IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 83704-4-I M.J. DIVISION ONE
UNPUBLISHED OPINION
BIRK, J. — The trial court terminated S.J.’s parental rights to his child, M.J.,
following a two day trial in December 2021. S.J. appeals. At issue is whether the
Department of Children, Youth, and Families1 (Department) satisfied its burden
under RCW 13.34.180(1)(f) to prove that continuation of the parent-child
relationship would diminish M.J.’s prospects of permanent placement, and whether
the termination of S.J.’s parental rights was in the best interests of the child. We
affirm.
I
A
S.J. was raised by his mother without learning the identity of his father. He
has an older brother and older sister. When he was in the ninth grade, S.J.
dropped out of school and started working at a carpentry company, as he
1 The Department of Children, Youth, and Families (DCYF) took over child welfare duties that were formerly the responsibility of the Department of Social and Health Services (DSHS), effective July 1, 2018. RCW 43.216.906. This opinion references the “Department” to mean DSHS before July 1, 2018, and DCYF after July 1, 2018. No. 83704-4-I/2
explained, “ ‘I learned so much and was able to help my mother with bills too.’ ”
S.J. continued in this field until his mid 20s when he was retrained as a heavy
machine contractor.
S.J. dated C.B. for approximately three years. In the third year of the
relationship, on June 23, 2011, C.B. gave birth to M.J. S.J. was the father. Before
M.J.’s birth, C.B. had lost custody of to two other children. C.B. relinquished her
parental rights to M.J. before this proceeding, and she is not a party to this action.
Between May 2012 and June 2013, C.B. filed three separate petitions for
an order of protection against S.J., alleging domestic violence. Each of the three
were dismissed, one for C.B.’s failure to appear, and two because the court did not
find sufficient evidence of domestic violence.
In July 2012, a Department social worker stated there was an open Child
Protective Services investigation into C.B. for physical abuse, and that M.J. “has
been in the physical care and custody of [S.J.] and continues in the father’s care
currently. The residence is appropriate, clean, child friendly and well stocked with
necessary furniture, clothing, diapers, formula and other needs required to care for
the child.”
When M.J. was approximately four years old, S.J. moved himself and M.J.
to New Mexico to live with S.J.’s mother. S.J. worked in construction and his
mother assisted with M.J.’s care. S.J.’s mother passed away. S.J. and M.J. left
New Mexico when M.J. was in the first grade.
2 No. 83704-4-I/3
In March 2019, S.J. was living with M.J. in Snohomish county and attempted
to reconnect with C.B. so that M.J. could meet his mother. S.J. and M.J. were
staying at a hotel, when C.B. came to visit M.J. S.J. said that he and M.J. fell
asleep and that he woke up to find C.B. and M.J. gone. C.B. had not told him
where she was going, and he had no idea where they were. S.J. testified that he
called the police, but that police said they could not become involved because
there was not a parenting plan in place. A police report from this incident is not in
the record before this court.
C.B. travelled to Multnomah County in Oregon with M.J., where she sought
a restraining order against S.J.
On June 13, 2019, the Oregon court granted C.B. a one year restraining
order against S.J. that gave her custody of M.J. S.J. testified he was not able to
travel to Oregon to contest the order. In obtaining the restraining order, C.B.
alleged that S.J. was “under [the influence of] a heavy amount of illegal drugs such
as meth[amphetamine],” and had “no stable living as far as I know.” C.B. alleged
that on approximately April 17, 2019, M.J. accidentally spilled a soda during the
night, “and when [S.J. saw] it in the morning [he threw] my son so hard to the floor
that he hit his head on the wall and [my son] told me [he saw] black[,] and the lamp
across the room fell.”2 C.B. further alleged that on April 25, 2019, S.J. had forced
2 The Attorney Guardian Ad Litem stated in her report for the termination proceedings that early in the dependency, M.J. “repeatedly recounted one incident with his father, involving a spilled soda – where [S.J.] pushed him down and hit him.” 3 No. 83704-4-I/4
her to engage in sexual activity in the bathroom of their hotel room while M.J.
watched television in the next room, and that S.J. was under the influence of
methamphetamine at the time. C.B. also alleged that on May 3, 2019, S.J.
“threatened to do bodily damage to me and my son if [I] ever tried to leave him or
take my son for fear of harm.” C.B. expressed fear that “[i]f [S.J.] finds out where
[I’]m at there is no [doubt] in my mind that in his current drug induced [psychotic
state] of mind that he will come after us and kill me and take my son or kill us both.”
