In Re The Welfare Of: B.d.m.b., Brandon Burns, App v. Dcyf ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Parental Rights to
No. 80429-4-I
B.D.M.B., (consolidated with No. 80585-1-I)
Minor Child.
ORDER DENYING MOTION
STATE OF WASHINGTON, FOR RECONSIDERATION AND
DEPARTMENT OF SOCIAL AND WITHDRAWING AND
HEALTH SERVICES, SUBSTITUTING OPINION
Respondent,
v.
KELLI BURNS and BRANDON
BURNS,
Appellants.
The appellants, Kelli Burns and Brandon Burns, have filed separate
motions for reconsideration of the opinion filed on September 28, 2020. The court
has determined that the motions should be denied, but the opinion should be
withdrawn and a substitute opinion filed; now, therefore, it is hereby
ORDERED that the motion for reconsideration filed by Kelli Burns is denied;
and it is further
ORDERED that the motion for reconsideration filed by Brandon Burns is
denied; and it is further
No. 80429-4-I/2
ORDERED that the opinion filed on September 28, 2020 is withdrawn; and it
is further
ORDERED that a substitute unpublished opinion shall be filed.
2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parental Rights to
No. 80429-4-I
B.D.M.B., (consolidated with No. 80585-1-I)
Minor Child. DIVISION ONE
STATE OF WASHINGTON, UNPUBLISHED OPINION
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent,
v.
KELLI BURNS and BRANDON BURNS,
Appellants.
APPELWICK, J. — After a dependency of more than four years, the trial court
terminated Kelli’s and Brandon’s parental rights to B.D.M.B. Kelli contends the
termination statutes, RCW 13.34.180 and .190, are unconstitutional as applied to
this case. She also contends that the Department did not prove all statutory
elements or that termination was in the best interests of the child. Brandon claims
the Department failed to prove that it offered or provided all necessary services
capable of correcting his parental deficiencies and that he was currently unfit to
parent B.D.M.B. We affirm.
No. 80429-4-I/2
FACTS
This appeal concerns B.D.M.B., the middle child of Kelli Burn’s and Brandon
Burn’s three children.1 B.D.M.B. was born in January 2010 and has “seen a lot in
her little life.”
Within the first six years of her life, B.D.M.B. observed her parents
frequently drinking to the point of intoxication, Kelli cutting and stabbing Brandon,
and Brandon breaking Kelli’s nose multiple times. Kelli and Brandon also
subjected B.D.M.B. to acts of physical violence, emotional abuse, and neglect.
During this time, the family had several encounters with law enforcement, had
numerous Child Protective Services referrals, and received various family support
services. These early years of constant chaos and domestic violence caused
B.D.M.B. to suffer from posttraumatic stress disorder (PTSD).
In December 2014, the Department of Social and Health Services
(Department)2 removed B.D.M.B. from Kelli’s and Brandon’s care and filed a
dependency petition. B.D.M.B. was initially placed into foster care.
In January 2015, Kelli and Brandon agreed to the entry of a dependency
and dispositional order placing B.D.M.B. in relative care. The parties stipulated to
the facts establishing dependency and the court entered an agreed dependency
order for B.D.M.B.. The court ordered Kelli and Brandon to participate in domestic
1Although the record reveals B.D.M.B.’s siblings share a similar childhood
experience, we summarize the facts as related to B.D.M.B. only.
2 As of July 1, 2018, child welfare functions were transferred from the
Department of Social and Health Services to the Department of Children, Youth,
and Families. See RCW 43.216.906. We refer to both as “the Department.”
2
No. 80429-4-I/3
violence services, substance abuse treatment, and random urinalysis (UAs). The
court authorized weekly visitation for Kelli and Brandon.
In March 2015, the Department later placed B.D.M.B. with her paternal
grandmother. At that time, the court found both parents were making progress
towards reunification and expanded visitation to include weekend visits.
In August 2015, after Kelli and Brandon successfully completed all court-
ordered services, B.D.M.B. was returned to her parents’ care for a “trial in-home
placement.” But, by December 2015, the parents relapsed into alcohol abuse and
family violence.
In January 2016, B.D.M.B. was again removed from the parents’ care and
placed her with the paternal grandmother. B.D.M.B. remained in this placement
throughout the remainder of the dependency proceedings.
