In Re The Dependency Of: J. X. K. Shana Kalberer-bobo v. Dshs

• Court: Court of Appeals of Washington
• Decided: July 22, 2013
• Docket: 69558-4
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Dependency of No. 69558-4-I consolidated with J.X.K., dob 5/9/05, No. 69559-2-I M.C.S., dob 6/15/11,

Minor Children.

WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES,

Respondent,

v.

SHANA KALBERER-BOBO, UNPUBLISHED OPINION

Appellant. FILED: July 22, 2013

Verellen, J. — Shana Kalberer-Bobo appeals the termination of her parental

rights to her son J.K., born May 9, 2005, and her daughter M.S., born June 15, 2011.

Kalberer-Bobo asserts the trial court erred in determining that (1) there was little

likelihood that conditions will be remedied so the children could be returned to her in the

near future; (2) continuation of her parental rights diminishes the children's prospects for

integration into a permanent home; and (3) termination of her parental rights is in the

children's best interest. Because the evidence amply supports the trial court's findings

of fact and those findings support the court's conclusions of law, we affirm. No. 69558-4-1/2

FACTS

Kalberer-Bobo experimented with drugs starting at age 14, later used cocaine

daily, and became addicted to methamphetamine. In 2001, she was arrested for

possession of drugs. In 2004, she was convicted of two controlled substance violations

and incarcerated for 60 days.

In 2005, Kalberer-Bobo's son J.K. tested positive for methamphetamine at birth.

Soon thereafter, the superior court granted a dependency petition filed by the

Department of Social and Health Services (DSHS). J.K. lived with Kalberer-Bobo's

mother for approximately five months. Kalberer-Bobo followed through with

recommended services, including inpatient substance abuse treatment, and

demonstrated continuing sobriety. The dependency was dismissed in June 2008.

In 2010, Kalberer-Bobo was arrested and charged with possession with intent to

deliver methamphetamine. J.K. was removed from her care and placed with Kalberer-

Bobo's mother, where he remains. Dependency was established for J.K. for the second

time in March 2011 based on findings that Kalberer-Bobo provided inadequate care,

had a criminal history with multiple arrests, had relapsed on methamphetamine, and

was selling drugs. DSHS had earlier received reports that Kalberer-Bobo was using

amphetamines, had repeatedly failed to pick up J.K. from the school bus stop, and had

not provided J.K.'s school with medical equipment for J.K.'s severe asthma. The

dispositional order called for J.K. to remain with his maternal grandparents and for

Kalberer-Bobo to comply with urinalysis testing, have a drug/alcohol evaluation, and

follow treatment recommendations. No. 69558-4-1/3

On March 28, 2011, Kalberer-Bobo participated in a drug/alcohol evaluation.

The evaluator recommended that she complete intensive outpatient treatment and

urinalysis testing. Despite the recommendation, Kalberer-Bobo did not enter treatment.

Kalberer-Bobo's daughter M.S. was born in June 2011 with amphetamines in her

system. Kalberer-Bobo admitted using drugs "off and on" throughout her pregnancy.

Dependency was established as to M.S. in August 2011.1 Kalberer-Bobo agreed to place M.S. with the paternal aunt. M.S. has never been in Kalberer-Bobo's care.

On July 17, 2011, Kalberer-Bobo was arrested for committing two drug offenses:

possession with intent to manufacture or deliver heroin and possession of

methamphetamine. Kalberer-Bobo was admitted to family treatment court, but was

discharged for forging attendance slips for Alcoholics Anonymous/Narcotics Anonymous

meetings. Kalberer-Bobo testified that she was also kicked out because the Department

of Corrections found drugs in her room.

An agreed order of dependency for M.S. was entered in August 2011 based on

Kalberer-Bobo testing positive for amphetamines while pregnant, participating in

minimal prenatal care, and failing to engage in substance abuse treatment. Kalberer-

Bobo was ordered to engage in intensive outpatient treatment, urinalysis testing, and

mental health counseling. The court later changed the order to require inpatient

substance abuse treatment. Kalberer-Bobo did not engage in these services before she

pleaded guilty to her drug charges and was sentenced to 40 months in prison.

1 Report of Proceedings (RP) (Oct. 9, 2012) at 42. No. 69558-4-1/4

In February 2012, the trial court found that Kalberer-Bobo had not participated in

treatment or urinalysis prior to incarceration, and had not engaged in services while

incarcerated. The court ordered a permanent plan of adoption for both children.

DSHS filed the termination petition for both children on April 18, 2012. Following

trial, the trial court entered orders terminating Kalberer-Bobo's parental rights as to both

children on October 25, 2012.2

Kalberer-Bobo appeals.

DISCUSSION

Standard of Review

An appellate court reviews a trial court's termination order to determine whether

the findings of fact are supported by substantial evidence in the record and whether the

findings support the conclusions of law.3 Unchallenged findings offact are treated as verities on appeal.4

To prevail in a petition to terminate parental rights, the State must prove:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;

(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

2The children's fathers' parental rights were previously terminated. 3In re Dependency of C.B.. 79 Wn. App. 686, 692, 904 P.2d 1171 (1995). 4 Fuller v. Emplov't Sec. Dep't of State of Wash.. 52 Wn. App. 603, 605, 762 P.2d 367 (1988) (review is limited to determining whether the findings support the conclusions of law). No. 69558-4-1/5

(d) 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;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future....

(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.151 Each of the above elements must be proven by clear, cogent, and convincing

evidence.6 The State must also demonstrate that termination of parental rights is in the best interests of the child.7

Here, it is undisputed that the elements of RCW 13.34.180(1)(a) through (d) are

met. Kalberer-Bobo contends the State failed to prove RCW 13.34.180(1)(e) and (f),

and argues that termination is not in the best interests of the children.

Little Likelihood Conditions Can Be Remedied

In determining whether there is little likelihood conditions will be changed such

that the child can be returned to the parent in the near future, the court may examine

the entire parenting history.8

5RCW 13.34.180(1). 6RCW 13.34.190(1)(a)(i); In re Welfare of S.V.B.. 75 Wn. App. 762, 768, 880 P.2d 80 (1994); In re Dependency of A.V.D.. 62 Wn. App. 562, 568, 815 P.2d 277 (1991). The clear, cogent, and convincing evidence standard is satisfied when a court determines that the ultimate fact at issue is shown to be "highly probable." In re Welfare of Seqo. 82 Wn.2d 736, 739, 513 P.2d 831 (1973); In re Dependency of P.A.D.. 58 Wn. App. 18, 25, 792 P.2d 159 (1990). 7RCW13.34.190(1)(b). No. 69558-4-1/6

Kalberer-Bobo contends she made substantial progress by remaining sober and

complying with regulations while in prison. She also argues that she may qualify for

early release from prison through the Family Offender Sentencing alternative (FOSA).

In this regard, she asserts the facts of her case are analogous to those in In re Welfare

ofC.B.9 There, DSHS contended the mother needed to engage in services, continue her sobriety, and maintain a clean and safe home, but failed to prove that these

requirements could not be accomplished within one year.10 The appellate court reversed the termination order, determining that DSHS failed to prove there was little

likelihood her conditions could not be remedied in the near future.11

But the record here is substantially different than that in C.B., where the court

found the parent's "drug use was [not] so extensive as to make it unlikely that she could

not remedy it in the near future," "the State admitted that she was doing well in her

recovery," and the trial court found that the parent"would likely improve."12 None of these factors are present here. Kalberer-Bobo, unlike the parent in C.B., admitted at

trial that she did not complete the services required in the dependency action. She

failed to complete chemical dependency treatment or individual mental health

counseling. Kalberer-Bobo's drug addiction has not been successfully treated since

J.K. was removed from her care in 2010. Cassie Short, the court appointed special

advocate (CASA) for the children, testified she did not believe Kalberer-Bobo was

8 In re Welfare of Ross. 45 Wn.2d 654, 657, 277 P.2d 335 (1954). 9 134Wn. App. 942, 143 P.3d 846 (2006). 10 CJL 134 Wn. App. at 956-57. 11 ]d at 959-60. 12 Id. at 958-59. No. 69558-4-1/7

capable of adequately caring for J.K. and M.S. in the near future because she failed to

comply with services despite numerous referrals, and had not made any progress. The

trial court was not required to believe Kalberer-Bobo's stated intention to pursue needed

services in the future, and the reviewing court will not weigh the evidence or credibility

of witnesses.13

Kalberer-Bobo argues that her "limited ability to obtain needed services during

her incarceration should not justify" the finding that there is little likelihood she could be

reunited with her children in the near future.14 But there was ample evidence that Kalberer-Bobo did not improve even when all services were available to her. She

conceded as much at trial by admitting that all necessary services, reasonably available

and capable of remedying her parenting deficiencies, were expressly and

understandably offered or provided to her.

Kalberer-Bobo argues, as she did at trial, that she was a good candidate for early

release through FOSA, and would be eligible for inpatient chemical dependency

treatment, and would work toward having her children returned to her care. But

Kalberer-Bobo's ability to participate in FOSA is unknown and was the subject of

competing testimony at trial. DSHS social worker Jesse Choinski testified that Kalberer-

Bobo was unlikely to qualify for FOSA, in part because of the long separation from J.K.,

the fact that M.S. was never in her care, and the fact that the children's caregivers were

unlikely to allow her to parent the children again. Because there was conflicting

evidence, the trial court was not required to accept Kalberer-Bobo's optimism that she

13 Seqo. 82Wn.2dat740. 14 Appellant's Br. at 11. No. 69558-4-1/8

would qualify, much less that she would succeed to the point that she could have the

children returned to her care.

The evidence overwhelmingly supports the trial court's finding that there is little

likelihood that Kalberer-Bobo will remedy her parental deficiencies in the near future.15

Kalberer-Bobo fails to demonstrate any error warranting appellate relief.

Integration Into Stable and Permanent Home

When determining whether substantial evidence supports RCW 13.34.180(1)(f),

the main focus is the parent-child relationship and whether it impedes the child's

prospects for integration.16 The record supports the trial court's finding that the State proved this element.

Social worker Choinski and CASA Short stated that J.K. and M.S. are adoptable and

that both have prospects for adoption. The record demonstrates that each of the

children remained in the same placement since the dependency actions began. J.K.

remained in placement with his maternal grandmother since 2010, and M.S. remained

with her paternal aunt since her birth. Choinski testified that M.S. had no parent-child

bond with her mother. Choinski testified that J.K. was "distressed by the possibility of

going back or leaving his grandma,"17 that his visits with Kalberer-Bobo were "pretty inconsistent," interrupted his routine and schedule, and "there was a lot oftension."18

15 "A determination of what constitutes the near future depends on the age of the child." In re Dependency of T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005). 18CJL, 134 Wn. App. at 345. 17RP(Oct. 9, 2012) at 106. 18 Id. at 111.

8 No. 69558-4-1/9

There was evidence that the placements are prospective adoptive homes, and

that these homes cannot become permanent if the mother's parental rights remained

intact. She further stated that there was tension between M.C.'s caregiver and

Kalberer-Bobo because the caregiver suspected Kalberer-Bobo was intoxicated during

visits. The situation became so stressful for the caregiver that visits at her home were

discontinued. Short testified that there was conflict between Kalberer-Bobo and her

mother, and that Kalberer-Bobo's mother felt the visits were too disruptive for J.K. Short

also testified that visits with both children were disrupted by Kalberer-Bobo's

"inconsistent, erratic behavior, and sometimes aggressive and volatile behavior."19 Given this evidence, the trial court did not court err by finding this factor proven.

Present Unfitness

Kalberer-Bobo contends that because she sought out voluntary treatment,

education, and leadership roles while in prison, she has demonstrated present fitness to

parent. She argues that the trial court impermissibly relied only on her past fitness

when it found her unfit to parent.

However, the record provides ample support for the trial court's finding that

Kalberer-Bobo was unfit to parent the children due to her serious methamphetamine

addiction and criminal behavior. The court may consider the long-standing involvement

of DSHS and the court, as well as past history ofthe parent's behavior and deficiencies.20 Between the time J.K. was removed in December 2010 and Kalberer-Bobo's

incarceration in December 2011, she failed to complete court-ordered chemical

19 Id, at 225. 20 In re Dependency of J.C.. 130 Wn.2d418, 427-28, 924 P.2d 21 (1996). No. 69558-4-1/10

dependency treatment, urinalysis testing, mental health services, and had several

relapses into drug use.

The trial court did not err by finding the mother presently unable to adequately

care for the children.

Best Interests of the Children

Kalberer-Bobo contends the juvenile court erred in finding it was in the children's

best interests to terminate her parental rights. We disagree.

The dominant consideration in a termination of parental rights proceeding is the

moral, intellectual and material welfare ofthe child.21 Appellate courts are constrained to place very strong reliance on a trial court's determination of what course of action will

be in the best interests of the child.22

There was substantial evidence in the record from which the trial court could

determine that termination was in J.K.'s best interests. Although Kalberer-Bobo

describes a strong bond, the evidence demonstrates that the only time she was

consistent in attending visitation with J.K. was during a few months of inpatient

treatment when the children were transported to her treatment facility. The last visit she

had with J.K. was in September or October 2011.

There was substantial evidence that J.K.'s physical and behavioral health

improved after he was no longer in his mother's care. Kalberer-Bobo testified that J.K.

had severe eczema and asthma, and had been repeatedly hospitalized for his asthma

while in her care. Choinski testified that J.K.'s asthma and eczema had to be monitored

21 In re Dependency of A.A.. 105 Wn. App. 604, 610, 20 P.3d 492 (2001). 22 In re Interest of Pawling. 101 Wn.2d 392, 401, 679 P.2d 916 (1984).

10 No. 69558-4-1/11

and medicated. Short testified that J.K.'s eczema and asthma improved after he was

placed in his grandmother's care, choinski testified that J.K. also had developed

behavioral issues while in his mother's care, including anger and aggression, but these

issues diminished since J.K. was removed from Kalberer-Bobo's care. Choinski opined

that J.K. needs permanency now and needs to know who will meet his needs on a

regular basis.

According to Choinski, M.S. does not have any parent-child bond with Kalberer-

Bobo and does not know who she is. M.S. has never been in her mother's care and

does not see her mother as her primary caregiver or as the person who fulfills her

needs. Although Kalberer-Bobo initially participated in supervised visitation with M.S.

under the supervision of the paternal aunt, the aunt was concerned that the mother was

attending visits while under the influence. M.S. last visited with her mother when she

was four months old. At the time of trial, M.S. was 16 months old.

The CASA testified that M.S. and J.K. need "stability and permanence and to live

in a forever family now" and recommended termination of Kalberer-Bobo's parental

rights.23 She stated it would not be safe to return the children to Kalberer-Bobo in the near future.

Because the record amply supports the trial court's finding as to the children's

best interests, Kalberer-Bobo fails to demonstrate that the finding was erroneous.

23 RP(Oct. 10, 2012) at 226-27.

11 No. 69558-4-1/12

CONCLUSION

Substantial evidence supports the trial court's findings of fact. Those findings

support the conclusions of law. The elements of RCW 13.34.180(1) and

RCW 13.34.190 have been met. We affirm the order terminating Kalberer-Bobo's

parental rights as to J.K. and M.S.

WE CONCUR:

A^/ e j &x ,T.