In re Parental Rights to D.H.

• Court: Washington Supreme Court
• Decided: June 4, 2020
• Docket: 97311-3
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE JUNE 4, 2020 SUPREME COURT, STATE OF WASHINGTON JUNE 4, 2020 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Parental Rights ) to D.H., S.T., L.L, and T.L., ) No. 97311-3 ) Minor Children. ) ) B.B., ) En Banc ) Petitioner, ) ) v. ) ) STATE OF WASHINGTON, ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES, ) ) Respondent. ) ) Filed June 4, 2020

JOHNSON, J.— This case concerns whether the Department of Social and

Health Services 1 (Department) fulfilled its statutory obligation under RCW

1 Subsequent to the filing of this case, on July 1, 2018, the powers, duties, and functions of the Children’s Administration within that department were transferred to the newly formed Department of Children, Youth, and Families. RCW 43.216.906. For the purposes of this case, DSHS will be referred to as the Department. No. 97311-3

13.34.180(1)(d) to provide a mother necessary services before terminating her

parental rights. B.B., the mother of D.H., S.T., L.L., and T.L., had her parental

rights terminated after a nearly three-year long dependency. B.B. contends that the

Department failed to provide her timely dialectical behavior therapy (DBT) and

neuropsychological services and that the parenting education services she received

were not properly tailored to her mental health needs. A Court of Appeals

commissioner affirmed the termination, finding that the Department provided and

properly tailored all necessary services to B.B. We affirm the termination of B.B.’s

parental rights. Substantial evidence supports the trial court’s finding that all

necessary and ordered services were offered or provided.

FACTS

B.B. is the mother of four young children: D.H., S.T., T.L., and L.L., who

are now between the ages of 4 and 11 years old. The Department first became

involved with the family in 2009. Before filing for dependency, the Department

had received 11 referrals regarding neglect, lack of hygiene, unsanitary living

conditions, drug use, and domestic violence.

There were serious concerns about the physical condition of the home. On

numerous visits, the home was laden with garbage, animal feces, and decay;

visitors reported palpable stenches when they approached the home. The children

were often soiled and unkempt; on multiple occasions, they were observed as

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underdressed during cold weather. The Department also identified safety concerns.

The physical environment posed health and safety risks, and abuse was also

prevalent in the home. Joseph Lewis, the father of T.L. and L.L., regularly

perpetrated abuse toward B.B. She had obtained a no-contact order against him,

but a Department investigation revealed that Lewis had remained in the home and

fathered L.L.

The parents were also unable to adequately address the children’s health and

well-being. The older children’s school officials voiced concern about the lack of

regular attendance, which persisted. Additionally, the children experienced various

health issues and did not receive prompt medical care. The children also exhibited

behavioral issues that required heightened care, which was not provided in the

home.

The evidence presented at the termination trial outlines the family’s long

history of department involvement and the numerous efforts made to resolve

B.B.’s parental deficiencies. Before this dependency petition was filed, B.B.

received a variety of services from the Department, including therapy, Family

Preservation Services, and Homebuilders. Early department intervention was

unsuccessful, and after repeated intakes, home visits, educational services, and

counseling, the three older children were removed from B.B.’s care in June 2015,

and L.L. was removed in August 2015, just a few days after she was born. They

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have not resided with B.B. since. B.B. agreed to the dependency; the three older

children were found dependent in July 2015, and the youngest child was found

dependent in September 2015. The parental deficiencies identified included

unsanitary living conditions, unsafe exposure to domestic violence, and the

parent’s inability to address the children’s medical needs.

Dependency

Throughout the three-year dependency period, B.B. engaged in primarily

supervised visitation with the children. She also received various counseling and

educational services: Promoting First Relationships, Positive Parenting Program,

hands-on parenting instruction, Parent Protection group, individual counseling, and

domestic violence victim treatment. The court also ordered B.B. to receive a

psychological evaluation and to follow recommendations, participate in mental

health counseling, and engage in parenting education. Both a psychological and a

neuropsychological evaluation were completed.

In October 2015, B.B. received the psychological evaluation from Dr.

Whitehill to assess her parenting abilities. The evaluation report largely identified

areas of concern: B.B. lacked a proper understanding of the children’s

developmental needs, was unable to divide her attention between children

appropriately, lacked authority, and did not fully understand her own deficiencies.

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Dr. Whitehill recommended a neuropsychological evaluation to determine her

comprehension ability.

The Department followed Dr. Whitehill’s recommendation and issued three

referrals for a neuropsychological evaluation. The Department issued the first

referral in February 2016 and a second referral in June 2016. B.B. scheduled an

appointment but failed to attend due to a conflict with a visitation. The Department

then issued a third referral in July 2016. The date of the appointment is unknown,

but B.B. attended. Dr. Shepel, the neuropsychologist, issued her evaluation report

in November 2016.

Dr. Shepel determined that B.B.’s level of functioning was overall average,

but B.B. was found to be performing below average in a variety of skills,

particularly she was unable to notice visual safety risks to her children. Dr.

Shepel’s report noted that “[a]lthough cognitively . . . capable of learning and

understanding of the developmental needs and her children’s difficulties, she may

not be able to actually apply her knowledge in the real life situations.” Sealed Ex.

78, at 16. Among other treatments, Dr. Shepel recommended that B.B. attend a

DBT group for 12 months to utilize cognitive methods “to implement safe personal

boundaries, and to restructure the black-and-white thinking, procrastination,

avoidant behaviors, and to learn to accept responsibility for her choices with

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increased honesty and insight into her past dysfunctional behaviors.” Sealed Ex.

78, at 16-17.

B.B.’s social worker referred her to DBT, but it was not available because

the local provider lacked qualified staff. The social worker understood that B.B.

would be contacted when it was made available. He also contacted other providers

in the general area, and none were offering DBT. Once the service became

available in February 2018, B.B. began participating.

During the dependency, B.B. also received a variety of counseling and

education services to improve her parenting skills. Cynthia Dyrnes treated B.B. for

most of the dependency until trial. In July 2015, Dyrnes began facilitating

Parenting Protection group. The treatment focused on teaching B.B. accountability

and responsibility for the effect of her actions on the children. After B.B.

completed the program in July 2016, Dyrnes provided individual counseling

primarily to treat B.B.’s anxiety, stemming from PTSD (post-traumatic stress

disorder) and childhood abuse. Dyrnes observed that B.B.’s anxiety manifests in a

“shutdown,” where she feels overwhelmed and unable to function. Verbatim

Record of Proceedings (VRP) (Mar. 7, 2018) at 78. Dyrnes utilized cognitive

behavioral therapy to help B.B. reduce stress and anxiety and to improve her focus,

concentration, decision-making, and organization. She also testified that B.B.

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progressed after receiving PTSD medication and an antidepressant for

approximately a year.

B.B. engaged in the Positive Parenting Program with Noel Villarivera from

August 2016 to February 2017. Villarivera observed that B.B.’s main deficiencies

were her primary focus on her infant, L.T., her feeling overwhelmed during

visitation when all the children were present, her failure to apply proper

disciplinary skills, and her anger. Although Villarivera testified that he believed

B.B. understood the proper parenting skills, she was unable to apply them during

visitation, so she did not graduate from the program.

B.B. also participated in Promoting First Relationships, counseling, and

Family Preservation Services with Brenda Sullens. Sullens provided Promoting

First Relationships for six months, focusing on B.B.’s parenting of the infant, L.T.

She then provided Family Preservation Services for three months from December

12, 2017 to March 28, 2018. Sullens testified that the training was individualized

to address B.B.’s disciplinary ability, provide her with knowledge of the children’s

developmental needs, and improve her relationship with the children. Consistent

with the observations of the other providers, Sullens observed that B.B. was unable

to balance her time among all the children.

Despite B.B.’s participation in services, the parenting issues persisted. The

children’s guardian ad litem observed at least 20 visitations, some as recent as

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three weeks before trial, and he described the visits with all four children present as

chaotic and overwhelming. Visits were reduced to three and later two children at a

time. He observed that B.B. tended to self-isolate with the infant, L.T. In 2017,

visitation was held once in a public setting, but it was hazardous and unsuccessful,

so visitation was moved back to the facility. Attempts to expand or modify

visitation proved largely unsuccessful in addressing B.B.’s parental deficiencies.

In later visitations, Sullens noticed some positive progression in B.B.’s

abilities where visitation was reduced to one or two children. However, B.B.

continued to struggle with providing discipline, balancing her attention among the

children, and understanding children’s social and emotional needs. Sullens opined

that without assistance, B.B. could not consistently apply the appropriate skills to

resolve the parental deficiencies. Sullens testified at trial that B.B. would not be

able to successfully manage all four children in a less restricted form of visitation.

Termination Proceedings

In November 2016, the Department petitioned for termination of B.B.’s

parental rights to all four children. In the petition, the Department identified B.B’s

deficiencies as her inability to parent safely and effectively and her failure to

protect her children. Trial was originally set for January 2017 and was continued at

least four times. A consolidated trial began in early March and continued in mid-

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April 2018. In July 2018, the trial court terminated B.B.’s parental rights. At the

time of termination, the children were between the ages of two and nine years old.

On appeal, B.B. challenged the trial court’s finding that the Department

fulfilled its statutory obligation under RCW 13.34.180(1)(d). B.B. claimed that the

termination of her parental rights should be reversed because of the delay in DBT,

delay in the neuropsychological evaluation, and the improper tailoring of the

parenting education to her mental health needs. A Court of Appeals commissioner

issued a ruling affirming the termination, determining that substantial evidence

supported the trial court’s findings. B.B. then sought discretionary review. We

granted review.

ANALYSIS

Our 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 K.M.M., 186 Wn.2d 466, 477, 379 P.3d 75 (2016). 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.

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)(i). Second, the Department must prove that termination is in the

9 No. 97311-3

best interests of the child. RCW 13.34.190(1)(b). At issue in this case is whether

the first prerequisite was met; that is, whether the Department satisfied the

elements of RCW 13.34.180(1).

B.B. challenges one element of RCW 13.34.180(1): whether the Department

satisfied its statutory obligation under RCW 13.34.180(1)(d) to provide all

necessary and court ordered services. Under this provision, the Department must

establish

[t]hat 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.

RCW 13.34.180(1)(d). A “necessary service” is a service “‘needed to address a

condition that precludes reunification of the parent and child,’” and may include

counseling, mental health treatment, and educational programs. K.M.M., 186

Wn.2d at 480 (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332

P.3d 500 (2014)). Where, as here, the claim is that the Department failed to offer or

provide a service, termination is appropriate if the service would not have

remedied the parental deficiency in the foreseeable future. RCW 13.34.180(1)(d).

Here, the trial court found that all “services ordered to the mother under

RCW 13.34.136 have been expressly and understandably offered or provided” and

“all necessary services capable of correcting the mother[’s] . . . parental

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deficiencies in the foreseeable future were offered.” Sealed Clerk’s Papers (CP)

T.L. at 216, 218. B.B. challenges the adequacy of three services she received

throughout the dependency—DBT, a neuropsychological evaluation, and parenting

education. First, she argues that her parental rights were terminated prematurely

before her completion of DBT group. Second, she asserts that the Department

failed to provide a timely neuropsychological evaluation. Third, she argues that the

parenting services she received were not properly tailored to her mental health

needs.

I. Length of DBT Group Treatment

The statute requires the Department to offer or provide “services ordered

under RCW 13.34.136 . . . and all necessary services, reasonably available, capable

of correcting the parental deficiencies within the foreseeable future.” RCW

13.34.180(1)(d). As a threshold matter, B.B. characterizes DBT as a service

ordered under the permanency plan, RCW 13.34.136, instead of a necessary

service. B.B. argues for a statutory interpretation that ordered services are not

subject to the “reasonably available” and “capable of correcting the parental

deficiencies within the foreseeable future” limitations.

In a dependency, the court orders services under the permanency plan and

modifies the plan over time. RCW 13.34.136(5). The first dependency review

hearing order required B.B. to “engage in [a] neuropsychological [evaluation] &

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follow recommendations.” Sealed S.T. Ex. 35, at 10. Subsequently, the

permanency plan was modified and the “follow recommendations” language was

omitted. By the time a neuropsychological evaluation was completed and DBT was

recommended in November 2016, it was no longer a part of the permanency plan.

Thus, the inquiry is whether DBT was a necessary service, reasonably available,

and capable of correcting B.B.’s parental deficiencies within the foreseeable future.

B.B. raises two issues with the Department’s provision of DBT, which she

received in February 2018, over a year after it was recommended in November

2016. She argues that the Department failed its obligation because (1) DBT was

delayed for over a year and (2) her rights were terminated prematurely before she

completed DBT.

First, B.B. argues that the Department did not provide her all necessary

services because DBT was delayed. The Department contends that DBT was not

reasonably available during the period of delay. The Department must provide

necessary services that are “reasonably available.” RCW 13.34.180(1)(d). The

dissent overlooks this statutory limitation and expands the Department’s duty too

far. The statute outlining permanency plan requirements expounds that the

“department shall provide all reasonable services that are available within the

department, or within the community, or those services which the department has

existing contracts to purchase.” RCW 13.34.136(2)(b)(vii).

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During the dependency, B.B. received her parenting services and attended

visitation in Shelton, Washington. B.B.’s assigned social worker testified that once

he received Dr. Shepel’s report recommending DBT, he attempted to enroll B.B. in

DBT with several local service providers. But no providers in the general area

were providing DBT group at the time, and B.B. made no request for an alternative

provider. The social worker organized the referral so that B.B. would be enrolled

once the service became available. When the service became available with a local

provider in February 2018, B.B. began participating. The record is void of any

evidence that DBT was otherwise available in the local community prior to

February 2018. The record also indicates that it was reasonable for the services to

be provided in Shelton. The dissent speculates that B.B. may have been willing to

travel further for DBT but ignores the fact that public transportation to a remote

treatment provider would have been unreasonable. For six months of the

dependency, B.B. testified that she lived in Aberdeen, Washington and made

regular six-hour trips to Shelton for services and visitation. B.B. told her counselor

that these exhaustive transportation times negatively affected her ability to secure

employment. Substantial evidence supports that, here, the Department was not

statutorily obligated to provide DBT during the period of delay because it was not

reasonably available.

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Second, B.B. contends that her rights were terminated prematurely. Her

strongest argument is that although the Department’s neuropsychological

evaluation recommended DBT, she was not given the opportunity to complete the

treatment. By the time of trial, she completed one month of DBT. The Department

argues that it was not obligated to provide a longer period of DBT before

proceeding with termination because the treatment was not capable of correcting

B.B.’s parental deficiencies within the foreseeable future.

While B.B.’s argument is compelling, the statutory authority and substantial

evidence support the trial court’s findings. RCW 13.34.180(1)(d) requires the

Department to offer treatments capable of correcting the parental deficiencies

within the foreseeable future. In In re Parental Rights to B.P., 186 Wn.2d 292,

317-18, 376 P.3d 350 (2016), we reversed a termination and reasoned that where

the mother successfully remedied her underlying deficiencies and the remaining

deficiency was the child’s detachment, the State could not terminate parental rights

on that basis without first providing attachment services. Although the Department

cited and relied on the lack of attachment as grounds for termination, it failed to

provide any form of attachment services.2 We reasoned that if “there were

2 Similarly, in In re Dependency of T.L.G., 126 Wn. App. 181, 199-201, 108 P.3d 156 (2005), the Department cited the parent’s mental health needs as an issue without identifying any connected parental deficiencies but, nonetheless, delayed mental health evaluations and failed to provide referrals for any mental health services until right before trial.

14 No. 97311-3

evidence that [the mother] had not progressed in treatment as expected . . . , then

the State’s actions might be reasonable,” but we found it significant the mother had

successfully completed all other services. B.P., 186 Wn.2d at 320. Her prior

success supported that she also had a reasonable probability of resolving the

attachment deficiency with attachment services. Thus, in that case, all necessary

services capable of correcting the parental deficiencies within the foreseeable

future were not offered or provided.

In contrast, the Department provided B.B. with various forms of treatment to

resolve her identified parenting deficiencies, and the services were ultimately

unsuccessful. B.B. made minimal progress in improving her parenting skills since

the Department’s involvement with B.B. began in 2009. B.B.’s prevailing

deficiencies were the unsanitary living conditions, exposure to domestic violence,

and her inability to address the children’s safety and medical needs. Before the

dependency action, the Department provided B.B. numerous services to improve

her parenting, including Family Preservation Services, Homebuilders, and therapy.

Despite these prefiling efforts, B.B.’s parental deficiencies continued, resulting in

removal of the children and the filing of the dependency action.

During the course of the dependency, the Department identified that B.B.’s

main deficiencies were her parenting skills and her inability to provide for the

needs of all four children. The Department conducted evaluations and arranged

15 No. 97311-3

various forms of parenting education, individual treatment, and programs aimed at

improving her parenting abilities, including individual counseling, Parenting

Protection group, Family Preservation Services, Promoting First Relationships,

Positive Parenting Program, domestic violence victim treatment, and mental health

counseling and medication. Despite the array of services provided to address

B.B.’s specific deficiency, her inability to care for her children, the court found

that B.B. was unsuccessful at remedying her parental deficiencies.

The Department proceeded to termination because it was evident during

supervised visitation that B.B.’s parental deficiencies continued. As the dissent

recognizes, B.B.’s efforts to participate in these programs was commendable, but

ultimately, she was still unable to implement appropriate parenting skills and meet

her children’s needs. The court found that visitation remained supervised in a

controlled facility for essentially the entire dependency up until trial. Even in this

restricted setting, visits were stressful, safety concerns remained, discipline was

inconsistent, and B.B. was unable to balance her attention. B.B.’s counselors, the

guardian ad litem, and visitation supervisors testified that B.B. showed little

progress. In later visits, the social worker and providers opined that B.B. exhibited

improved organization skills and structure, but B.B.’s ability to meet the social-

emotional needs of the children, implement discipline, and maintain a safe

environment persisted. Significant improvement was still needed for B.B. to

16 No. 97311-3

graduate to the next steps of unsupervised visitation or visitation in the community

with all her children present. The social worker and Sullens testified that even with

ideal progress from B.B., it would be at best a year before reunification was a

realistic possibility.

In light of B.B.’s inability to resolve her parental deficiencies through the

numerous services provided, the remaining inquiry is whether DBT specifically

would have been capable of correcting B.B.’s parental deficiencies within the

foreseeable future. RCW 13.34.180(1)(d). The dissent would also overlook this

statutory requirement where here no evidence suggests that DBT, if completed,

would have been capable of correcting B.B.’s parenting skills at all, let alone

within the foreseeable future. The court identified B.B.’s prevailing deficiency as

her inability to address the children’s emotional and physical needs exemplified by

her inability to implement parenting skills, maintain safe situations, address child

autonomy, and execute consistent discipline. The DBT group was recommended to

improve B.B.’s self-awareness, accountability for the actions that led to the

dependency, and insight into her past behaviors. No evidence supports that DBT

would have resolved B.B.’s inability to parent all four children safely in an

uncontrolled environment. As discussed earlier, the providers and observers

consistently testified that during supervised visitation B.B. showed little progress

in her parenting skills. Substantial evidence supports the trial court’s finding that

17 No. 97311-3

even in light of the incomplete DBT treatment, B.B. could not attend to her

children’s emotional or physical needs and her abilities were unlikely to change in

the near future.

The record does not support that DBT was a particularly significant

treatment. DBT was recommended as one of many treatments by Dr. Shepel, the

neuropsychologist, but she did not discuss DBT in her trial testimony. No witness

testified that DBT was the ideal treatment for B.B. The psychologist, Dr. Whitehill,

generally testified that DBT “is widely seen as a treatment of choice for personality

issues,” but did not specifically recommend DBT for B.B. VRP (Apr. 17, 2018) at

469. As the Department argues, trial was continued numerous times, but the record

does not reflect that a continuance was requested to allow for the completion of

DBT.

There is simply no evidence that completion of DBT would be capable of

resolving B.B’s deficiency. B.B.’s primary parental deficiency was her parenting

skills and, as discussed above, the Department provided numerous services aimed

at remedying that deficiency. Ultimately, the services provided were unsuccessful,

and the court did not find that it was in the children’s best interests to delay trial

further until B.B. completed DBT. The evidence suggests that a longer period of

DBT was not capable of correcting B.B.’s underlying parental deficiencies within

the foreseeable future. Substantial evidence supports the finding that the

18 No. 97311-3

Department fulfilled its statutory obligation to offer or provide all necessary

services.

II. Timely Provision of the Neuropsychological Evaluation

B.B. contends that the Department failed its obligation under RCW

13.34.180(1)(d) because her neuropsychological evaluation was delayed by

approximately a year. In October 2015, the psychological evaluation report

recommended that B.B. also receive a neuropsychological evaluation. The

Department made three referrals for a neuropsychological evaluation in February,

June, and July 2016. The neuropsychological evaluation was completed in

November 2016.

B.B. argues that the year-long delay violated the Department’s obligation,

and she relies on a set of cases where courts discuss the timely provision of

services. However, these cases do not establish that the Department fails its

obligation because of a delay alone. Rather, the cases establish that the Department

fails to provide all necessary services where the earlier delay in one service creates

a separate deficiency or results in an unaddressed deficiency in the course of

termination proceedings. This occurs in instances where the Department takes a

sequential approach and withholds a service or program and that decision

engenders additional parent-child bonding and attachment issues. In re Welfare of

S.J., 162 Wn. App. 873, 875-76, 256 P.3d 470 (2011). Another situation is where

19 No. 97311-3

the delay results in the Department ultimately never providing the service. See

B.P., 186 Wn.2d at 297; In re Welfare of C.S., 168 Wn.2d 51, 55-56, 225 P.3d 953

(2010). Neither situation exists here.

B.B. primarily relies on the holding of S.J., where the mother’s main

deficiencies were unsanitary living conditions and drug use. 162 Wn. App. at 876.

There, the Department delayed the mother’s mental health treatment until she was

sober, and by the time she remedied her deficiencies, her child had detached from

her. The Department then failed to provide her attachment and bonding services

and relied on the detachment as the basis for termination. S.J., 162 Wn. App. at

884. The court reversed the termination because the mother remedied her initial

parental deficiencies and the remaining issue, attachment, was exacerbated and

ignored by the Department.

But unlike S.J. and the other cases cited where the delay led to something

more, any delay here did not create a separate basis for termination or result in the

complete failure to provide a necessary service. The Department provided three

referrals after the evaluation was recommended. Even if the delay was attributed to

the Department, B.B. received a neuropsychological evaluation approximately 15

months before trial. During that period, it also provided individual mental health

counseling, Parenting Protection group, Family Preservation Services, Promoting

First Relationships, Positive Parenting Program, and domestic violence victim

20 No. 97311-3

treatment. In large part, by the time she received the neuropsychological

evaluation, B.B. was already participating in treatments that were recommended.

The record reveals that the evaluation was offered and completed with ample

time for B.B. to follow the recommendations. Ultimately, even with the completion

of these services, B.B. was unable to significantly improve her parenting skills

during supervised visitation. Substantial evidence supports the trial court’s finding

that the delay “did not significantly impact” B.B.’s ability to correct her

deficiencies; the Department fulfilled its statutory obligation. Sealed CP T.L. at

219.

III. Tailored Parenting Education

B.B. also argues that the Department failed to fulfill its statutory obligation

because it did not properly tailor the parenting services to her cognitive needs.

Within the prerequisite of RCW 13.34.180(1)(d), the services must be tailored to

the needs of the individual. In re Parental Rights to I.M.-M., 196 Wn. App. 914,

921, 385 P.3d 268 (2016). The Department is required “to identify a parent’s

specific needs and provide services to meet those needs.” I.M.-M., 196 Wn. App. at

924.

Substantial evidence in the record supports that the Department fully

investigated her mental health needs and appropriately tailored services. B.B.’s

main deficiency was her parenting skills. Accordingly, the court provided a

21 No. 97311-3

psychological evaluation with a parenting component, neuropsychological

evaluation, mental health counseling, several parenting education courses,

domestic violence support, and vocational training.

The neuropsychological evaluation determined that B.B. was cognitively

capable of learning and understanding the material, her prevailing issue was

applying the knowledge in real life situations. The neuropsychologist and B.B.’s

counselors identified that this difficulty stemmed from her anxiety, which was

treated with counseling. The neuropsychologist opined that to learn parenting skills

B.B. would benefit most from repetition, role modeling, rehearsal and correction,

and concepts broken down in parts. Once these specific needs were recognized, the

providers actively applied them. Villarivera, the Positive Parenting Program

instructor, worked with B.B. one-on-one, incorporated repetition, rehearsal and

correction, and used the sessions to address B.B.’s weakest skills. Similarly,

Sullens, the Family Preservation Services and Promoting First Relationships

instructor, worked one-on-one and used role modeling with B.B. Sullens targeted

her work on the areas where B.B. struggled: discipline, consistency, her

relationship with her children, and any issues that arose during visits. The record

supports that the Department identified B.B.’s specific needs and provided services

tailored to those needs.

22 No. 97311-3

CONCLUSION

In this case, B.B. actively participated in all the services she was offered but

was unable to resolve her parental deficiencies. While B.B. made consistent efforts

to improve as a parent, the children need a safe, stable, and permanent home. We

hold that substantial evidence supports the trial court’s finding that the Department

fulfilled its obligation to offer and provide all ordered and necessary services,

reasonably available and capable of correcting her parental deficiencies in the

foreseeable future, and affirm.

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WE CONCUR:

24 In the Matter of Parental Rights to D.H., S.T., L.L. & T.L.

No. 97311-3

MADSEN, J. (dissenting)—In 2015, Department of Social and Health Services

(DSHS) 1 removed four children, D.H., S.T., L.L., and T.L., from the care of their mother,

B.B. During the subsequent dependency proceeding, B.B. worked hard to address her

parental deficiencies despite the significant delay in obtaining the single most important

mental health service recommended by her psychologist, dialectical behavior therapy

(DBT). After more than a year of waiting, B.B. was finally able to engage in DBT. She

was allowed only one month of this therapy before her parental rights were terminated.

The termination of parents’ fundamental rights to the care and custody of their

children should be allowed only for the most powerful of reasons. In re Welfare of H.S.,

94 Wn. App. 511, 530, 973 P.2d 474 (1999). The majority concludes that such reasons

are present here. Yet it does so in the face of clear evidence to the contrary: the State

failed to timely provide the necessary DBT service to B.B. as required under RCW

1 As of July 1, 2018, responsibility for child welfare services was transferred from DSHS to the Department of Children, Youth and Families. RCW 43.216.906. I refer to the department as DSHS throughout this memo unless otherwise stated. No. 97311-3 Madsen, J., dissenting

13.34.180(1)(d). 2 By upholding the termination action, the majority reinforces the

detrimental notion that time is more important than family reunification. In short, the

majority disregards the paramount goal of child welfare legislation—to reunite the child

with his or her legal parents, if reasonably possible. In re Dependency of K.N.J., 171

Wn.2d 568, 577, 257 P.3d 522 (2011). I do not agree that sufficient evidence supports

the termination of B.B.’s parental rights, therefore I respectfully dissent.

B.B.’s children were removed from her care primarily because of parental neglect.

Throughout the dependency, B.B. suffered from multiple mental health challenges. A

victim of child abuse and neglect herself, B.B. struggled with debilitating anxiety and

post-traumatic stress disorder, she had trouble making decisions and problem solving,

and she struggled with the fallout of domestic violence perpetrated by the father of two of

her children. To address these challenges, the dependency court ordered B.B. to undergo

psychological evaluation and to follow the evaluator’s recommendations. B.B. did so.

She was initially evaluated, began seeing a therapist, and attended parenting classes.

During this time, the first in a series of delays in services occurred. B.B. was not

given a timely neuropsychological evaluation, which was delayed for over a year. When

2 RCW 13.34.180(1)(d) provides, 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.

2 No. 97311-3 Madsen, J., dissenting

at last B.B. was evaluated, she was found to have neurological issues impacting her

parenting and a learning disability. In response, B.B.’s evaluator recommended that she

engage in 12 months of DBT. The evaluator characterized this therapy as the “service of

choice” for B.B. Verbatim Report of Proceedings (May 10, 2018) (VRP) at 889.

Unfortunately, provision of DBT was also delayed.

Despite these delays, B.B. addressed her parental deficiencies. Combined with

medication, her anxiety lessened and she began to address the trauma she suffered as a

domestic violence survivor. B.B. also improved her parenting skills. B.B.’s therapist

noted that medication contributed to her progress, allowing her to better divide her

attention and discipline her children. Though B.B. struggled to effectively implement the

skills she had learned to manage the behavior of her older children, she had no such

challenges with her youngest child. B.B.’s supervised visits were hectic, but there was no

concern about the safety of her children.

Prior to termination, B.B. did all that was asked of her. She completed the

recommended classes, attended therapy, and took prescribed medications. She utilized

every available resource. B.B. also utilized DBT when it finally became available—one

month before DSHS successfully moved to terminate B.B.’s parental rights.

I would reverse the termination in this case because the State failed to provide all

reasonable and necessary services to correct B.B.’s parental deficiencies. RCW

13.34.180(1)(d).

3 No. 97311-3 Madsen, J., dissenting

To succeed in a termination action, the State must show that the six statutory

requirements under RCW 13.34.180(1)(d) are established by clear, cogent, and

convincing evidence. RCW 13.34.190(1)(a)(i). One of these requirements is that the

State must identify and timely provide necessary services that are needed to address a

condition precluding reunification. RCW 13.34.180(1)(d); see also In re Dependency of

T.L.G., 126 Wn. App. 181, 198-203, 108 P.3d 156 (2005); In re Welfare of C.S., 168

Wn.2d 51, 56 n.3, 225 P.3d 953 (2010). When the State suggests remedial services to a

parent, it has a statutory obligation to, at minimum, provide the parent with a referral list

of agencies or organizations that provide the services. In re Welfare of Hall, 99 Wn.2d

842, 850, 664 P.2d 1245 (1983).

In this case, the dependency court ordered B.B. to follow her psychological

evaluator’s recommendations. The evaluator recommended 12 months of DBT, noting

that the therapy would be “very helpful” and would be “the service of choice” for B.B. in

order for her to “restructure” her “black-and-white thinking, procrastination [and]

avoidant behaviors,” as well as to “learn to accept responsibility for her choices.” VRP at

889; Sealed Ex. 78, at 16-17. DBT was a necessary service. RCW 13.34.180(1)(d).

A relevant decision is T.L.G., 126 Wn. App. 198-203. In that case, the Court of

Appeals held that the State failed to offer or provide all necessary services in part because

“parental deficiencies were not identified, no treatment services were offered, and there

[was] no finding [that] they would have been unable to benefit.” Id. at 203.

4 No. 97311-3 Madsen, J., dissenting

Here, as in T.L.G., the protracted delay in services “cannot be laid solely (or even

mostly) at” B.B.’s feet. See id. at 201. In October 2015, B.B.’s psychologist

recommended she undergo a neuropsychological evaluation. She was referred for the

evaluation in February 2016. DSHS attributed this four-month delay to a change in her

assigned social worker. The record does not explain why the exam was not completed. In

June 2016, DSHS again referred B.B. for the evaluation, but the appointment date

conflicted with a scheduled visitation; B.B. chose her children over the evaluation. The

third referral occurred on July 19, 2016, and the evaluation was finally completed in

November, at which point DBT was recommended.

Unfortunately, the delays continued. While DSHS provided B.B. with a referral

list for parenting classes and therapy, the only recommended resource center for DBT did

not offer the service. Nor did any other provider in the area. B.B. was told she would

receive DBT at the local resource center as soon as a provider became available; this did

not occur until February 2018. There is no indication DSHS sought providers outside the

immediate area.

As the record shows, B.B. was not to blame for the dilatory provision of services.

The initial four-month delay in B.B.’s neurological evaluation occurred due to DSHS’s

internal decision to reassign her social worker. Apart from rescheduling one appointment

in order to visit her children, B.B. attended all scheduled appointments with her

evaluator.

5 No. 97311-3 Madsen, J., dissenting

Even if one rescheduling could shift some responsibility for the delay to B.B.’s

shoulders, the protracted delay in DBT can be laid only at the feet of DSHS. The State

has the statutory duty to at minimum provide the parent with a referral list of agencies or

organizations that provide necessary services. Hall, 99 Wn.2d at 850. In this minimal

duty, the State failed. DSHS identified one service provider and proceeded to wait for

that provider to begin offering the service at some point in the future. This action

conflicts with the State’s duty to refer a parent to an agency that can realistically provide

that service. Id.

The majority, however, concludes that DSHS was not statutorily obligated to

provide DBT during the period of delay because it was not reasonably available.

Majority at 13. It is worth noting that the trial court did not make a finding that DBT was

not reasonably available. Indeed, the court did not address it at all. It is the State’s

responsibility to prove that this necessary service was not reasonably available and, as

shown above, the State did not do so here. RCW 13.34.180(1)(d).

Nevertheless, the majority relies on two facts in the record that support its

conclusion. First, that B.B. spent much of her time during dependency traveling from her

home in Aberdeen to Shelton in order to attend the recommended classes and could not

realistically travel to a remote treatment provider. Majority at 13. Second, that DSHS

tried but could not secure DBT in the area where B.B. was living. Id.

I disagree with the majority’s characterization of the record and the conclusion the

majority draws from it. The majority is incorrect that for B.B., transportation to a remote

6 No. 97311-3 Madsen, J., dissenting

treatment provider would have been unreasonable. Id. Though B.B spent much of her

time traveling, there is no evidence she could not or would not travel farther to utilize the

“service of choice” recommended by her therapist. VRP at 889. Rather, the record states

expressly that B.B. was willing to put in the work toward reunification even though she

recognized it may have been too late to get her children back. B.B.’s willingness to

travel for much of her day to a location that provided the necessary services does not

support the majority’s statement that it was unrealistic for her to travel to other locations

to utilize DBT.

Similarly, the absence of a qualified DBT provider in B.B.’s area does not mean it

was not reasonably available. Gaps in medical care are not uncommon occurrences for

rural communities. See, e.g., GRAYS HARBOR COUNTY TASK FORCE ON HEALTH,

COMMUNITY HEALTH NEEDS ASSESSMENT: GRAYS HARBOR COMMUNITY HOSPITAL 1, 7

(2013),

https://www.ghcares.org/media/1187/ghch_community_health_needs_assessment.pdf

[https://perma.cc/3DJZ-XDGA] (noting the severe shortage of physicians in rural Grays

Harbor County). The need for rural mental health care is especially acute. Rural Mental

Health, RURAL HEALTH INFO. HUB, https://www.ruralhealthinfo.org/topics/mental-health

[https://perma.cc/GL39-DA4Q] (last visited May 29, 2020) (noting the long distances

rural residents must travel to receive services and chronic shortages of mental health

professionals outside urban communities). Rural communities have used creative

solutions to meet this need, such as expanding telemental health services. Id. But where

7 No. 97311-3 Madsen, J., dissenting

no resources are available, health care professionals refer patients to facilities outside the

community. Id.

In this case, DSHS did not follow the lead of rural health care providers. There is

no evidence that DSHS looked to other solutions to provide the necessary DBT service to

B.B., specifically, referring her to facilities outside her community and general area.

While the challenges in locating health care for rural patients can be formidable, they

pale in comparison to the effect of not providing such care to parents facing the

termination of their fundamental rights. Government must be held to a higher standard in

termination cases.

The majority reasons away the significant delay in providing DBT by listing all

the other treatments provided and noting the ways in which B.B. did not sufficiently

improve her parental deficiencies. See majority at 14-16. B.B. was offered and

participated in parenting classes and cognitive behavioral therapy. Yet she was not given

the therapy her evaluator specifically recommended until one month before the

termination trial began. Personal counseling is not equivalent to the targeted DBT

service that would have helped B.B. “restructure” her “black-and-white thinking,

procrastination [and] avoidant behaviors” as well as “learn to accept responsibility for her

choices.” Sealed Ex. 78, at 16-17. 3 The majority ignores these rationales from B.B.’s

3 The majority dismisses the importance of DBT as a “particularly significant treatment” for B.B. Majority at 18. In doing so, the majority highlights the lack of trial testimony to that effect. Id. Yet the record shows Dr. Tatyana Shepel recommended DBT in order to address specific parental deficiencies and mental health challenges: black-and-white thinking, procrastination,

8 No. 97311-3 Madsen, J., dissenting

therapist and instead points to B.B.’s lack of progress given other services to hold that the

failure to timely provide DBT is excusable. It is not.

The majority also affirms the trial court’s finding that B.B. is unlikely to be able to

parent in the near future. RCW 13.34.180(1)(d) requires necessary reasonably available

services capable of correcting parental behavior to do so in the “foreseeable future.” The

period of time constituting the “‘foreseeable future’ depends in part on the age of the

child.” Hall, 99 Wn.2d at 851. Here, the court’s foreseeable future finding was days or

weeks for B.B.’s children. But no witness testified and the court made no finding that

B.B. could not benefit from DBT. Relying on a parent’s “possible incapacity” to benefit

from DBT is insufficient grounds for termination. See In re Parental Rights to B.P., 186

Wn.2d 292, 319, 376 P.3d 350 (2016). Furthermore, without testimony on the effect of

DBT services, we cannot know what B.B.’s timeline would be to correct her parenting

skills.

Apart from B.B.’s specific parenting deficiencies and the work she did to address

them, it is also important to consider the reason her children were removed from her

care—parental neglect. B.B.’s home was often in disarray, dirty, unorganized, and

insufficiently “child-proofed.” Her children were reported as similarly unkempt and

sometimes in ill health. B.B.’s challenges consisted of depression and anxiety, among

avoidant behaviors, and lack of acceptance of responsibility for B.B.’s actions. This evidence is clear from Dr. Shepel’s report. Trial testimony on this topic would have no doubt been helpful to B.B.’s case, but it does not detract from its importance in the record before us.

9 No. 97311-3 Madsen, J., dissenting

other mental health concerns, which translated into an inability to do everyday tasks, such

as keep a clean house and attend to her children’s many needs. Yet this was not a case of

physical abuse by B.B. against her children. This type of parental deficiency does not cry

out for removal due to imminent harm to the children, rather it is one that lends itself to

skill based training and in-home assistance. Removal based on neglect and B.B.’s own

experience as a victim of parental abuse contribute to my view that additional effort was

warranted to break the cycle of removal and termination.

In light of the record before the court, I would hold that the State failed to provide

DBT, a necessary service, and did not prove that B.B. would be unlikely to be able to

parent in the near future. RCW 13.34.180(1)(d). Therefore, the State did not satisfy the

legal requirements to terminate B.B.’s parental rights and the termination should be

reversed.

Not only is today’s decision incorrect as it applies to B.B., it serves to reinforce

the harmful notion that removal is better for children than reunification. This court’s

decision continues down the unfortunately well-trodden path of other courts that consider

only whether a child is harmed while in a parent’s care—at the expense of the trauma

created by removal. I write separately to emphasize the grave consequences wrought by

termination in the hope of changing the conversation on child welfare away from the

default of removal back to the importance of family reunification.

10 No. 97311-3 Madsen, J., dissenting

I begin by reviewing the emotional, psychological, and physical harm of

separation on children. 4 Family separation has led to “catastrophic” results due to the

trauma of dividing a child from a parent. See Shanta Trivedi, The Harm of Child

Removal, 43 N.Y.U. REV. L. & SOC. CHANGE 523, 525 (2019). Recent studies have

shown the harmful, long-term effects of trauma on children’s brains. Children separated

from their parents at a young age have been found to have less white and gray brain

matter—fibers that transmit information throughout the brain and brain-cell bodies that

process information and solve problems. See William Wan, What Separation from

Parents Does to Children: “The Effect is Catastrophic,” WASH. POST, June 18, 2018,

https://www.washingtonpost.com/national/health-science/what-separation-from-parents-

does-to-children-the-effect-is-catastrophic/2018/06/18/c00c30ec-732c-11e8-805c-

4b67019fcfe4_story.html [https://perma.cc/6J8M-5GTL]. For children separated within

the first two years of their lives, the damage is even worse. These children scored lower

4 See, e.g., Allison Eck, Psychological Damage Inflicted by Parent-Child Separation is Deep, Long-Lasting, NOVA NEXT (June 20, 2018), https://www.pbs.org/wgbh/nova/article/psychological-damage-inflicted-by-parent-child- separation-is-deep-long-lasting/ [https://perma.cc/2G3B-K5S6] (quoting a psychiatric epidemiologist who states, “The scientific evidence against separating children from families is crystal clear . . . . No one in the scientific community would dispute it”); Sara Goudarzi, Separating Families May Cause Lifelong Health Damage, SCIENTIFIC AMERICAN (June 20, 2018), https://www.scientificamerican.com/article/separating-families-maycause-lifelong-health- damage/ [https://perma.cc/A8ZB-8329] (documenting the potential long-term effects of family separation on children, including developmental regression, difficulty sleeping, depression, and acute stress); Jacinto-Castanon de Nolasco v. U.S. Immigration & Customs Enf’t, 319 F. Supp. 3d 491, 503 (D.D.C. 2018) (noting research indicating that the effects of separation can be so extreme that “children may experience high rates of post-traumatic stress disorder, anxiety, depression, and suicidal ideation, in addition to developmental delays or poor psychological adjustment”).

11 No. 97311-3 Madsen, J., dissenting

on IQ (intelligence quotient) tests, their fight-or-flight response appeared broken, and

situations that would generally create physiological responses in other people would not

do so for these children. Id. The American Academy of Pediatrics (AAP) has noted that

family separation “‘can cause irreparable harm, disrupting a child’s brain architecture and

affecting his or her short- and long-term health. This type of prolonged exposure to

serious stress—known as toxic stress—can carry lifelong consequences for children.’”

Trivedi, supra, at 526 (quoting Press Release, Colleen Kraft, Am. Acad. of Pediatrics,

AAP Statement Opposing Separation of Children and Parents at the Border (May 8,

2018), https:www.aap.org/en-us/abouttheaap/aap-press-

room/Pages/StatementOpposingSeparationofChildrenandParents.aspx

[https:perma.cc/25QX-B2ZA] at n.10).

This comes as no surprise to the scientific community. Studies from the 1940s

showed the negative effects of family separation on children. Id. at 528. The

psychological attachment between a parent and a child is so strong that even after

placement with a foster family after maltreatment from the biological parents, children

long to return to them. Id. Separation is especially detrimental for newborn children

because it severs the bonding period after birth and allows for no physical, “skin-to-skin”

contact with mothers. Id. at 529. Separation is not limited to the parent and child, but

often extends to the child and his or her siblings. Id. at 532-33.

Further harm can be created by the “act of removal itself,” as well as a child’s

entry into the foster care system. Id. at 531-32, 541-52 (detailing the abuse, neglect,

12 No. 97311-3 Madsen, J., dissenting

placement instability, and physical and sexual health problems for children in foster

care); Vivek Sankaran, Christopher Church & Monique Mitchell, A Cure Worse Than the

Disease? The Impact of Removal on Children and Their Families, 102 MARQ. L. REV.

1161, 1166-70 (2019) (discussing the trauma of removal and placement in foster care for

children and their parents). For fiscal year 2018, over 430,000 children were in foster

care; only 125,000 of those children were waiting to be adopted. U.S. DEP’T OF HEALTH

& HUMAN SERVS., THE AFCARS [Adoption and Foster Care Analysis and Reporting

System] REPORT 1 (2019),

https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport26.pdf [https://perma.cc/7PDS-

UCH8]. One study has found that for each year a child spends in foster care after

termination of parental rights, the likelihood of adoption is reduced by 80 percent.

Lashanda Taylor, Resurrecting Parents of Legal Orphans: Un-Terminating Parental

Rights, 17 VA. J. SOC. POL’Y & L. 318, 325-26 (2010). The many and varied forms

created by family separation has led one court to recognize that the damage caused by

removal “may be ‘more damaging to the child than doing nothing at all.’” Trivedi, supra,

at 528 (internal quotation marks omitted) (quoting Lynn F. Beller, When in Doubt, Take

Them Out: Removal of Children from Victims of Domestic Violence Ten Years after

Nicholson v. Williams, 22 DUKE J. GENDER L. & POL’Y 205, 216 (2015)).

Time has been a driving force in dependency and termination cases. E.g., RCW

13.34.180(1)(d) (requiring the provision of “all necessary services, reasonably available,

capable of correcting the parental deficiencies within the foreseeable future”); Hall, 99

13 No. 97311-3 Madsen, J., dissenting

Wn.2d at 851 (the period of time constituting the “‘foreseeable future’ depends in part on

the age of the child”). Considering the thousands of removed children awaiting adoption

coupled with the low probability of adoption against the time it will take to rehabilitate

the parent may actually favor continuing dependency of children as opposed to

terminating parental rights.

The decision to terminate B.B.’s parental rights is emblematic of the old way of

thinking—that time matters more than reunification. Yet our state child welfare statutes

have consistently recognized that the family unit should be nurtured and remain intact but

for extreme situations calling for separation. E.g., RCW 13.34.020 (“Legislative

declaration of family unit as resource to be nurtured”) (boldface omitted); State ex rel.

Bulmon v. Superior Court for Kitsap County, 21 Wn.2d 536, 537, 151 P.2d 987 (1944);

In re Parental Rights to K.J.B., 187 Wn.2d 592, 597, 387 P.3d 1072 (2017) (the

paramount goal of child welfare legislation is to reunite the child with the legal parents).

The prominence of time over reunification of the family has recently undergone a

sea change. In 2018, Congress passed, and the president signed, the Family First

Prevention Services Act (Family First) as part of the Bipartisan Budget Act of 2018.

Pub. L. No. 115-123, 132 Stat. 232 (2018). The primary goals of Family First is to break

the cycle of child removal, change the role of foster care so that placements are

supportive of families rather than a substitute for them, and institutes a more “trauma-

informed” approach to core practices, especially surrounding removal. Fabiola

Villalpando, Family First Prevention Services Act: An Overhaul of National Child

14 No. 97311-3 Madsen, J., dissenting

Welfare Policies, 39 CHILD. LEGAL RTS. J. 283, 283-84 (2019). Because removal is

traumatic for children and parents, Family First focuses on practices that help keep

families together. Id.

One of the major areas of change under Family First is the way states may spend

Title IV-E funds. Pub. L. No. 115-123, § 50702. Beginning October 1, 2019, states may

use federal Title IV-E funds for prevention services that would allow foster care

candidates to stay with their parents or relatives. Family First Prevention Services Act:

Prevention, DEP’T OF CHILD., YOUTH & FAMILIES,

https://www.dcyf.wa.gov/practice/practice-improvement/ffpsa/prevention

[https://perma.cc/2AJM-8R6R]; Family First Prevention Services Act, NAT’L CONF. OF

STATE LEGISLATURES, http://www.ncsl.org/research/human-services/family-first-

prevention-services-act-ffpsa.aspx [https://perma.cc/767G-ML88].

Washington adopted Family First in 2019. LAWS OF 2019, ch. 172. The

Department of Children, Youth and Families continues its mission of “increasing

families’ access to supportive services prior to formal child welfare involvement.”

Family First Prevention Services Act, DEP’T OF CHILD., YOUTH & FAMILIES,

https:www.dcyf.wa.gov/practice/practice-improvement/ffpsa [https://perma.cc/H45W-

PRSR] (emphasis added). The law “shift[s]” how the department thinks about families,

“preserving families, and supporting them before a child is removed from the home.”

S.B. REP. ON H.B. 1900, at 6, 66th Leg., Reg. Sess. (Wash. 2019).

15 No. 97311-3 Madsen, J., dissenting

The passage of the Family First Act is evidence of the state and federal

reorientation in child welfare law. Lawmakers now recognize what the mounting

evidence on family separation has already demonstrated: that removal is simply not

worth the crippling, long-term consequences to children or their parents. Instead of

allowing the trauma of removal to continue, child welfare legislation should be guided by

what has always been its paramount goal: family reunification. K.N.J., 171 Wn.2d at

577.

In this case, however, removal is the order of the day. The majority justifies the

separation of four children from the care of their mother because she improved her

parenting skills too slowly and without the aid of necessary services. To this, I cannot

agree. Termination was not proved, and the trial court’s decision should be reversed.

Moreover, we should take the unique opportunity presented by this case to reexamine our

approach to termination in the context of the Family First Act. In so doing, it becomes

clear that reunification for B.B. and her children was not impossible in light of the hard

work and extraordinary efforts B.B. made to address her parental deficiencies.

This will no doubt be the first of many cases concerning the termination of

parental rights and its interaction with the Family First Act. The majority does not

confront the changing tide in child welfare legislation, but it is my hope that we will

begin the necessary work to do so in future cases.

With these considerations in mind, I respectfully dissent.

16 No. 97311-3 Madsen, J., dissenting

______________________________________

17 In re Parental Rights to D.H., S.T., L.L. & T.L., No. 97311-3 (Gordon McCloud, J., concurring in dissent)

GORDON McCLOUD, J. (concurring in dissent)—I dissent because I do

not agree with the majority’s conclusion that sufficient evidence supports the

termination of B.B.’s parental rights under our current, controlling case law. I

therefore join pages 1-9 of the dissent.

_______ _____________