At a February 2016 review hearing, the court ordered Kelli to continue
substance abuse treatment, complete random Urinalysis (UA), attend sober
support meetings, participate in domestic violence service and in a “Parenting After
Violence” class, and continue in family counseling. The court ordered Brandon to
participate in an updated substance abuse evaluation and in an “Effects of
Violence on children” class, complete random UAs and a domestic violence
batterer’s assessment, and undergo individual mental health counseling. The
court later required the parents to complete a Foster Care Assessment Program
(FCAP) to examine reunification barriers, and changed B.D.M.B.’s primary
permanent plan to adoption with an alternative plan to return home to the parents.
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No. 80429-4-I/4
In September 2016, an FCAP report was completed. According to that
report, Kelli and Brandon denied alcohol abuse during B.D.M.B.’s trial return home.
Relatedly, the report determined: “It will be difficult to see a decrease in
[B.D.M.B.’s] PTSD arousal scores until there is acknowledgement by [the parents]
of the impact of the abuse and their past behavior has had had on their children,
and her permanent placement is determined.” The report also stated in pertinent
part:
Reunification is not recommended. The family has been provided
with a significant level of services over time and there are no
additional services for the parents that could result in a
recommendation for reunification within the mandated time frame for
these three siblings. Encourage the parents to relinquish parental
rights and adoption by [the paternal grandmother]. If the Court
determines that reunification should occur, then Alternatives for
Families: a Cognitive Behavior Therapy (AF-CBT) is the evidence-
based treatment intervention designed to improve the relationships
between children and caregivers in families involved in arguments,
frequent conflict, physical force/discipline, or child physical-abuse.
[Kelli and Brandon] are not currently good candidates for AF-CBT,
because they have continued to deny their behavior.
In October 2016, the Department filed a petition to terminate Kelli’s and
Brandon’s parental rights to B.D.M.B. The petition alleged that the Department
offered numerous services to the parents, including: drug and alcohol evaluations,
substance abuse treatment, random UAs, domestic violence assessment and
treatment, Parenting after Violence class, family counseling, mental health
assessments and services, age-appropriate parenting education, case
management services and monitoring, assisting caregiver services, and facilitating
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No. 80429-4-I/5
implementation of services. The petition also alleged, despite the Department’s
provision of these services, the parents were not fit to parent B.D.M.B. due to
the following parental deficiencies that have not been corrected and
necessitate termination of parental rights as to the parents: history of
substance abuse, domestic violence, mental health issue, and a lack
of parenting skills. For these reasons, the parents do not understand
and are incapable of providing for their child’s emotional, physical,
mental and developmental needs. The parent [are] incapable of
safely parenting the child.
In December 2016, for the first time, Kelli and Brandon acknowledged their
relapse on alcohol abuse in December 2015. Not only did Kelli and Brandon refuse
to disclose their relapse to their respective service providers for an entire year,
they also maintained that B.D.M.B. was lying about witnessing their relapse and
return to violence during the trial return home.
In March 2017, the assigned Department social worker, Zavtra Adams,
began inquiring into AF-CBT services as suggested in the FCAP report since the
parents had recently acknowledged their relapse. Adams eventually contacted
two potential service providers, one in King County and another in Snohomish
County. Both service providers declined the referrals. The King County provider
indicated that reunification needed to be imminent in order to be effective, “the
children needed to be in home for a large portion of that timeframe,” its program
required weekly sessions and travel to King County (from Whatcom County). The
Snohomish County provider advised that its program was only for families
traumatized by events such as a house fire or a murder, and did not offer a program
for family reunification.
5
No. 80429-4-I/6
In April 2017, even though it was not yet a court-ordered service, Adams
started searching for family counseling options. Before this time, B.D.M.B.’s
individual therapist did not recommend family counseling due to the child’s fear of
her parents. In June 2017, the Department retained family therapist Victoria
McGuinness, noting the following as the presenting issue: “They are being referred
for family therapy at the request of the parents in support of reunification efforts.”
But, after initial and separate meetings with B.D.M.B. and the parents, McGuinness
determined that she was “unable to proceed” for two reasons. The first was due
to B.D.M.B.’s “level of resistance and her fears with regard to family therapy.” The
second was “the parents’ insistence that it be reunification therapy, that was not
the goal. The goal was to rebuild trust.” Ultimately, McGuinness indicated that
“she was not the right person for the job and wasn’t willing to force” B.D.M.B. into
sessions with her parents.
In October 2017, after a referral to Licensed Mental Health Therapist Amy
Glasser, the family began participating in family counseling sessions. B.D.M.B.
did not trust Kelli and Brandon and the primary goal of this counseling sessions
was to “create a trusting relationship with the parents.” The family’s counseling
with Glasser lasted until the end of September 2018, totaling a combined 37
individual and group sessions during that time. At the conclusion of family
counseling, Glasser opined that the parents “telling the kids they weren’t telling the
truth” about the relapse “is what really stuck in terms of progress [the family] could
make in therapy.” Glasser also opined that family counseling would have been
inappropriate prior to the parents taking “responsibility for all of their actions.”
6
No. 80429-4-I/7
In April 2018, after the parents’ visitation switched from supervised to
monitored, B.D.M.B. began to refusing visits and contact with her parents. She
last visited her parents in May 2018 but continued to see them in family counseling
sessions.
In January 2019, the Department retained Psychiatric Nurse Practitioner
JoAnne Solchany, Ph.D. to conduct a psychiatric evaluation of B.D.M.B. The
pertinent parts of Dr. Solchany’s written summary and recommendations state:
[B.D.M.B.] is a very traumatized little girl. She meets criteria
for PTSD. [B.D.M.B.] experienced a lot of trauma, she witnessed a
lot of violence, she witnessed her parents engaging in behaviors that
had the power to kill—including strangulation and stabbing, she
reports her mother threatening to kill her and her siblings, and she
experienced a significant level of neglect. Her fears were chronic
and she was powerless to do anything to make it better for herself or
her siblings. [B.D.M.B.’s] primary traumas were laid down during
early childhood, the time in her life when she should have been able
to trust her parents, feel safe, and feel well taken care of. This did
not happen for her, she repeatedly experienced chaos, violence,
drunkenness, and abuse.
....
. . . [Kelli and Brandon] both did a good job acknowledging and
owning many of the issues. However, they never directly addressed
the physical abuse and significant neglect that [B.D.M.B.] and her
siblings have described occurring. Without this, it is highly unlikely
that [B.D.M.B.] will be able to move forward with truly healing her
relationship with her parents. Honesty is a very important step in
healing and building trust. [B.D.M.B.] cannot repair and rebuild her
relationship with her parents until she knows she can trust them. . . .
....
. . . Forcing her to reunite or even visit her parents will, more likely
than not, lead to regression and the presentation of more significant
and serious behavioral and emotional issues. It is also more likely
than not that she will feel forced to disrupt the visits or any attempts
at placement by engaging in big, concerning acting out. [B.D.M.B.]
7
No. 80429-4-I/8
would also lose the trust in those she currently has, whom she feels
are there to protect her, because a return to her parents means those
people failed her.
In addition to these recommendations, the Department asked Dr. Solchany
to answer several questions, including this one:
5. What is the potential impact of reunification to [B.D.M.B.’s] mental
health?
[B.D.M.B.’s] primary plan should be to remain with her
grandmother, a guardianship should be considered. However,
both aunt and grandmother need to stop disparaging the parents,
this is not healthy or helpful for [B.D.M.B.]—[B.D.M.B.] is still a
product of both her parents and disparaging them can whittle
away at her own sense of self and self esteem. That said, her
grandmother’s [house] is where she feels safe. This does not
mean that [B.D.M.B.] cannot eventually have a positive
relationship with her parents. If reunification is off the table for
now, then this should help [B.D.M.B.] relax and feel safer,
allowing her to actually begin considering having a relationship
with her parents.
Dr. Solchany’s report concludes that “it is not recommended to try and move
B.D.M.B. towards a return home.”
The five day termination trial began in May 2019. The court heard testimony
from nine witnesses and considered 26 admitted exhibits.
Summer Justus, the assigned Department social worker from July 2015 and
March 2017, testified to how the parents’ lack of honesty regarding their relapse
presented “a barrier” for them making progress. When asked about B.D.M.B.’s
general feelings after the relapse, Justus responded, “She was mostly fearful of
her mother. She was fearful that her father would not be protective with her
mother.”
8
No. 80429-4-I/9
Adams, the assigned social worker after March 2017, testified about
referrals to the parents for court-ordered services. Adams said that there are no
additional services the Department could offer that would help remedy the parents’
deficiencies, and B.D.M.B. was “happy,” “healthy,” and “stable” in her placement
with the grandmother. Adams also explained why she considered [B.D.M.B.’s]
“near future” to be three to six months. Adams recalled Brandon voicing concern
earlier in the dependency that his mother’s animosity and distrust for him and Kelli
could influence B.D.M.B. and undermine reunification. However, Adams said she
had no reason to believe that the grandmother was undermining reunification
efforts and recommended that the parents’ rights to B.D.M.B. be terminated.
Erin Smith, a mental health therapist, testified to being B.D.M.B.’s therapist
for two years beginning in 2015. According to Smith, B.D.M.B. talked a lot about
“witnessing violence in the home, and also being the recipient of violence.”
Willow Myers testified to being a family and child therapist who had been
treating B.D.M.B. monthly since July 2018. Myers spoke about how B.D.M.B.
“voiced to me that she’s afraid to be alone with her parents.” Myers noted how
B.D.M.B. “doesn’t want to reexperience her trauma,” “would need to have some
control” in initiating any reunification, and the process “would have to be done so
very slowly.”
Michelle Gordon, the assigned guardian ad litem, testified that B.D.M.B. has
“trauma when it comes to the thought of having to return home,” and the parents
cannot meet her emotional needs because there “is no trust,” no “parent/child
bond.” Gordon does not believe the parents can correct their parental deficiencies
9
No. 80429-4-I/10
in B.D.M.B.’s near future, which she described as between one and three months
based on conversations with the child. According to Gordon, B.D.M.B. is “very
bonded with her grandmother,” needs permanency, and termination of parental
rights is in B.D.M.B.’s best interests.
Glasser testified that she could not imagine B.D.M.B. getting to the point of
wanting to live with her parents and opined, “reunification is virtually impossible if
one of the parties cannot trust the other party.” Glasser also rejected the notion
the grandmother’s alleged bad influence played a significant role in B.D.M.B.’s lack
of trust in her parents because B.D.M.B.’s “got enough memories of her own to
remember what she doesn’t trust.”
Dr. Solchany opined that Kelli and Brandon will not “be able to successfully
or safely parent [B.D.M.B.] and have her live with them,” B.D.M.B. does not have
a healthy bond with the parents and “does not trust her parents to keep her safe
and take good care of her.” Dr. Solchany testified, “I wouldn’t recommend
reunification, so I wouldn’t have any services to recommend in that direction,” “I
can’t even imagine” how long it would take to move towards reunification, and “I
don’t know that it could ever happen.” Her testimony did not mention, much less
recommend, guardianship as an option.
Kelli acknowledged that B.D.M.B. “trusted and believed that” she and
Brandon had changed but they “destroyed” that trust “when we had our relapse.”
She admitted to denying the relapse for an entire year and making her “children
look like they were lying.” Asked if she had any response to Dr. Solchany’s report,
Kelli testified, “I feel that she stated that it could be harmful emotionally to
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No. 80429-4-I/11
[B.D.M.B.] if she was forced to go home. I feel that she listed a very, a variety of
things as in she could have some, she could have depression, anxiety. She could
not behave.” Kelli further responded, “the possibility of those things may be having
a higher probability of having since she’s been exposed to trauma and whatnot,
but that is all may. That is not certain. That is not, we cannot tell the future that
that is what would happen.” (Emphasis in original).
Brandon testified about exposing his children to “lots of arguing,” “physical
violence,” and parental intoxication. He said that the children were removed for
“good cause” and it took him a long time to “own up” to his actions. Brandon also
testified that he and Kelli have a very strained relationship with his mother,
B.D.M.B.’s paternal grandmother.
At the conclusion of trial, the court entered written findings of fact and
conclusions of law terminating Kelli’s and Brandon’s parental rights to B.D.M.B.
Both of the parents appeal and we consolidate the two appeals for review.
DISCUSSION
Parents enjoy fundamental liberty interests in “the continued care, custody,
and management of their children.” Santosky v. Kramer, 455 U.S. 745, 753, 102
S. Ct. 1388, 71 L. Ed. 2d 599 (1982). But “when parental actions or decisions
seriously conflict with the physical or mental health of the child, the State has a
parens patriae right and responsibility to intervene to protect the child.” In re
Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).
In order to terminate the parent-child relationship, the Department must first
prove the six termination factors set forth in RCW 13.34.180(1) by clear, cogent,
11
No. 80429-4-I/12
and convincing evidence.3 In re Dependency of K.N.J., 171 Wn.2d 568, 576-77,
257 P.3d 522 (2011). Next, due process requires the trial court to expressly or
impliedly find by clear, cogent, and convincing evidence that the parent is currently
unfit.4 Id. at 577. If all of these elements are proven, the court must also find by a
preponderance of the evidence that termination is in the best interests of the child.
Id.; RCW 13.34.190(b).
Where, as here, the trial court has weighed the evidence, our review is
limited to determining whether substantial evidence supports the court’s findings
of fact and whether those findings support the court’s conclusions of law. In re
Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). Unchallenged
findings of fact are verities on appeal. In re Welfare of A.W., 182 Wn.2d 689, 711,
344 P.3d 1186 (2015). 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.” In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245(1980). We defer to the trier of fact on issues of conflicting testimony, credibility of
the witnesses, and the weight of the evidence. State v. Killingsworth, 166 Wn.
App. 283, 287, 269 P.3d 1064 (2012). Such deference is particularly important in
proceedings affecting the parent and child relationship because of “the trial judge’s
advantage in having the witnesses before him or her.” A.W., 182 Wn.2d at 711.
3“Clear, cogent, and convincing” means highly probable. In re Welfare of
M.R.H., 145 Wn. App. 10, 24, 188 P.3d 510 (2008).
4 “Satisfying all six of the statutory elements raises an implied finding of
parental unfitness.” In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379
P.3d 75 (2016).
12
No. 80429-4-I/13
I. Mother’s As-Applied Substantive Due Process Challenges
Kelli asserts that RCW 13.34.180 and .190 are unconstitutional and violate
substantive due process, as applied to cases in which the Department’s child
expert has recommended a guardianship be considered, because the Department
is not required to prove that a guardianship is not a viable alternative to termination.
This assertion is not persuasive.
Washington courts presume statutes are constitutional. In re Dependency
of C.B., 79 Wn. App. 686, 689, 904 P.2d 1171 (1995). The party challenging a
statute’s constitutionality has the burden of proving otherwise. Id. A party
challenging the constitutionality of a statute as applied must show “that application
of the statute in the specific context of the party’s actions or intended actions is
unconstitutional.”5 City of Redmond v. Moore, 151 Wn.2d 664, 668-69, 91 P.3d
875 (2004).
Kelli’s as-applied challenge rests solely on her claim that “Dr. Solchany
recommended that B.D.M.B. remain with her grandmother, but she also explicitly
recommended ‘a guardianship should be considered.’” But, the record does not
support this claim. First, in Dr. Solchany’s 13 page report, she includes three
pages of summary and recommendations. None of those pages mention
“guardianship” as an option to consider. Second, Dr. Solcharny did not testify
about a guardianship when detailing her report recommendations at trial. Lastly,
none of the parties ever raised or argued the issue of guardianship at trial.
5 Determining a statute unconstitutional as applied forbids future application
of the statute under similar circumstances, but such a determination does not
totally invalidate the statute. Moore, 151 Wn.2d at 669.
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No. 80429-4-I/14
It is well-settled that a “court must consider a dependency guardianship as
an alternative to termination only when a petition for a dependency guardianship
has been filed.” In re Dependency of I.J.S., 128 Wn. App. 108, 121, 114 P.3d 1215(2005); In re Dependency of T.C.C.B., 138 Wn. App. 791, 800, 158 P.3d 1251(2007) (where there is no dependency guardianship pending, there is no
constitutional or other requirement to consider a “theoretical dependency
proceeding”). Here, the record contains no guardianship petition nor an explicit
recommendation that one should have been considered.
Kelli cannot demonstrate that the terminations statutes are unconstitutional
as applied to this case.
II. Mother’s As-Applied Procedural Due Process Challenge
Next, Kelli similarly argues that as applied here, Washington’s termination
statutes violate her rights to procedural due process. She contends that, when the
Department’s expert recommends consideration of a guardianship, due process
requires the Department to prove a guardianship is not available before parental
rights may be terminated.
Again, because there is no support in the record that a guardianship was
ever filed, we reject Kelli’s procedural due process claim. In re Dependency of
K.S.C., 137 Wn.2d 918, 931, 976 P.2d 113 (1999) (Washington’s termination
statutes do not require a court to consider dependency guardianship as an
alternative to termination where no petition has been filed).
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No. 80429-4-I/15
III. Mother’s Early Integration into Permanent Home Challenge
Kelli argues that the Department’s evidence was insufficient to support the
finding under RCW 13.34.180(1)(f), that “continuation of the parent and child
relationship clearly diminishes the child’s prospects for early integration into a
stable and permanent home.” She contends that there was no evidence
establishing that if her and Brandon’s legal relationship with B.D.M.B. remained
intact that it would somehow disrupt B.D.M.B. finding permanency with her
grandmother.
Notably, Kelli does not advance any legal argument to challenge the
findings under RCW 13.34.180(1)(e), that there is little likelihood that conditions
will be remedied so that the child can be returned to her in the near future. This
finding is, therefore, a verity on appeal. A.W., 182 Wn.2d at 711. There is also
ample support for this finding in the record. Guardian ad Litem Gordon testified
that the parents could not correct their parental deficiencies in B.D.M.B.’s near
future of one to three months. Family therapist Glasser indicated that the
possibility of the parents reunifying with B.D.M.B. was “virtually impossible.” Social
worker Adams said that the parents “have not made progress in repairing their
relationship with [B.D.M.B.],” and after more than four years of services towards
that goal, B.D.M.B. “remains extremely fearful of returning home, and it would be
against the recommendations of her mental health providers.” Under this
evidence, which we do not re-weigh on review, the trial court had no good reason
to believe that the parents would correct their deficiencies at any time meaningful
to B.D.M.B.
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No. 80429-4-I/16
“Facts supporting a conclusion under RCW 13.34.180(1)(e) may, but do not
necessarily, also support a conclusion under RCW 13.34.180(1)(f).” In re
Dependency of K.D.S., 176 Wn.2d 644, 655, 294 P.3d 695 (2013). Here, the
evidence supporting the trial court’s finding under RCW 13.34.180(1)(e) also
supports its RCW 13.34.180(1)(f) finding. Even if this were not the case, the court’s
finding under RCW 13.34.180(1)(f) is well supported by independent evidence in
the record. Dr. Solchany warned, “Forcing her to reunite or even visit her parents
will, more likely than not, lead to regression and the presentation of more
significant and serious behavioral and emotional issues,” and that B.D.M.B. “would
also lose the trust in those she currently has, whom she feels are there to protect
her, because a return to her parents means those people failed her.”
The court had sufficient evidence to conclude that continuing Kelli’s and
Brandon’s parental rights to B.D.M.B. diminished her prospects for early
integration into a stable and permanent home.
IV. Mother’s Best Interests of the Child Challenge
Lastly, Kelli argues that the court’s findings do not support its conclusion
that termination of her parent-child relationship was in the best interests of
B.D.M.B. pursuant to RCW 13.34.190(b). She admits that the court’s finding on
this factor “establishes it is in B.D.M.B.’s best interest that the dependency end.”
But, Kelli claims that the finding “does not establish that termination of the legal
relationship between B.D.M.B. and her parents was in her” best interest if B.D.M.B.
were subject to a guardianship.
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No. 80429-4-I/17
We accept Kelli’s admission that the finding sufficiently establishes it is in
B.D.M.B.’s best interest to terminate the dependency. And, because a termination
petition was the only proceeding before the court, we reject the remainder of Kelli’s
argument. The court appropriately found that terminating Kelli’s and Brandon’s
parental rights to B.D.M.B. was in the best interest of the child.
V. Father’s Provision of Necessary Services Challenge
Brandon argues that the Department failed to satisfy RCW 13.34.180(1)(d),
because it failed to offer reunification therapy.
In order to terminate parental rights, the Department must prove that it
offered “all necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future.” RCW 13.34.180(1)(d).
“Necessary services” are those services “‘needed to address a condition that
precludes reunification of the parent and child.’” In re Parental Rights to K.M.M.,
186 Wn.2d 466, 480, 379 P.3d 75 (2016) (quoting In re Dependency of A.M.M.,
182 Wn. App. 776, 793, 332 P.3d 500 (2014)). Here, the court found, in pertinent
part,
2.11 . . . Despite the offering of these services, there has been little
improvement in parental functioning as to this child.
A. [The parents], social worker Summer Justus and social
worker Zavtra Adams all testified as to the extensive and
helpful services provided to this family.
B. The Court finds that the Department did provide and [the
parents] did undergo a variety of services, and most of their
parental deficiencies were corrected due to their participation
in these services. As the result of these services, the
youngest sibling was returned to their care. The only parental
deficiency that remains is an inability to parent this particular
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No. 80429-4-I/18
child due to broken trust and her lack of attachment to her
parents at this time.
C. The Court considered In re Parental Rights of B.P., 186 Wn.2d
292[, 376 P.3d 350] (2016) and [K.M.M.]. B.P. involved a
much younger child than [B.D.M.B.], and that court could not
find that services would have been futile had they been
offered. K.M.M. involved an older child, who refuses to have
contact with her father, and the Court finds that reunification
therapy was not a necessary service[] because it would have
been futile in that case. The Court finds this case very close
to and with more similarities to K.M.M. In both this case and
in K.M.M., while it is possible that attachment and bonding
services might have prevented child detachment from a
parent had they been previously provided, the parties cannot
go back in time to prevent the damage from occurring. No
service is now capable of correcting the parental deficiency
within the foreseeable future.
D. The Court does not find any fault with the Department’s
decision not to offer reunification therapy. In this case, the
Department presented compelling evidence that reunification
therapy would have been detrimental to the child before
sufficient progress was made in the child’s personal therapy.
Family therapist Amy Glasser, child’s therapists Willow Myers
and Erin Smith, social worker Zavtra Adams, and Dr. JoAnne
Solchany, professionals who were involved with the care and
evaluation of [B.D.M.B.], all testified that reunification therapy
was not a recommended service for this family at any point of
this case because it would have been detrimental to
[B.D.M.B.]. Until further progress could be made in
[B.D.M.B.’s] personal therapy, reunification therapy could be
damaging or traumatic to [B.D.M.B.] emotionally. Amy
Glasser and Dr. JoAnne Solchany both testified that it could
take years if [B.D.M.B.] was ever going to be ready for
reunification therapy.
E. Given that [B.D.M.B.] has not progressed far enough in her
individual therapies or counseling to attempt reunification
therapy with [the parents], nor has she been since it’s been
introduced in the case, reunification therapy would have been
futile as it is not capable of correcting the parental deficiency
in the foreseeable future. The Court finds by clear, cogent,
and convincing evidence that the Department has provided all
necessary services that are reasonable and capable of
correcting the parental deficiencies within the foreseeable
future.
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(Emphasis added.)
The record supports the court’s finding that the Department offered
numerous services over the course of several years to address Brandon’s parental
deficiencies and to build his relationship with B.D.M.B. Despite significant
progress in completing court ordered services, the record also indicates that
Brandon’s actions contributed to the broken bond and lack of trust with B.D.M.B.
Likewise, there is no record of any of the numerous professionals and
mental health providers ever recommending reunification therapy as a necessary
service. In fact, reunification therapy services were not recommended at any point
during this dependency proceeding. Where there is no evidence that the parent-
child bond could be repaired within a time frame that would be conducive to the
child’s “emotional development and well-being[,]” the Department had met its
obligation under RCW 13.34.180(1)(d). K.M.M., 186 Wn.2d at 487.
Substantial evidence supports the court’s findings regarding this termination
factor.
VI. Father’s Unfit Parent Challenge
Brandon also contends the Department did not prove he is currently unfit
and unable to care for B.D.M.B. To establish current unfitness in a termination
proceeding, the Department must prove by clear, cogent, and convincing evidence
that the parental deficiencies “prevent the parent from providing the child with
‘basic nurture, health, or safety.’” In re Welfare of A.B., 181 Wn. App. 45, 61, 323
P.3d 1062 (2014) (quoting RCW 13.34.020). He argues that none of his
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No. 80429-4-I/20
deficiencies make him unfit to parent B.D.M.B., but rather, it is B.D.M.B.’s “current
status in treatment that made her unable to bond with her father.”
The K.M.M. court explained that the absence of attachment to a parent is a
condition that interferes with a parent’s ability to provide for a child’s health, safety,
and well-being and may ultimately render a parent unfit. 186 Wn.2d at 493-94.
Here, several witnesses testified about the absence of any trust or a bond between
the parents and B.D.M.B. Gordon testified that B.D.M.B.’s parents cannot meet
her emotional needs because there is no trust and no parent-child bond. Dr.
Solchany explained that B.D.M.B. does not have a healthy bond with her parents
and “does not trust her parents to keep her safe and take good care of her.” Kelli
spoke about how she and Brandon “destroyed” B.D.M.B.’s trust in them.
Substantial evidence supports the court’s finding that Brandon was currently unfit
to parent B.D.M.B.
CONCLUSION
In sum, we reject the constitutional challenges to the termination statutes
and conclude that substantial evidence supports the trial court’s termination
findings.
Affirmed.
WE CONCUR:
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