On August 8, 2019, the Department was notified that S.J. had allegedly
threatened to kill C.B. and M.J. C.B. made this allegation while seeking domestic
violence services in Skagit County. At that time, a domestic violence advocate
reported that M.J. stated it was “ ‘not ok for your dad to threaten to kill his mom
and his kids. Or your dad to hurt you because he’s mad at you.’ ” M.J. also stated
that S.J. often throws him on the ground because M.J. makes mistakes and that
“it happens all the time.” The Attorney Guardian Ad Litem later stated in her report
for the termination trial that she was “confused about the phrasing of this intake,
as it appears, from the limited information provided in discovery . . . that [M.J.] may
be repeating information told to him – based on the wording of the quoted
language.”
On October 1, 2019, S.J.’s sister-in-law sought an antiharassment
restraining order against S.J. According to the petition, S.J. was living with his
brother and sister-in-law at the time. In the petition, S.J.’s sister-in-law stated that
4 No. 83704-4-I/5
“[S.J.] has a drug problem and was asked to take a drug test in order to continue
staying with us,” and alleged that S.J. had run over her dog, made threatening
statements to her, drove through a gate, broken things “like cabinetry and a
dresser,” and left trash on her property. An antiharassment order was granted,
effective through October 15, 2020. The order states that “based upon the petition,
testimony, and case record, the court finds that the respondent committed unlawful
harassment.”
On October 6, 2019, law enforcement found M.J. alone in a car outside a
casino, within reach of a large quantity of drugs, and took him into custody. C.B.
was arrested and, as of October 8, 2019, incarcerated at the Snohomish County
Jail on charges of manufacturing-delivery of amphetamine-methamphetamine with
intent, leaving a child unattended in a parked vehicle while entering a liquor
establishment, possession of drug paraphernalia, endangerment with a controlled
substance, and third degree theft. The Department did not return M.J. to S.J.’s
care at that time because of the Oregon restraining order.
B
The Department filed a dependency petition on October 8, 2019. A shelter
care order was entered on October 10, 2019. In the shelter care order, S.J.
appears to have agreed to participate in a drug and alcohol evaluation, random
urinalysis (UA) testing, and parenting classes. He did not agree to a domestic
violence assessment and the court reserved ruling on that requested service until
5 No. 83704-4-I/6
the dependency factfinding hearing. S.J. attended the shelter care hearing, but a
transcript of that hearing is not before this court.
On November 14, 2019, S.J.’s visits with M.J. were suspended because
M.J. displayed fear of his father. The Attorney Guardian Ad Litem stated in her
report that “[M.J.] was exhibiting significant anxiety at the prospect of visitation with
[S.J.]. . . . [M.J.] was anxious about unsupervised visits with his father, due to fear
that his father would abscond with him.” At that time, the court also ordered that
M.J. begin counseling and that therapeutic visits between S.J. and M.J. should
begin upon recommendation of the counselor.
M.J. began seeing a therapist, Sara Wilson, in December 2019. She said
he was referred to her because M.J. had disclosed physical abuse, allegedly
perpetrated by S.J., sexual abuse, allegedly perpetrated by an older child, and
neglect, allegedly by his biological mother. M.J. met with Wilson on a weekly basis
at times, and at the time of the termination trial was meeting with her every other
week. When M.J. started treatment, his symptoms included flashbacks where “he
would have scary memories, he would have bad dreams, he would get flooded
with emotions when reminded of different aspects of his trauma.” When he
experienced these intrusive symptoms, he would hit himself, scratch his face, be
emotionally explosive, and have a hard time calming down and regulating his
emotions.
6 No. 83704-4-I/7
The dependency trial occurred on July 8 and 9, 2020. S.J. attended the
dependency trial. The transcript of that hearing is not in the record before this
court. Sean Wolter, a DCYF social worker, testified at the termination trial that S.J.
admitted at the dependency trial to using methamphetamines. On July 16, 2020,
the court entered an order finding M.J. dependent as to S.J. The order of
dependency found that S.J. was using methamphetamines, was unable to
appropriately regulate his emotions, was unable to provide a stable and safe
environment or stable housing or consistent access to school for M.J., both of
which were detrimental to the development of M.J., could not adequately care for
M.J, and that S.J. had untreated mental health problems. Pursuant to RCW
13.34.130, the court ordered S.J. to complete a drug and alcohol evaluation,
random UA testing, a parenting assessment, a domestic violence assessment, and
to follow all recommendations of evaluators and service providers. Christina
Pastor, a social service specialist, and supervisor of the social worker assigned to
this case, testified at the termination trial that she did not recall if S.J. had
completed any UAs before the dependency trial and that she did not recall if
anyone other than C.B. had brought up allegations of substance use by S.J.
