IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of No. 71241-1-1 consolidated with G.G., JR., b.d. 11/07/04, No. 71242-0-1 and J.D.G., b.d. 09/30/03, No. 71243-8-1 S.M.M., b.d. 11/23/99,
Minor Children.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES,
Respondent,
ORDER DENYING MOTION FOR RECONSIDERATION, ITZEL JIMINEZ SALAZAR, WITHDRAWING & REPLACING OPINION Appellant.
Appellant filed a motion for reconsideration of the court's December 1, 2014
opinion. Legal Voice filed an amicus brief in support of appellant's motion. Respondent
Department of Social and Health Services filed an answer. The court has considered
the motion, the amicus brief, and the answer and determined that reconsideration
should be denied, but that the opinion should be withdrawn and a replacement opinion
filed.
The opinion has been changed by replacing the first full paragraph on page 17
with the following:
"Salazar next challenges the court's finding that her poor relationship choices render her unfit to parent. The trial court found: 2.24 The mother's parental deficiencies included impaired judgment in her relationship choices, which is likely a result of her cognitive impairments. The mother's relationship choices place her and her children at risk of domestic violence.[fn]
The record supports this finding. Although domestic violence victims face great challenges, a parent must exercise good judgment to avoid genuine risk of harm to her children. Here, the focus of the trial court's finding was not based on Salazar's status as a domestic violence victim; it was her failure to make appropriate choices and participate in recommended services to address parental deficiencies related to domestic violence trauma that placed her children at risk of harm. Fn. Clerk's Papers at 11."
The opinion was further changed on page 18 by deleting from the fourth
sentence in the first full paragraph the phrase "and that she was later involved in
a domestic violence incident where she was found to be intoxicated."
Now, therefore, it is hereby
ORDERED that appellant's motion for reconsideration is denied. It is further
ORDERED that the opinion of this court filed December 1, 2014 is withdrawn and
a replacement opinion is filed.
Dated this ( day of February, 2015.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of No. 71241-1-1 consolidated with G.G., JR., b.d. 11/07/04, No. 71242-0-1 and J.D.G., b.d. 09/30/03, No. 71243-8-1 S.M.M.,b.d. 11/23/99,
v.
ITZEL JIMINEZ SALAZAR, PUBLISHED OPINION
Appellant. FILED: February 9, 2015
Verellen, A.C.J. — Itzel Jiminez Salazar appeals from an order terminating
her parental rights to her three children. She contends that she was deprived of her
right to counsel of choice when the trial court denied her motion for a continuance to
hire private counsel. But because she had not selected substitute counsel and failed
to show that she had the ability to obtain substitute counsel, the trial court did not
violate her right to counsel of choice or abuse its discretion. She further challenges
the court's finding that she was unfit to parent. Because the record supports the
court's finding of unfitness, her challenge to the termination order is without basis.
Accordingly, we affirm. No. 71241-1-1/2
FACTS
Itzel Jiminez Salazar gave birth to S.M. on November 23, 1999, when she was
15 years old. S.M.'s father was not involved with S.M. and ultimately relinquished his
parental rights. Salazar lived with her mother during this time but eventually moved
out of her mother's home with S.M. when she was 17 years old. According to
Salazar, her mother physically and verbally abused her while she was a minor living
in her home.
Salazar had two more children with Gerardo Guizar, whom she married in
2003. J.G. was born on September 30, 2003, and G.G. was born on November 7,
2004. During the marriage, there were several incidents of domestic violence
requiring police intervention and, in 2005, Salazar left Guizar and obtained a
protection order against him. That same year, Salazar sent S.M. to live with her
mother because she was unable to care for all three children.
By 2009 or 2010, Salazar, J.G., and G.G. had moved in with Salazar's mother
and S.M. Sometime in 2010, Salazar moved out of her mother's home, taking J.G.
and G.G. with her. She left S.M. to remain living in the home with her mother and her
younger brother. In March 2011, J.G. and G.G. disclosed to Salazar that they had
been sexually assaulted by Salazar's brother while they were living with her mother.
