FILED JUNE 18, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Parental Rights to ) ) No. 35833-0-III R.M. ) ) ) UNPUBLISHED OPINION )
SIDDOWAY, J. — Following a 37-month dependency, R.M.’s father’s parental
rights to his son were terminated. The father appeals the termination order, arguing (1)
his right to due process was violated when the termination court adopted the dependency
court’s findings as substantive evidence, (2) the termination court erred when it adopted
hearsay statements as substantive evidence, and (3) the Department of Social and Health
Services (Department) failed to meet its burden to prove three required elements. We
find no error and affirm.
FACTS AND PROCEDURAL BACKGROUND
In February 2014, R.M., then approaching 5 years old, was removed from his
father’s care by the Department. The precipitating event was a report from staff of a
Salvation Army shelter, where the father and R.M. were living, that the father might be
physically mistreating R.M. No. 35833-0-III In re Parental Rights to R.M.
The Department was familiar with the father, having monitored his and R.M.’s
situation for approximately six months. It had initiated an investigation in late January
2014, after receiving reports that the father was neglecting R.M. It concluded that the
father and R.M. were “squatting” in the home of the father’s recently-deceased father in
unsanitary living conditions, with no running water, and that the father was selling
appliances and fixtures from the home to buy drugs. Sealed Clerk’s Papers (CP) at 231.
It was at the Department’s recommendation that the father and R.M. moved into the
Salvation Army shelter.
The Department filed a dependency petition on the same day it removed R.M.
from his father’s care. At a shelter care hearing a week later, R.M. was placed with his
mother, who was undergoing inpatient substance abuse treatment at Isabella House. At
the same hearing, the father was required to provide random urinalyses (UAs) and obtain
a parenting assessment and mental health assessment.
In July 2014, five months after the dependency petition was filed, dependency as
to the father was established by default because he had not been in contact with the
Department or his court-appointed attorney.
In December 2014, R.M. was removed from his mother’s care and placed in foster
care. The Department filed a petition to terminate both parents’ rights in May 2015.
While the father was found in default in February 2016, that default was later vacated.
Following appointment of a new lawyer and several continuances, an amended petition
2 No. 35833-0-III In re Parental Rights to R.M.
for termination of the father’s parental rights was filed in May 2017. The matter
proceeded to trial in August 2017. By the time of the father’s termination trial, R.M.’s
mother’s parental rights had been terminated.
Termination trial
At the four-day termination trial, the Department called 17 witnesses: Kirsten
Liesch, a Department social worker assigned to the father’s case in July 2015, R.M.’s
individual therapist, the guardian ad litem, 3 Department of Corrections employees
familiar with the father’s incarceration and community supervision during the
dependency, 4 counselors or other individuals familiar with the father’s chemical
dependency treatment and urinalysis (UA) compliance, 3 mental health therapists who
had provided individual therapy services to the father, 3 family therapists who had
accepted referrals to provide services to the father and R.M., and a psychologist who had
agreed to perform a psychological evaluation as a precondition to family therapy. The
father testified at length in the defense case. Evidence presented included the following
matters.
For the first 10 months after R.M. was removed from his care, the father largely
ignored the dependency process. He failed to engage in services ordered at the shelter
care hearing. He had almost no contact with the Department. In May 2014, the father
contacted the Department to report he was receiving inpatient chemical dependency
treatment and wanted to schedule visitation with R.M., but the Department was informed
3 No. 35833-0-III In re Parental Rights to R.M.
about a month later that the father left inpatient treatment against the staff’s
recommendations. After dependency as to the father was established by default in July,
the Department’s next contact with the father was at the end of December 2014, when he
called in response to a social worker’s voicemail. The social worker informed him that
R.M. had been removed from his mother’s care and was in foster care.
The father acknowledged his lack of participation in the dependency process. He
told the social worker he had recently completed inpatient treatment, was receiving
intensive outpatient treatment, and was ready to do whatever was required to get his son
back. The father was then serving time on criminal convictions but had qualified and
opted to serve time in drug court. Because the father was participating in drug court
during calendar year 2015, it was possible to refer him for visitation and services.
The community custody officer (CCO) who supervised the father’s participation in
drug court described him as “struggl[ing]” with the program during 2015. Sealed Report
of Proceedings (RP) at 275. About a month into drug court treatment, the father admitted
that he was missing UAs and treatment because he was using “Spice.”1 When the father
provided UAs (he often failed to appear for testing) he often tested negative; however,
the UAs did not test for Spice. He missed many treatment and court dates, including
times when his CCO believed he was in jail on municipal court charges. The father
1 Spice is a synthetic marijuana.
4 No. 35833-0-III In re Parental Rights to R.M.
committed and was sentenced for a number of crimes during the dependency.2 His
conviction for possession of a controlled substance caused him to be terminated from the
drug court program in December 2015.
The struggling with drug court participation in 2015 that the father’s CCO
described was mirrored by the father’s inconsistent participation in visitation and services
during that year.
The Department scheduled visitations beginning in January 2015. After the father
missed half of the visits in January and was discharged by the agency for too many no-
shows, the Department made a new referral so that visitation could resume in February.
At the end of February, the father was again discharged from visitation after he
threatened staff at the visitation site. In March, May, and September 2015, the father
2 He was sentenced for the following crimes during the course of the dependency:
Offense date Sentence date Offense 11-5-2013 2-2-2016 Residential burglary 1-19-2014 6-24-2014 First degree criminal trespass 3-16-2014 2-2-2016 Residential burglary and forgery 3-21-2014 8-17-2015 Reckless driving, hit and run of an attended vehicle 4-14-2015 5-20-2015 Third degree malicious mischief 4-28-2015 5-20-2015 Driving under the influence 6-2-2015 10-1-2015 Hit and run of an attended vehicle 10-8-2015 2-12-2016 Possession of a controlled substance 10-8-2015 1-26-2016 Driving with license suspended
RP at 242-43.
5 No. 35833-0-III In re Parental Rights to R.M.
received additional referrals for visitation. In calendar year 2015, the father was
scheduled for supervised visitation on 26 days; he attended 15 of the appointments and
cancelled or no-showed for 11.
In June 2015, a parenting assessment of the father was performed by Amanda
Clemons, based on her three hour observation of the father’s interaction with R.M.
While the father greeted R.M. in a positive manner and worked hard to interact with his
son, Ms. Clemons described the father as “struggl[ing] to follow his son’s lead.” RP at
144. She testified that during the assessment R.M. avoided his father and did not respond
to, or engage with him. Instead, he sought out Ms. Clemons for help. Ms. Clemons
concluded that the son’s relationship with his father was “significantly damaged” and the
son “presented an extremely insecure avoidance attachment.” RP at 151-52.
The father’s last nontherapeutic visitation with R.M. took place on October 5,
2015—close to two years before the termination trial. Visitation scheduled for two days
later was cancelled when the father appeared highly intoxicated on arrival. The father
failed to attend a visitation scheduled for October 12; it was later determined that he had
been incarcerated. Ms. Liesch testified to the record of R.M.’s reaction to the visitation
scheduled for October 12:
The report stated that [R.M.] had been picked up for the visit, and during the drive, he told the driver he didn’t want to go and told the driver that he had broken his knees so he couldn’t go to the visit, which wasn’t true. When they got to the facility, [R.M.] refused to get out of the car and asked to go home. So he was taken home.
6 No. 35833-0-III In re Parental Rights to R.M.
RP at 296. R.M.’s growing emotional distress over visitation led to a court order that
visitation would henceforth take place only in family therapy.
In mid-November 2015, the father was referred to Lacey Hurley for family
therapy with R.M. During the initial intake interview, Ms. Hurley found the father to be
resistant to the Department’s process and he appeared unwilling to engage. At the next
two sessions with Ms. Hurley, however, the father was able to interact with his son.
Based on the three sessions of therapy that she conducted, Ms. Hurley had concerns about
the father’s mental health and his hostility toward service providers.
The father began court-ordered mental health treatment in 2015, attending his first
mental health therapy session with therapist Steven Erickson in January 2015. Mr.
Erickson developed a treatment plan to address what he testified was the father’s
depression, anxiety, and problems with impulse control. While the father made some
progress with Mr. Erickson, his very inconsistent attendance (he was scheduled to meet
with Mr. Erickson weekly, but attended only 12 sessions between January 2015 and
January 2016) impeded his ability to address his mental health issues. Mr. Erickson
testified that the father had “difficulty controlling his anxiety and his depression” and
needed “to work more heavily in terms of cognitively restructuring his internal dialog
because of his negative perception of himself.” RP at 105.
The father’s termination from drug court in December 2015 and resulting
incarceration ended the father’s family therapy with Ms. Hurley and his individual
7 No. 35833-0-III In re Parental Rights to R.M.
therapy with Mr. Erickson. Mr. Erickson’s prognosis for the father was guarded if he did
not receive continued mental health support. His recommendation was that the father
receive continued treatment.
The father was transferred to minimum security at the Airway Heights Corrections
Center on April 6, 2016, where he remained through mid-August 2016, at which point he
completed a five-day DOSA3 treatment program and qualified for work release. When
Spice was found in his room at his work release housing a couple of weeks later,
however, he was returned to Airway Heights. He was returned to minimum security in
mid-October, where he stayed through his release on December 11, 2016. In light of his
incarceration, the father did not complete any Department-referred services during 2016.
R.M. was receiving individual therapy during 2016 from Carol Thomas, and she
talked to R.M. about the fact that his father could not have visits because he was
incarcerated. R.M.’s individual therapy had begun in early 2015, as a result of his bad
behavior and assaultive conduct at school. Initially, R.M. focused on his mother and
expressed concern about her well-being. When Ms. Thomas raised the suspended
visitation with his father in 2016, R.M. told her he did not know his father very well.
R.M. also told Ms. Thomas that visiting his mother and father made him feel “torn up all
the time. They make me want to throw stuff.” RP at 206.
3 Drug offender sentencing alternative.
8 No. 35833-0-III In re Parental Rights to R.M.
Following the father’s release from Airway Heights, Ms. Liesch referred the father
to Chelsea Corigliano to resume family therapy with R.M. The father’s first appointment
with Ms. Corigliano was on March 15, 2017. Ms. Corigliano testified that the father
presented as hesitant to engage in therapy, stating that he and R.M. had a very stable
relationship and that reports that he had mistreated R.M. were untrue. He told her that he
and R.M. had experienced no trauma. This concerned her, because “[e]xtreme lack of
insight into department involvement indicates either mental health issues, or . . . the
inability to engage in repair with their child.” RP at 185. Ms. Corigliano had a second
and third session with the father but never included R.M., explaining that the father
displayed hostile behavior and a lack of trust, which prevented them from establishing a
therapeutic rapport. Upon terminating services to the father, Ms. Corigliano
recommended that he receive a psychological evaluation and individual psychotherapy.
In March 2017, the father, having not yet obtained a required mental health
assessment, traveled to the offices of Frontier Behavioral Health. Amy Klein, a Frontier
employee, met with him to conduct an intake. She had no record of his history and relied
on the father’s self-report of his problems and needs. In testifying at trial, she referred to
her records, which indicated that the father did not disclose to her his prior mental health
treatment for depression, anxiety, and lack of impulse control. Lacking enough
9 No. 35833-0-III In re Parental Rights to R.M.
information to arrive at even a tentative DSM4 diagnosis, Ms. Klein diagnosed the father
with “illness unspecified.” RP at 254. With that diagnosis, the father did not qualify for
any services at Frontier.
At trial, the father characterized Ms. Klein as having concluded that he “did not
need counseling.” RP at 498. Ms. Liesch continued to tell the father that he needed to
have a full mental health assessment completed, but he refused. The father’s lawyer
affirmed that the father would not return to a provider for a mental health assessment
based on the father’s view that Ms. Klein concluded he did not need it.
Given Ms. Corigliano’s termination of family therapy, Ms. Liesch referred the
father to a third family therapist, Heather Dazell. Ms. Liesch also contacted Carol
Thomas to let her know she was trying to set up family therapy between R.M. and his
father. Ms. Thomas broached this with R.M., who was by then 8 years old. She testified
at trial to his reaction:
[R.M.] refused to go. He was very adamant about not wanting to go, saying he was scared of his father. He said, “I don’t want to see him. I’m too scared.” And he talked about phone calls that he had had with his father when he was incarcerated during visits with his paternal grandmother. And he said, “I didn’t want to talk to him, but he called. I don’t want to think about him. I don’t like him. I don’t want to talk about him. I don’t want to see him.”
RP at 207.
AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL 4
DISORDERS.
10 No. 35833-0-III In re Parental Rights to R.M.
The father had a single visit with Ms. Dazell, in which she describes him as
vacillating between cooperation and hostility. He told Ms. Dazell that he had not seen
R.M. in a year and a half and had only been able to speak with him on the phone. When
Ms. Dazell told the father that R.M. reportedly did not want to see him, the father
disagreed and said his and R.M.’s relationship was good. Ms. Dazell was concerned
about the father’s lack of insight into what was happening with R.M., but told him she
would speak to Ms. Thomas about continuing family therapy with R.M. Ms. Dazell
terminated family therapy with the father after learning from Ms. Thomas that R.M. did
not want to participate. In lieu of resuming family therapy, Ms. Dazell recommended
that the father receive a psychological evaluation and attend an Engaging Fatherhood
class.
Ms. Liesch attempted to refer the father to other family therapy providers,5 and in
mid-July, Dr. Jameson Lontz agreed to consider family therapy but wanted to first
complete a psychological evaluation to determine whether the father was a good
candidate. The father arrived for his August 3 evaluation appointment an hour and a half
late and refused to complete the intake paperwork. Dr. Lontz could see through his office
window that the father was getting animated with the staff, so he stepped out and agreed
5 Ms. Liesch testified at trial that during the course of the dependency, the Department referred the father to every contracted family therapy provider in Spokane County.
11 No. 35833-0-III In re Parental Rights to R.M.
to speak with the father before he proceeded. Asked about his concerns, the father
questioned why he was being referred, accused the doctor of being against him, and
“bec[ame] more physically agitated and loud.” RP at 127. Since there was no time left
within which to complete the evaluation, Dr. Lontz encouraged the father to reschedule
the psychological evaluation. The rescheduled date was after the father’s then-imminent
termination trial.
R.M.’s guardian ad litem testified that when the father started to miss visitation,
R.M. felt as though everyone was abandoning him. She also testified that R.M. was
afraid of his father, who had not taken the necessary steps “to show that he’s going to
consistently be able to help [R.M.] in the future.” RP at 86. She expressed her view that
R.M. needed stability and she did not believe the father could prioritize his son’s needs.
In the defense case, the father testified for a day and a half. He told the court he
had begun living at Oxford House, a clean and sober living facility, in late January or
early February 2017. By the time of the termination trial, he was the president of the
house and helped facilitate the meetings and the urinalyses. He testified that several
months earlier, in April, he began working at his brother’s automotive shop and that he
planned to return to college the following month to complete the Toyota T-TEN program.
The CCO assigned to the father following his release from Airway Heights had testified
in the State’s case that the father provided consistently clean UAs following his release
12 No. 35833-0-III In re Parental Rights to R.M.
and had undertaken a chemical dependency assessment that concluded he did not need
further treatment.
The father had consistently denied ever physically abusing R.M. at the Salvation
Army shelter and repeated his version of what led to the report by shelter staff that
precipitated R.M.’s removal. According to the father, on the morning of the day R.M.
was removed from his care, R.M. refused to brush his teeth, so the father took R.M.’s
Nintendo videogame console, which was R.M.’s “favorite thing in the world.” RP at
459. When R.M. “started screaming and freaking out” over the game console being
taken, the father testified, “I accidently slammed it down on the counter too hard and
broke the screen on it.” RP at 459. The father testified that it was the breaking of the
game console screen that caused R.M. to cry out, “[N]o!” and “throw[ ] a fit.” RP at 459-
60. He testified that he told the shelter staff—“two younger gals that are like 18 or 19
years old”—what had happened, and to “[c]alm down[,] I’m taking him to daycare,” and
“everything’s fine.” RP at 460. He noticed they still looked “really concerned.” Id.
That evening, police officers traveled to R.M.’s paternal grandmother’s house, where
R.M. was staying, and took him into Department custody.
The father testified that when he earlier obtained custody of R.M., it “was the best
thing that ever happened,” and when R.M. was taken away, he began heavily using drugs
and alcohol. RP at 464. He told the court he took advantage of his incarceration to
13 No. 35833-0-III In re Parental Rights to R.M.
complete an intensive drug and alcohol treatment program and engage in anger
management and life management courses. He denied needing mental health counseling.
The trial court took the matter under advisement and later reconvened the parties
to deliver an oral ruling. Explaining its decision to terminate the father’s parental rights,
the court stated that “most of [R.M.’s] life has been unsettled, unstable, and traumatic,”
his parents were only “episodically in his life,” and they “were repeatedly inconsistent
about making [R.M.’s] needs a priority.” RP at 558-59. The court stated that the trial
“demonstrated that [the father] was unable to comprehend how profoundly his . . .
conduct and instability traumatized [R.M.]’s sense of self and life.” Id. at 559. The court
also commented on the father’s enduring failure to obtain the mental health services he
had been told he needed, by multiple providers.
Written findings of fact and conclusions of law were later entered. The father
appeals.
ANALYSIS
“The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State.” Santosky v. Kramer,
455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because parents have a
fundamental liberty interest in the custody and care of their children, the State may
terminate parental rights “‘only for the most powerful of reasons.’” In re Welfare of S.J.,
14 No. 35833-0-III In re Parental Rights to R.M.
162 Wn. App. 873, 880, 256 P.3d 470 (2011) (internal quotation marks omitted) (quoting
In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). Washington
statutes respond to this constitutional command by providing a two-step process before a
court may terminate parental rights.
In the first step of the process, the State must prove six statutory elements
provided by RCW 13.34.180. These elements “focus[ ] on the adequacy of the parents
and must be proved by clear, cogent, and convincing evidence.” In re Welfare of A.B.,
168 Wn.2d 908, 911, 232 P.3d 1104 (2010) (footnote omitted). “Clear, cogent and
convincing evidence exists when the evidence shows the ultimate fact at issue to be
highly probable.” In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113
(1999). In addition to finding the six statutory elements, due process requires that a court
make a finding of current parental unfitness before parental rights can be terminated. In
re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995) (citing Santosky, 455
U.S. at 747-48). This finding need not be made explicitly and satisfying all six of the
statutory elements raises an implied finding of parental unfitness. In re Parental Rights
to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016).
The second step is for the court to ascertain the best interests of the child. RCW
13.34.190(1)(b). “Because the parent’s rights will already have been observed in the first
step, this second step need be proved by only a preponderance of the evidence.” A.B.,
168 Wn.2d at 912.
15 No. 35833-0-III In re Parental Rights to R.M.
In this case, the father argues that the trial court violated his right to due process
when it relied for its termination decision on factual findings made in the dependency
proceeding, including factual allegations based on hearsay. He also argues that
insufficient evidence supports the trial court’s findings of the termination elements
provided by RCW 13.34.180(1)(e) and (f), and that it erred in finding that termination
was in the best interest of R.M., as required by RCW 13.34.190.6
We first address the father’s challenges to the trial court’s reliance on factual
findings made in the dependency proceeding and then turn to the sufficiency of the
evidence to support its termination decision.
I. WHETHER THE TRIAL COURT ERRED IN ASSERTING THE BINDING CHARACTER OF FINDINGS IN THE DEPENDENCY PROCEEDING DEPENDS ON WHETHER THEY WERE RELEVANT AND SUPPORTIVE OF FINDINGS THAT THE FATHER CHALLENGES
The father’s due process challenge is to one of the 44 findings of fact made by the
trial court; specifically, the following language from finding 2:
The father disputed the facts contained in the dependency petition at this trial, however, the dependency court adopted the allegations set forth in the petition as findings of fact. They are a verity, that cannot be disputed.
6 Of the four elements that the father does not challenge, the first three are procedural and are seldom in dispute. RCW 13.34.180(1)(a)-(c). The sixth element, also unchallenged by the father, is, “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.” RCW 13.34.180(1)(d).
16 No. 35833-0-III In re Parental Rights to R.M.
CP at 310. As the father correctly contends, the Department’s burden of proof in a
dependency proceeding is a preponderance of the evidence, whereas its burden of
proving most matters in a termination trial is clear, cogent, and convincing evidence.
It is questionable whether facts contained in the dependency petition had much
relevance to the different issues presented at the termination trial. The issue for the
dependency court was whether, as of July 1, 2014, R.M. was abused or neglected by a
person legally responsible for his care and had no parent, guardian, or custodian capable
of adequately caring for him, presenting a danger of substantial damage to his
psychological or physical development. Ex. P-3 at 2 (findings, conclusions, and order,
concluding the State proved dependency under RCW 13.34.030(6)(b) and (c)). The
allegations of the dependency petition were of multiple reports of suspected neglect and
emotional abuse; there were no reports that R.M. was physically injured by his father.
The report by Salvation Army staff of a concern on February 28 was only one of the
reports recounted in the petition (and only one of the reported concerns of Salvation
Army staff recounted).
At issue in the termination trial were circumstances existing over three years later,
and what had happened in the intervening years was most consequential.
What the trial court might have intended by the challenged language in finding 2 is
that the dependency court’s findings, conclusions, and order were dispositive on whether
there was a legitimate basis for finding R.M. dependent in July 2014 and subjecting the
17 No. 35833-0-III In re Parental Rights to R.M.
father to the requirements of the dependency process. The father appears never to have
accepted the legitimacy of the dependency proceeding. In that limited sense, the July
2014 order was a verity.
Whether the trial court went beyond that limited meaning and erroneously relied
on the dependency court’s findings to support its conclusion that the statutory requisites
to termination were proved is a different issue. That is something to be assessed, and that
we will assess, in connection with the father’s challenges to the sufficiency of the
evidence.
The father also contends that factual allegations in the dependency petition
constituted hearsay, which the court erroneously relied on as substantive evidence.
Under questioning by Department counsel, Ms. Liesch read factual allegations from the
dependency petition at trial. The father did not object. She read from the petition in the
context of explaining the type of background information on the father that she passed
along to providers in making referrals. “Social workers may offer hearsay testimony to
show how they arrived at their opinions.” In re Welfare of X.T., 174 Wn. App. 733, 738,
300 P.3d 824 (2013). But a social worker may not use an absent witness’s written reports
as substantive evidence. Id.; In re Welfare of J.M., 130 Wn. App. 912, 924, 125 P.3d 245
(2005).
“RAP 2.5(a) states the general rule for appellate disposition of issues not raised in
the trial court: appellate courts will not entertain them.” State v. Guzman Nunez, 160 Wn.
18 No. 35833-0-III In re Parental Rights to R.M.
App. 150, 157, 248 P.3d 103 (2011), aff’d in part, rev’d in part, 174 Wn.2d 707, 285
P.3d 21 (2012) (citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)). To the
extent the assignment of error relates to Ms. Liesch’s testimony, it was unpreserved and
we decline to address it.7
II. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDINGS, AND THE FINDINGS SUPPORT THE TRIAL COURT’S CONCLUSION, THAT THE ELEMENTS REQUIRED BY RCW 13.34.180(1)(e) AND (f) WERE PROVED
In reviewing a trial court’s decision to terminate parental rights, we will uphold its
factual findings “if supported by substantial evidence from which a rational trier of fact
could find the necessary facts by clear, cogent, and convincing evidence.” K.S.C., 137
Wn.2d at 925. “Because of the highly fact-specific nature of termination proceedings,
deference to the trial court is ‘particularly important.’” K.M.M., 186 Wn.2d at 477
(quoting In re Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983)). We defer to
the trial court’s determinations of witness credibility and the persuasiveness of the
evidence. Id. We review de novo whether the trial court’s findings of fact support its
conclusions of law. Id.
7 In a footnote, the father argues that if a challenge to hearsay was waived, then the failure to object amounted to ineffective assistance of counsel. Sealed Br. of Appellant at 13 n.5. But the father did not assign error to ineffective assistance of counsel and fails to present argument on the essential demonstrations of deficient representation and prejudice. We will not review the suggestion that counsel was ineffective. In re Welfare of L.N.B.-L., 157 Wn. App. 215, 243-44, 237 P.3d 944 (2010); RAP 10.3(g).
19 No. 35833-0-III In re Parental Rights to R.M.
A. Sufficient evidence supports the court’s finding that there is little likelihood that conditions will be remedied in the near future (RCW 13.34.180(1)(e))
RCW 13.34.180(1)(e) requires a demonstration “[t]hat there is little likelihood that
conditions will be remedied so that the child can be returned to the parent in the near
future.” “A determination of what constitutes the near future depends on the age of the
child and the circumstances of the placement.” In re Dependency of T.L.G., 126 Wn.
App. 181, 204, 108 P.3d 156 (2005). Ms. Liesch testified at the termination trial that the
near future for R.M. was “now.” RP at 353.
RCW 13.34.180(1)(e) provides that if the State makes a showing that all necessary
services reasonably capable of correcting the parental deficiencies within the foreseeable
future have been clearly offered or provided and the parent has failed to substantially
improve his parental deficiencies within 12 months following entry of the dispositional
order, then a rebuttable presumption arises that there is little likelihood that return of the
child in the near future will be possible. In re Welfare of T.B., 150 Wn. App. 599, 608,
209 P.3d 497 (2009). “A parent’s unwillingness to avail herself of remedial services
within a reasonable period is highly relevant to a trial court’s determination as to whether
the [Department] has satisfied RCW 13.34.180(1)(e).” Id.
In connection with this assignment of error, the father assigns error to the trial
court’s supporting factual findings 32, 33, and 34. Among those findings were that the
rebuttable presumption applies and was not overcome by the father. The court found that
20 No. 35833-0-III In re Parental Rights to R.M.
“[the father]’s issues have persisted for the last three and one half years” and “[h]e has
had several years to embrace what the Department and professionals have attempted to
make available, and he flatly refused essential steps.” CP at 321. It also found that it
could consider the father’s failure to have contact with R.M. for an extended period of
time.
The father complains that the trial court did not make a finding as to what amount
of time constitutes the near future for R.M. The trial court made the ultimate finding that
there was little likelihood that conditions would be remedied in the near future, which is
supported by Ms. Liesch’s testimony. The father cites no legal authority requiring the
trial court to place an explicit time frame on what constitutes the near future.
The father does not dispute that the Department clearly offered all necessary
services. But he argues that because he successfully completed drug treatment, “the only
remaining barrier to reunification was for the father and son to repair their bond.” Sealed
Br. of Appellant at 18. There was substantial evidence that this “only remaining barrier”
was a massive if not insurmountable one. Ms. Thomas’s testimony established that the
bond between the father and R.M. had never been strong. Ms. Clemons’s testimony
established that by as early as June 2015, the relationship was significantly damaged.
The evidence established that the father’s indifference, unreliability, destructive conduct
and substantial unavailability for over three years had unsurprisingly destroyed any bond,
and that by the time of trial R.M. affirmatively objected to seeing his father. Three
21 No. 35833-0-III In re Parental Rights to R.M.
family therapists testified that the father’s unwillingness to engage, his hostility, and his
failure to recognize the effect on R.M. on his years’ worth of poor choices and displaced
priorities would interfere with or prevent meaningful therapy. If the father did not
change his attitude—and there was no sign that he would—there was no apparent path to
a father-son bond.
If relevant at all, the factual findings adopted by the dependency court that were
deemed “a verity” in finding 2 are inconsequential with respect to this issue. The finding
that RCW 13.34.180(1)(e) had been proved was supported by clear, cogent and
convincing evidence.
B. Sufficient evidence supports the trial court’s finding that continuation of the relationship diminishes R.M.’s prospect for early integration into another home (RCW 13.34.180(1)(f))
RCW 13.34.180(1)(f) requires a demonstration that “continuation of the parent
and child relationship clearly diminishes the child’s prospects for early integration into a
stable and permanent home.” In connection with this assignment of error, the father
assigns error to the trial court’s supporting factual findings 36 and 39. Finding 36 states
that continuation of the legal relationship of parent and child will result in R.M.
remaining in limbo. Finding 39 addresses the negative impact on R.M. on the continued
legal relationship, stating in part:
[R.M.] feels rejected and that he isn’t loved. Trauma isn’t caused just by physical abuse alone, but by inconsistency in contact and caregiving availability. Children in play therapy process trauma towards positive
22 No. 35833-0-III In re Parental Rights to R.M.
resolution. [R.M.] suffers from self-blame: he feels it is his fault his parents do not visit him. He is learning health coping skills, but as long as he feels threatened he cannot use these learned skills. The constant re- traumatization by re-introducing his father into his life clearly diminishes his early integration into a stable and permanent home.
CP at 323-24.
The father argues that because R.M. had significant behavioral issues while in
foster care, did not have a prospective adoptive placement, and might not be adoptable
without government support for his needed therapies, reunification is R.M.’s best option.
To prove the termination factor, the State does not have to show that a stable and
permanent home is available. In re Dependency of K.D.S., 176 Wn.2d 644, 658, 294 P.3d
695 (2013). Where there is no prospect for a child being adopted, other evidence
regarding the quality of the parent-child relationship has been found to satisfy the State’s
burden of proving RCW 13.34.180(1)(f). Id. The factor can be proved by demonstrating
that “continuation of the parent-child relationship create[s] feelings of insecurity and
instability in the child” or stated differently, is “destabiliz[ing]” for the child. Id. at 658-
59.
Ms. Thomas’s testimony is substantial evidence that clearly, cogently and
convincingly supports the trial court’s finding that RCW 34.14.180(1)(f) was proved.
Again, if relevant at all, the factual findings adopted by the dependency court that were
deemed “a verity” in finding 2 are inconsequential with respect to this issue.
23 No. 35833-0-III In re Parental Rights to R.M.
III. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDINGS, AND THE FINDINGS SUPPORT ITS CONCLUSION, THAT TERMINATION WAS IN R.M.’S BEST INTEREST
If a trial court concludes that the State has established the factors of RCW
13.34.180(1) by clear, cogent, and convincing evidence, it must then consider, as the
second step in the process, whether terminating parental rights is in the best interest of a
child. That termination is in the child’s best interest must be established by a
preponderance of the evidence. RCW 13.34.190; A.B., 168 Wn.2d at 911.
In connection with this assignment of error, the father assigns error to the trial
court’s supporting factual finding 41. The trial court observed in that finding that the
guardian ad litem, Ms. Thomas, and Ms. Liesch had all expressed the opinion that
terminating the parent-child relationship was in R.M.’s best interest. The trial court
added that R.M. “has been in limbo for over 42 months.” CP at 324.
Whether termination of parental rights is in the best interest of the child is a fact-
specific inquiry. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
“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.’” In re Dependency of T.R., 108 Wn. App. 149, 167, 29
P.3d 1275 (2001) (alterations in original) (quoting In re A.W., 53 Wn. App. 22, 33, 765
P.2d 307 (1988)).
24 No. 35833-0-III In re Parental Rights to R. M
Here again, if relevant at all, the factual findings adopted by the dependency court
that were deemed ''a verity" in finding 2 are inconsequential to this issue. The 42 month
limbo, along with the opinions of R.M.' s individual therapist, the social worker, and the
guardian ad litem provide clear, cogent and convincing evidence supporting the trial
court's "best interest" finding.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
~aw~. Siddoway, J.
WE CONCUR:
~\~ Pennell, A.CJ.