IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parental No. 84588-8-I (consolidated with Rights to: No. 84612-4-I)
R.E.L.-G. DIVISION ONE
UNPUBLISHED OPINION
SMITH, C.J. — E.C. and A.L.G.’s parental rights to their child, R.E.L.-G.,
were terminated after a trial. Both parents appeal. The mother, E.C., challenges
the court’s determination that termination was in R.E.L.-G.’s best interest and
asserts remand is necessary for the court to (1) enter sibling relationship findings
and (2) to correct scrivener’s errors in the termination order. The father, A.L.G.,
contends (1) that the Department of Children, Youth, and Families did not timely
offer him all court-ordered services and necessary services to address his
parenting deficiencies, (2) that the court erred in concluding some court-ordered
services were futile, and (3) that the court erred in concluding termination was in
R.E.L.-G.’s best interest. We affirm, but remand for the court to enter findings as
to R.E.L.-G.’s sibling relationships and to correct a scrivener’s error.
FACTS
The mother and father have two children together: R.E.L.-G., born
June 26, 2015, and O.K., born July 27, 2017. The mother also has three older
children, E.B., Av.B., and An.B. The Department of Children, Youth and Families No. 84588-8-I/2
(Department) filed a dependency petition as to R.E.L.-G. in July 2015, when
R.E.L.-G. was one-month-old, due to concerns about unsafe home conditions.
The court initially placed R.E.L.-G. in her mother’s care with certain conditions. A
few months later, when R.E.L.-G. was five months old, the mother violated the
placement conditions and R.E.L.-G. was removed and placed with a family
friend. Two months after that, at the family friend’s request, R.E.L.-G. was
removed and placed in foster care. R.E.L.-G. was returned to the family friend—
where her father was living—one month later.
In February 2016, R.E.L.-G. was taken to the emergency room at Seattle
Children’s Hospital with injuries inside her mouth, and bruises on her back, chin,
and face. The emergency room doctor noted that “[b]ruising in any non-mobile
infant is very concerning for non-accidental trauma;” “the bruises on [R.E.L.-G.’s]
back could be concerning for being gripped by a hand;” the “chin bruise [was]
concerning for direct blunt trauma;” and the mouth trauma was “much more
concerning for a solid object being forced down [R.E.L.-G.’s] throat.” The father
was arrested and charged with third degree domestic violence assault of a child.
Dependency was established in July 2016 as to both parents through
agreed orders. The mother was ordered to complete a psychological evaluation
with a parenting component and to attend mental health counseling, and follow
all recommendations from these services. The father was ordered to complete a
drug and alcohol evaluation, undergo random urinalysis, to complete a
psychological evaluation with a parenting component, and follow all
recommendations from these services.
2 No. 84588-8-I/3
In August 2016, the father was convicted of fourth degree domestic
violence child assault against R.E.L.-G. because of the bruising observed at
Seattle Children’s Hospital. But the father maintained his innocence and denied
R.E.L.-G. was injured; rather, he claimed R.E.L.-G.’s bruising was actually
congenital dermal melanocytosis1 and that her other injuries were caused by
bronchitis or self-inflicted. The criminal court sentenced the father to 180 days in
jail and ordered him to engage in the services ordered in R.E.L.-G.’s dependency
case.
The father participated in the Supporting Early Connections program with
R.E.L.-G. through Navos. That program focuses on enhancing the parent-child
relationship through parent coaching. After dependency was established, the
father visited R.E.L.-G. about thirteen times in 2016, fifty times in 2017, and ten
times in 2018.
In June 2020, the court ordered R.E.L.-G. to be returned to her mother
within the month. But during R.E.L.-G.’s first unsupervised visit with the mother,
she sustained a severe burn to her leg; the Department later made an
administrative finding of neglect based on this incident. Despite this incident, and
over the Department’s protests, R.E.L.-G. was placed in her mother’s care in
August 2020.
In November 2020, R.E.L.-G.’s trial return home ended when law
enforcement removed R.E.L.-G. and her siblings from her mother’s care. A child
1 Congenital dermal melanocytosis is the appearance of flat gray-blue marks at or shortly after birth. Because of their blue coloring, these marks can resemble bruises. 3 No. 84588-8-I/4
protective services investigator reported that all five children were home alone in
extremely unsanitary conditions—numerous animals, both alive and dead, were
present, and there were extensive amounts of urine and fecal matter on the floor.
The children told the investigator that they had last eaten the day before. All five
children were placed in out-of-home care. R.E.L.-G. was placed in an
emergency foster care placement and then went to live with her current foster
family.
In the meantime, the father had disappeared entirely from the
proceedings. From September 2018 to February 2021, the father did not visit
with R.E.L.-G. and Department efforts to contact him were unsuccessful.
In January 2021, the court updated the mother’s service plan, ordering a
psychological evaluation with a parenting component, a mental health evaluation,
a drug and alcohol evaluation, and a one-time urinalysis with subsequent weekly
random urinalysis. Dr. Tatyana Shepel, a licensed clinical psychologist,
diagnosed the mother with personality disorder, animal hoarding disorder, and
somatic symptom disorder. The mother sporadically made reluctant efforts to
engage in mental health services and largely denied the need for treatment of
her diagnoses. The court found that there was no evidence that any of the
services offered to the mother resulted in any long-term progress.
In June 2021, a few months after the father reengaged in the proceedings,
the court ordered an updated service plan for him, too. He was ordered to
complete an updated psychological evaluation with a parenting component, a
substance use disorder assessment, random urinalysis, and an evidence-based
4 No. 84588-8-I/5
in-home parenting class. He was directed to follow all recommendations from
the ordered services.
The father was referred to urinalysis testing in late March 2021. He tested
positive for cocaine and cannabis, but claimed the positive test result for cocaine
was caused by his use of lidocaine cream. The father missed six subsequent
urinalysis appointments. In October 2021, the father started the Positive
Parenting Program (Triple P) with therapist Hayward Coleman. Mr. Coleman
observed R.E.L.-G. and the father together for three visits, but R.E.L.-G.
eventually refused to attend more sessions.
The Department petitioned for termination in November 2021. Following
trial, the trial court terminated both parents’ rights as to R.E.L.-G. As to the
mother, the court found that her lack of progress, reluctance to acknowledge her
diagnoses, and inability to take responsibility for her actions leading to the
dependency supported termination. As to the father, the court determined that
although he had engaged in services, the strain in his relationship with R.E.L.-G.,
caused by his lengthy absence, was beyond repair and rendered additional
services futile.
Both parents appeal. ANALYSIS Standard of Review
We review a trial court’s decision to terminate parental rights by
considering “whether substantial evidence supports the trial court’s findings of
fact by clear, cogent, and convincing evidence.” In re Parental Rights to K.M.M.,
5 No. 84588-8-I/6
186 Wn.2d 466, 477, 379 P.3d 75 (2016). “ ‘Clear, cogent and convincing’ ”
means the facts shown are highly probable. In re Welfare of M.R.H., 145 Wn.
App. 10, 24, 188 P.3d 510 (2008) (quoting In re Dependency of K.R., 128 Wn.2d
129, 141, 904 P.2d 1132 (1995). Termination proceedings are “highly fact-
specific” and we defer to “the trial court’s determinations of witness credibility and
the persuasiveness of the evidence.” K.M.M., 186 Wn.2d at 477. We review de
novo whether the trial court’s findings of fact support its conclusions of law.
K.M.M., 186 Wn.2d at 477.
Provision of Services
The father contends that the Department failed provide him with all court-
ordered and necessary services as required by RCW 13.34.180(1)(d) because it
did not provide recommended attachment services in a timely fashion. He also
argues that RCW 13.34.180(1)(d)’s requirement that services be “reasonably
available” applies only to necessary services and not to court-ordered services;
therefore, he asserts, the futility doctrine can only apply to necessary services.
Finally, he claims that the Department failed to provide him any services to meet
R.E.L.-G.’s special needs.
We disagree that the Department failed to offer services in a timely
manner. We also decline to read RCW 13.34.180(1)(d) as limiting the futility
doctrine to only necessary services and affirm the trial court’s finding that,
despite being court-ordered, the attachment services the father sought were
futile. And we also conclude that the father received all necessary services to
address R.E.L.-G.’s special needs.
6 No. 84588-8-I/7
Before parental rights can be terminated, the Department must prove the
six elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence.
RCW 13.34.190(1)(a)(i). At issue here is the fourth element, which requires the
Department provide all court-ordered and necessary services reasonably
available and capable of correcting parental deficiencies. RCW 13.34.180(1)(d).
“Necessary services” are “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)). The
Department must “identify a parent’s specific needs and provide services to meet
those needs.” In re Parental Rights to I.M.-M., 196 Wn. App. 914, 924, 385 P.3d
268 (2016).
1. Timely Services
The father contends that the Department failed to provide him attachment
services in a timely manner. He asserts that the Department should have
provided attachment services in February 2021, when he reappeared. Because
the father was provided with attachment services from the outset of the
proceedings and was also provided attachment services a few months after he
reengaged with the proceedings, we disagree.
The timeline of the father’s involvement throughout the dependency
proceeding helps frame this issue. In the November 2016 dispositional order, the
court ordered the Department to refer the father to infant mental health services
through Navos, which it did. For a time, the father engaged in the Navos
Supporting Early Connections Program, which is an attachment service. This
7 No. 84588-8-I/8
program provides parent coaching and aims to strengthen the parent-child
relationship.2 But in September 2018, the father vanished from R.E.L.-G.’s life
and remained absent for two-and-a-half years, until February 2021. Department
efforts to contact the father during that time were unsuccessful. In February
2021, the father suddenly resurfaced and began reengaging with proceedings.
The father claims that after he came forward in February 2021, the
Department was untimely in referring him to attachment services because it knew
or should have known that attachment services were necessary. But this
narrative is not entirely accurate. The father was provided attachment services
at the outset of the dependency proceedings and chose to absent himself from
R.E.L.-G.’s life. And when the father did reengage with proceedings, he was
offered attachment services only a few months later.
After the father reappeared in February 2021, the court did not order an
updated service plan until June 2021. The Department was not required to refer
the father to new services until after this court order. See RCW 13.34.180(1)(d)
(Department must offer court-ordered services). The Department referred the
father to a provider for his court-ordered psychological evaluation one month
later, in mid-July 2021. In early August, the provider, Dr. Sierra Swing, informed
the assigned social worker that there was a three to fourth month wait for an
evaluation. Two months later, Dr. Swing contacted the father and the evaluation
process started in late October. Around this time, the father was referred to and
2 While he was participating in the case, the father had a few visits with R.E.L.-G. in 2016, many visits in 2017, and very few visits in 2018. 8 No. 84588-8-I/9
began Triple P, an attachment service. This five month period between the
court’s updated service plan and referral to an attachment service does not
constitute an untimely delay.
We also note that the cases the father cites in support of services not
being timely provided are unpersuasive. None of the cases delineate a clear test
for when services are timely or untimely and their facts are distinguishable. In re
Welfare of S.J. does not discuss timeliness, but rather concluded that the
Department failed to offer necessary services where mental health and sobriety
treatment were offered sequentially rather than concurrently. 162 Wn. App. 873,
881-82, 256 P.3d 470 (2011). The court based its reasoning on the legislature’s
finding that co-treatment of these issues was more effective than sequential
treatment. S.J., 162 Wn. App. at 882. Here, the father did receive co-treatment.
In re Parental Rights to B.P. focuses on futility and does not discuss timeliness
(because no attachment services were ever provided) and its facts are not
analogous to the present case. 186 Wn.2d 292, 376 P.3d 350 (2016). In B.P.,
the court concluded that the record did not contain clear, cogent, or convincing
evidence that attachment services would be futile where evidence demonstrated
that the mother was progressing well in individual and family therapy—a
prerequisite for attachment services. 186 Wn.2d at 319-20. In contrast, here, an
attachment service—Triple P—was provided to the father but additional
attachment services were unnecessary and unlikely to succeed given R.E.L.-G.’s
refusal to attend visits. Moreover, the father was not engaging sufficiently with
9 No. 84588-8-I/10
individual therapy to warrant a referral to family therapy as recommended by Dr.
Swing.
In re Dependency of T.L.G. does discuss timeliness, but is distinguishable.
126 Wn. App. 181, 108 P.3d 156 (2005). There, the Department delayed the
parents’ evaluation by more than a year and simultaneously withheld services
until the parents completed the evaluation. T.L.G., 126 Wn. App. at 203. The
shelter care order in T.L.G. was entered in August 2001 but the Department did
not provide a list of approved evaluators until April 2002 and the parents did not
have their initial evaluation appointment until October 2002. 126 Wn. App.
at 194, 201. Here, the father was referred to an evaluation one month after the
court ordered it and the evaluation commenced four months later. And unlike the
parents in T.L.G., the father here was referred to services contemporaneously
with the evaluation process.
Because the father received attachment services at the outset of the
dependency proceedings in 2016 and shortly after he reengaged in proceedings
in 2021, we conclude that the Department did not fail to offer timely services.
2. Attachment Services
The father asserts that the Department did not provide attachment
services as recommended, only a parenting coaching service. But the father was
provided with attachment services, just not the additional services recommended
by Dr. Swing.
In the November 2016 dispositional order, the court directed the
Department to provide an infant mental health service—Supporting Early
10 No. 84588-8-I/11
Connections—through Navos. This service was “meant to strengthen his
relationship with [R.E.L.-G.].” The GAL testified that this program “provides
parenting coaching and focuses on the parent-child relationship and enhancing
the relationship.”
Then, in October 2021, the father started working with Hayward Coleman,
a parenting coach who teaches Triple P (Positive Parenting Program). Triple P
aims to “[s]trengthen the parent-child relationship, strengthen the overall
attachment between the parent and child, [and] improve communication.”
Mr. Coleman testified that Triple P is meant to address the attachment between a
parent and child. The father tries to characterize Triple P as merely a parenting
service and argues that “Parent Child Interaction Therapy (PCIT) was the
appropriate attachment service to be offered. But testimony demonstrated that
both services are attachment services—PCIT is just a more intensive service.
And testimony also demonstrates that the father could not yet benefit from more
intensive attachment services: Triple P with R.E.L.-G. was unsuccessful after she
began refusing to attend visits, and so PCIT was not available, and the father
was not participating in individual therapy, a prerequisite for referral to family
therapy.
3. Recommended Services
A court order required the father to complete an updated psychological
evaluation and “follow through with all recommendations.” The Department
contends that PCIT and family therapy were not “recommended services,” and
11 No. 84588-8-I/12
that consequently, they were not court-ordered services. This is not true. Both
services were recommended, and therefore, court-ordered.
Dr. Swing’s psychological evaluation of the father concluded that “[t]he
following parenting services are recommended:” • Parenting Services: o [The father] should continue to engage in parent coaching and parenting classes. o [The father] should consider engaging in Parent Child Interaction Therapy (PCIT) with [R.E.L.-G.] to address her behavior and any other concerns that are noted by the parent coach, visit supervisor, and/or foster parents. • Family Therapy: If [R.E.L.-G.] has an established therapist that she feels safe with, and she decides to work on improving her relationship with her father, it will likely be most beneficial for her father to start attending appointments with [R.E.L.-G.] and her therapist for family therapy versus starting over with a new therapist.
The Department maintains that Dr. Swing’s suggestion that the father “should
consider engaging in [PCIT]” is not a “clear” recommendation. It also avers that
Dr. Swing did not “squarely” recommend family therapy because the report
indicated that family therapy would be predicated on R.E.L.-G. wanting to work
on her relationship with her father. Neither of these arguments is meritorious.
Dr. Swing’s report states that “the following services are recommended” and then
lists PCIT and family therapy. It is unclear how these services were not clearly
recommended, regardless of whether they were couched in the softening phrase
“should consider.” The services were recommended by Dr. Swing and thus,
court-ordered.
12 No. 84588-8-I/13
4. Court-Ordered Services & Futility
The father asserts that court-ordered services are not subject to RCW
13.34.180(1)(d)’s “reasonably available” and “capable of correcting the parental
deficiencies within the foreseeable future” limitations. He argues that because
the futility doctrine is rooted in these phrases, it cannot apply to court-ordered
services. As a result, he claims that the court erred in concluding that offering
certain court-ordered services—PCIT and family therapy—were futile. But
contrary to the father’s assertion, both necessary and court-ordered services
must be reasonable. Thus, futility doctrine is not confined to necessary services.
Whether court-ordered services are subject to the futility doctrine is a
matter of statutory interpretation that we review de novo. In re Dependency of
W.W.S., 14 Wn. App. 2d 342, 358, 469 P.3d 1190 (2020). “Our fundamental
goal in statutory interpretation is to ‘discern and implement the legislature’s
intent.’ ” In re Parental Rights of K.J.B., 187 Wn.2d 592, 596, 387 P.3d 1072
(2017) (quoting State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007)).
“If the statute’s meaning is plain on its face, then courts must give effect to its
plain meaning as an expression of what the legislature intended.” Durant v.
State Farm Mut. Auto. Ins. Co., 191 Wn.2d 1, 8, 419 P.3d 400 (2018). A statute
is ambiguous if its plain language “remains susceptible to more than one
reasonable meaning.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d
1, 12, 43 P.3d 4 (2002). We avoid construing statutes in a way that produces an
absurd result. Tingey v. Haisch, 159 Wn.2d 652, 663-64, 152 P.3d 1020 (2007).
13 No. 84588-8-I/14
The father asserts that futility doctrine is based in the language of RCW
13.34.180(1)(d), which requires [t]hat the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided.
He maintains that the phrases “reasonably available” and “foreseeable future”
modify only “necessary services,” not “services ordered.”3 But the futility doctrine
is not confined to the language of RCW 13.34.180. Rather, it is better
understood as being rooted in reasonableness—a requirement shared by both
court-ordered and necessary services. An overview of the origins of the futility
doctrine provides helpful context.
The futility doctrine originated in a footnote in In re Welfare of Aschauer, in
which our Supreme Court concluded that the Department failed to show that all
court-ordered and necessary services were offered or provided but that “[t]he
offering of such services [] would have been a futile act.” 93 Wn.2d 689, 699 n.6,
611 P.2d 1245 (1980). The Court reasoned that the Department “could not
effectively offer [the mother] services” because she refused to move closer to the
child and because “the prospect of improving [the mother’s] parental capabilities
within the foreseeable future was negligible.” Aschauer, 93 Wn.2d at 699 n.6.
3 Our Supreme Court recently declined to weigh in on whether court-
ordered services were subject to the “reasonably available” and “foreseeable future” limitations in In re Parental Rights to D.H., 195 Wn.2d 710, 719, 464 P.3d 215 (2020). 14 No. 84588-8-I/15
Since its inception, the futility doctrine has been grounded in the
requirement that services be reasonable and available. See, e.g., In re Welfare
of Ferguson, 32 Wn. App. 865, 869-70, 650 P.2d 1118 (1982) (“Where the record
indicates the offer of services would be futile, . . . clear, cogent, and convincing
evidence would support a finding that reasonable services had been offered.”
(emphases added) (citations omitted)); In re Dependency of T.R., 108 Wn. App.
149, 163, 29 P.3d 1275 (2001) (parent must be willing and able to make use of
services); In re Welfare of C.S., 168 Wn.2d 51, 56 n.2, 225 P.3d 953 (2010) (if
additional services would be futile, court may make a finding that Department as
offered all reasonable services); I.M.-M., 196 Wn. App. at 924 (“The Department
is excused from providing otherwise required services if doing so would be futile.”
(emphases added)).
This requirement is mirrored in the statutory framework for court-ordered
and necessary services. RCW 13.34.136(2)(b)(vii), which addresses court-
ordered services, states that “[t]he department shall provide all reasonable
services.” Similarly, RCW 13.34.180(1)(d), which concerns necessary services,
states that these services must be “reasonably available, capable of correcting
the parental deficiencies within the foreseeable future.” Both statutory provisions
make clear that all services, whether court-ordered or necessary, are subject to a
reasonableness requirement. Moreover, case law has applied the futility doctrine
to both court-ordered and necessary services, though the majority of cases
15 No. 84588-8-I/16
discuss futility in the context of the latter.4 See, e.g., In re Dependency of M.-
A.F.-S., 4 Wn. App. 2d 425, 460-62, 421 P.3d 482 (2018) (futility applied to court-
ordered services); B.P., 186 Wn.2d at 297 (futility not applicable where
Department failed to provide all necessary services); K.M.M., 186 Wn.2d at 483
(futility discussed in context of necessary services).
The application of futility doctrine to court-ordered and necessary services
is also supported by the legislative intent behind dependency and termination
proceedings. In these proceedings, the legislature has declared that “the child’s
health and safety shall be the paramount concern” and that children have a “right
to a safe, stable, and permanent home and a speedy resolution of any
proceeding.” RCW 13.34.020. Exempting court-ordered services from futility
analysis would require the Department to keep providing services past the point
of reasonableness and would conflict with the legislature’s goal of providing a
speedy resolution to dependency and termination proceedings.
We therefore conclude that the futility doctrine applies to both court-
ordered and necessary services. We now consider whether the court erred in
finding that offering the father the court-ordered services of PCIT and family
therapy would have been futile.
“ ‘Where the record establishes that the offer of services would be futile,
the trial court can make a finding that the Department offered all reasonable
4 And this result makes sense, given that what constitutes a “necessary
service” is inevitably broader than the services ordered by the court. Therefore, litigants are likely to have more success by arguing the Department failed to offer them all necessary services. 16 No. 84588-8-I/17
services.’ ” K.M.M., 186 Wn.2d at 483 (quoting C.S., 168 Wn.2d at 56 n.2). “The
provision of services is futile where a parent is unwilling or unable to participate
in a reasonably available service that has been offered or provided.” K.M.M.,
186 Wn.2d at 483; see also In re Dependency of Ramquist, 52 Wn. App. 854,
861, 765 P.2d 30 (1988) (“[A] parent’s unwillingness or inability to make use of
the services provided excuses the [S]tate from offering extra services that might
have been helpful.”). Provision of additional services may also futile if the service
would not remedy the parent’s deficiencies within the foreseeable future. T.R.,
108 Wn. App. at 164; see also K.M.M., 186 Wn.2d at 486. “The ‘foreseeable
future’ is determined from the point of view of the child.” K.M.M., 186 Wn.2d at
486 (quoting In re Welfare of Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983)).
"[A] finding that services would be futile must be supported by clear and
convincing evidence.” In re Welfare of D.H., 25 Wn. App. 2d 502, 531, 523 P.3d
255 (2023).
Here, testimony at trial and the record established that offering the father
further attachment services would be futile because “the parent-child relationship
was so destroyed by the father’s conduct over the years that [R.E.L.-G.] refused
to participate in visits or this type of service.” Moreover, in order to provide the
father with the attachment services Dr. Swing recommended, “[R.E.L.-G.] would
have been required to be forced to attend and participate at the expense of her
psychological well-being.”
Testimony also demonstrated that additional services would not be able to
repair the father’s relationship with R.E.L.-G. in the foreseeable future. The court
17 No. 84588-8-I/18
found that “near future” for R.E.L.-G. was one to two months. The father does
not challenge this finding, and it is a verity on appeal. Robel v. Roundup Corp.,
148 Wn.2d 35, 42, 59 P.3d 611 (2002) (unchallenged findings are verities on
appeal). Social worker Anna Culotti testified that she believed there was no
likelihood R.E.L.-G. could be returned to her father within one to two months
because the father had “not made progress and addressed [his] underlying
parental deficiencies.” Social worker Culotti also opined that the father “ha[d] not
shown he can or will change his behavior” and that his “behaviors affect child
safety.” The GAL testified that she also did not believe the father could safely
parent R.E.L.-G. in the near future, and expressed concern about the father’s
absenteeism, untruthfulness in his evaluations, his potential substance abuse,
and his history of domestic violence.
Thus, the court’s finding that services were futile is supported by clear and
convincing evidence: further attachment services would cause R.E.L.-G.
additional trauma and because the father was not in a position to benefit from
them in the foreseeable future.
5. Services to Address Special Needs
The father claims that the Department failed to provide him all necessary
services because it did not offer him services to address R.E.L.-G.’s special
needs but did provide those services to R.E.L.-G.’s foster family. He asserts that
R.E.L.-G.’s special needs—namely, her ADHD and PTSD—made it difficult for
them to bond. But because the father does not adequately draw a connection
18 No. 84588-8-I/19
between lack of these services and termination, we conclude that these were not
necessary services.
Foster parents have a fundamentally different relationship with a
dependent child than noncustodial parents. K.M.M., 186 Wn.2d at 488. As such,
noncustodial and foster parents are not required to receive “identical” services.
K.M.M., 186 Wn.2d at 488. Rather, noncustodial parents are only required to
receive all necessary services capable of correcting the parental deficiencies
within the foreseeable future be offered or provided. RCW 13.34.180(1)(d). A
service is “necessary” if it is “ ‘needed to address a condition that precludes
reunification of the parent and child.’ ” K.M.M., 186 Wn.2d at 480 (quoting
A.M.M., 182 Wn. App. at 793).
Here, R.E.L.-G.’s ADHD did not preclude reunification between R.E.L.-G.
and her father; therefore, services addressing R.E.L.-G.’s ADHD were not
necessary services capable of correcting the father’s parental deficiencies.
Though the father claims that R.E.L.-G.’s special needs “affected her ability to
bond with her father during visits,” he is mistaken. The father relies on testimony
from Dr. Swing that as a child with ADHD, it would be “incredibly difficult” for
R.E.L.-G. to stay engaged in virtual visits. But Dr. Swing’s testimony is not
definitive. Testimony supported that despite her diagnosis, R.E.L.-G. was
typically “functioning well relationship-wise.” And however true Dr. Swing’s
assertion may be, other testimony indicates that it was not R.E.L.-G.’s attention
span that made the visits short—several witnesses testified that R.E.L.-G. did not
trust her father and generally disliked him.
19 No. 84588-8-I/20
And while R.E.L.-G.’s PTSD may have made reunification more difficult,
the father received attachment services necessary to address R.E.L.-G.’s PTSD
symptoms and ameliorate his connection with R.E.L.-G. Dr. Solchany diagnosed
R.E.L.-G. with PTSD and concluded that she “had a history of multiple traumas.”
Dr. Solchany opined that “trauma, especially relationship trauma, its needs to be
healed within the context of healthy relationships,” so a safe and trusting
relationship must first be established. Dr. Swing testified that to better help the
father cope with R.E.L.-G.’s PTSD, the father would need “more knowledge
around children’s developmental abilities and special needs” and that attachment
services would help achieve that end. The father received relevant attachment
and parenting services via Triple P.
Thus, services helping the father to address R.E.L.-G.’s ADHD were not
necessary services and the father received necessary services to address
R.E.L.-G.’s PTSD.
Best Interests of the Child Standard
Both the mother and the father challenge the trial court’s determination
that termination was in R.E.L.-G’s best interest. The mother characterizes the
best interest determination as a conclusion of law reviewed de novo and claims
that the conclusion was unsupported by the court’s findings of fact. The father
asserts that termination was not in R.E.L.-G.’s best interest because it would
separate her from her culture and heritage. We reiterate that the best interest
20 No. 84588-8-I/21
determination is a factual finding and affirm the trial court’s finding that
termination was in R.E.L.-G.’s best interest as to both parents.
Once the State has proven the six statutory elements in RCW
13.34.180(1) by clear, cogent, and convincing evidence, the court must then
determine whether termination is in the best interests of the child. RCW
13.34.180(1)(b); In re Dependency of A.M.F., 23 Wn. App. 2d 135, 147, 514 P.3d
755 (2022). “The burden of proof for this determination is a preponderance of
the evidence.” A.M.F., 23 Wn. App. 2d at 147. The trial court has broad
discretion in making a best interest determination and “its decision receives great
deference on review.” In re Dependency of J.A.F., 168 Wn. App. 653, 670, 278
P.3d 673 (2012).
Determining the best interests of the child is largely dependent on the
unique facts of the case and the circumstances of the child involved. In re
Dependency of J.D.P., 17 Wn. App. 2d 744, 767, 487 P.3d 960 (2021) (citing In
re A.V.D., 62 Wn. App. 562, 572, 815 P.2d 277 (1991)). “Courts therefore
consider a broad range of nonexclusive factors.” A.M.F., 23 Wn. App. 2d at 147.
See, e.g., J.D.P., 17 Wn. App. 767-68 (considering parent’s inability to
rehabilitate over lengthy dependency period); M.R.H., 145 Wn. App. at 28
(considering children’s bond with foster parents); J.A.F., 168 Wn. App. at 670-71
(considering father’s substance abuse); K.R., 128 Wn.2d at 145-46 (considering
housing stability and placement into a permanent home); In re Dependency of
A.C., 123 Wn. App. 244, 254-55, 98 P.3d 89 (2004) (considering strength and
nature of parent-child bond, benefit of continued contact).
21 No. 84588-8-I/22
1. As to the Mother
The mother asserts that the court’s findings of fact do not support its
conclusion that termination was in R.E.L.-G.’s best interest.5 But contrary to the
mother’s assertion, the best interest determination is a factual finding, reviewed
for substantial evidence, not a legal conclusion to be reviewed de novo. W.W.S.,
14 Wn. App. 2d at 352 (“[T]he best-interests determination is an inherently
factual one.”); K.M.M., 186 Wn.2d at 477 (termination order reviewed for
sufficiency of evidence).
Out of the court’s many findings of fact, the mother only challenges one:
that termination was in R.E.L.-G.’s best interest. The court’s unchallenged
findings are verities on appeal and support its best interest finding. Robel, 148
Wn.2d at 42. Indeed, at oral argument, counsel reiterated that the mother was
not challenging any of the court’s unfitness findings. Counsel instead argued that
the best interest determination was not a “throwaway” factor; it must be
supported by child-specific findings, such as a finding about the child’s bond with
the foster family. Counsel contended that unfitness findings alone are
insufficient. While we agree that this is not a “throwaway” factor, we disagree
that the record was insufficient to support a best interest determination.
Contrary to the mother’s assertion, the court did make some child-specific
findings. But more importantly, the totality of the circumstances supported a best
5 The court made both a finding of fact and conclusion of law that
termination was in R.E.L.-G.’s best interest. But we treat a finding of fact incorrectly denominated as a conclusion of law as a finding of fact. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). 22 No. 84588-8-I/23
interest determination. The court found that R.E.L.-G. was “in a stable, long-term
placement with her foster family and she has made it clear that she wants to be
adopted into this family.” The court’s other findings also supported a best
interest determination. For example, the court found that the mother suffers from
untreated mental health conditions that impact her ability to safely parent
R.E.L.-G. It also found that the mother was offered a litany of services, none of
which resulted in any long-term progress. The court noted that the mother did
not agree that she suffered from any mental health conditions aside from
agoraphobia and “completely disputed” her other diagnoses, which included
“personality disorders, animal hoarding, and somatic symptom disorder.” The
mother denied her need for treatment for any of these issues. The court found
the mother’s denial “especially concerning . . . because these disorders, in
particular animal hoarding, were specifically why [R.E.L.-G.] was in DCYF care.”
Moreover, the court found that it was unlikely the mother would address these
deficiencies in the near future and that continuation of a parent-child relationship
would diminish R.E.L.-G.’s prospects of integration into a permanent home.
“Where a parent has been unable to rehabilitate over a lengthy dependency
period, a court is ‘fully justified’ in finding termination in the child's best interests
rather than ‘leaving [the child] in the limbo of foster care for an indefinite period
while [the parent] sought to rehabilitate himself.” T.R., 108 Wn. App. 149, 167,
29 P.3d 1275 (2001) (alterations in original) (quoting In re Dependency of A.W.,
53 Wn. App. 22, 33, 765 P.2d 307 (1988)).
23 No. 84588-8-I/24
These findings—unchallenged on appeal—constitute substantial evidence
supporting the court’s finding that termination was in R.E.L.-G.’s best interest.
2. As to the Father
The father contends that the Department did not prove the six RCW
13.34.180(1) factors by clear, cogent, and convincing evidence, and therefore,
that the court could not reach the best interest prong of the termination analysis.
Having already determined that the only challenged factor—whether all court
ordered and necessary services were provided—was met, we are unpersuaded
by this argument. The father then only challenges the court’s best interest
finding as it relates to R.E.L.-G.’s ability to maintain a connection to her culture.
We conclude that substantial evidence supported the court’s finding that
termination was in R.E.L.-G.’s best interest.
The father states that termination is not in R.E.L.-G.’s best interest
because only by maintaining a relationship with him can R.E.L.-G. maintain a
connection to her culture. He relies heavily on Dr. Solchany’s testimony to
support this contention. But the father mischaracterizes much of Dr. Solchany’s
testimony. Contrary to his assertions, Dr. Solchany did not testify that an open
adoption would be “ideal” nor that R.E.L.-G. “should” get to know her biological
family members. Rather, she testified that “if dad was able to have something
like an open adoption . . . that [R.E.L.-G.] could get to know her extended biologic
family.” (Emphases added.) And while Dr. Solchany did testify that R.E.L.-G.
“knowing her culture and her heritage” was “very important,” she stated that
“especially with the Latino culture, there’s a lot in the greater Seattle area.
24 No. 84588-8-I/25
There’s lots of opportunities to connect with that.” Dr. Solchany also testified that
in addition to her father, R.E.L.-G.’s foster family could help her learn about and
connect with her culture.
Other evidence also supported the court’s best interest finding. The GAL
testified that placing R.E.L.-G. with either of her parents would be “extremely
traumatic” and would have a “big impact on her mental health and well-being.”
Dr. Solchany testified that R.E.L.-G. was securely attached and bonded to her
foster family. And R.E.L.-G. testified that she wanted to remain with her foster
family and that she did not want to live with her father because “he doesn’t know
how to take care of [her].” Dr. Solchany also testified that the impact on R.E.L.-
G. if she were placed with her father would be “devastating” and would put her
“at high risk of severe behavioral acting out.” Dr. Solchany explained that
because R.E.L.-G. is “very determined,” she was at “high risk at actually making
a plan or trying to hurt herself in some ways” if she was removed from her foster
family. Substantial evidence supported the court’s finding that termination was in
R.E.L.-G.’s best interest.
Challenges to Findings of Fact and Conclusions of Law
The father assigns error to twelve findings of fact made by the court.
Though he does not devote a distinct portion of his brief to any of these findings,
many are addressed indirectly throughout his briefing. The challenged findings
can be roughly grouped together by subject matter. Findings 2.16, 2.21, 2.22,
2.23, 2.25, 2.26, 2.27, 2.28, 2.29, and 2.30 concern the provision of services and
25 No. 84588-8-I/26
futility of providing additional services. Finding 2.33 concerns whether the father
is fit to parent R.E.L.-G. Finding 2.34 concerns the best interests of the child.
To the extent these findings are discussed in the above sections on
necessary services and best interests of the child, we conclude that they are
supported by substantial evidence. Those that are unaddressed, we decline to
review. See State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (“This court
will not consider claims insufficiently argued by the parties.”).
Evidence of Sibling Relationships
The mother claims that the court failed to make a finding as to R.E.L.-G.’s
relationship with her siblings as required by RCW 13.34.200(3) and that this error
necessitates reversal. She urges this court to overturn In re Dependency of
J.D.P., 17 Wn. App. 2d at 759, which determined that a violation of RCW
13.34.200(3) is not a basis for reversing a termination order. The Department
maintains that the court made three findings about R.E.L.-G.’s sibling
relationships. We disagree with the Department that those findings concerned
R.E.L.-G.’s sibling relationships. And while we decline to overrule J.D.P., we
agree with the mother that the court erred in not making a finding as to R.E.L.-
G.’s sibling relationships.
RCW 13.34.200(3) provides that “[a]n order terminating the parent-child
relationship shall include a statement addressing the status of the child’s sibling
relationships and the nature and extent of sibling placement, contact, or visits.”
Though the status of sibling relations is not a required element to support a
26 No. 84588-8-I/27
termination order, the court must include a statement concerning the status of
sibling relationships. J.D.P., 17 Wn. App. 2d at 759.
The three findings the Department claims discuss R.E.L.-G.’s sibling
relationships do not, in actuality, discuss R.E.L.-G.’s sibling relationships.
Rather, each discusses the father’s relationship with R.E.L.-G.’s sibling, O.K.
The court heard sufficient testimony about R.E.L.-G.’s relationship with her
siblings to enter a finding. We remand for entry of such findings.
Scrivener’s Errors
The mother notes that the termination order contains two typographical
errors: the order cites “RCW 3.34.180(1)” instead of “RCW 13.34.180(1)” in
finding of fact 2.30 and then “RCW 13.24.180” instead of “RCW 13.34.180” in
conclusion of law 3.4. She maintains that the proper remedy is remand to correct
these scrivener’s errors. Because we remand for the court to make a sibling
relationship finding, we also direct the court to correct these scrivener’s errors.
A scrivener’s error is a clerical mistake that, “when amended, would
correctly convey the intention of the court.” State v. Davis, 160 Wn. App. 471,
478, 248 P.3d 121 (2011). A scrivener’s error may be corrected at any time.
Davis, 160 Wn. App. at 478. The remedy for a scrivener’s error is remand to the
trial court for correction. State v. Makekau, 194 Wn. App. 407, 421, 378 P.3d
577 (2016).
Here, the order contains two clerical errors and intended to reference
“RCW 13.34.180(1)” and “RCW 13.34.180.” Though the court’s intention is
27 No. 84588-8-I/28
clear—and remand is only necessary as to the sibling relationship finding—the
court should also correct these typos.
We affirm the termination order but remand for the court to enter a finding
as to R.E.L.-G.’s sibling relationships and to fix the scrivener’s errors.
WE CONCUR: