mother is incapable of safely parenting the
child.
2.16 The child has 2 half siblings. The status of the child's
relationship with any sibling with whom the child has a relationship is:
the child has limited contact. The nature and extent of contact between
the child and the siblings shall be: as determined by the caregivers or
adoptive parent(s).
From the foregoing Findings of Fact, the court now makes and
enters the following:
III. Conclusions of Law
3.2 The foregoing Findings of Fact have been established by
clear, cogent, and convincing evidence.
3.3 The requirements of RCW 13.34.180(a) - (f) and RCW
13.34.190(2) have been established by clear, cogent, and convincing
evidence.
No. 74457-7-1/5
3.4 The parent-child relationship existing between [L.D.] and . ..
her mother, Ashley Dukellis, should be terminated pursuant to
RCW 13.34.190(1)(a) and (2).™
The court expressly incorporated its oral findings by reference. Those findings
included the following:
And I do believe that there should be a specific finding to the effect that
Ms. Dukellis's relationship with her child is in the child's best interest
and should continue in some form.
That does not negate the Court's decision though that
termination of parental rights should occur and is in the child's best
interest. So there's a balancing there that will ultimately be left to the
adoptive parents. And I'm making the finding because it's true in my
view and because I think the adoptive parents should know it, but it will
not [ajffect the outcome in this caseP]
Ashley appeals.
DECISION
Parental rights are a fundamental liberty interest protected by the United
States Constitution.4 To terminate parental rights, the State must satisfy a two-step
test. First, it must prove the following statutory elements by clear, cogent, and
convincing5 evidence
(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;
2 Clerk's Papers (CP) at 288-90 (emphasis added).
3 Report of Proceedings (RP) (Dec. 4, 2015) at 373-74 (emphasis added).
4 Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed.2d 599
(1982).
5 "'Clear, cogent and convincing' means highly probable." In re Welfare of
M.R.H., 145 Wash. App. 10, 24, 188 P.3d 510 (2008).
No. 74457-7-1/6
(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
[and]
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable
and permanent home.[6]
If the trial court finds that the State has met its burden under RCW 13.34.180,
it may terminate parental rights if it also finds by a preponderance of the evidence
that termination is in the "best interests" of the child.7 On review, unchallenged
findings of fact are considered verities.8 Challenged findings will be upheld "[i]f there
is substantial evidence which the lower court could reasonably have found to be
clear, cogent and convincing."9
Ashley does not challenge the court's findings and conclusions under
RCW 13.34.180(1 )(a)-(f). Her sole contention on appeal is that the court's findings
regarding L.D.'s best interests are ambiguous, that such findings do not satisfy
6 RCW 13.34.180(1).
7 RCW 13.34.190(1 )(a)(iv),(b).
8 In re Interest of J.F.. 109 Wash. App. 718, 722, 37 P.3d 1227 (2001).
9 In re Aschauer. 93 Wash. 2d 689, 695, 611 P.2d 1245(1980).
No. 74457-7-1/7
RCW 13.34.190(2), and that termination therefore denied her due process. She
claims "[i]t is axiomatic that it cannot be in L.D.'s best interest to both terminate and
maintain her parent-child relationship with Dukellis."10 She concludes that the
findings "are irreconcilable" and leave "the record ambiguous as to whether the trial
court made the findings necessary for a valid termination order."11 We disagree.
There is no ambiguity or inconsistency in the court's findings. The court found
Ashley "unfit to care forthe child,"12 that L.D.'s best interests "are served by
termination of parental rights,"13 and that "[t]he parent-child relationship existing
between [L.D.] and ... her mother. . . should be terminated."14 These findings that it
is not in L.D.'s best interest to have a parent-child relationship with Ashley in no way
conflict with the court's findings that it would be in L.D.'s best interest for Ashley to
have a nonparental relationship with L.D. Nor is there any ambiguity as to whether
the court found that termination of the parent-child relationship was in L.D.'s best
interest. The court's written and oral findings regarding L.D.'s best interests clearly
and unequivocally distinguish between a parental or nonparental relationship with
Ashley. The court even acknowledged that it lacked authority to require ongoing
contact between Ashley and L.D., but found that such contact through an open
adoption would be in L.D.'s best interest. There is no ambiguity in the court's findings
under RCW 13.34.190(2) and therefore, no denial of due process.
10 Appellant's Br. at 14.
11 Appellant's Br. at 9.
12 CP at 289 (Finding of Fact 2.12) (emphasis added).
13 RP (Nov. 5, 2015) at 347 (emphasis added).
14 CP at 290 (Conclusion of Law 3.4) (emphasis added).
No. 74457-7-1/8
Affirmed.
WE CONCUR:
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