S.J. completed an initial drug and alcohol assessment with Catholic
Community Services on August 5, 2020. A UA was collected, which tested positive
for THC (tetrahydrocannabinol), but negative for amphetamine. At intake, S.J.
disclosed regular use of cannabis, at “ ‘a quarter gram’ ” weekly and stated his last
7 No. 83704-4-I/8
date of use was August 5, 2020. Regarding use of stimulants, the intake form
states,
Onset of stimulant use occurred at age 20 with regular use beginning at that time. Use from age 20-25 reported to increase from twice monthly to daily use. Amount used was not reported. Period of sobriety reported for six years when his son was born, relapsing “about two years ago.” Use was reported to return to “almost daily” from 38-40. Date of last use reported as 7/10/20.
The particular stimulant S.J. reported using was methamphetamine. Substance
Use Disorder Professional Adult Counselor Trista Garcia diagnosed S.J. with
severe amphetamine substance use disorder. Garcia recommended that S.J.
attend an American Society of Addiction Medicine Level 2.1 Intensive Outpatient
Treatment Program, which includes three group sessions per week at two hours
per session for approximately 12 weeks, and individual sessions throughout
treatment. This was to be followed by outpatient treatment, level 1.0, which
includes three to six months of weekly group sessions and individual sessions as
required. The latest outpatient group meets from 6:00 p.m. to 8:00 p.m. Garcia
mailed these recommendations to S.J. S.J. did not complete the treatment
recommendations.
S.J. was referred to a provider for a parenting assessment on August 18,
2020. S.J. did not complete the assessment because, as he testified, it was “[t]oo
far away. Too much paperwork.”
8 No. 83704-4-I/9
On October 22, 2020, S.J. was referred to the Social Treatment Opportunity
Program (STOP) for a domestic violence perpetrators assessment and treatment.
S.J. did not complete the assessment at that time and the referral expired.
On April 5, 2021, S.J. completed a parenting assessment with Dori
Guterson, a licensed clinical social worker. The assessment was completed in 10
hours over 8 weeks. M.J. was present for 3 hours of that time. Guterson stated
that S.J. appeared “not guarded, secretive, or elusive in any way[,] however[,] in
reading through the court and [Department] reports it appears he left out many
facts.” Guterson’s report stated she “did not find any traits that brought me to
pause or believe that these said traits would make [S.J.] be unable or unfit to parent
his son.” Further, “[S.J.] is capable of providing adequate and consistent parenting
for his son. He is very protective and in our conversations, appears to really know
and understand his son.” Guterson noted that “[S.J.] is skilled in reading,
interpreting, and attending to his son’s cues and moods. . . . [I]t was clear to me
that he observes his son and is in tune with his son’s emotional and physical
needs.” She stated that S.J. and M.J. would benefit from family counseling.
Guterson stated, “[S.J.] may have a challenging time admitting his faults, but would
strive to be a positive role model for his son. [S.J.] works hard at providing a
financially stable life for his son and takes pride in this.” When she wrote the report,
Guterson was under the impression that S.J. was attending drug and alcohol
classes two times a week. Guterson testified that she would be concerned to hear
9 No. 83704-4-I/10
that S.J. did not engage in substance use treatment and disappointed to hear that
S.J. had not engaged in family counseling.
S.J. was referred to STOP for a Domestic Violence Assessment a second
time on April 7, 2021. S.J. did not complete the assessment. S.J. traveled to the
STOP office, where he received the paperwork to for the assessment but did not
complete it because he became upset that it requested information regarding his
driving history, information he felt was unnecessary.
C
On May 13, 2021, the Department filed a petition for termination of the
parent-child relationship between M.J. and S.J. The petition stated that S.J.’s
parenting deficiencies included “lack of parenting skills, domestic violence,
substance abuse issues, and lack of safe and stable housing.” The petition stated
“within Snohomish County, the father has had seven (7) criminal matters related
to domestic violence.” The record before this court does not contain further
information about S.J.’s alleged criminal history. In Guterson’s report, S.J.’s
criminal history is described as a “Temporary Restraining Order that was in place
for 2 weeks, then dropped.”
