B.S. v. Department of Social & Health Services

973 P.2d 474, 94 Wash. App. 511
CourtCourt of Appeals of Washington
DecidedMarch 9, 1999
DocketNo. 17264-3-III
StatusPublished
Cited by58 cases

This text of 973 P.2d 474 (B.S. v. Department of Social & Health Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.S. v. Department of Social & Health Services, 973 P.2d 474, 94 Wash. App. 511 (Wash. Ct. App. 1999).

Opinion

Sweeney, J.

— The Washington juvenile dependency statutory scheme permits termination of parental rights for deficiencies that are manifestations of chronic mental illness. B.S. and L.S. appeal the termination of their parental rights; both suffer from chronic mental illness. Their child H.S., now six years old, was removed from their home under an agreed order of dependency at the age of three months. The State sought termination when she was still in foster care after three and a half years. The court was persuaded that B.S. and L.S. unquestionably love H.S. But despite their best and sincerest efforts to resolve their parental deficiencies, B.S. and L.S. remained incapable of meeting the child’s needs. They were unlikely to benefit from further services. And the child’s need for a stable and permanent home required an end to the dependency.^

[516]*516In challenging whether clear, cogent and convincing evidence supports the court’s findings of fact, B.S. and L.S. contend that necessary services failed to accommodate their handicap and their parental rights were terminated solely because of their disability, in violation of state and federal handicap-discrimination statutes. They also direct several due process challenges to basing the termination on facts different than those in the original dependency. First, they contend that RCW 13.34.180(5)(b), which permits consideration of chronic, severe mental illness in termination proceedings, is unconstitutionally vague as applied. Second, they contend they were effectively deprived of notice of the State’s allegations, and that the burden of proof was shifted by requiring them to prove that undefined “conditions” had improved. Finally, they contend that secondary interests of the child were erroneously given precedence over their primary constitutional parental rights.

Clear, cogent and convincing evidence supports the requisite statutory elements, so we affirm the decision of the court.

FACTS

H.S. was born on November 25, 1992. When she was three weeks old, her parents requested that she be placed in voluntary care, and in March 1993 she was placed in shelter care. She was made dependent in May 1993 as to B.S., and in June 1993 as to L.S. H.S. has not lived with her parents since that time. H.S. was placed in foster care with B.S.’s cousins, where she remains. They offer H.S. a permanent home.

B.S. and L.S. both suffer from chronic mental illness. Both were hospitalized with acute symptoms in October 1992, right before H.S.’s birth. L.S. is diagnosed as paranoid schizophrenic, and B.S. has been treated for severe depression. L.S. was hospitalized again shortly after H.S. was born. Both parents are currently diagnosed with schizophrenia, although L.S. disputes her diagnosis. Both parents are presently stabilized on medication as to acute symptoms.

[517]*517The dependency arose primarily from concerns about lack of parent-child bonding and the baby’s failure to thrive. The dependency court found there was no parent capable of providing adequate care. The underlying findings were that L.S.’s rigid and obsessive thinking endangered the baby’s health, her thinking was confused, and she could not respond to questions about the baby’s daily care. She was uncooperative and resistant to support. The baby was below the fifth weight-for-length percentile. L.S. also experienced, but did not act on, strong sexual urges toward the infant. The records of the final dependency review and termination hearings contain exhaustive expert testimony that the problems giving rise to the dependency remain unresolved.

Ongoing problems include B.S.’s and L.S.’s inability to handle the stress of H.S.’s visits; rigid and concrete application of suggested parenting techniques resulting in inappropriate feeding, putting the child to bed too much and waking her up too soon; inability or unwillingness to respond to safety concerns; unwillingness or inability to accept suggested parenting skills; failure to pick up on the child’s cues, or understand or address her needs; continued absence of bonding; and the father’s tendency to remove himself, either physically or mentally. Throughout, B.S. and L.S. had regular supervised or monitored visitation. In May 1995, in an effort to reunite the family, visitation was up to 40 hours per week in B.S. and L.S.’s home. As on previous occasions, however, the length and frequency of the visits had to be reduced because of stress to both the parents and the child. At the recommendation of H.S.’s psychiatrist, the court limited visits to three hours a week at the visitation center.

B.S. and L.S. complied with services to the best of their ability, in spite of delaying or rejecting some services. They were referred to the Child Abuse Project (CAP), but were denied admission because the program was not deemed appropriate to their needs. B.S. and L.S. declined a. second CAP referral.

[518]*518The record includes extensive expert testimony that while the parents’ capacity for improvement had reached a plateau, the child’s condition was disintegrating. H.S.’s court-appointed guardian ad litem, after spending over 1,500 hours with the family, strongly urged termination for H.S.’s sake. Pamela Aden, engaged by B.S. and L.S. to facilitate reunification, also recommended termination. There was testimony throughout that the child’s need for resolution, permanence and stability had become urgent. The recommendation was for permanent placement with the foster parents.

The court entered extensive written findings in the termination order of February 3, 1997. B.S. and L.S.’s petition for direct review to the Supreme Court was referred to this court.

DISCUSSION

The trial court has broad discretion to terminate parental rights if it finds that the elements of RCW 13.34.180(1) through (6) are established by clear, cogent, and convincing evidence and that termination is in the best interests of the child. Former RCW 13.34.190(1), (4); In re Welfare of A.J.R., 78 Wn. App. 222, 228, 896 P.2d 1298, review denied, 127 Wn.2d 1025 (1995). There are no more specific criteria because the facts of each case are unique. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).

Former RCW 13.34.180 provides in part:

(1) That the child has been found to be a dependent child under RCW 13.34.030(2); and
(2) That the court has entered a dispositional order pursuant to RCW 13.34.130; and

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973 P.2d 474, 94 Wash. App. 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bs-v-department-of-social-health-services-washctapp-1999.