Department of Social & Health Services v. E.I.

323 P.3d 1062, 181 Wash. App. 45
Court of Appeals of Washington·Decided April 1, 2014·No. No. 44868-8-II·Published·Cited by 67 cases

Opinion

Johanson, J.

¶1 E.I. is the mother of A.B. The juvenile

court terminated E.I.’s parental rights to A.B. based on a finding that E.I. had cognitive impairments that would never allow her to parent A.B. on her own. We agree with E.I. that cognitive impairments alone are not parenting deficiencies and that the Department of Social and Health Services (DSHS) failed to meet its burden to prove that E.I. is currently unfit to parent A.B. We reverse the juvenile court’s order terminating E.I.’s parental rights to A.B. and remand for further proceedings.

FACTS

¶2 E.I. and N.B. are the parents of A.B., born February 2011.1 E.I. also has an older child, J.G., with a different father and who is not the subject of this dependency. In October, the juvenile court found that A.B. was a dependent child under RCW 13.34.030(6)(c). The juvenile court found that N.B.’s criminal history and violent behavior posed a serious risk of harm to A.B. The juvenile court found that E.I. was unable to care for A.B. because she failed to recognize the risk that N.B. posed to the child. A dispositional order was entered in November. Under the dispositional order, E.I. was ordered to participate in the following [48] services: domestic violence (DV) support services through the Young Women’s Christian Association (YWCA), a drug and alcohol assessment, individual counseling, a parenting class, and a parenting assessment.

¶3 The first dependency review order was entered on February 6,2012. The dispositional plan remained the same with the exception of the parenting assessment, which the juvenile court changed to a neuropsychological evaluation. According to the review hearing order, the provider for the neuropsychological evaluation was not available until March, so the juvenile court ordered DSHS to attempt to find a provider with earlier appointments. The review hearing order also changed A.B.’s permanency plan from reunification to adoption. Four days later, on February 10, DSHS filed a petition for termination of E.I.’s parental rights. The petition for termination did not identify any specific parenting deficiencies.

¶4 While the petition for termination was pending, the juvenile court held another dependency review hearing on July 11, 2012. The only services ordered for E.I. were DV support services and a parenting class. By this point in the dependency, E.I. was in the process of separating from N.B. E.I. and N.B. separated permanently in August 2012. Another review order was entered on January 7, 2013. At this time, the juvenile court ordered E.I. to engage in individual counseling and medication management, and to continue working with a parenting coach. As of the January 7 hearing, the permanency plan listed for A.B. was adoption; reunification was no longer listed as a secondary permanency plan.

¶5 The termination fact-finding hearing was held on April 1 and 2, 2013. DSHS presented three witnesses: Dr. Lawrance Majovski, the provider who performed the neuropsychological evaluation; Linda West, E.I.’s parenting coach; and Lisa Sinnett, E.I.’s social worker. E.I. presented testimony from Debby Brockman, E.I.’s DV counselor; and Cory Wetzel, E.I.’s employer. E.I. also testified at the termination fact-finding hearing.

[49] ¶6 Dr. Majovski testified that he performed a neuropsychological evaluation to evaluate E.I.’s brain behavior and emotional functioning status. He also performed a parenting assessment. Majovski diagnosed E.I. with a cognitive disorder not otherwise specified (cognitive impairment) and impaired intellectual abilities. Majovski noted that E.I.’s parenting strengths were an ability to nurture her children and having a calm demeanor. He also observed that there were no adverse circumstances or safety concerns during the one hour he observed E.I. with her children. When asked what E.I.’s weaknesses were, Majovski responded,

Limited in her insight, understanding, and decision-making that applies to judgment and reasoning, how you go about making decisions if you had to have one-on-one with one child, as parent to child, much let alone one to two to three or four children.
Limited intellectual ability, which affects her cognitive challenges and the impairment we’ve already discussed, or I have testified, that limit her ability to have insight; reason, to achieve productive solutions to complex challenges; multitasking, decisions you have to make; also affected by comprehension level in reading; also her memory and ability to assimilate a lot of information and hold it, to use that for manipulating data and information to reach productive solutions.

1 Report of Proceedings (RP) at 27. Majovski opined that on a “more probable than not” basis, E.I. would be unable to parent without a coparent, companion, or supportive help. 1 RP at 28. Majovski did not recommend any services for E.I. because he stated that her cognitive impairments were unlikely to change.

¶7 West was E.I.’s assigned parenting coach. West worked with E.I. from the end of September 2012 until January 2013. Prior to working with E.I., West received copies of visitation notes and a copy of Dr. Majovski’s report. West worked with E.I. for 10 two-hour sessions during the period of time E.I. was referred to services. West’s final [50] report was issued on January 21, 2013, 19 days after the January 7 review order in which the juvenile court ordered E.I. to continue working with the parenting coach and approximately two months before the termination trial.

¶8 West identified four specific goals for E.I.: (1) understanding normal child development, (2) following a child’s lead in play, (3) serving healthy food, and (4) increasing safety. As to her initial concerns about A.B.’s safety, West testified,

Well, I think that one of the concerns was that it was her safety and then keeping him safe through the domestic violence pieces that were happening and that [E.I.] could make good choices for herself and [A.B.].
I didn’t feel that there was any concern for his safety during the visits. She was always watching him, and he never did anything dangerous. So it was more around if she had him alone at [sic] and things got out of hand.

1 RP at 59. As to her conclusions regarding E.I.’s progress in learning child development, West testified,

I think that it would have taken a few — several more months for her to really get that kids do develop certain ways, you know, emotionally, physically, with language. So I would have had to — from where I stopped, I’m not really sure she understood that.

1 RP at 64.

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Department of Social & Health Services v. E.I., 323 P.3d 1062, 181 Wash. App. 45 (Wash. Ct. App. 2014).

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