IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of: No. 79220-2-1 L.A.L.; D.L.L.; A.D.L. (Consolidated with No. 79221-1-1, and STATE OF WASHINGTON, No. 79222-9-1) DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, DIVISION ONE
Respondent, UNPUBLISHED OPINION
V.
ARRION DEMAR LAMB, SR.,
Appellant. FILED: September 23, 2019
HAZELRIGG-HERNANDEZ, J. — The juvenile court terminated Arrion D.
Lamb's parental rights to his three children. Substantial evidence supports the
trial court's findings with regard to the statutory factors necessary for termination.
And the father received adequate notice of the parental deficiencies that formed
the basis for the termination. We affirm.
FACTS
Arrion Lamb is the biological father of three young children.1 The
Department of Children, Youth, and Families (Department) became involved with
the family in August 2016 when the children were one, four, and six years old. At
that time, the Department received reports that the family was homeless, that
1 The parental rights of the children's mother are not at issue in this appeal. No. 79220-2-1/2
both parents were actively using heroin, and that the father recently assaulted
the mother and knocked out two of her front teeth. The Department also learned
that the mother left the children in the care of a third party so she could obtain
drug treatment, but then quickly abandoned treatment.
The Department took the children into custody and initiated a family team
decision meeting to discuss placement of the children. The father admitted to
recent drug use and to the recent assault. He also acknowledged an earlier
domestic violence incident that led to police involvement. The father denied any
violent behavior toward the children. Both parents signed a voluntary placement
agreement, allowing the children to be placed out of their care for a month so
they could complete chemical dependency assessments, and participate in
urinalysis testing and substance abuse treatment.
In the month that followed, the Department offered chemical dependency
assessments, urinalysis testing, and provided transportation assistance, but the
father was largely unreachable and unresponsive. By the end of the month, the
father had not participated in any services or visited with the children. The
Department agreed to extend the voluntary placement agreement, based on
stipulations that the father would promptly complete a chemical dependency
assessment and start urinalysis testing. The father failed to complete an
assessment and his single urinalysis test was positive for opiates and
amphetamines.
Based on the history of substance abuse, domestic violence,
homelessness, and several pending criminal charges against the father, the
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Department filed a petition for dependency. The Department alleged that the
children witnessed the domestic violence. In January 2017, the court entered an
order finding the children dependent as to the father under RCW 13.34.030(6)(c)
because they "had no parent, guardian, or custodian capable of adequately
caring" for them. The court ordered the father to successfully complete 90 days
of urinalysis testing; to complete a drug and alcohol evaluation and follow any
recommended treatment; to complete a parenting assessment with a domestic
violence component and follow any treatment recommendations; and to establish
the paternity of one of the children.2
The father did not engage in any services or regularly visit the children in
2016 or in 2017 after the entry of the dependency order.
In March 2017, just over two months after the court found the children to
be dependent, the father committed robbery in the second degree while armed
with a deadly weapon. In October 2017, he pleaded guilty to the crime, and in
November 2017, the court sentenced him to 15 months of incarceration. The
Department arranged for the children to visit the father at the King County Jail.
But after each child visited the father once, the court suspended all visits,
primarily based upon the recommendations of two of the children's therapists.
In February 2018, while the father was still incarcerated, the Department
filed a petition to terminate his parental rights.
A few months later, on June 5, 2018, the father was released from
custody. The Department again provided all court-ordered services to the father
2 The court also ordered the father to engage in an in-home parenting education service once the children were returned to his care.
3 No. 79220-2-1/4
and encouraged him to participate. Upon his release, the father showed interest
in services and began to participate, but for the most part, was unable to
successfully complete them. For instance, the father met with the evaluator a
few times for the purpose of obtaining a parenting assessment with a domestic
violence component. But then he missed subsequent appointments because he
was in jail, having violated conditions of his community supervision and failed to
complete the assessment.
And just after his release, the father completed a drug and alcohol
evaluation at Valley Cities.3 The evaluation led to a diagnosis of opiate addiction
and a recommendation for outpatient drug treatment. In the three to four month
period following the evaluation, the father attended approximately five
appointments at Valley Cities. Some of those appointments were for mental
health treatment, based on diagnoses of paranoid schizophrenia and depression.
During a recess in the trial, the father enrolled in a medication-assisted
substance abuse program and took his first dose of medication. Although the
father participated in some urinalysis testing required by the Department of
Corrections (DOC), he did not complete any urinalysis testing ordered by the
dependency court, nor did he provide the DOC testing results to the Department.
The Department initiated a process to reestablish contact between the
father and the eldest son that began with six scheduled meetings with his son's
counselor. The father met once with the counselor but missed all of the
3 The father did not inform the Department about his completion of the assessment until months later, during the termination trial. The social worker assigned to the case expressed concern about the validity of the assessment because it did not reflect the father's current conditions in the community and continued drug use after his release.
4 No. 79220-2-1/5
subsequent appointments. The father refused to agree to allow one of his sons
to take medication recommended by the child's physician to treat Attention Deficit
Hyperactivity Disorder, and eventually the Department obtained a court order to
allow administration of the medication. The father also initially refused to consent
to another child's dental surgery unless he could be present, but eventually
relented.
Approximately a month after his release from prison, the father relapsed.
As a result, he lost his clean and sober housing. The father was sanctioned five
times for violating conditions of community supervision. Three of the violations
were for using heroin and methamphetamine. Based on the number of violations
he had already accrued, the father faced a substantial risk of being returned to
prison to serve the remainder of his prison term if he committed further violations
of his conditions of supervision.
At the time of the fact-finding hearing in the fall of 2018, the father had
been out of custody for almost four months. His sons were ages eight, six, and
three and had been out of his care for more than two years. The father had not
seen the children in more than a year. Two of the children were in licensed care,
in separate households, and the oldest child had been admitted to Ryther, a
provider of inpatient and outpatient therapeutic services for youth, for
approximately a year. The two older children had been involved in intensive
therapy to address behavioral, emotional, and mental health issues. Apart from
establishing paternity and obtaining a drug and alcohol evaluation, the father had
not completed any of the court-ordered services.
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The father testified and admitted to recent use of heroin and
methamphetamine use and admitted that he had used those drugs in the past
when the children were in his care. He did not believe that his drug use
prevented him from providing for the safety and welfare of his children. He
claimed his drug use was a "mistake," largely because it resulted in the
Department's involvement with his family.
The father testified that one of the reasons the children were in the
Department's custody was because they witnessed an "altercation" between him
and the children's mother, but he disputed the severity of the incident. He
acknowledged that he had at least one prior assault conviction involving the
mother. Because the father was involved in multiple prior incidents of assault, he
could not recall whether or not the children's mother was the victim of his prior
aggravated assault conviction in Arizona.
The father testified that his plan to regain custody of his sons was to
obtain permanent employment and housing. Although the father met his oldest
child's counselor, he said he did not learn anything about why his child was
receiving treatment at Ryther.
A Department social worker who supervised the father's case, Xiao Yu
Jackson, testified that the father was currently unfit to parent his sons and had
made no progress toward correcting his parental deficiencies, which included
drug abuse and domestic violence. She testified that it would take at least a year
of consistent engagement before the Department could consider placement with
the father. Both the Court Appointed Special Advocate and the social worker
6 No. 79220-2-1/7
assigned to the case at the time of the fact finding hearing likewise testified that
that the father was not capable of parenting his sons now or in the near future.
At the conclusion of the fact-finding hearing, after considering the
testimony of 6 witnesses and 28 exhibits, the juvenile court entered findings and
an order terminating the father's parental rights. Specifically, the court found that
the father failed to correct his parental deficiencies related to substance abuse
and domestic violence and that termination of parental rights was in the
children's best interests.
The father appeals the termination order.
DISCUSSSION
I. Standard of Review
Parental rights are a fundamental liberty interest protected by the United
States Constitution. Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982). To terminate parental rights, the Department must satisfy
a two-step test. In re Welfare of A.B., 168 Wn.2d 908, 911,232 P.3d 1104
(2010). In order to terminate a parent-child relationship, the Department must
prove the six elements of RCW 13.34.180(1) by clear, cogent, and convincing
evidence. In re Dependency of K.N.J., 171 Wn.2d 568, 576-577, 257 P.3d 522
(2011). Then, if the juvenile court finds that the Department has met its burden
under RCW 13.34.180, it may terminate parental rights if it also finds by a
preponderance of the evidence that termination is in the "best interests" of the
child. RCW 13.34.190(2)(b); A.B., 168 Wn.2d at 911.
7 No. 79220-2-1/8
Where the trial court has weighed the evidence, our review is limited to
determining whether the court's findings of fact are supported by substantial
evidence and whether those findings support the court's conclusions of law. In re
Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). "'Substantial
evidence' is evidence in sufficient quantity to persuade a fair-minded, rational
person of the truth of the declared premise." In re Welfare of T.B., 150 Wn. App.
599, 607, 209 P.3d 497 (2009)(citing World Wide Video, Inc. v. City of Tukwila,
117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the
findings of fact are supported by substantial evidence "must be made in light of
the degree of proof required." P D , 58 Wn. App. at 25. In determining whether
substantial evidence supports the trial court's findings, this court does not weigh
the evidence or the credibility of witnesses. In re Dependency of E.L.F., 117 Wn.
App. 241, 245, 70 P.3d 163(2003).
II. Offer or Provision of Services
The father challenges the juvenile court's finding that the Department
offered or provided all necessary services capable of correcting his parental
deficiencies as required by RCW 13.34.180(1)(d). In particular, he claims the
Department did not make reasonable efforts to provide services to him when he
was incarcerated for robbery.
To meet its burden under RCW 13.34.180(1)(d), the Department must
prove that "the services ordered under RCW 13.34.136 have been expressly and
understandably offered or provided and all necessary services, reasonably
8 No. 79220-2-1/9
available, capable of correcting the parental deficiencies within the foreseeable
future have been expressly and understandably offered or provided." Necessary
services are "those services 'needed to address a condition that precludes
reunification of the parent and child." 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)). A service
is "reasonably available" if it is "available within the department [or supervising
agency], or within the community" or "the department has existing contracts to
purchase" it. RCW 13.34.136(2)(b)(vii). When a parent is incarcerated, the
permanency planning statue, RCW 13.34.136(2)(b)(i)(A), requires the
Department to craft a permanency plan that focuses on the provision of services
that are "available at the facility where the parent is confined."
With respect to this factor, the court found:
2.14 Services ordered under RCW 13.34.130 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, including Urinalysis (UA) testing, a substance abuse evaluation (and recommended treatment) and a parenting assessment with a domestic violence component.
2.15 [The Department] has made service referrals to [the father] on multiple occasions, including sending him multiple service letters detailing where he can participate in the ordered services. In October, 2017 [the father] pled guilty to Robbery in the Second Degree. He was incarcerated until June 2018 and some, if not all, services were not available to him while he was incarcerated.
The father was incarcerated for approximately 13 months of the
dependency that lasted almost two years. In 2017, when the father was confined
at the King County Jail, Department personnel provided him with multiple service
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letters, outlining the services ordered by the dependency court. These letters
also informed the father that the primary court-ordered services, a drug and
alcohol assessment and treatment, a parenting assessment with a domestic
violence component, and random urinalysis testing, were unavailable at the jail.
The Department informed the father that certain other drug and alcohol-related
programs were available in jail and encouraged him to participate.
Department supervisor Jackson also visited the father personally at the jail
once in the fall 2017.4 Until visitations were suspended, the Department
arranged for the children to visit the father.
By October 2017, the Department had identified a provider who was
willing to conduct a parenting assessment with a domestic violence component at
the jail and referred the father for that service. The Department provided the
father with the provider's name and telephone number. Department staff and the
provider herself made multiple attempts over many months to arrange for the
evaluation at each of the facilities where the father was housed. But these
attempts were not successful, largely because the father did not remain at the
same facility. The father moved from the King County Jail to a DOC facility, then
to Snohomish County Jail, and was finally returned to a DOC facility. In addition
to the transfers, the record suggests the Department's efforts to schedule the
evaluation were hampered by difficulty obtaining information from the DOC and
the Snohomish County Jail.
4 Jackson testified that she directed another social worker who took over the case to visit the father in jail, but she did not know for certain whether or not that visit occurred.
10 No. 79220-2-1/11
The father cites a lack of evidence that Department staff personally met
with him or sent him any letters regarding services after he was moved from the
King County jail. He further points out that no Department witnesses testified
about the unavailability of services at the Snohomish County Jail or at the DOC
facility.
The court addressed a similar claim in In the Matter of the Dependency of
D.L.B., and held that the Department made reasonable efforts to provide services
to an incarcerated parent where the Department's social worker contacted the jail
and learned that only one required service was available at the facility where the
parent was in confinement. 186 Wn.2d 103, 122-23, 376 P.3d 1099 (2016). The
Department's efforts were at least as substantial in this case. The record as a
whole shows that while the father was incarcerated, the Department investigated
whether court-ordered services were available, communicated with the father,
and made significant efforts to provide a service that was unavailable to him in
any of the facilities, a parenting assessment with a domestic violence
component. The lack of evidence about the Department's actions with respect to
each facility where the father was confined, does not render its overall efforts
insufficient. This is especially true where the Department was apparently not
notified of each transfer and the facilities were unresponsive to the Department's
requests for information. On this record, we conclude the Department fulfilled its
duty to make reasonable efforts to refer the father to available services.
The father's argument also ignores the fact that he failed to meaningfully
engage in services when they were undisputedly available to him before and
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after he was incarcerated. The Department is not required to offer services that
would be futile. In re Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275
(2001). If a parent is unwilling or unable to make use of the services offered or
provided, the Department is not required to offer additional services that might
have been helpful. In re Dependency of S.M.H., 128 Wn. App. 45, 54, 115 P.3d
990 (2005).
Apart from submitting to one urinalysis test in 2016, which was positive for
amphetamine and opiates, the father did not participate in any service before he
committed robbery and went to jail in 2017. The Department again offered all
court ordered services to the father upon his release in June 2018. In the four
months preceding the trial, the father completed only a drug and alcohol
evaluation.
The Department made reasonable efforts to provide services throughout
the dependency, including the period of time when the father was incarcerated.
Even if this were not the case, the Department's failure to offer services during
this period would be excusable. Despite referrals for services and
encouragement to participate in them, the father was unable or unwilling to
complete most of the services or and failed to make significant progress.
III. Likelihood that Conditions Will Be Remedied in the Near Future
The father also challenges the court's finding that "[t]hat there is little
likelihood that conditions will be remedied so that the child can be returned to the
parent in the near future." RCW 13.34.180(1)(e). The focus of this statutory
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factor is on whether the identified parental deficiencies have been corrected.
T.R., 108 Wn. App. at 165. Even where evidence shows that a parent may
eventually be capable of correcting deficiencies, termination is appropriate if
those deficiencies will not be corrected within the foreseeable future. In re
Welfare of A.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010)(citing In re A.W.,
53 Wn. App. 22, 32, 765 P.2d 307 (1988)).
What constitutes "near future" necessarily depends on the specific
circumstances of each case, including the child's age and placement
circumstances. In re Welfare of C.B., 134 Wn. App. 942, 954, 143 P.3d 846
(2006). A matter of months may be outside the foreseeable future for a young
child. In re Welfare of M.R.H., 145 Wn. App. 10, 28, 188 P.3d 510 (2008). "When
it is eventually possible but not imminent for a parent to be reunited with a child,
the child's present need for stability and permanence is more important and can
justify termination." C.B., 134 Wn. App. at 958-59.
Here, the court found as follows:
2.20 There is little likelihood that conditions will be remedied so that the children can be returned to their father within the near future.
2.25 The credible estimate is that even in a best case scenario it will be at least 12 months of consistent participation in services before [the father] would be in a position to possibly parent his sons. A best case scenario is unlikely given [the father's] history of relapse and inconsistent participation in services.
2.27 12 months is not the near future to these children and is too long to wait for a mere possibility of progress. The near future is
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measured in months, not years, for children of these ages. Despite [the father's] love for his children and his desire to have a relationship with them, this is outweighed by the boys' needs for stability and permanence now.
2.34 The children's father is unfit to parent these children. He has not cured his parental deficiencies related to substance abuse and domestic violence and will not be able to do so in the near future.
The father contends there is insufficient evidence in the record to support
these findings, because contrary to the court's findings, he made "huge strides
toward completing his court ordered services" in the four months prior to the
termination hearing. The father points out that he completed a drug and alcohol
evaluation shortly after his release, enrolled in a drug treatment program, and
attended appointments with his oldest son's counselor and a parenting evaluator.
But the father's characterization of his progress fails to take into account
all of the facts. The father ignores evidence indicating that while he initially
appeared to be motivated to address his parental deficiencies upon his release,
he quickly reverted to drug use and sporadic engagement. At the time of trial,
the father was homeless, was still struggling with drug addiction, and had used
drugs during the pendency of the trial. The father had done nothing to address
his domestic violence issues and had not completed a parenting assessment
with a domestic violence component to learn what treatment might be
recommended. The father made no progress toward reestablishing visitation,
since he attended only one of six scheduled appointments with his son's
counselor and testified that he learned little about the reasons for his son's
treatment. While the father appeared to have good intentions upon his release,
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there was a lack of evidence of sustained actual efforts to match those intentions.
And there was countervailing evidence that the father believed that neither
domestic violence nor drug use affected his parenting.
Moreover, Jackson testified that it would be at least a year before the
Department could consider reunifying the children with their father, assuming
consistent participation and progress in all services in the interim. She also
testified that a year was beyond the near future for the children, based on their
ages of eight, six and three. Even if we were to agree that the evidence showed
a trajectory of consistent participation and steady improvement, the evidence
supports the court's finding that potential reunification in a year, at the earliest,
was not within the children's near future. Substantial evidence supports the
juvenile court's finding that there is little likelihood that conditions would be
remedied so that the children could be returned to the father's care in the near
future.5
IV. Due Process
The father alleges a due process violation. He contends the juvenile court
terminated his parental rights, in part, based on his failure to address domestic
violence, a deficiency of which he was not notified prior to the termination trial.
Parents have a fundamental liberty interest in the care and welfare of their
children. In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452
5 The father assigns error to numerous other findings made by the juvenile court. We address the findings only to the extent that the father provides specific argument in his briefing. See Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010) (citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)); RAP 10.3(a)(6).
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(2007). Parental rights cannot be abridged without due process of law. A.M.M.,
182 Wn. App. at 790-91. Due process requires "'that parents receive notice of
the specific issues to be considered' at a termination hearing. Id. at 791 (quoting
In re Welfare of Martin, 3 Wn. App. 405, 410, 476 P.2d 134 (1970)). Such notice
is required "to prevent surprise, helplessness and disadvantage.' Id.
The order of dependency and petition to terminate the father's parental
rights described two main issues underlying the dependency: substance abuse
and domestic violence. The primary services ordered by the dependency court
were designed to address these issues. Yet, the father contends he was
unaware that the court could rely on his untreated domestic violence issues as a
basis to terminate his parental rights. The father points out that neither the order
of dependency nor the Department's termination petition specifically labelled
domestic violence as a parental deficiency and the court expressly declined to
order a separate domestic violence assessment or domestic violence treatment.
But no authority suggests that constitutionally adequate notice is
dependent on the use of specific language. In In the Matter of the Parental
Rights of F.M.O., the court rejected a similar argument that evidence of notice of
parental deficiencies could be found only in certain pleadings. 194 Wn. App. 226,
230, 374 P.3d 273 (2016). The court in F.M.O., held that review of the entire
record must show that both sides were aware of what "deficiencies are at issue
since the State has to prove the deficiencies to make its case while the parent
has to know what allegations to defend against." Id. at 232. The court observed
that termination trials are often the "endgame in lengthy proceedings where the
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parties have wrestled over the needed services during the previous years and
there is no question what deficiencies are truly at issue." Id. Because issues may
come to light throughout the proceedings, from various sources, the court
concluded that it would serve "only form instead of substance" to impose rigid
requirements as to how a parent must receive notice. Id.
This rationale also applies here. While neither the order of dependency
nor the petition to terminate the father's parental rights uses the phrase "parental
deficiencies," it is clear from both documents, and from the record as a whole,
that domestic violence was a primary concern of the Department and an issue
the father needed to address.
The petition to terminate the father's parental rights highlighted the "history
of domestic violence" and past incidents witnessed by the children. The
Department also asserted in the petition that there was little likelihood the father's
parental deficiencies could be remedied to allow the children to be returned to his
care in the near future, in part, because the father was incarcerated and would
be unable to complete domestic violence treatment in the foreseeable future.
Both the order of dependency and termination petition also referred to two
specific incidents of domestic violence against the mother. The dependency
order included the mother's report that the father had been convicted of
assaulting her and indicated that one of the children reported to law enforcement
that the father had punched him and his brothers. The father's own handwritten
correspondence to the court reflects his awareness that domestic violence was
one of the reasons the Department took custody of the children.
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The father's reliance on the dependency court's failure to separately order
a domestic violence assessment and treatment is likewise unpersuasive. The
dependency court struck the requirement of a separate domestic violence
assessment, but included a handwritten interlineation adding a domestic violence
component to the parenting assessment. The court also required the father to
follow all treatment recommendations following from that assessment. It was
clearly a benefit to the father to streamline his court-ordered services to make
them less cumbersome. And this consolidation made him no less aware of the
possibility that he would be required to participate in domestic violence treatment.
The father relies on this court's decision in A.M.M. 182 Wn. App. at 790-
91. But the facts in A.M.M. differ from those here in critical respects. In A.M.M.,
the dependency proceedings and the termination hearing focused on the
mother's substance abuse problems. Id. at 780-83. The mother only became
aware of a parental deficiency that could support termination when a social
worker testified at the termination trial that the mother lacked an understanding of
her children's needs. Id. at 784. But here, domestic violence was an issue
throughout the dependency proceedings and the termination trial. The
Department's position that domestic violence was a parental deficiency and a
barrier to reunification was clear. There was no unfair surprise and the father
fails to establish a due process violation.
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Affirmed.
WE CONCUR: