In Re The Dependency Of: K.a.f., Crystal Leikam Tampico v. Dcyfs ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Termination of No. 81008-1-I
Parental Rights to K.A.F.
DIVISION ONE
UNPUBLISHED OPINION
ANDRUS, A.C.J. — Crystal Tampico appeals an order terminating her parental
rights to her son K.A.F. She contends the trial court erred in concluding the
Department of Children, Youth and Families (Department) offered or provided her all
court-ordered and necessary services. We affirm the termination order.
FACTS
Tampico is the mother of K.A.F., born on July 20, 2016. 1 Tampico’s parental
rights to her three older children were terminated in 2011 and 2012. During 2016,
while pregnant with K.A.F., Tampico lived in a car with the father of the child. 2 In May
2016, when Tampico was seven months pregnant, the father informed his drug and
1 Many of these facts are taken from the termination petition, which the trial court
adopted as true and correct. Tampico has not assigned error to any of the facts set out
therein, and we therefore accept them as verities on appeal. In re Matter of Welfare of A.L.C.,
8 Wn. App. 2d 864, 871, 439 P.3d 694 (2019).
2 The father’s parental rights as to K.A.F. were terminated on April 12, 2019. He is not
a party to this appeal.
Citations and pin cites are based on the Westlaw online version of the cited material.
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alcohol counselor that Tampico was using methamphetamines daily. The counselor
reported these concerns to Child Protective Services (CPS).
K.A.F. was born premature and delivered via caesarian section. Tampico was
combative, argumentative and abusive with staff at the hospital. They called in a CPS
referral due to Tampico’s behavior, lack of prenatal care, and concerns about K.A.F’s
safety in her care. K.A.F. was placed in a secured nursery on a hospital administrative
hold. Tampico refused to submit to a blood test, which could have determined whether
she had used drugs while pregnant. Her urinalysis test, which could only detect
substances used shortly before giving birth, came back negative. K.A.F.’s urine test
also came back negative for drugs. After Tampico was discharged from the hospital,
she frequently returned to visit K.A.F. while accompanied by security. At one point,
Tampico yelled at the baby while feeding him and pushed his hands away from his
face. At other times, she left in a hurry without changing his diaper.
The Department filed a dependency petition on July 25, 2016. Tampico agreed
to random urinalysis testing for 30 days, but she failed to submit to any testing. In
August 2016, Department social worker Denise Huynh was assigned to the case. The
court briefly placed K.A.F. with the maternal grandfather, and allowed Tampico to live
in the home. On August 24, 2016, however, the court ordered K.A.F. to be placed in
licensed care. K.A.F. was subsequently placed in foster care, where he has resided
since.
In October 2016, Huynh referred Tampico to random urinalysis testing, a drug
and alcohol assessment, mental health counseling, and a psychological evaluation.
In February 2017, Tampico was arrested for violating the Controlled Substances Act
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(VUCSA) and on a warrant for driving with a suspended license. Tampico
subsequently participated in a drug and alcohol assessment and a substance abuse
assessment, but failed to participate in other services.
On June 23, 2017, the court found K.A.F. dependent as to Tampico after a
contested trial. In its dispositional order, the court ordered Tampico to participate in
random urinalysis testing for 90 days, follow the recommendations of her most recent
drug and alcohol evaluation, attend sober support meetings at least once a week,
engage in a psychological evaluation with parenting component and follow through
with treatment recommendation, and cooperate with establishing paternity.
Throughout the dependency, the Department repeatedly referred Tampico to
services. Although Tampico occasionally communicated with Hunyh and service
providers via email, she repeatedly failed to engage in services, to visit K.A.F. on a
regular basis, or to make any progress in addressing her parental deficiencies. She
did not attend scheduled appointments for her psychological evaluation, did not visit
K.A.F. on a consistent basis, and did not provide any urinalysis tests.
In May 2019, after Hunyh retired, social worker Kathy Penn was assigned to
the case. Tampico asserted that her failure to engage in services before Hunyh’s
departure was due to her mistrust of Huynh, who had worked with Tampico during the
dependencies of her three older children. She told Penn that she was now ready to
engage in services. Penn subsequently referred Tampico to drug and alcohol
treatment, urinalysis testing, and a psychological evaluation, but Tampico still failed
to follow through. Penn also submitted three visitation supervision referrals, all of
which were terminated due to Tampico’s chronic failure to appear.
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In January 2019, the Department filed a petition to terminate Tampico’s
parental rights to K.A.F., asserting in relevant part that Tampico “demonstrated an
unwillingness to participate in and/or successfully complete services offered to correct
parental deficiencies,” has untreated substance abuse issues, and “has not expressed
a strong desire to reunite with her child.”
A termination trial took place on November 4-5, 2019. Tampico was not
present. The court admitted 29 exhibits into evidence and considered the testimony
of social worker Kathy Penn and court appointed special advocate (CASA) Gwen
Baird. Penn testified that Tampico made no progress in remedying her parental
deficiencies and was unfit to parent K.A.F. Baird testified that Tampico’s behavior
“has not changed” and accordingly recommended termination.
On November 26, 2019, the court issued an oral decision terminating
Tampico’s parental rights as to K.A.F. On December 16, 2019, the court issued written
findings of fact, conclusions of law, and a termination order. In its findings, the court
determined that all necessary and reasonably available services capable of correcting
Tampico’s parental deficiencies had been offered or provided and that it would be
futile to offer further services. The court also found that Tampico was currently unfit
to parent K.A.F. and that termination of the parent-child relationship was in K.A.F’s
best interest.
Tampico now appeals.
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ANALYSIS
A. Standard of Review
Parental rights are a fundamental liberty interest protected by the United States
Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed.2d
599 (1982). To terminate parental rights, the Department must satisfy a two-step test.
In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). First, the
Department must prove the following six statutory elements by clear, cogent, and
convincing 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;
(c) 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;
(d) 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
(e) 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). Evidence is clear, cogent, and convincing if it establishes the
ultimate fact in issue as “highly probable.” In re Dependency of K.C.S., 137 Wn.2d
918, 925, 976 P.2d 113 (1999) (quoting In re Dependency of K.R., 128 Wn.2d 129,
141, 904 P.2d 1132 (1995)). If all six statutory elements are met, the court may
terminate parental rights if it also finds by a preponderance of the evidence that
termination is in the “best interests” of the child. RCW 13.34.190(1). Where the
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parent's interest conflicts with the child's right to basic nurture, physical health, mental
health, and safety, the rights of the child prevail. RCW 13.34.020.
We will uphold the trial court's factual findings if they are supported by
substantial evidence. In re Dependency of K.D.S., 176 Wn.2d 644, 652, 294 P.3d 695(2013). “‘[E]vidence is substantial if, when viewed in the light most favorable to the
party prevailing below, it is such that a rational trier of fact could find the fact in
question by a preponderance of the evidence.’” In re Dependency of E.L.F., 117 Wn.
App. 241, 245, 70 P.3d 163 (2003) (alteration in original) (quoting In re Dependency
of M.P., 76 Wn. App. 87, 90-91, 882 P.2d 1180 (1994)). This court does not make
credibility determinations or weigh the evidence. In re Welfare of C.B., 134 Wn. App.
942, 953, 143 P.3d 846 (2006). We defer to the trial court's credibility determinations
when reviewing an order terminating parental rights. In re Welfare of T.B., 150 Wn.
App. 599, 607, 209 P.3d 497 (2009). Unchallenged findings of fact are verities on
appeal. Matter of Welfare of A.L.C., 8 Wn. App. 2d 864, 871, 439 P.3d 694 (2019).
B. Court-Ordered and Necessary Services
Tampico contends that the Department failed to prove by clear, cogent and
convincing evidence that “all necessary services, reasonably available, capable of
correcting the parental deficiencies within the foreseeable future have been expressly
and understandably offered or provided” under RCW 13.34.180(1)(d). She claims that
the trial court erred in entering the following finding in the termination order:
2.13 Services ordered under RCW 13.34.130 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, including the court-ordered services of:
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The Department referred the mother for her psychological evaluation
with a parenting component to Steve Tutty, Ph.D. The Department
referred the mother for her random urinalysis testing to New Traditions,
SRL-Everett, Harborview Medical Center Addictions Program, and
Sunrise Centers.
No party has recommended or requested additional services for the
parent. It would be futile to offer the mother further services.
A service is “necessary” if it is needed to address a condition that precludes
reunification of the parent and child. Matter of I.M.-M., 196 Wn. App. 914, 921, 385
P.3d 268 (2016). The Department must tailor the services it offers to meet each
individual parent's needs. In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d
1275 (2001). Where the record establishes that the offer of services would be futile,
the trial court can make a finding that the Department has offered all reasonable
services. In re Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008). “The
provision of services is futile where a parent is unwilling or unable to participate in a
reasonably available service that has been offered or provided.” Matter of K.M.M.,
186 Wn.2d 466, 483, 379 P.3d 75 (2016).
Tampico first argues that her prior case history with Huynh substantially
contributed to her lack of engagement in necessary services and acted as a barrier to
reunification. No evidence in the record supports this conclusion. Both Huynh and
Penn referred Tampico to all court-ordered and necessary services, including random
urinalysis, substance abuse treatment, and a psychological evaluation. Although
Tampico told Penn that her mistrust of Huynh prevented her from engaging in
services, her compliance did not improve after Penn was assigned to the case. The
mere fact that Huynh was the case worker in the dependencies of Tampico’s three
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older children, without more, does not demonstrate that Huynh’s involvement was to
blame for Tampico’s behavior.
Tampico’s reliance on Matter of C.M., 432 P.3d 763 (Okla. Sup. Ct. 2018) is
misplaced. In C.M., the mother argued that the Oklahoma Department of Human
Services (ODHS) failed to provide reasonable efforts to reunite her and her children.
432 P.3d at 766. The Oklahoma Supreme Court stated that “[w]here the agent who
is entrusted with the duty to help salvage the family relationship contributes to the fact
situation warranting the termination of parental rights, the court must stop short of
severing the parent-child relationship.” C.M., 432 P.3d at 766 (citing In re Christopher
H., 1978 OK 50, 577 P.2d 1292, 1295). In applying this rule, the court rejected the
mother’s argument because no evidence was presented that ODHS contributed to the
circumstances that justified keeping the mother and children apart. C.M., 432 P.3d at
766. Here, similarly, no evidence supports Tampico’s assertion that Huynh
contributed to Tampico’s failure to engage in services.
Tampico next asserts that the Department failed to provide all ordered services
because Penn failed to provide her with new urinalysis referrals after she moved from
Camano Island to Seattle in October 2019, approximately one month prior to the
termination trial. We disagree. Penn testified that Tampico did request a urinalysis
referral in October 2019, but as of the date of trial, Penn had not had a chance to
make the referral. Penn further testified that she offered to refer Tampico to urinalysis
testing when they met in May 2019, and subsequently referred her to urinalysis testing
twice at Tampico’s request, but that there was no indication that Tampico ever
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engaged in that service by the time of trial. Nor did Tampico engage in urinalysis
testing while working with Huynh.
Tampico also asserts that the Department failed to provide all necessary
services because Penn did not review her entire file and was unaware that she had
completed a drug and alcohol assessment and a substance abuse evaluation. But
Penn testified that she did offer Tampico substance abuse treatment. Under these
circumstances, substantial evidence supports the court’s finding that the Department
met its burden to provide all necessary services.
Finally, Tampico contends that the Department failed to prove that offering
further services would be futile. She asserts that the Department unreasonably forced
her to work with Huynh for most of the dependency, and claims that her engagement
in services significantly improved after Penn was assigned to her case. As discussed
above, the record does not support Tampico’s assertions.
Furthermore, even if the Department inexcusably fails to offer or provide all
necessary services, termination may still be appropriate if the services would not
remedy the parent’s deficiencies within the foreseeable future. In re Dependency of
T.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001). “The foreseeable future is
determined from the point of view of the child.” K.M.M., 186 Wn.2d at 486. Here,
three-year old K.A.F. had been placed out of home for nearly his entire life by the time
of trial. Penn testified that even if Tampico began engaging in services, it could take
up to a year to remedy parental deficiencies. Both Penn and Baird testified that K.A.F.
had already waited too long. The court’s futility finding was supported by substantial
evidence.
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In addition, Tampico did not challenge the court’s findings that:
There is little likelihood that conditions will be remedied so that the child
can be returned to his mother within the near future.
Based on this child’s age, needs and developmental level, his “near
future” for purposes of obtaining permanency is a matter of months, if
not weeks. Based on the parent’s engagement so far, there is not a
basis to find that the parent has the motivation and/or ability to remedy
her parental deficiencies within that amount of time. The child is not
bonded with the mother, and has had no significant contact with him
since he was born.
The mother has not provided the child with a stable home in the past.
She has not demonstrated the ability or the commitment to provide the
child with a stable home currently, and will not be able to do so in the
near future despite the offer of remedial services.
Substantial evidence supports the court’s conclusion that all elements of RCW
13.34.180(1) were met and that termination was in K.A.F.’s best interest.
Affirmed.
WE CONCUR:
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