Salazar reported this to the police and Child Protective Services (CPS), but she did
not remove S.M. from her mother's home. Salazar's brother continued to live in the
home and pleaded guilty to assaulting J.G. and G.G. in 2012.
In June 2011, Salazar left J.G. and G.G. in her roommate's care while she was
at work as a cocktail waitress. After her shift, she drank until she blacked out and did No. 71241-1-1/3
not return home that night. The next morning, her roommate called the police and
CPS when she was unable to locate Salazar. All three children were taken into
protective custody and placed in foster care.
On June 10, 2011, the State filed a dependency petition. On July 27, 2011,
the court found the children dependent as to Salazar and maintained the children's
placement in out-of-home care.1 The court also ordered remedial services and
required Salazar to participate in a drug/alcohol evaluation, random urinalysis testing
(UA) and parenting classes. The order allowed Salazar to have a minimum of two
hours supervised visitation once per week.
From October 2011 to December 2012, Department of Social and Health
Services (Department) social worker Matthew Shaw worked with Salazar to comply
with the court-ordered service requirements. He referred her to service providers and
scheduled weekly meetings with her, but she often failed to show for the meetings
and never provided proof that she participated in any of the services. Salazar had
not participated in intensive outpatient alcohol treatment as recommended by the
court-ordered evaluation. In fact, she told Shaw that she was working as a cocktail
waitress in a bar and asked that he not share that information with her treatment
provider. And while she claimed to be involved in parenting classes, she never
provided Shaw any proof of her participation.
Salazar's visitation with her children during this time was inconsistent. She
had weekly two-hour visits scheduled with them but struggled with logistics and was
1 The court also found the children dependent as to the father on September 22, 2011. No. 71241-1-1/4
often late or failed to appear for visits, causing stress for the children and escalation
of their behavior. Shaw spent a considerable amount of time addressing visitation
logistics with little change in Salazar's behavior.
Shaw gave Salazar referrals for court-ordered mental health counseling, but
Salazar did not participate in counseling. She would either deny needing counseling
or falsely report that she was participating in counseling or trying to. She never
provided documentation of her participation, nor were any of the providers able to
confirm that she had kept appointments or completed intakes.
All three children received services. J.G. required more extensive services
due to her extreme behaviors.2 When Shaw attempted to explain to Salazar the
severity of the children's behaviors, she was overwhelmed. According to Shaw,
Salazar needed to play an active engaged role in trying to stabilize the children's
behaviors in their placements; but instead, she simply reacted and lacked an
awareness of the severity of their trauma. She constantly struggled to set limits with
them and escalated their behavior by failing to be on time or to show up for the visits.
J.G. was particularly traumatized by Salazar's missed visits. She was assaultive at
times and often took weeks to recover after a missed visit. Because Salazar's
transient involvement was too disruptive to the treatment team working to stabilize
the children, she was never introduced into the children's therapy. In July 2012, the
court ordered that visitation be reduced to a single two-hour visit per month, finding it
necessary to protect the children's health, safety and welfare.
2 J.G. required hospitalized inpatient psychiatric care and was later placed in a behavior rehabilitation services center after an unsuccessful placement with S.M. No. 71241-1-1/5
In September 2012, Shaw recommended that Salazar participate in a second
alcohol evaluation. He did so based on concerns about her failure to participate in
alcohol treatment and involvement in a domestic violence incident where she was
found to be intoxicated in March 2012. Salazar completed the evaluation, but no
treatment recommendations were made, leading Shaw to believe that she may not
have been honest in this evaluation.
On December 12, 2012, the court held a permanency planning hearing. The
court found that Salazar had only partially complied with court-ordered services as
she had completed a drug/alcohol evaluation but had not participated in parenting
classes or mental health counseling. The court also found that Salazar had not
visited the children on a consistent basis, noting that she only recently resumed visits
after not visiting for over five months. In addition to the previously-ordered services,
the court ordered a psychological evaluation with a parenting component. The court
further ordered that the Department make a referral for termination of her parental
rights by January 15, 2013.
In January 2013, social worker Sanna Olsen was assigned to Salazar's case.
Salazar declined to participate in weekly meetings with Olsen and only met with her
every other month and by telephone and e-mail. Olsen referred Salazar to
Dr. Michael O'Leary for the psychological evaluation.
In March and April of 2013, O'Leary conducted an evaluation which included
psychological testing, a clinical interview, and a parent-child observation. O'Leary
concluded that Salazar had impaired functioning in areas involving her ability to
organize a household, to timely meet her obligations, and to remember instructions. No. 71241-1-1/6
He determined that she had limited cognitive functioning which may have been
caused by complex trauma she experienced growing up in an abusive environment.
He concluded that she would need to participate in very intensive psychiatric and
mental health care for two to four years to overcome the trauma. He identified her
parenting deficiencies to include cognitive problems, a pervasive distrust and
suspicion of others' motives, and willingness to accept abusive behavior from others.
He concluded that Salazar was "marginally capable of providing an adequately
stable, structured, safe, and consistently nurturing environment for her children at this
time."3
O'Leary recommended that she participate in trauma-based cognitive
behavioral therapy (CBT). O'Leary also concluded that she would benefit from
parenting instruction, such as a parenting coach. Olsen referred Salazar to
community agencies offering CBT, but she did not participate in any such therapy
despite her representations to Olsen that she was doing so. Olsen did not offer the
parent coaching service recommended by O'Leary since Salazar was not regularly
attending her visits, the setting in which parent coaching would need to occur. During
Olsen's time on the case, Salazar continued to struggle with keeping her visit
appointments and in five months had only two visits with J.G., one of which was part
of the psychological evaluation. During the visits, she was unable to set limits and
effectively manage the children's behavior.
On April 4, 2013, the State filed a petition for termination of the parent-child
relationship. On May 9, 2013, the court held a review hearing and found Salazar in
3 Ex. 22 at 16. No. 71241-1-1/7
partial compliance as she had completed the psychological evaluation, but also found
that she had not confirmed her participation in counseling or parenting classes, had
not attended meetings relating to her children or visited her children since
December 14, 2012, and had not met with Olsen since February 2013. The court
then ordered that she attend all meetings regarding her children, follow
recommendations of the psychological evaluation, including obtaining a sponsor,
attending 12-step meetings, and participating in CBT counseling, domestic violence
support groups, and the children's therapy as recommended. Salazar never provided
Olsen with any evidence that she participated in these services.
In mid-May 2013, Salazar's case was transferred to social worker Morgan
White. In June 2013, White met with Salazar, and they discussed services. Salazar
reported that she had attended counseling and completed her parenting class, but
she did not present any documentation of this participation. White also asked her to
complete a UA that day, but she left without doing so. At a second meeting, White
discussed Dr. O'Leary's recommendations, and Salazar reported that she was
working with her attorney and that they had located a CBT therapist. She also
agreed to participate in a UA but then did not do so. White also provided Salazar
with a complete list of required services and available community resources that
provide those services.
On September 18, 2013, the court held a permanency planning hearing. The
court found Salazar in partial compliance of the ordered services as she had
completed a parenting class on May 16, 2013. But the court also found that she had
not participated in individual counseling, domestic violence support groups, trauma- No. 71241-1-1/8
based CBT sessions, family counseling, 12-step groups, had not obtained a sponsor,
and had not attended all meetings regarding her children.
The termination trial was set for October 28, 2013. On October 22, 2013, the
parties appeared for a preliminary hearing, and counsel for the Department noted
that "the mother may have an issue with appointment of counsel."4 The court
declined to consider the matter because it had not been noted on the calendar.
On October 28, 2013, the parties appeared for trial and the court asked
Salazar's attorney, Susan Harness, about a possible motion to continue. Harness
reported that Salazar had contacted her the day before the preliminary hearing and
had asked her to make a motion to withdraw. Harness stated that she had spoken to
Salazar since then and that it was her desire to have Harness withdraw and request
a continuance for Salazar to hire new counsel. The court asked Salazar for her input.
Salazar stated that she felt that she hadn't been well represented and that she
wanted her therapist to testify, but that the therapist was not available for two weeks.
The court also asked Salazar if she had found a replacement lawyer. Salazar
said she met with one lawyer that she did not want to hire and that she was planning to
meet with two more that week. She could not provide the names of the lawyers. The
court then asked her to elaborate about the therapist that might be a potential witness.
She provided only her first name and said she worked in Lynnwood or Edmonds.
Harness told the court that she wished to continue representing Salazar and
that she was prepared to go forward. She also said that this was the first time she
Report of Proceedings (RP) (Oct. 22, 2013) at 2.
8 No. 71241-1-1/9
had been given the contact information for the therapist but that she would call her as
a witness if she could contact her. The Department and the attorneys for S.M. and
the guardian ad litem (GAL) all objected to the continuance, citing undue delay and
the children's need for permanency. The Department also stated that this was the
first it had been made aware of the possible therapist witness.
The court denied the motion, noting that the dependency had been pending
for more than 27 months, that the termination had also been pending for some time,
and that everyone was aware of this trial date. Indeed, Salazar had known of the trial
date for four months. The court also concluded that there was no basis for allowing
Salazar to hire new counsel and remove Harness from the case:
The stated reason essentially is that mother is not sure and comfortable about the representation provided by Ms. Harness. That really does not rise to the level to have appointed counsel relieved.
As I think has been attested to by others, Ms. Harness is an experienced and competent attorney in these kind of matters. There really is nothing that has been provided in the record here which would indicate to the contrary as to this particular case.
The mother has indicated a desire to hire alternative counsel, but this comes on essentially the morning of trial, and there are no specific names offered or even an indication that she has met with these individuals. So that is rather speculative in nature.
Perhaps the biggest concern is the prospect of this potential witness for the mother, the therapist. Although, one notes that according to the mother this therapist has only been involved in the case for the last couple months it sounds like. So, there may be limitations in terms of her testimony. But the Court would be inclined nonetheless to make accommodations to try to ensure ... at least the possibility of her being heard from. Accordingly, the Court would be inclined, for example, to allow telephonic testimony regarding that therapist. And if that proves simply impossible, to at least consider possible alternatives. Although, again, this is a case that has been pending trial for some time. Again, this is a rather new development it No. 71241-1-1/10
sounds like in terms of [the] possibility of her being a potential witness. And, as noted, her testimony I gather would be rather limited in scope.15!
The court then took a short recess to allow Harness time to confer with Salazar.
When court reconvened, Harness indicated that she was ready to proceed.
After hearing testimony from Salazar, the three social workers, Dr. O'Leary,
and the GAL, the court granted the termination petition. The court found that Salazar
had parental deficiencies of drug and alcohol abuse, cognitive limitations that impact
her ability to safely parent and make choices in the children's best interests, an
inability to provide stability and consistency, a lack of insight of her children's needs
and her own parenting deficits, and impaired judgment in her relationship choices
which places her children at risk of domestic violence. The court further found that all
services capable of correcting the parental deficiencies were offered and that Salazar
chose not to participate in them. The court concluded that there was little likelihood
conditions would be remedied such that the children could be returned her in the
near future, that Salazar was unfit to parent currently and in the foreseeable future,
and that she was incapable of providing the children a permanent and stable home.
Salazar appeals.
ANALYSIS
Salazar contends that by denying her continuance to retain private counsel,
the trial court violated her constitutional right to counsel of choice. The Department
responds that the right to counsel of choice applies only to criminal prosecutions, not
civil proceedings to terminate parental rights, and therefore, Salazar's claim of a
5 RP (Oct. 28, 2013) at 18-19 (emphasis added).
10 No. 71241-1-1/11
constitutional deprivation is without basis. The Department then argues that the trial
court's denial of the continuance was a proper exercise of discretion given the
untimeliness of the request. We agree that the trial court properly exercised its
discretion by denying the continuance.
Salazar acknowledges that Washington law has not specifically addressed
whether a parent in a proceeding brought by the State to terminate parental rights
has a right to retain counsel of choice. Instead, she relies on case law interpreting
the constitutional right to counsel of choice in criminal prosecutions guaranteed by
the Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution.
In United States v. Gonzalez-Lopez.6 the Supreme Court recognized that an
element of the Sixth Amendment right to counsel is the right of a defendant who does
not require appointed counsel to choose who to represent him. The Court concluded
that "the right at stake here is the right to counsel of choice, not the right to a fair
trial,"7 and "that the accused be defended by the counsel he believes to be best."8
Thus, when assessing a request for substitute counsel, an inquiry into the
effectiveness of the counsel sought to be replaced or the prejudice to the defendant
by that counsel's representation was unwarranted and improper.9 Rather, the court
held that deprivation of this right occurs "when the defendant is erroneously
6 548 U.S. 140, 144, 126 S. Ct. 2557, 165 LEd.2d 409 (2006). 7 Id at 146. 8 ]d at 140. 9 Id. at 148.
11 No. 71241-1-1/12
prevented from being represented by the lawyer he wants, regardless of the quality of
the representation he received."10
In State v. Hampton,11 this court recently applied Gonzalez-Lopez to find such
a deprivation in a criminal case. In doing so, the court rejected the analysis used in
State v. Price12 and State v. Roth13 to evaluate a trial court's decision to deny a
request for a continuance to obtain substitute counsel. Because the Roth-Price
analysis required an inquiry into the legitimacy of the defendant's dissatisfaction with
counsel and the potential for identifiable prejudice to the defendant, it did not comply
with Gonzalez-Lopez and was therefore improper.14
In Hampton, the trial court denied the defendant's request for a continuance to
allow his newly retained private counsel to have time to prepare his case.15 In doing
so, the trial court considered the defendant's dissatisfaction with his appointed
counsel, counsel's effectiveness, and the potential prejudice to the defendant.16 This
court reversed, holding that under Gonzalez-Lopez, the trial court improperly
considered those factors to deny the continuance, requiring the defendant to proceed
with appointed counsel in violation of his right to counsel of choice.17
°ld 1 Wn. App. , 332 P.3d 1020 (2014). 2 126 Wn. App. 617, 109 P.3d 27 (2005). 3 75 Wn. App. 808, 881 P.2d 268 (1994). 4 Hampton. 332 P.3d at 1029. 5 Id at 1025. 6 ]d at 1030. 7 Id. at 1030-31.
12 No. 71241-1-1/13
Salazar similarly argues that she was deprived of her right to counsel of choice
when the trial court denied her a continuance to obtain private counsel after
considering the legitimacy of her dissatisfaction with and the competence of
appointed counsel. The Department contends that because the Sixth Amendment
right to counsel of choice applies only to criminal prosecutions, not proceedings to
terminate parental rights, the Gonzalez-Lopez analysis does not apply here.
In Washington, RCW 13.34.090(2) provides the right to counsel in termination
proceedings, a right derived from the due process guarantees of article I, section 3 of
the Washington Constitution and the Fourteenth Amendment.18 While the
Department is correct that a parent's right to counsel in termination proceedings does
not derive from the Sixth Amendment right to counsel applicable in criminal
prosecutions, this is a distinction of no consequence. Whether the right to counsel in
termination proceedings is derived from the Sixth Amendment or due process
guarantees, the parent's right to hire the attorney of their choice is inherent in the
right to counsel. As the Supreme Court has recognized, the right to assistance of
counsel necessarily includes this right to counsel of choice: "It is hardly necessary to
18 In re Luscier's Welfare. 84 Wn.2d 135, 138, 524 P.2d 906 (1974); In the Matter of Welfare of J.M..130Wn. App. 912. 921. 125 P.3d 245 (2005). The Department noted at oral argument that in Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), the United States Supreme Court concluded that it is up to the states to determine the due process standards for counsel in termination cases. Our courts have recognized that "'the full panoply of due process safeguards applies to deprivation hearings'" and that the right to counsel in parental termination proceedings derives from constitutional due process provisions. JLM., 130 Wn. App. at 921 (quoting Luscier. 84 Wn.2d at 137). Lassiter does not diminish the vitality of the due process based right to counsel in termination proceedings.
13 No. 71241-1-1/14
say that the right of counsel being conceded, a defendant should be afforded a fair
opportunity to secure counsel of his own choice."19 The right of counsel in
termination proceedings established by statute and derived from constitutional due
process provisions necessarily includes the right to counsel of choice.
But as recognized in Hampton, a court also retains the right to control its
calendar, and the ability of the parent to secure substitute counsel is critical to the
exercise of the right to choose retained or volunteer counsel.20 Here, there was no
motion to substitute counsel; Salazar had not reached any agreement with any
attorney, retained or volunteer, to represent her in the termination trial. Salazar filed
only a motion for a continuance to delay the trial and allow her to interview two
attorneys she had not yet met.
The trial court asked careful questions and determined: Salazar wanted to
retain substitute counsel but had not yet done so; she interviewed one attorney but
did not want that attorney to represent her; she planned to interview two other
attorneys within the next week but could not give the trial court the names of those
attorneys as she did not have their names with her; the dependency had been
pending for 27 months; the termination trial had been scheduled. Salazar knew of
the trial date for four months. The Department, the GAL, and counsel for S.M. all
opposed a continuance on the ground that the children should not be forced to wait
longer for the court to determine whether a termination should be granted.
19 Powell v. State of Ala.. 287 U.S. 45, 53, 53 S. Ct. 55, 77 L Ed. 158 (1932). 20 Hampton. 332 P.3d at 1028.
14 No. 71241-1-1/15
Consistent with the observations in Hampton, the trial court announced that
because the motion came at the start of the scheduled trial,21 "there are no specific
names offered or even an indication that she has met with these individuals," so the
request "is rather speculative in nature."22
If Salazar had had new counsel present with her at the time of her motion or
could otherwise document that she had obtained new counsel to represent her, then
she could have filed a motion to substitute the new counsel rather than merely ask for a
continuance to try to find someone other than her appointed counsel to represent her.
In such a setting, the trial court could then consider the impact of any delay upon the
interests of the children. Because Salazar had not selected new counsel and failed to
show she had the ability to obtain substitute counsel, the trial court did not frustrate
Salazar's right to counsel of choice or abuse its discretion by denying a continuance.
Salazar also contends that the record does not support the trial court's finding
of unfitness based on her parental deficiencies of cognitive impairment, poor
relationship choices that put her children at risk of domestic violence, drug and
alcohol abuse, and a lack of insight about her children's needs. We disagree.
A court may order termination of parental rights when shown by clear, cogent
and convincing evidence that (1) the child has been found dependent, (2) the child
has been removed from the parent for at least six months as a result of the
dependency, (3) all necessary services, reasonably available, capable of correcting
21 Even ifwe consider the motion "raised" at the preliminary hearing one week before trial, that was still on the eve of trial. 22 (RP)(Oct. 23, 2013) at 19.
15 No. 71241-1-1/16
the parental deficiencies within the foreseeable future have been expressly and
understandably offered or provided, (4) there is little likelihood that conditions will be
remedied so that the child can be returned to the parent in the near future, and
(5) that continuation of the parent and child relationship clearly diminishes the child's
prospects for early integration into a stable and permanent home.23 Although not an
explicit statutory element, the court must also find by clear, cogent and convincing
evidence that a parent is currently unfit before terminating parental rights.24 We give
the trial court's decision great deference and will uphold its findings of fact if they are
supported by substantial evidence.25
Salazar first contends that the evidence did not establish that her cognitive
limitations directly impacted her ability to parent, citing case law holding that proof of
cognitive impairments alone is insufficient to support a finding of fitness.26 She points
to evidence that she was capable of protecting her children by ending a violent
relationship with her husband and by reporting her brother's sexual abuse of J.G. and
G.G.
But the following unchallenged findings of fact, now verities on appeal, support
the court's findings that Salazar's cognitive impairments impacted her ability to parent
and that her refusal to actively participate in services to remediate this deficiency
rendered her unfit to parent currently or in the foreseeable future:
23 RCW 13.34.180(1). 24 In re Dependency of K.R.. 128 Wn.2d 129, 142, 904 P.2d 1132(1995). 25 In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113 (1999). 26 See In re Welfare of A.B.. 181 Wn. App. 45, 65, 323 P.3d 1062(2014).
16 No. 71241-1-1/17
2.47 In his psychological evaluation, Dr. O'Leary recommended that the mother participate in trauma focused cognitive behavior therapy (CBT). On June 6, 2013, the current social worker Morgan White met with the mother and specifically discussed the recommendation for CBT. Ms. White identified agencies that offer CBT, although she did not identify specific counselors.
2.48 The mother told Ms. White that her attorney arranged for the mother to attend CBT with a qualified therapist. During meetings in July and September, the mother continued to represent to the social worker that she was in counseling; she was not.[27]
2.51 The mother completed a psychological evaluation with Dr. Michael O'Leary in April 2013. Dr. O'Leary the mother has significant developmental and cognitive problems that are a barrier to the acquisition of adaptive and appropriate parenting behaviors. He concluded it was highly unlikely the mother would remediate her parenting deficiencies without full and vigorous participation in services.
2.52 In his evaluation, Dr. O'Leary recommended reunification contingent on adequate demonstration of the mother's participation in and benefit from recommended services. At trial Dr. O'Leary recommended termination of parental rights based on the mother's failure to actively participate in services.[28]
Salazar next challenges the court's finding that her poor relationship choices
render her unfit to parent. The trial court found:
2.24 The mother's parental deficiencies included impaired judgment in her relationship choices, which is likely a result of her cognitive impairments. The mother's relationship choices place her and her children at risk of domestic violence.'291
The record supports this finding. Although domestic violence victims face great
challenges, a parent must exercise good judgment to avoid genuine risk of harm to
27 Clerk's Papers at 12. 28 Clerk's Papers at 13. 29 Clerk's Papers at 11.
17 No. 71241-1-1/18
her children. Here, the focus of the trial court's finding was not based on Salazar's
status as a domestic violence victim; it was her failure to make appropriate choices
and participate in recommended services to address parental deficiencies related to
domestic violence trauma that placed her children at risk of harm.
Salazar also challenges the court's finding that drug and alcohol issues were a
deficiency that contributed to her parental unfitness. This finding is supported by the
record. It is undisputed that her children ended up in protective custody because she
went on a drinking binge, blacked out, and left the children with a roommate.
Salazar's drug and alcohol evaluator recommended intensive treatment. Salazar
admitted to Shaw that she took a job at a bar as a cocktail waitress despite this
treatment recommendation. While Salazar points to the fact that the second alcohol
evaluation made no treatment recommendations, Shaw testified that he had
concerns about her lack of honesty. The trial court was entitled to find Shaw credible
on this point.
Finally, Salazar challenges the court's finding that she lacked insight about her
children's needs to the extent that she was unfit to parent. This finding is supported
by the record. Shaw testified that "there was a lack on the mother's part of
awareness about the severity of the children's trauma," and while all the
professionals working to stabilize the children needed her to "play an active engaged
role," she was instead "constantly reacting," was "often late failing or missed
visitations which escalated the children in their respective . . . placements."30 Indeed,
30 Id. at 93.
18 No. 71241-1-1/19
as noted above, the court eventually reduced her visits due to the harmful impact on
the children. Still, she did not change her behavior and further limited her
engagement with the children, failing to visit them at all between May and November
of 2012.
Even if any one of these findings alone did not support a finding of unfitness,
the remaining unchallenged findings of fact and the record as a whole support
parental unfitness and the order of termination. The trial court found credible the
evidence presented at trial that Salazar had parental deficiencies rendering her
incapable of providing a stable, safe home for the children, that services were offered
to help remedy these deficiencies, and that she consistently failed to participate in
the required services.
We affirm.
WE CONCUR:
I A