In re the Parental Rights to B.P.

188 Wash. App. 113

• Court: Court of Appeals of Washington
• Decided: June 4, 2015
• Docket: No. 32437-1-III
• Status: Published

Opinions

Brown, J.

¶1 H.O. appeals the termination of her parental rights over B.P. H.O. contends substantial evidence does not support the court’s findings that (1) all necessary services were expressly and understandably offered or provided her, (2) little likelihood existed to remedy conditions so B.P. could be returned to her in the near future, (3) her continued parent-child relationship diminished B.P.’s prospects for early integration into a stable and permanent home, (4) terminating her parental rights was in B.P.’s best interests, and (5) she was unfit to parent B.P. We disagree and affirm.

FACTS

¶2 Soon after B.P.’s birth on July 8, 2011, the Department of Social and Health Services (Department) became involved with her and her family. The Department had previously been involved with the mother and her three other children who are no longer in her care. A hospital hold was placed on B.P. at birth because she was withdrawing from methamphetamine, which H.O. exposed her to during pregnancy. The mother has been a longtime user of illegal substances, including heroin and methamphetamine.

¶3 On July 13, 2011, the Department petitioned for dependency, alleging parental deficiencies based on substance abuse, domestic violence, mental health, and parenting skills. The Department then removed B.P. from the mother’s care, and after a shelter care hearing, B.P. remained in foster care. The mother agreed to participate in random drug and alcohol testing, hands-on parent training, and mental health treatment.

¶4 Later, H.O. entered inpatient treatment at Isabella House, a six-month inpatient program incorporating parenting services. Isabella House permits the placement of children with their mothers at the facility. Initially, the mother entered Isabella House without B.P., but based in part on the mother’s progress while there, B.P. was allowed to stay with H.O. on September 27, 2011.

¶5 While H.O. was at Isabella House, the Department referred her to Carla Paullin for individual counseling. Ms. Paullin indicated she learned the mother had a traumatic childhood, an extensive criminal record, and a lengthy history of substance abuse and relapse, and had failed to parent her children for quite some time. Ms. Paullin concluded the mother presented symptoms consistent with personality disorder that exacerbated the mother’s impulsivity, inability to cope, and poor decision-making. Further, Ms. Paullin believed the mother was extremely institutionalized, making her ability to improve and stay sober largely contingent on her presence in highly structured settings.

¶6 In February 2012, H.O. completed inpatient treatment at Isabella House. Then, she and B.P. moved to a transition home where women who have completed the inpatient program can live while they are looking for permanent housing if they follow certain rules. Isabella House evicted H.O. from the transition home in June 2012 when H.O. relapsed, causing the court to remove B.P. from H.O.’s care.

¶7 Into the fall of 2012, H.O. continued to use methamphetamine. H.O. had not been engaging in services and had been sporadically visiting B.P. H.O. admitted she had been high during those visits.

¶8 In May 2013, a pregnant H.O. reentered Isabella House. She gave birth in June 2013 to A.O. That summer, the mother began working with a new individual counselor, Sandra Gormon-Brown. Treatment focused on the mother’s capacity to process traumatic events from her past. H.O. still had unresolved emotional issues directly related to her past, which has been and continues to be a significant barrier to her recovery as it has caused her maladaptive coping strategies. According to her individual counselor, the mother struggles to “feel her feelings,” which has made her unable to have empathy — a significant skill needed to parent children. Clerk’s Papers at 168.

¶9 H.O. graduated from Isabella House in December 2013. She began outpatient treatment with Partners with Families and Children, which provides a full range of services for children who have suffered abuse and/or neglect as well as provides mental health and chemical dependency treatment for parenting individuals and their family members. At the time of trial, H.O.’s Partners counselor testified H.O. had missed some support group meetings and thus was noncompliant with her outpatient treatment.

¶10 In August 2013, the court ordered supervised visits between H.O. and B.P. Lori Eastep, a family therapist, supervised. Between October 2013 and February 2014, Ms. Eastep had 22 therapeutic visits with H.O. and B.P., with each visit lasting two hours. The main focus was B.P.’s complete disconnect from the mother created by the mother’s absence from B.P.’s life. As Ms. Eastep opined, children are just beginning to attach to their caregivers at this critical stage. Due to H.O.’s choices, B.P. had to endure multiple placements that not only inhibited B.P.’s attachment to her mother but complicated B.P.’s capacity to attach generally. Ms. Eastep believed B.P. would never be able to form a real attachment to the mother and forcing B.P. to do so would significantly injure B.P.’s mental health.

¶11 In November 2013, H.O., B.P., and A.O. met with Carol Thomas for a parenting assessment. Regarding healthy attachment, Ms. Thomas indicated the window essentially closes after the first year of life. Having healthy attachment is critical to an individual’s mental health. Ms. Thomas observed no evidence of attachment between B.P. and the mother; at best, any connection between mother and child was characterized as a developing social relationship. Ms. Thomas reviewed B.P.’s placement history. Given B.P.’s age and the number of disruptions in placement she had experienced, Ms. Thomas felt B.P. would struggle with forming healthy attachments more than average children, and any further disruptions in placement would increase the likelihood B.P. would never be able to form a healthy attachment.

¶12 At the termination trial, Ms. Eastep described H.O.’s relationship with B.P. as a social relationship with an emerging emotional aspect. She further noted an individual’s own mental and emotional well-being were fundamental to meet a child’s needs. Here, the mother was not able to do that for B.P.

¶13 H.O.’s current counselor, Ms. Gormon-Brown, also testified to her concerns about B.P. returning to H.O.’s care and noted H.O. could not be emotionally available to B.P.

¶14 B.P.’s guardian ad litem, Karen Schweigert, testified B.P. was in H.O.’s care from September 2011 to June 2012 and B.P. did fairly well. She testified the relationship between H.O. and B.P. initially was remarkable and “[w]hen [H.O.’s] sober, she is a really good mother.” Report of Proceedings (RP) at 240. Ms. Schweigert admitted she has not seen H.O. and B.P. together since their visits resumed in August 2013. She described B.P. as a happy, healthy, and outgoing girl. Ms. Schweigert testified B.P. “still has some issues as far as adjusting to disruptions in her schedule.” RP at 230-31. She acknowledged that although it took B.P. some time to get used to the visits with H.O., B.P. adapted.

¶15 Ms. Schweigert testified to her concerns about H.O.’s ability to put B.P.’s needs ahead of her own. She acknowledged her concerns about H.O.’s decision-making, based primarily on information she received from B.P.’s current foster parents. When asked to identify H.O.’s parenting deficiencies, Ms. Schweigert testified H.O. had not had an opportunity to parent by herself outside of structured settings. Ms. Schweigert testified she did not think B.P. could be reunified with H.O., because B.P. was attached to her then-current placement. She stated her significant concern for B.P. is her lost attachment to H.O. Lastly, Ms. Schweigert testified termination of H.O.’s parental rights is in B.P.’s best interests.

¶16 The trial court determined the Department satisfied its burden under ROW 13.34.180. The trial court issued an oral ruling and later entered written findings of fact and conclusions of law. The trial court specifically found the Department had established each element of RCW 13.34-.180 by clear, cogent, and convincing evidence. It expressly found H.O. was currently unfit to parent and termination of the mother’s parental rights was in B.P.’s best interest. H.O. appealed.

ANALYSIS

A. Necessary Services

¶17 The issue is whether the trial court erred by finding that all necessary services were expressly and understandably offered or provided. H.O. contends substantial evidence does not support this finding and specifically argues the Department failed to offer attachment therapy to her.

¶18 Parents have a fundamental liberty interest in the care, custody, and companionship of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). As such, the State may interfere with parents’ rights “ ‘only for the most powerful [of] reasons.’ ” In re Welfare of S.J., 162 Wn. App. 873, 880, 256 P.3d 470 (2011) (alteration in original) (internal quotation marks omitted) (quoting In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). When the parental actions may cause harm or a risk of harm to the child, the State has a right and responsibility to protect the child. A.J.R., 78 Wn. App. at 229; In re Custody of Smith, 137 Wn.2d 1, 18, 969 P.2d 21 (1998). Therefore, “reunification must be balanced against the child’s right to basic nurture, physical and mental health, and safety; ultimately, the child’s rights and safety should prevail.” In re Welfare of A.G., 155 Wn. App. 578, 589, 229 P.3d 935 (2010).

¶19 Washington courts use a two-step process to determine whether to terminate parental rights. RCW 13.34.180(1); In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). The first step focuses on the adequacy of the parents and requires the State to prove the six statutory elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW 13.34.190(l)(a); A.R., 168 Wn.2d at 911. The six statutory elements required by the first step are as follows:

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

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

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

(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the reasonable future have been expressly and understandably offered or provided;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. A parent’s failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. . . .

(f) That continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home.

RCW 13.34.180(1). H.O. first challenges the court’s findings regarding subsection (d).

¶20 We review the court’s findings of fact under RCW 13.34.180(1) for substantial evidence from which a rational trier of fact could find the necessary facts by clear, cogent, and convincing evidence. In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). Evidence is substantial if it is sufficient to persuade a fair-minded person of the truth of the matter asserted. S.J., 162 Wn. App. at 881. Clear, cogent, and convincing evidence exists when the ultimate fact at issue is “highly probable.” K.S.C., 137 Wn.2d at 925. We defer to the trial court’s evidence weight and witness credibility determinations. In re Welfare of L.N.B.-L., 157 Wn. App. 215, 243, 237 P.3d 944 (2010). The party claiming error has the burden of showing a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).

¶21 Under RCW 13.34.180(1), the Department must offer all necessary services capable of correcting H.O.’s parental deficiencies within the reasonable future.

¶22 Here, the Department referred H.O. to Ms. Eastep to provide family therapy. Ms. Eastep is a licensed independent clinical social worker with knowledge about attachment. In August 2013, Ms. Eastep was court ordered to conduct a therapeutic contact between B.P. and her mother and eventually conducted 22 sessions with them. Ms. Eastep testified they went from no relationship, to a social relationship, to an emerging emotional connection. She opined it would take “hundreds and sometimes thousands of contacts for children to establish a secure attachment.” RP at 77. The mother and B.P. went from no relationship, to a social relationship, to an emerging emotional relationship. This evidences the mother and B.P. were receiving services specifically tailored to address their relationship and improve it.

¶23 H.O. relies on In re Welfare of C.S., 168 Wn.2d 51, 225 P.3d 953 (2010) and S.J., 162 Wn. App. at 881 to support her argument that not all necessary services were offered. Both cases are distinguishable. In C.S., the child had special needs that made him difficult to manage. C.S., 168 Wn.2d at 55-56. The foster parent was given training to handle the child, but the mother was not. Id. at 56. Thus, the Supreme Court held termination was not appropriate as the parent’s ability to manage the child was the only parental deficiency left. Id. Here, H.O. has mental health issues impacting her ability to parent B.P. The Department provided H.O. with therapeutic services to address her parenting deficiencies and strengthen her relationship with B.P. Ms. Eastep opined B.P. would never be able to form a real attachment to H.O. and forcing B.P. to do so would significantly injure BR’s mental health. Thus, services were offered to the mother without the desired success.

¶24 In S.J., the Department was offering hands-on parenting training, and the provider testified she did not ever provide these type of services. 162 Wn. App. at 878. The court found the lack of bonding and attachment was an issue because it was the Department’s removal of the child that diminished the bond the mother and child had. Id. at 883. The court found the Department delayed services to the mother, negatively impacting her bond with her child. Id. at 883-84. Here, the Department was providing services and BR. was initially returned to H.O. The mother, however, relapsed and BR. was removed. H.O. then disengaged in her services and stopped visiting for over a year. The disruption in the parent-child relationship was not caused by the Department, but rather by H.O.’s choices.

¶25 Based on the above, the evidence supports the finding that services specifically tailored to address the nature of the relationship between H.O. and BR. were provided and were briefly successful, but attachment, a necessary element of a parent-child relationship, could not be attained within the reasonable future. Attachment was the goal with the services offered by Ms. Eastep. The evidence shows that H.O. was receiving the necessary services but the deficiency could not be corrected in the reasonable future. Substantial evidence supports the court’s finding that all necessary services capable of correcting the parental deficiencies had been expressly and understandably offered or provided. H.O.’s challenge on this issue fails. Accordingly, the court did not err in finding that all services were offered to the mother as required under RCW 13.34.180(l)(d).

B. Remediation of Deficiencies

¶26 The issue is whether the trial court erred by finding little likelihood existed for the conditions to be remedied so that B.P. could be returned to H.O. in the near future. H.O. contends substantial evidence does not support the trial court’s finding. H.O. argues the trial court’s finding was in error because all necessary services were not offered to correct her parental deficiencies and any additional deficiencies were already corrected.

¶27 Before a court may terminate a parent’s rights, the Department must prove “[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.” RCW 13.34-,180(l)(e). Further, “[a] parent’s failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future.” Id. Lastly, “[t]he presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided.” Id. The focus of this factor is whether the identified deficiencies have been corrected. In re Welfare of M.R.H., 145 Wn. App. 10,27, 188 P.3d 510 (2008).

¶28 If the parent is unable to resolve his or her deficiencies within 12 months after the child has been declared dependent, the statute’s rebuttable presumption applies and it shifts the burden of production to the parent. In re Welfare of T.B., 150 Wn. App. 599, 608, 209 P.3d 497 (2009). The Department must still prove it is highly probable the parent would not improve in the near future. Id. One factor the court may consider is “ [psychological incapacity or mental deficiency of the parent that is so severe and chronic as to render the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the child, and documented unwillingness of the parent to receive and complete treatment or documentation that there is no treatment that can render the parent capable of providing proper care for the child in the near future.” RCW 13.34.180(l)(e)(ii). “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(l)(e).” T.B., 150 Wn. App. at 608. Even if evidence shows the parent may eventually be capable of correcting their deficiencies, termination is still appropriate where they will not be corrected within the foreseeable future. A. G., 155 Wn. App. at 590.

¶29 As discussed, necessary mental health, parenting, and substance abuse services were offered to H.O. to correct parental deficiencies in the over three years since dependency. H.O. argues alternatively her parental deficiencies were corrected. But the record shows H.O. had a long history of substance abuse. She began using drugs at age 13, and her first attempt at inpatient treatment was when she entered Isabella House in August 2011. She relapsed in May 2012 and was expelled from the program in June 2012. At trial, H.O. had been in outpatient treatment for 2 months but was noncompliant for not attending outside support groups. H.O.’s chemical dependency counselor, Carla Paullin, testified that 6 months of sobriety could be deemed partial remission and 1 year would be full remission. However, from her experience of 15 years of chemical dependency treatment, her work with H.O., and her knowledge of H.O.’s use history, she opined H.O. would need 2 years of sobriety to feel good about her sobriety.

¶30 H.O.’s mental health was an unremedied parental deficiency. H.O.’s counselor, Ms. Gormon-Brown, indicated H.O. has an extensive trauma history and struggled to feel her feelings. Ms. Gormon-Brown testified H.O.’s trauma history was a barrier to parenting. If parents cannot feel their own feelings, then they cannot help children cope with their feelings. At trial, the mother was making progress with addressing her own feelings, but Ms. Gormon-Brown had concerns about B.P. returning to H.O.’s care. She was concerned the mother could not be emotionally available to B.P.

¶31 The overwhelming evidence shows all necessary services were offered and, while H.O. made progress, she had not made enough progress that her parental deficiencies would likely be remedied in the foreseeable future. Substantial evidence shows H.O. needed several more months of sobriety, individual therapy, and hundreds if not thousands of contacts with B.P. to remedy all of her parental deficiencies. When progress has not been made in 12 months following dependency, a rebuttable presumption exists that there is little likelihood conditions will be remedied so that the child can be returned to the parent in the near future. T.B., 150 Wn. App. at 608. Because H.O. fails to produce evidence to rebut the presumption, substantial evidence supports the court’s finding there is little likelihood that H.O.’s deficiencies could be remedied in the near future.

C. B.P.’s Prospects

¶32 The issue is whether the trial court erred by finding continuation of the parent and child relationship diminished B.P.’s prospects for early integration into a stable and permanent home in the near future. H.O. contends no evidence, let alone no substantial evidence, supports this finding.

¶33 A court must find “continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home” before parental rights can be terminated. RCW 13.34.180(l)(f). “The plain language of RCW 13.34.180(l)(f) merely requires the trial court to find that the continued parent-child relationship diminishes the child’s prospects of integration into a stable and permanent home.” In re Dependency of K.D.S., 176 Wn.2d 644, 658, 294 P.3d 695 (2013). The focus is “on ‘the parent-child relationship and whether it impedes the child’s prospects for integration.’ ” Id. (quoting K.S.C., 137 Wn.2d at 927).

¶34 One way to satisfy RCW 13.34.180(l)(f) is evidence of the parent-child relationship causing harm to the child. K.S.C., 137 Wn.2d at 932. “ ‘[W]hile a detrimental personal relationship would not be irrelevant, this factor is mainly concerned with the continued effect of the legal relationship between parent and child.’ ” In re Dependency of P.P.T., 155 Wn. App. 257, 268, 229 P.3d 818 (2010) (emphasis omitted) (quoting In re Dependency of A.C., 123 Wn. App. 244, 250, 98 P.3d 89 (2004)).

¶35 Substantial evidence in the record shows B.P. needs permanence and is at risk of forming an attachment disorder. Ms. Eastep testified B.P. was a child in need of permanence. Going between H.O. and her foster home was confusing, and after being in the system her entire life, B.P. needed to know what her world was going to look like. H.O. argues the need for permanency was not established because H.O. and B.P. were visiting and trying to build a relationship, but the evidence in our record shows B.P. would not be able to attach to her mother based on H.O.’s parental deficiencies. Another disruption in placement could cause long term emotional harm to B.P. The testimony shows B.P. needed permanency that she could not receive with H.O. Accordingly, continuation of the parent and child relationship clearly diminished B.P.’s prospects for early integration into a stable and permanent home.

D. Best Interests

¶36 The issue is whether the trial court erred by finding that it was in B.P.’s best interests to terminate her mother’s parental rights. H.O. contends the record lacks substantial evidence to support this finding.

¶37 In addition to the first step of finding the six elements of RCW 13.34.180(1) by clear, cogent, and convineing evidence, the trial court must find by a preponderance of the evidence that termination is in the child’s best interest. RCW 13.34.190(1). “Only if the first step is satisfied may the court reach the second.” A.B., 168 Wn.2d at 911. We afford a trial court broad discretion in making the “best interests” determination, and its decision receives great deference on review. In re Welfare of Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979). Whether termination is in a child’s best interests is based on the particular facts and circumstances of each case. In re Dependency of A.V.D., 62 Wn. App. 562, 572, 815 P.2d 277 (1991). When a parent has failed to rehabilitate over a lengthy dependency period, a court is fully justified in finding termination to be in a child’s best interests rather than leaving the child “ ‘in the limbo of foster care for an indefinite period’ ” while the parent seeks further rehabilitation. In re Dependency of T.R., 108 Wn. App. 149,167, 29 P.3d 1275 (2001) (quoting In re A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)).

¶38 Here, the evidence is overwhelming that termination is in B.P.’s best interest. Ms. Eastep testified B.P. needed permanence and opined B.P. needed no significant change in her life. Ms. Schweigert, B.P.’s guardian ad litem, had concerns about the mother’s ability to place B.P.’s needs ahead of her own. She did not feel that the mother would be able to parent B.P. She testified termination was in B.P.’s best interest. Other than H.O., no witness indicated termination was not in B.P.’s best interest. The court’s finding was supported by substantial evidence.

E. Unfitness

¶39 The issue is whether the court erred in finding H.O. currently unfit to parent B.P. H.O. contends the evidence shows she was capable of parenting another child; therefore, she is capable of parenting B.P.

¶40 The Department is held to the higher burden of proving current unfitness in a termination proceeding by clear, cogent, and convincing evidence. RCW 13.34-.190(l)(a)(i). To meet its burden to prove current unfitness in a termination proceeding, the Department is required to prove that the parent’s parenting deficiencies prevent the parent from providing the child with “basic nurture, health, or safety” by clear, cogent, and convincing evidence. RCW 13.34.020.

¶41 Current parental unfitness is implicitly established when the Department proves all six of the statutory elements. In re Dependency of K.N.J., 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011). A court can explicitly make a finding of current parental unfitness. A.B., 168 Wn.2d at 920-21. Here, the trial court made an explicit finding that the mother was currently unfit to parent B.P. To meet its burden to prove current unfitness in a termination proceeding, the Department must prove the parent’s parenting deficiencies prevent the parent from providing the child with “basic nurture, health, or safety” by clear, cogent, and convincing evidence. In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014).

¶42 H.O. initially reunified with B.P., but when B.P. was 11 months old, H.O. relapsed and the child was removed. The mother did not visit her child on any consistent basis for the next year. By the time the mother resumed contact with B.P., she had developed the beginnings of an attachment disorder. The mother struggled to feel her own feelings and had maladaptive coping strategies. In order for B.P.’s needs to be met, including addressing her attachment issues, H.O. would need to be able to cope with her own feelings in order to help B.P. address her feelings in a healthy way. H.O. did not demonstrate an ability to do this. Further, H.O. had just begun her sobriety. She had not demonstrated an ability to remain sober outside of a structured setting. She did not acknowledge the emotional damage B.P. suffered due to the removal from her care. She did not demonstrate the ability to place B.P.’s needs ahead of her own.

¶43 H.O. points to her ability to parent her youngest child, A.O., to support her argument she is a fit parent. H.O.’s alleged parenting abilities regarding A.O. are unpersuasive in light of this evidence. Moreover, the circumstances between the two children vary markedly; one child was constantly with H.O. in a structured environment, while the other was displaced from H.O. for a significant amount of time, creating attachment differences. This is a deficiency that experts testified could not be remedied in the near future. Thus, the court’s finding that the mother was unfit to parent B.P. was supported by substantial evidence.

CONCLUSION

¶44 Because substantial evidence supports the court’s findings regarding RCW 13.34.180(l)(d)-(f), the best interests of the child, and the mother’s unfitness, the court did not err in terminating H.O.’s parental rights.

¶45 Affirmed.

Siddoway, C.J., concurs.