On July 23, 2021, S.J. was referred to the Institute for Family Development
for “Triple P” services. The referral form stated, “The father has completed a
parenting assessment and [it] was determined that he would benefit from
completing parenting classes to help the father learn appropriate emotional
10 No. 83704-4-I/11
regulation and parenting skills to appropriately meet the needs of the youth. The
youth has expressed that he struggles with connecting on a meaningful manner
[sic] with the father during visitation and the father does not believe that he
currently has an[y] parental deficiencies.” On August 1, 2021, Institute for Family
Development Therapist Giannina Bartholomew called S.J. He answered the
phone, and when the therapist offered different times to meet, S.J. responded, “ ‘so
call me when you have free time.’ ” Bartholomew explained that they were in-
home services, which S.J. stated he found weird. S.J. then said he “ ‘didn’t need
this’ ” and hung up the phone. S.J. did not make contact again, so the referral was
closed.
C.B. relinquished her parental rights after a settlement conference on
December 9, 2021.
D
Trial on the termination of S.J.’s parental rights was held on December 20-
21, 2021.
The Department presented substantial evidence of M.J.’s needs. At the
time of the termination trial, M.J. was living in a licensed foster home. This was
not a permanent placement, but the foster mother Laura Cohn testified that M.J. is
welcome there until he has a permanent placement. Cohn testified that when M.J.
was first placed in her home, he suffered from three to five dysregulation episodes
11 No. 83704-4-I/12
a day where it would take Cohn 45 minutes to an hour to sit with him and help him
to calm himself. M.J.’s episodes had become much less frequent by the time of
the termination trial, but could still be triggered by unknown, unanticipated changes
in schedule, and transitions. Cohn testified that M.J. does well when he knows
what to expect in a day, and that he “really has a sense of confidence around
helping around the house and being able to contribute to the people around him”
that “extends to the classroom as well.” Cohn testified a large portion of time is
spent supporting M.J. and making sure he feels comfortable with what to expect in
the upcoming time. Cohn testified that after visits with S.J., M.J. “regresses a little
bit.” In the time before the trial, M.J. had stomachaches and anxiety, and “a couple
episodes where he’s come home and been really angry.” Cohn stated there have
been “several times where he’s had outbursts and been crying and inconsolable,
and said things like, ‘Why did I get bad parents,’ and, ‘Why am I just this unlucky,’
and ‘Why am I in foster care.’ ”
M.J. has been diagnosed with posttraumatic stress disorder (PTSD) and
attention deficit hyperactivity disorder (ADHD). Sara Wilson, M.J.’s therapist, has
treated him with trauma-focused cognitive behavioral therapy (TF-CBT). TF-CBT
is a treatment that includes multiple steps: developing coping skills to help M.J.
regulate himself; gradual exposure to the traumatic things M.J. has been through,
so he can talk about it; assessing and developing safety skills; and emotional
regulation. Wilson testified that at the time of trial, M.J. was in the gradual
12 No. 83704-4-I/13
exposure phase of TF-CBT for over a year, which “has been pretty difficult for him.”
Wilson testified that over the course of treatment he has developed positive coping
skills and his self-harm has gone down. M.J. is not done with treatment. Wilson
recommended further treatment, and said that “if he continues with therapy,
especially as stability increases in his life, I have no doubts that he will graduate
from [the gradual exposure] stage.” Further, she said that with stability within the
next six months and continued treatment, she could see M.J. moving on from this
stage within the next year, and that she was not sure he would be able to do so
without stability. And Wilson testified that M.J. having continued instability in his
life would “absolutely” impact his emotional well-being. According to Wilson,
having no access to his dad might be challenging for M.J., and “[i]t might cause
some attachment wounds.” She said it was impossible to weigh those harms
against each other.
At the time of the trial, M.J. was on an Individualized Education Program
(IEP), a program designed to help children that are falling behind educationally or
behaviorally. M.J. was falling behind in his reading and writing skills. To manage
M.J.’s educational needs, his foster parents have frequent contact with his school.
S.J. testified at the termination hearing. He sometimes was defensive or
uncooperative and did not want to answer questions that he did not think were
relevant. Multiple times, the court had to remind S.J. to avoid commentary and
13 No. 83704-4-I/14
answer the questions he was asked. S.J. interrupted the proceedings at several
points.
S.J. never completed a domestic violence assessment. At the termination
trial, S.J. testified that he had never yelled at C.B. or called her names, and that
he had never been physical with her, except when trying to protect himself by
“pushing her away from me, stuff like that.” S.J. testified that C.B. “was the one
being physical with [him].” He did not feel he needed to complete a domestic
violence assessment and stated, “It doesn’t pertain to any of the case. I passed
everything else, so why do you stabbing[,] stabbing, stabbing, stabbing.” Wolter
testified that M.J.’s previous disclosure of physical assault by S.J. caused the
Department to be concerned for M.J.’s safety with S.J. And Wolter testified that a
domestic violence assessment is necessary for S.J. because of prior protection
orders “that are in place towards the mother, the child, and other relatives,[3] as
well as . . . the disclosures of possible physical abuse from the child.” Wolter stated
he believed the assessment could be beneficial because “during the assessment
they would be able to conduct a brief evaluation of [S.J.’s] mental health to
determine if there are any possible concerns regarding his mental health . . . and
how that could possibly be affecting his behavior.”
Despite Wolter’s reference to other “relatives,” other than orders regarding 3
C.B. and M.J., the record contains evidence only of an antiharassment order regarding S.J.’s sister-in-law. 14 No. 83704-4-I/15
S.J. completed a substance abuse intake with Catholic Community
Services, but there is no evidence he entered treatment. When asked if he had
testified at the dependency trial that he had used methamphetamine the day prior,
S.J. responded, “I don’t recall. Possibly.” S.J. was asked if he had told Guterson
that he was engaged in drug and alcohol classes at the time of her parenting
assessment. He responded, “At the time I was trying to get through the thing, yes,
but that’s just more of a hoop. That’s ridiculous to me, drug UA, and all that, so I
am not going to sit there and jump through hoops for nothing.” When asked about
substance use at the termination trial, S.J. responded, “Yes, once or twice, maybe”
for cannabis use and “I don’t recall” for methamphetamine use. When asked if he
had ever admitted he used illegal substances, S.J. responded, “Maybe just to shut
you guys up possibly.” When asked specifically when he had last used
methamphetamine, S.J. was not able to give even a rough estimate of when he
had last used, stating, “I don’t know the dates . . . so 2020, 2021, I don’t know the
year exactly either.” When asked how many UAs he had taken, S.J. responded
“Three, four. I am not wasting my life on ridiculous stuff like that.” When asked
when he had last taken a UA, S.J. stated, “I don’t have time to think about stuff like
that, nor do I want to. Time, I will never get back time spent with my son.”
Wolter testified that he attempted to contact S.J. to ask him to take a UA
test “this month,” however he did not receive a response because the text message
would not go through. Wolter testified that he asked S.J. to complete a UA test in
15 No. 83704-4-I/16
late October or early November 2021, and that he had offered to provide the UA
as well as drug and alcohol treatment program options in the Tacoma area, closer
to where S.J. was working. In total, Wolter testified that since March 2021, he had
requested S.J. complete four or five UAs. S.J. did not complete them.4 When
asked why he thought the services were ordered for him, S.J. said, “It’s about the
money, just about the system. . . . Hearsay is all it is.” S.J. said he would participate
in the services if he were able to attend them, and when asked what was keeping
him from attending them, S.J. said, “Myself. Logic.” When asked if he would
comply if offered a UA on that day, S.J. said, “Hell no. I am at home. . . . I am
going to work, so absolutely not. . . . Would you waste your time for nothing? No
you wouldn’t.”
Wolter testified that active methamphetamine use would hinder S.J.’s ability
to readily meet all of M.J.’s needs and prevent S.J. from being able to safely
respond to any emergencies. Wolter had provided S.J. multiple lists of nearby
service providers for substance use treatment that were sent by mail as well as e-
mail, and he informed S.J. of evening classes that would work around his work
schedule. S.J. would have needed to participate in a new assessment. When
Wolter asked S.J. to participate in another assessment in March 2021, S.J.
“appeared reluctant to . . . do so,” and “reiterate[ed] that he did not believe the
4 In the Department’s petition for termination, it stated that on October 16, 2020 a UA was completed and it was negative for all substances. Its petition for termination also stated that a UA was completed on March 3, 2021, and it was positive only for cannabinoids and THC-Delta-9. 16 No. 83704-4-I/17
services were necessary at that time, and that there wasn’t any . . . concerns
regarding his substance use.”
Several witnesses testified with respect to S.J.’s ability to parent M.J. S.J.
testified that at the time of the trial he worked for a construction company, that he
works 40 to 60 or more hours a week, and that with commute time included his
work hours were approximately 5:00 a.m. to 7:00 or 7:30 p.m. At the time of the
trial, his work mainly consisted of demolishing and rebuilding decks. Over the
course of his testimony, S.J. was not able to provide a clear account of his work
history.
S.J. testified that he did not recall being contacted by therapist
Bartholomew, and that he did not recall anyone contacting him about setting up an
appointment for family therapy.
S.J. testified that he has difficulties with paperwork:
I am terrible with the paperwork day-to-day things. I am good at going to work, getting the boy to school. Great. But day-to-day paperwork, making appointments, going somewhere at a certain time, actually making the appointment and getting there, you know? I show up to work. I can be there at five o’clock in the morning in Renton for work, but to make an appointment and actually going there and set it all up, it is just not very good about that. My mom always took care of everything. I was a mama’s boy. She pretty much did everything from paying my bills to holding my money until payday, you know, whatever. Just whatever.
S.J. stated that, if M.J. was in his care, he would be willing to ask for assistance
with these things, but did not identify anyone who would be able to help him.
17 No. 83704-4-I/18
S.J. testified that his 14 year old daughter, who is not a party to this case
and does not reside with him, has not attended school for two years “because her
mom doesn’t . . . make her.” When asked what he has done about this, S.J. stated,
“Again, more paperwork, and I already have enough on my plate. Like, I am going
to bring that on my plate right now? It’s on the list.”
Wolter testified to concern over S.J.’s conduct during visitations. S.J. was
not always compliant with COVID-19 masking requirements, and would fall asleep
during visits with M.J. During visits, S.J. sometimes discussed off-limits topics,
such as the ongoing case, with M.J. S.J. expressed that he did not agree with the
visitation rule prohibiting him from talking about the case with M.J. stating, “That’s
my son. We talk about what I want to talk to him about.” Sharon Ackerman, M.J.’s
visit supervisor, testified that she began supervising visits between S.J. and M.J.
in the summer of 2020, and that she was still supervising visits up until the trial in
late December 2021. Of the 48 visit reports in the record, 15 mention S.J. falling
asleep, appearing to fall asleep, or closing his eyes. In each of these 15 visit
reports, S.J. had first fed M.J., and M.J. was watching a video, playing video
games, or, in one instance, napping alongside S.J. S.J. testified, “I take a nap
because I work 70 hours a week, and we are watching movies. Who doesn’t take
a nap watching a movie[? W]hen have I fallen asleep when I am doing
something?”
18 No. 83704-4-I/19
At the time of the trial, S.J. testified that he was ready to parent full time, but
needed to find a place to live closer to M.J.’s school and “get everything in order.”
Social work supervisor Pastor testified that in order for M.J. to be returned
to S.J.’s care, S.J. would need to “either engage in the recommendations of his
drug and alcohol evaluation, if the assessor believes those recommendations are
still current, or complete an updated evaluation,” provide clean UAs showing
continued sobriety, participate in a domestic violence evaluation and follow any
recommendations for services, and participate in the recommended family
counseling with M.J. Pastor testified that she did not think these requirements
could be met for at least six months, but potentially would take up to a year,
depending on treatment recommendations. Pastor also testified that lengthy foster
care creates a situation where children do not have stability or permanency, a
concern that is heightened for M.J. because he struggles with uncertainty.
Wolter testified that he did not believe S.J. was able to parent M.J. at the
time of the trial. This opinion was “based off of the collective amount of time that
. . . the dependency action has been open, as well as [S.J.] having completed a
few of the programs, mainly the drug and alcohol assessment, and the parenting
assessment; however, he did not follow through with any of the . . . follow-up
recommendations for treatment of these identified concerns.”
19 No. 83704-4-I/20
II
S.J. challenges one finding of fact and two conclusions of law: (1) finding of
fact 16, determining that continuation of the parent-child relationship is a significant
barrier to M.J. finding a permanent, loving home, (2) conclusion of law 10,
determining that continuation of the parent-child relationship clearly diminishes
M.J.’s prospects for early integration into a stable and permanent home, and (3)
conclusion of law 11, determining that termination of parental rights is in M.J.’s
best interests. We accept as true all other findings of fact in the termination order.
In re Interest of Mahaney, 146 Wn.2d 878, 895, 51 P.3d 776 (2002).
This court’s role in reviewing a trial court’s decision to terminate parental
rights is limited to assessing whether substantial evidence supports the trial court’s
findings. In re Parental Rights to D.H., 195 Wn.2d 710, 718, 464 P.3d 215 (2020).
“The trial court’s findings will not be disturbed unless there is an absence of clear,
cogent, and convincing evidence in the record. We defer to the trial court’s
weighing of the evidence and witness credibility determinations.” Id. We review
de novo whether the court’s findings of fact support its conclusions of law. In re
Parental Rights to K.M.M., 186 Wn.2d 466, 477, 379 P.3d 75 (2016).
To terminate parental rights, the Department must first establish the six
elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW
13.34.190(1)(a). The “clear, cogent and convincing” burden of proof requires that
the evidence be substantial enough to allow the court to conclude that the
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allegations are highly probable. In re Dependency of A.V.D., 62 Wn. App. 562,
568, 815 P.2d 277 (1991). Second, the Department must prove that termination
is in the best interests of the child, by a preponderance of the evidence. RCW
13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.2d 1104 (2010).
The criteria for establishing the best interests of the child are not capable of
specification because each case is dependent upon its own facts and
circumstances. In re Dependency of K.W., 199 Wn.2d 131, 152, 504 P.3d 207
(2022).
S.J. challenges only one of the termination elements: “that continuation of
the parent and child relationship clearly diminishes the child’s prospects for early
integration into a stable and permanent home.” Former RCW 13.34.180(1)(f)
(2018).5
The Department can meet its burden to prove former RCW 13.34.180(1)(f)
in two ways. In re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013).
First, it can prove that prospects for a permanent home exist, but the parent-child
5 Effective June 9, 2022, the legislature amended former RCW 13.34.180(1)(f) adding new language: (f) That continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home. In making this determination, the court must consider the efforts taken by the department to support a guardianship and whether a guardianship is available as a permanent option for the child. LAWS OF 2022, ch. 127, § 2(1)(f). 21 No. 83704-4-I/22
relationship prevents the child from obtaining that placement. R.H., 176 Wn. App.
at 428. Alternately, it can prove that the relationship has a damaging and
destabilizing effect on the child that would negatively impact the child’s integration
into any permanent and stable placement. Id. The Department is not required to
demonstrate a specific prospect for permanent placement to prove former RCW
13.34.180(1)(f). K.D.S., 176 Wn.2d at 658. Former RCW 13.44.180(1)(f) “ ‘is
mainly concerned with the continued effect of the legal relationship between parent
and child, as an obstacle to adoption.’ ” In re Dependency of M.-A.F.-S., 4 Wn.
App. 2d 425, 450, 421 P.3d 482 (2018) (quoting In re Dependency of A.C., 123
Wn. App. 244, 250, 98, P.3d 89 (2004)).
Here, the Department argues that it proved M.J. has prospects for adoption
and that termination of parental rights is therefore necessary to facilitate
permanency. S.J. argues that the Department did not show there was an
“imminent adoptive home” for M.J. and, therefore, S.J.’s legal relationship with M.J.
is not preventing any adoption from occurring. The record supports the
Department’s position. Pastor testified that the Department had identified two
prospects for permanent placement: (1) a home study was ongoing for adoptive
placement with a maternal aunt with who had adopted M.J.’s older siblings, and
(2) a selection committee had been set up to interview potential permanent
families.
22 No. 83704-4-I/23
This is substantial evidence supporting the superior court’s finding of fact
16 that “[t]he continuation of the parent-child relationship is a significant barrier” to
M.J. finding a permanent home. This in turn supports conclusion of law 10 that
continuation of the parent-child relationship would diminish M.J.’s prospects for
integration into a stable and permanent home under former RCW 13.34.180(1)(f).
In evaluating M.J.’s best interests, Washington law places priority on
children’s rights of “basic nurture, physical and mental health, and safety.” RCW
13.34.020. The right of a child to basic nurturing “includes the right to a safe,
stable, and permanent home and a speedy resolution of any proceeding under this
chapter.” Id. S.J. argues he “raised his son most of the child’s life, and the two
continued to share a close relationship.” S.J. reasons that termination is not in
M.J.’s best interests because the trial court “fail[ed] to account for the fact that
family preservation, even when the family is imperfect, is now broadly understood
to promote children’s long-term well-being in ways that “legal ‘permanence’ ” does
not. S.J. supports this reasoning by citing to several studies and article that he
does not show were before the trial court. This builds on S.J.’s argument at trial
that he was not deficient in the ways the dependency order indicated, that the
ordered assessments and treatment were not necessary, and that as a result his
parenting ability was not so compromised that termination would serve M.J.’s best
interests. While S.J.’s explicit assignments of error are narrow, his argument on
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appeal rests on the broader contention that the trial court neglected to balance
S.J.’s deficits as a parent, which he contends are less severe than the Department
portrays, against the harm of parental separation.
On review of the termination record, it is true the Department did not put
forth evidence that supported all of the deficiencies claimed in the dependency.
For purposes of establishing that termination is in M.J.’s best interests, the
Department was not entitled to rely on the res judicata effect of dependency orders
and dispositional plans. In re Dependency of K.R., 128 Wn.2d 129, 145, 904 P.2d
1132 (1995). At the same time, however, the termination trial was not a vehicle
for S.J. to relitigate the dependency orders, nor are the dependency orders before
us on review. Although we conclude the termination record does not always fully
support the asserted deficiencies in S.J.’s parenting, we nevertheless conclude
that the record provides substantial evidence supporting the trial court’s
termination order.
S.J. concedes that the court’s findings of fact are generally consistent with
the record, taking exception to the court’s finding of fact 7, in which the court found
S.J. had completed a drug and alcohol assessment that determined he was
suffering from severe amphetamine use disorder, and that S.J. was “engaged in
nearly daily use.” This appears to refer to the assessment done in August 2020—
which was 17 months before the termination order entered in January 2022—in
which S.J. admitted methamphetamine use. The daily methamphetamine use
24 No. 83704-4-I/25
finding is apparently contradicted in finding of fact 8, where the court found that “it
is unclear as to whether [S.J.] continues to use illicit substances.” The trial court
was entitled to rely on the August 2020 assessment in ultimately ruling that one of
S.J.’s parental deficiencies is “admitted ongoing use of methamphetamines.” The
record before the termination court and before this court nevertheless is silent as
to whether such use was “ongoing” in January 2021.
The trial court found that one of S.J.’s parental deficiencies is “mental health
issues.” However, the record does not contain any evidence of the nature of any
mental health issue. There is evidence that S.J. does not always regulate his
emotions. Wolter testified that a domestic violence assessment would include “a
brief evaluation of [S.J.’s] mental health,” but there is no mention of S.J. being
assessed or recommended assessment for mental health treatment. While the
dependency order contained a finding of fact that S.J. had “untreated mental health
problems,” the dependency order does not further define these “problems” and, as
noted, does not receive res judicata effect. K.R., 128 Wn.2d at 145. The
termination record does not contain allegations or evidence of any specific mental
health issues S.J. faces and does not disclose how they limit his parenting or pose
a risk to M.J. Since no such finding is supported by the record, it does not support
a conclusion that termination is in M.J.’s best interest.
The trial court’s remaining findings of fact nevertheless provide sufficient
evidence supporting its conclusion, by a preponderance of evidence, that
25 No. 83704-4-I/26
termination of the parent-child relationship is in M.J.’s best interests. The record
demonstrates that M.J. has specific needs for stability and permanency and that
S.J. has not engaged in the services needed to be able to care for M.J., especially
given those heightened needs. There is evidence in the record that S.J. lacks
parenting skills in that he is unable to keep track of the paperwork necessary to
manage M.J.’s health and educational needs and was not able to provide a stable
living environment for M.J. at the time of the termination proceeding. The fact that
S.J. delayed and refused to engage with the ordered services caused M.J. to
remain in an uncertain state from the date of the shelter care hearing on October
10, 2019 until the termination trial over two years later, which started on December
20, 2021. Evidence presented at the trial did not show any indication that S.J. was
willing to engage with services in the future. This was true for family counseling
services and services to assess for and treat substance abuse and domestic
violence, both of which would be useful in developing S.J.’s skills to meet M.J.’s
needs associated with PTSD and ADHD. While S.J. contended he was able to
parent M.J., he conceded he would need to find a new place to live to do so. There
was no evidence S.J. had taken any steps to establish this provision for M.J.’s
needs. Even if S.J. were to begin the recommended assessments and treatments
the day after the termination trial, it would have been another 6 to 12 months before
M.J. could be returned to his care. The trial court’s findings describing these
deficiencies were supported by substantial evidence and they were sufficient to
26 No. 83704-4-I/27
support the trial court’s conclusion that termination was in M.J.’s best interests.
Affirmed.
WE CONCUR: