In re the Dependency of: O.R.L.

Opinion

FILED

MARCH 24, 2015

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In re Dependency of: ) No. 32320-0-111 ) O.R.L. ) PUBLISHED OPINION ) ) )

LA WRENCE-BERREY, 1. - Kristi Dawn Lewis appeals the trial court's order

terminating her parent-child relationship with O.R.L. Ms. Lewis contends that the

termination should be reversed because the Department of Social and Health Services

(Department) failed to offer or provide all reasonably available services capable of

correcting her parental deficiencies. Specifically, Ms. Lewis maintains that visitation is a

remedial service that the Department failed to provide. We reaffirm In re Dependency of

T.H., 139 Wn. App. 784, 162 P.3d 1141 (2007), hold that visitation is not a required

service, and affirm the trial court's order terminating Ms. Lewis's parental rights to

O.R.L. No. 32320-0-II1 In re Dependency ofOR.I.

FACTS

Ms. Lewis is the mother ofO.R.L. born September 17,2012. One week prior to

O.R.L.'s birth, Ms. Lewis's doctor sent a letter to the Department expressing concern for

Ms. Lewis and the unborn child. The doctor stated that Ms. Lewis missed multiple

scheduled appointments, was suffering from a long history of mental illness, attempted

suicide multiple times, had no stable home, exhibited comprehension difficulties, and

failed to utilize services available to her. The doctor also informed the Department that

Ms. Lewis was seen panhandling as "homeless and pregnant," although she gave the

doctor a different account of her living situation. Ex. P-4.

The day after O.R.L. was born, the Department removed O.R.L. from Ms. Lewis's

care and filed a petition for dependency. The dependency order was entered on

November 7,2012. The court found O.R.L. dependent because there was no capable

parent of adequately caring for the child and because the child was in circumstances that

placed her in danger of substantial damage to her psychological or physical development.

The court required the following services to be offered to Ms. Lewis: drug and alcohol

evaluation and treatment, random urinalysis, parenting classes, a psychological

evaluation, mental health services and related medication management, a women's

support group, and weekly contact with the caseworker.

No. 32320-0-III In re Dependency ofOR.I.

The Department filed a termination petition in November 2013 due to Ms. Lewis's

alleged failure to participate in required services. On February 13, 2014, a termination

hearing occurred to address Ms. Lewis's parental rights. 1 At the time of the hearing,

O.R.L. was a dependent minor for all but one day of her life, a little less than 15 months.

The child was in a safe and stable foster care home and had an opportunity for adoption

into a permanent family with her foster parents.

The testimony and exhibits at the hearing established that in the year prior to

O.R.L.'s birth and through much of the dependency, Ms. Lewis was homeless or

bouncing from house to house. When O.R.L. was born, Ms. Lewis was temporarily

living with friends whose parental rights to their own children were terminated due to

physical abuse. After a few days at this address, she continued to move house to house

and shuffled between five different cities without finding permanent housing. However,

at trial, Ms. Lewis testified that she moved into an apartment in Lewiston, Idaho, on

November 3,2013.

Ms. Lewis had a history of chronic unemployment and had not worked since 2009.

She held only short~term jobs in the fast food industry, one that lasted two to three weeks

1 O.R.L. 's father relinquished his parental rights prior to the termination hearing.

No. 32320-0-II1 In re Dependency ofOR.L.

and another that lasted three months. During the dependency, Ms. Lewis reported that her

income was from disability.

Ms. McDougall's Testimony. Department social worker Sheila McDougall was

assigned to O.R.L.'s case. Ms. McDougall said that the Department was concerned that

Ms. Lewis's mental illness would prevent her from parenting. She was also concerned

that Ms. Lewis frequently moved residences and tended to stay with unsafe people or

people she did not know welL

After O.R.L.'s birth, Ms. Lewis attended four weeks of visitation at the beginning

of the dependency. However, she showed no understanding of how to care for an infant

and did not appear to understand the normal actions of a child that age. One month into

the dependency, Ms. Lewis discussed the possibility of relinquishing her rights. Shortly

thereafter, Ms. Lewis lost contact with Ms. McDougall except for sporadic telephone

calls to check in on O.R.L.

Ms. McDougall testified that the Department provided numerous services to assist

Ms. Lewis. These services included chemical dependency and psychological evaluations

and treatment, a women's support group, a community sexual assault program, an alcohol

dependency evaluation, counseling, an intensive outpatient program for mental illness,

No. 32320-0-III In re Dependency oIOR.L.

and parenting classes. The Department also provided opportunities for visitation and

referrals for housing assistance.

From the beginning of the dependency in November 2012 until August 2013, Ms.

Lewis failed to participate in the required intensive outpatient program for chemical

dependency. Although she completed an initial chemical dependency evaluation in

June 2013, she did not follow through with any treatment. She also scheduled two intake

appointments in August and September 2013 with a different chemical dependency

provider, but failed to show up for either appointment. In September 2013, Ms. Lewis

finally began a behavioral health program, but she attended for only three days before

abandoning the program. The program found her not amendable for treatment due to her

untreated mental illness.

Around July 2013, Ms. Lewis contacted Ms. McDougall and asked to resume

visitation. The Department determined that it was not in the child's best interest for Ms.

Lewis to become involved unless she was truly going to work toward reunification. Ms.

McDougall told Ms. Lewis that she could restart visitation once Ms. Lewis began to

meaningfully engage in services. Ms. McDougall thought that it was not good for the

child to develop a relationship with Ms. Lewis that would eventually disappear again.

Ms. Lewis promised to engage in services, but failed to do so.

No. 32320-0-III In re Dependency ofo.R.L.

Ms. Lewis also failed to participate in other required services and eventually

stopped contacting the Department in mid-November 2013. In January 2014, one month

before the termination hearing, Ms. Lewis participated in a one-day women's support

group and again enrolled in an outpatient treatment program. There was no evidence at

the hearing on whether Ms. Lewis followed up with either required service.

At some point, Ms. McDougall arranged for a meeting between Ms. Lewis,

O.R.L., and the foster parents, with the goal of convincing Ms. Lewis that O.R.L. was

doing well in foster care. Ms. McDougall was hoping that Ms. Lewis would relinquish

her parental rights and avoid the termination proceedings. Even though Ms. Lewis had

not seen O.R.L. in many months, Ms. Lewis made statements indicating an intimate

relationship with the child.

Dr. Richard Gallaher's Testimony. Also testitying at the hearing and submitting a

report was Dr. Richard Gallaher, a clinical psychologist who treated Ms. Lewis. Ms.

Lewis was first offered a psychological evaluation in 2012, but she did not complete the

process. One year later, in September 2013, Ms. Lewis reengaged in the evaluation

process, and Dr. Gallaher completed his investigation. Dr. Gallaher diagnosed Ms. Lewis

with schizophrenia, paranoid type, chronic posttraumatic stress disorder, and found

No. 32320-0-II1 In re Dependency ofo.R.L.

multiple ongoing Axis IV psychosocial and environmental stressors that may have

affected the diagnosis.

Dr. Gallaher also found that Ms. Lewis was quite scattered in her presentation and

could not explain why child protective services had intervened. He noted that she

described hallucinations and distorted thinking, had problems with good judgment, and

described a split personality that caused her not to remember what she did for up to three

hours. Ms. Lewis also admitted hearing up to 10 voices at a time. Dr. Gallaher found

Ms. Lewis's psychosis was quite active in spite of medication, that her illness was a major

deterrent to appropriate child care, and that it would be hard for her to provide a safe and

stable environment for a baby.

Dr. Gallaher also evaluated Ms. Lewis with the MMPI-2,2 a psychometric testing

instrument. The evaluation suggested significant clinical problems, including somatic

distress of an unusual nature, a pattern of ineffectiveness in life, difficulty managing

routine affairs, disconnection from reality at times, and the likeliness of blatant hostility.

Dr. Gallaher identified negative factors concerning parenting including major learning

difficulties and long-term mental illness that was a primary factor in her inability to

parent. He stated that she may not be willing to engage in more mental health treatment

2 The Minnesota Multiple Personality Inventory-2.

No. 32320-0-III In re Dependency o/o.R.L.

and that she had very few opportunities to receive ongoing support for her medication

needs and counseling.

Ms. Lewis's prognosis indicated that she was highly likely to remain unchanged

unless she could maintain long-term stability, counseling, and manage her mental illness.

Dr. Gallaher concluded that this would be very difficult to achieve. He found that Ms.

Lewis was not capable of parenting a child and that her very significant mental illness

was very unlikely to improve.

Dr. Gallaher's report recommended that Ms. Lewis obtain a stable residence that

would promote metal stability and stronger relationships with treatment providers. He

also recommended that Ms. Lewis manage her mental illness with anti-psychotic and anti­

depressant medications, as well as counseling, which would also help Ms. Lewis deal

with a traumatic personal history.

Kristi Lewis's Testimony. Ms. Lewis also testified at the hearing. She said that

her mental stability had improved significantly, and after many years of unsafe and

unstable residences, she secured housing and obtained an apartment. She said the

apartment had sufficient space for O.R.L. Ms. Lewis also reported that her boyfriend, a

convicted felon, would be living with her once he was released from an Idaho prison

rehabilitation program. Ms. Lewis was pregnant with her second child at the time of the

No. 32320-0-III In re Dependency ofOR.L.

hearing. Although, when asked about the pregnancy, she repeated that she was unsure if

she was pregnant because the doctor could not tell if she was 5 or 10 weeks along in her

pregnancy after conducting an ultrasound.

Ms. Lewis acknowledged that she heard voices and hallucinated all of her life, but

that symptoms diminished once she obtained a stable place to live and felt safe for the

first time. She also reported that she enrolled in an intensive outpatient treatment

program and began attending support groups.

The trial court announced its decision at the conclusion of the trial. The court

terminated Ms. Lewis's parental rights. In ordering termination, the court found that the

Department offered Ms. Lewis all necessary services, but she failed to sufficiently

engage in the programs. Also, the court found that the Department met the criteria in

RCW 13 .34.180(1)(e) and (t) for termination. Finally, the court found that Ms. Lewis

was unfit to parent and found termination was in the child's best interests. In making

these findings, the court noted that mental illness in general does not render a parent unfit

but, based on Dr. Gallaher's opinion, the severity of Ms. Lewis's illness rendered her

incapable of parenting O.R.L. The court also noted that Ms. Lewis's newfound efforts to

comply with services came too late.

No. 32320-0-111 In re Dependency ofo.R.L.

Ms. Lewis appeals. She challenges the court's finding that the Department offered

all necessary services under RCW 13.34.136 that were reasonably available and

capable of correcting parental deficiencies within the foreseeable future. See

RCW 13.34.180(1)(d). Specifically, she contends that the Department failed to provide

visitation, which she asserts is a reasonably available service capable of correcting her

parental deficiencies.

ANALYSIS

The trial court in a termination of parental rights proceeding has broad discretion

to evaluate the evidence in light of the rights and safety of the child. In re Welfare of

Siegfried, 42 Wn. App. 21, 27, 708 P .2d 402 (1985). The decision of the trial court is

entitled to great deference on review and its findings of fact are upheld if supported by

substantial evidence. In re Dependency ofK.S.C., 137 Wn.2d 918, 925, 976 P.2d 113

(1999). Substantial evidence is evidence in sufficient quantity to persuade a fair-minded,

rational person of the truth of the declared premise. World Wide Video, Inc. v. City of

Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991) (quoting Bering v. Share, 106 Wn.2d

212,220, 721 P.2d 918 (1986)). Unchallenged findings are verities on appeal. In re

Mahaney, 146 Wn.2d 878, 895, 51 P.3d 776 (2002).

No. 32320-0-II1 In re Dependency ofOR.L.

The reviewing court may not decide the credibility of witnesses or weigh the

evidence. In re Dependency ofA. V.D., 62 Wn. App. 562, 568, 815 P.2d 277 (1991). The

dominant consideration in a termination proceeding is the moral, intellectual, and material

welfare interests of the children. In re Dependency ofJ. W, 90 Wn. App. 417,427,953

P.2d 104 (1998). Where the parent's interest conflicts with the child's right to basic

nurture, physical health, mental health, and safety, the rights of the child prevail.

RCW 13.34.020.

"Under RCW 13.34.180 and RCW 13.34.190, a court may terminate parental

rights if it finds (1) the requisite allegations are supported by clear, cogent, and

convincing evidence and (2) termination is in the best interests of the child." In re

Welfare ofMR.H, 145 Wn. App. 10,29-30, 188 P.3d 510 (2008). "'Clear, cogent and

convincing' means highly probable." Id. at 24.

The six allegations that the Department must prove in a termination hearing are:

(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; (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

No. 32320-0-III In re Dependency ofo.R.L.

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.

RCW 13.34.180(1).

Washington courts have settled the question of whether visitation is a service that

must be provided. In T.H., the court held that visitation is not a service that the

Department is required to provide under RCW 13.34.180(1)(d). TH., 139 Wn. App. at

786. The court found that RCW 13.34.l80(l)(d) refers to services ordered under

RCW 13.34.136, and that RCW 13.34.136 affords services to a parent designed "'to

enable them to resume custody.'" T.H., 139 Wn. App. at 791 (quoting In re Dependency

ofA.A., 105 Wn. App. 604, 608-09, 20 P.3d 492 (2001)). The court reasoned, "There

may be situations where visitation is part of a required service, such as interactive

parenting classes. But it does not, on its own, correct parental deficiencies to enable the

parent to resume custody, and thus, we conclude that it is not a 'service' that must be

provided under RCW 13.34.180(1)(d)." TH, 139 Wn. App. at 792. The court also

recognized that RCW 13.34.136 clearly differentiates between services and visitation and,

the fact that the legislature prohibited a trial court from limiting visitation as a sanction

No. 32320-0-III In re Dependency a/OR.L.

for not complying with services, evidences an intent that the visitation is not a service.

T.H., 139 Wn. App. at 792.

Ms. Lewis asks this court to reconsider T.H. and hold that visitation is a required

remedial service under Washington law. Ms. Lewis contends that RCW 13.34.025, which

addresses remedial services, incorporates a federal law that was revised in 2011 to make

visitation a service. RCW 13.34.025(2)(a) states, "For purposes of this chapter, remedial

services are those services defined in the federal adoption and safe families act [ASFA] as

time-limited family reunification services. Remedial services include individual, group,

and family counseling; substance abuse treatment services; mental health services;

assistance to address domestic violence; services designed to provide temporary child

care and therapeutic services for families; and transportation to or from any of the above

services and activities." Under the ASFA, as amended in 2011, time-limited family

reunification services include "[s]ervices and activities designed to facilitate access to and

visitation of children by parents and siblings." 42 U.S.C. § 629a(a)(7)(B)(vii).

Ms. Lewis's argument is unpersuasive. First, while RCW 13.34.025(2)(a)

references the federal law, it also specifically lists services to be provided. Visitation is

not listed as a remedial service. Second, even if 42 U.S.C. § 629a(a)(7)(B)(vii) of the

ASFA is incorporated into Washington law, it does not provide visitation, but instead

No. 32320-0-II1 In re Dependency ofo.R.L.

provides services and activities designed to facilitate access to the children and visitation.

Thus, if incorporated, the Department must offer services that would make visitation

possible. For instance, if visitation is prohibited because of an anger issue by a parent,

the Department would be required to provide services to address the anger issue so

visitation would be possible. See In re Welfare ofS.J., 162 Wn. App. 873, 883-84,256

P.3d 470 (20 II).

We find no reason to depart from the reasoning of T.H Nor do we believe that

RCW 13.34.180(1)(d) or RCW 13.34.136 need reinterpretation. The legislature amended

RCW 13.34.136 several times since T.H. was decided and did not revise the statute to

include visitation as a service to be provided to parents.

All necessary services that were reasonably available and capable of correcting

parental deficiencies within the foreseeable future were expressly and understandably

offered or provided to Ms. Lewis. The Department was ordered to provide drug and

alcohol evaluation and treatment, random urinalysis, parenting classes, a psychological

evaluation, mental health services and related medication management, and a women's

support group. Ms. Lewis does not dispute that these services were offered to her or were

capable of remedying her parental deficiencies. While visitation was offered to Ms.

Lewis, it was not a required remedial service.

14 No. 32320-0-III In re Dependency ofOR.I.

Were we to examine the federal standard, we would conclude that the Department

did offer services to Ms. Lewis that were designed to facilitate access to and visitation

with O.R.L. The parenting classes and mental health treatment offered by the Department

were remedial services designed to address Ms. Lewis's parenting issues that she

displayed during visitation when O.R.L. was an infant. However, Ms. Lewis made no

effort to start services. Without the ability to care for her child, O.R.L.'s safety was an

issue and visitation was inappropriate.

The Department established all of the required statutory elements of

RCW 13.34.180. Specifically, the Department offered or provided all reasonably

necessary services capable of correcting Ms. Lewis's parental deficiencies. The trial

court did not err in ordering termination of Ms. Lewis's parental rights to O.R.L.

Affirm.

Lawrence-Berrey, J.

WE CONCUR:

Brown, J. (J