COURT CF APPEAL-5 DIVA .51-ATE OF WASHING1 ON
2018 JUL 23 tk1110: 15
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
) In Matter of Dependency of R.M.R., No. 77192-2-1 date of birth: 04/03/11, ) ) Minor Child. ) ) WASHINGTON STATE DEPARTMENT) OF SOCIAL & HEALTH SERVICES, ) ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION GERALD G. GOTCHER, ) ) FILED: July 23, 2018 Appellant. ) )
VERELLEN, J. —After a dependency of five-and-a-half years, the juvenile
court terminated the parental rights of the appellant father to his six-year-old
daughter. Shortly after his daughter's first birthday, the father stopped
participating in her dependency proceeding. He moved to another city, stopped
visiting his child, and did not complete any of the court-ordered services. He had
no contact with his daughter for more than five years. Despite his efforts shortly
before trial to reengage in the proceeding, substantial evidence supports the
court's findings that the father is currently unfit to parent his child and the
Department of Social & Health Services (Department) offered all necessary and No. 77192-2-1/2
reasonably available services capable of correcting parental deficiencies in the
near future. We affirm.
FACTS
Gerald Gotcher and R.M.R.'s mother1 married around the time of R.M.R.'s
birth in 2011. Gotcher's name is listed as the father on R.M.R.'s birth certificate.
Gotcher has an older child who resides with her mother in California. Gotcher's
older child has never lived with him, but he has telephone contact with her and
provides occasional financial assistance to her.
The Department became involved with the family at the time R.M.R. was
born and offered some medical and public health services to the mother. The
Department took custody of R.M.R. when she was five months old, after the
mother entered a substance abuse treatment program and Gotcher was unable to
care for the infant on his own. After the Department took R.M.R. into protective
custody, Gotcher and the mother moved to Portland, Oregon to live with family.
The Department placed R.M.R. in licensed care nearby in Vancouver,
Washington. R.M.R. has remained in the same foster care placement throughout
the dependency except for a period of approximately one year, in 2015, during a
failed attempt to reunite R.M.R. with her mother.
When she was placed in licensed care as an infant, R.M.R. was
underweight, had poor muscle tone, crossed eyes, and was unable to tolerate
1 R.M.R.'s mother entered into a stipulated open adoption agreement and termination order.
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being held or fed normally. She appeared to have some developmental delays.
However, R.M.R. made progress quickly and, within seven months, she was
developmentally on track.
In December 2011, the court entered an agreed order of dependency for
R.M.R. as to Gotcher. The stipulated statutory basis for the dependency was the
absence of a parent capable of providing adequate care for R.M.R. The agreed
factual basis included the parents' abandonment of R.M.R., Gotcher's criminal
history, lack of stable housing, and urinalysis test results indicating his use of
marijuana and alcohol. The agreed-upon dispositional provisions required
Gotcher to (1) obtain a drug and alcohol evaluation and follow all treatment
recommendations,(2) participate in twice-weekly random urinalysis testing, and
(3) obtain a parenting assessment and follow all recommendations. The
dependency order also provided for supervised visitation with R.M.R. three times
per week.
In the beginning, Gotcher actively participated in the dependency, and for
the first few months, he consistently visited R.M.R. Gotcher obtained a drug and
alcohol evaluation which did not recommend substance abuse treatment
contingent on Gotcher's successful completion of 90 days of urinalysis testing. He
also obtained a psychological evaluation. The psychologist recommended that
Gotcher complete an anger management assessment and follow the
recommendations based on that assessment, participate in parenting classes,
continue random urinalysis while his daughter remains in state custody, and
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maintain stable employment. Gotcher engaged in some urinalysis testing but did
not complete the required 90 days.
Gotcher testified that just after R.M.R.'s first birthday, the mother informed
him that he was not the child's father, and the couple separated. In June 2012,
Gotcher visited R.M.R., and the visitation supervisor asked him to leave because
he smelled of alcohol and appeared to be under the influence. This was the last
time Gotcher saw R.M.R. Shortly after this incident, the social worker assigned to
the case arranged a meeting with Gotcher in Portland. During the meeting,
Gotcher told the social worker that he did not have stable housing or income. He
mentioned that he was considering relocating to the Seattle area. The social
worker urged him to maintain contact with her and let her know where he was
living.
Gotcher moved to the Seattle area shortly after this meeting. He did not
contact the Department to provide new contact information, request referrals for
services in his new area, or request visits with R.M.R. The social worker was
unable to reach Gotcher.
In 2013, a social worker who took over the case while a colleague was on
medical leave successfully reached Gotcher using a new telephone number
provided by R.M.R.'s mother. The social worker introduced himself, provided his
contact information, and requested permission for the foster parents to travel with
R.M.R. Gotcher did not ask about services or visits. When the social worker later
tried to contact Gotcher again, the telephone number was no longer in service.
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Eventually, at the end of 2013, the social worker conducted a jail search and
learned that Gotcher was confined in the Snohomish County jail. Gotcher pleaded
guilty to assault in the third degree in November 2013 bas0 on a stabbing
incident and was sentenced to eight months in jail.
The court appointed special advocate (CASA), who was appointed to the
case in 2011, visited both parents in Portland early on in the case. However, the
CASA was unable see Gotcher again until she visited him in jail in Snohomish
County at the end of 2013. At that time, when the CASA tried to discuss services,
Gotcher became angry because he believed he had completed all the required
services and thought that R.M.R. should be placed in his care upon his release.
Gotcher told the CASA that he planned to rent a room in Everett after his release.
The CASA left her contact information for Gotcher and the contact information for
his attorney. Gotcher agreed to get in touch with the CASA when he was released
so they could review the status of his services. But Gotcher did not contact the
CASA and she did not see him again until they met in court more than three years
later.
The child support division sent notices to Gotcher starting in 2011 regarding
his child support obligation. Gotcher did not pay any of the child support for R.M.R.
and, by the time of trial, he had been assessed over $15,000 in back support.
Eventually, in 2016, Gotcher called and reported to the support enforcement
officer that he did not know if he was R.M.R.'s father and indicated that he wanted
paternity testing.
5 No. 77192-2-1/6
In the meantime, a new social worker was assigned to R.M.R.'s case in
2015. She did not know Gotcher's whereabouts and attempted to contact him
using the information in the file and through his attorney. Then in October 2016,
around the time of Gotcher's contact with the child support division, Gotcher called
the social worker and indicated that he wanted to pursue deoxyribonucleic acid
(DNA)testing. He explained that he had been inactive in the dependency case
after the mother told him he was not R.M.R.'s father. The DNA testing Gotcher
requested was scheduled in November 2016. R.M.R. was swabbed for a DNA
test, but Gotcher did not keep his appointment. The social worker provided
information to Gotcher about resources for services and made referrals for an
anger management assessment, a new drug and alcohol evaluation, and
parenting classes. The social worker also sent service letters to Gotcher's current
address to remind him of the dependency order's requirements.
In January 2017, the Department filed a petition to terminate parental rights.
Gotcher and the social worker spoke again in March 2017 about referrals for
services. He did not ask to visit R.M.R. After meeting the CASA again in court in
2017, Gotcher had several conversations with her about services available in his
area.
Sometime around May 2017, a month before the termination trial, Gotcher
requested visitation with R.M.R. He was frustrated by initial logistic delays in
organizing the visits. On May 31, Gotcher sent an e-mail message to the social
worker explaining that it was critical for him to restart visits before the upcoming
6 No. 77192-2-I/7
trial to "avoid" an argument that he had no recent contact with R.M.R. He also
suggested that it would be a "good idea" to move R.M.R. to a foster care
placement that was closer to him in order to facilitate visits.
While the Department was initiating the process for Gotcher's visits,
R.M.R.'s foster parents expressed concerns to the social worker that visitation
between R.M.R. and Gotcher would be traumatic and harmful to the child. R.M.R.
had experienced difficulties following the failed reunion with her mother and had
been referred for mental health counseling. She had been diagnosed with
adjustment disorder with anxiety. The social worker spoke to R.M.R.'s counselor.
The counselor believed that in light of the challenges R.M.R. experienced when
she was separated from her foster parents and placed with her mother, any
reintroduction to Gotcher should be slow and gradual and done in conjunction with
supportive services such as family therapy. Based on her conversations with the
foster parents and the counselor, the social worker decided to suspend the
process of setting up visitation.
The trial took place over four days in June 2017. R.M.R. was six years old
and about to enter first grade. She had not seen Gotcher in five years and had
been out of his care almost six years. Gotcher testified that for approximately four
years, he had been living in a house in Granite Falls, Washington with his
girlfriend, her five children, and her father.2 Gotcher said that after he moved to
2 Gotcher testified that he and R.M.R.'s mother were still legally married.
7 No. 77192-2-1/8
the Seattle area, he had no idea how to contact the social worker or anyone else
involved in the case.
At the time of trial, Gotcher was actively participating in some court-ordered
services but had yet to complete them. He was taking parenting classes. The
week before the trial, he completed an anger management/domestic violence
assessment. The evaluator recommended that Gotcher complete three months of
moral reconation therapy due to his elevated score on a domestic violence
inventory.3 The evaluator acknowledged that if he had been aware that Gotcher's
2013 assault involved stabbing someone multiple times, he would have also
recommended a psychological evaluation because the incident suggested a "rage
component" that required something "way beyond anger management." Gotcher
did not engage in moral reconation therapy nor did he obtain an updated drug and
alcohol evaluation. He began urinalysis testing again but only completed three
tests, which did not encompass testing for alcohol.
The CASA testified that Gotcher never asked about R.M.R. in his
conversations with her. She questioned his ability to parent his daughter due, in
part, to his anger issues and history of assaults. The CASA pointed out that
Gotcher had not demonstrated an ability to meet R.M.R.'s needs because he does
not know her needs and had shown little interest in learning about her. She
opined that Gotcher lacked empathy and an understanding of R.M.R.'s
3 According to the record, as least one of Gotcher's prior assault convictions was a domestic violence offense. Report of Proceedings(RP)(June 20,2017) at 191.
8 No 77192-2-1/9
circumstances, as demonstrated by his suggestion that the Department should
remove her from the only stable home she has known to make visitation easier for
him and his position that he could take custody of her immediately upon making
some adjustments to the household's sleeping arrangements. According to the
CASA, R.M.R. understood the concept of a permanent home and had consistently
expressed her desire for a "forever home" since she was three or four years old.
The CASA believed that R.M.R. had already waited too long for a permanent and
stable home.
According to the social worker assigned to the case at the time of trial,
reuniting R.M.R. with Gotcher in the foreseeable future was not realistic
considering Gotcher's unresolved anger issues and lack of relationship with
R.M.R. The social worker said that in order to determine if and when a reunion
could happen, Gotcher would need to successfully complete anger management
treatment, obtain an updated drug and alcohol evaluation, and successfully
complete urinalysis testing for a sustained period of time. Most importantly, he
would need to demonstrate the commitment and ability to be a parent to R.M.R. in
light of his prolonged absence from her life. She estimated that the process of
completing services and developing a relationship with his daughter would take at
least six months or a year, or longer, given R.M.R.'s diagnosis of anxiety, a time
frame that is not within the foreseeable future for R.M.R. The social worker also
had concerns about the practicality of placing R.M.R. in Gotcher's care given his
9 No. 77192-2-1/10
testimony that he regularly works six days per week in a tattoo parlor, from noon
until midnight or later.
After considering the testimony of 11 witnesses and approximately 30
exhibits, the court entered numerous findings of fact and conclusions of law and
an order terminating Gotcher's parental rights. He appeals.
ANALYSIS
Under the termination statutes, the juvenile court may order termination of
parental rights if the State proves the six statutory elements of RCW 13.34.180 by
clear, cogent, and convincing evidence and the court finds that termination is in
the child's best interests.5 Only one of the six statutory elements under
RCW 13.34.180(1) is at issue in this appeal:
(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.[6]
5 RCW 13.34.190; In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113(1999). 6 The other statutory elements 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;...(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. . . ; and (f) That the 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).
10 No. 77192-2-1/11
In addition to proving the statutory elements, due process requires the court
to "make a finding of current unfitness before parental rights can be terminated."7
"Satisfying all six of the statutory elements raises an implied finding of parental
unfitness."8
Clear, cogent, and convincing evidence is evidence that shows the ultimate
fact at issue to be highly probable.8 We give deference to the trial court in
weighing the evidence and witness credibility.10 "The court's factual findings must
be upheld if supported by substantial evidence from which a rational trier of fact
could find the necessary facts by clear, cogent, and convincing evidence."11
Evidence is substantial if it is sufficient to persuade a fair-minded person of the
truth of the fact at issue.12
Gotcher contends that the Department failed to offer all necessary and
reasonably available services, such as structured or therapeutic visitation or
attachment services, that would have allowed him to build a relationship with
R.M.R. and ultimately to reunify with her. He also challenges the court's finding of
parental unfitness.
7 In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75(2016). 8 Id. 9 K.S.C., 137 Wn.2d at 925. 1° In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). 11 K.S.C., 137 Wn.2d at 925. 12 In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011).
11 No. 77192-2-1/12
Read as a whole, it is clear that the court's finding of unfitness hinges on
the fact that Gotcher "simply chose not to be involved in his daughter's life."13
Gotcher has not lived with R.M.R. since she was five months old, and he has not
seen her since she was a year old. She does not know him. We defer to the
court's finding that Gotcher was not credible when he claimed that he was
uninvolved in the dependency for five years because he did not know how to
contact the Department. His conduct manifested a lack of commitment to
parenting R.M.R., and as the court observed, his explanation is belied by the fact
that after he reached the social worker in October 2016, he lost interest "almost
immediately" and did not respond again to the Department's attempts to engage
him until months later, March 2017.14
The record also supports the court's finding that Gotcher lacks insight into
his daughter's needs and has unaddressed anger issues. He demonstrated a lack
of concern for his daughter by suggesting that the Department remove her from
her long-term foster care placement for his convenience. And, as the court noted,
Gotcher's testimony that R.M.R. could be placed in his care within 24 hours
reveals his lack of knowledge about her needs and about the lengthy process that
would be required to carry out a hypothetically possible transition to his care.
Since the dependency was established in 2011, Gotcher has been convicted of
assault based on a stabbing incident, and he has not engaged in moral reconation
13 Clerk's Papers(CP) at 240 (Finding of Fact 2.7.7). 14 Id.
12 No. 77192-2-1/13
therapy nor any other treatment directed toward his propensity for anger and
violence. Substantial evidence in the record supports the court's findings that
Gotcher was currently unfit to parent his daughter.
Substantial evidence also supports the finding that the Department offered
all necessary and reasonably available services capable of correcting his parental
deficiencies within the foreseeable future. The Department offered all court-
ordered services to Gotcher. He undertook some but not all of the services
required. As noted, he did not begin the treatment recommended to address his
anger, did not obtain updated evaluations, or complete the recommended
urinalysis testing. While Gotcher claims that the Department unjustifiably withheld
visitation without concrete evidence that it would cause distress or harm to R.M.R.,
he ignores the fact that he did not ask to resume visits with his daughter until the
month before trial. The evidence supports the court's finding that any transition
would be a long and gradual process and, even if successful, there was a strong
possibility of adjustment problems that would require up to six months of therapy.
According to the social worker's estimate, the process of completing services and
establishing a relationship with R.M.R. would take at least six months to a year, if
not longer, given R.M.R.'s prior experience and diagnosis of anxiety.
Although Gotcher assigns error to several findings, his briefing focuses of
the court's finding drawing upon similarities between this case and the
circumstances in K.M.M. Gotcher contends that the court's reliance on K.M.M. is
misplaced. The court found:
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As with the father in In re Matter of K.M.M., 186 Wn.2d 466, 379 P.3d 75 (2016), Mr. Gotcher has no existing parent-child relationship with [R.M.R.]. When looking [at] parental deficiencies, best interest analysis and current unfitness, the court looks at the needs and circumstances of the specific child before the court. The father made a conscious decision to drop out of her life. There is no service capable of correcting that severed relationship in [R.M.R.'s] near future.(161
First, Gotcher's claim that the Department was required to facilitate
visitation fails because, while undeniably important for reunification, it is well
settled that visitation is not a service for the purposes of proving
RCW 13.34.180(1)(d).16 The statute's reference to "services" required under
RCW 13.34.136, includes "domestic violence counseling, parenting classes, drug
and alcohol counseling," random urinalysis, and other similar services.17
Visitation, on the other hand, is not rehabilitative in and of itself. Nor is this a
situation "where visitation is part of a required service," such as an interactive
parenting class.18 As the court recognized, Gotcher's decision after June 2012 to
"make himself a stranger" to his daughter created a barrier to any possible
reunification with her in the foreseeable future.16 This unfortunate circumstance
does not transform visitation into a service the Department was required to provide
in order to meet its burden under RCW 13.34.180(1)(d).
15 CP at 240(Finding of Fact 2.7.9). '6 1n re Dependency of T.H., 139 Wn. App. 784, 791-92, 162 P.3d 1141 (2007). 17Id. at 791 (quoting In re Dependency of A.A., 105 Wn. App. 604, 608-09, 20 P.3d 492(2001)). 18 Id. at 792. 19 CP at 241 (Finding of Fact 2.10).
14 No. 77192-2-1/15
Second, Gotcher fails to demonstrate any error with respect to the decision
in K.M.M. There, the court held that where there was no bond between the parent
and child at the time of trial and that there was no service capable of remedying
that condition within the child's foreseeable future, the parent was currently unfit
and the Department had met its obligation to offer all necessary and reasonably
available services capable of correcting parental deficiencies within the
foreseeable future.2° The court explained that the absence of attachment to a
parent is a condition that interferes with a parent's ability to provide for a child's
health, safety, and well-being and may ultimately render a parent unfit.21
Here, too, Gotcher acknowledged that he had no existing relationship with
his six-year-old child at the time of trial. But Gotcher points out that the Department
declined to arrange visitation for him in 2017, whereas the Department suspended
visitation in K.M.M. only after there were demonstrably adverse effects on the
child.22 He fails to recognize, however, that even if the Department had arranged
for him to visit R.M.R. in the weeks before the trial, this would not have changed the
fact that Gotcher had been absent for the preceding five years of his young child's
life and, as a result, he had no existing bond with her.
In K.M.M., the court concluded that even if the parent-child attachment
could be restored at some point in future, there was nothing in the record to
indicate that such restoration could be accomplished within a time frame that
20 K.M.M., 186 Wn.2d at 487, 494. 21 Id. at 493-94. 22 Id. at 475.
15 No. 77192-2-1/16
would be "conducive to K.M.M.'s emotional development and well-being."23
Likewise here, the record supports the court's determination that the time that
would be required for Gotcher to address his anger issues, to establish a parent-
child relationship, and to allow for a "hypothetically possible gradual transition" to
his care would be "well beyond the near future for this 6 year-old child."24 The
facts critical to the court's holding in K.M.M. are analogous to the facts here.
In contrast, the facts are significantly different from those present in In re
Parental Rights to B.P., where the court reversed an order of termination because
the Department failed to offer or provide bonding and attachment therapy for the
mother and her five-year-old child.25 There, the mother was successfully
addressing her drug addiction, had custody of a younger child, and the State
conceded that she was a fit parent to the younger child. The mother was also
having regular, consistent visitation with B.P. and the visits were going well. The
only question was whether B.P. could psychologically detach from her foster
parents and attach to her mother as her primary caregiver. In reversing the
termination order, the court observed that there was no evidence to suggest that
the Department withheld bonding and attachment services because "those
services would have failed or taken too long."26 But here, Gotcher had no contact
with his child for more than five years. The record supports the court's conclusion
23 Id. at 487. 24 CP at 240(Finding of Fact 2.7.8). 25 186 Wn.2d 292, 376 P.3d 350(2016).
26 Id. at 318.
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that any service capable of restoring the parent-child relationship simply would
have taken too long.
In sum, substantial evidence supports the trial court's findings that the
Department offered all necessary and reasonably available services to Gotcher
and that he was currently unfit to parent R.M.R. By the time of trial, Gotcher's
daughter had been out of his care for virtually her entire life, and he had failed to
fulfill any parental responsibilities for many years. His belated interest in becoming
involved in R.M.R.'s life in the months before trial was insufficient to demonstrate
true motivation and commitment to parenting. The Department's unwillingness to
facilitate visitation in 2017 was not the reason for the nonexistence of a parent-
child relationship. There was nothing the Department could have done in May or
June of 2017 to remedy the lack of a relationship or to resolve parental
deficiencies to allow reunification within the near future.
Affirmed.
WE CONCUR:
N urui, icr