In re the Termination of: IM.- M. & Z.M. - M.

196 Wash. App. 914
CourtCourt of Appeals of Washington
DecidedDecember 1, 2016
Docket33890-8-III; 33891-6-III
StatusPublished
Cited by33 cases

This text of 196 Wash. App. 914 (In re the Termination of: IM.- M. & Z.M. - M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Termination of: IM.- M. & Z.M. - M., 196 Wash. App. 914 (Wash. Ct. App. 2016).

Opinions

Pennell, J.

¶1 The Department of Social and Health Services (Department) is obliged to provide necessary and available reunification services prior to terminating parental rights. When a parent is cognitively impaired, services must be tailored to a parent’s individual needs. This burden on the Department is significant, but so are the rights at stake. Only upon a showing of futility will a termination order be upheld when the Department fails to meet its obligations.

¶2 C.M.’s parental rights were terminated after a 2-year dependency. Within at least 60 days of initiating the dependency, the Department became aware C.M. had cognitive impairments that would likely impact her ability to address parental deficiencies. Yet, C.M.’s service providers were never notified of her impairments and tailored services were never offered. During C.M.’s termination trial, the Department failed to present competent evidence that tailored services would have been futile. Based on these circumstances, the termination order is reversed.

FACTS

¶3 C.M. became involved in dependency proceedings after she pushed her child, who was in a stroller, across a busy street while attempting to flee apprehension for shoplifting. This was not C.M.’s first involvement with the Department. She had previous referrals due to substance abuse and homelessness. The dependency petition identified drug use and transience as continuing concerns, particularly because C.M. was pregnant and the drug use might impact her unborn child.

[918]*918¶4 The dependency petition recognized C.M. has low cognitive functioning. A year prior to the petition, a Department worker had issued a report stating C.M.’s IQ (intelligence quotient) is 79 and she is “DD.” 2 Verbatim Report of Proceedings (VRP) (Sept. 10, 2015) at 213. Nothing in the record clarified the basis for this statement or whether “DD” meant developmentally disabled or developmentally delayed. See id. Based on the information in the dependency petition, the court ordered C.M. to undergo a psychological evaluation.

¶5 C.M. promptly completed the required psychological evaluation with Dr. Sean Smitham. From the evaluation, Dr. Smitham made several findings. Important here, he determined C.M. was significantly cognitively impaired. Her IQ was lower than 91 percent of individuals her age, raising “concerns about her . . . ability to hold a job, pay bills, [and] take care of herself.” 1 VRP (Sept. 9, 2015) at 105.

¶6 Dr. Smitham found the severity of C.M.’s impairment surprising because it had not been readily apparent prior to testing. According to Dr. Smitham, C.M. demonstrated strong street smarts and had “become very good at reading social cues and presenting herself socially in a way that probably masks her intellectual deficits.” Id. at 106. Based on C.M.’s adaptive skills, Dr. Smitham believed it would be difficult, though perhaps not impossible, for untrained service providers to understand the scope of C.M.’s intellectual impairment and needs. Id. at 114-15.

¶7 Dr. Smitham connected C.M.’s intellectual impairment to difficulties she would likely face in completing reunification services. According to Dr. Smitham, C.M. lacked self-awareness about her intellectual deficiencies, making her resistant to change. He also believed she would be slow to grasp information and would require repetition in order to learn new skills. Id. at 109, 114. Significantly, Dr. Smitham believed C.M. would have difficulty in a typical chemical dependency group setting because the interactions are all verbal. Id. at 125-26.

[919]*919¶8 While Dr. Smitham made several important findings about C.M.’s level of intellectual functioning, his assessment was incomplete. Although Dr. Smitham found evidence C.M. might be developmentally disabled, he never reached a final diagnosis. This was because he never performed the applicable testing. Id. at 112.

¶9 Dr. Smitham prepared a report documenting his findings and shared it with the Department. However, the contents were never relayed to C.M. or to the majority of C.M.’s service providers. The lone service provider to receive Dr. Smitham’s report was C.M.’s mental health therapist, Christie Pelz. Ms. Pelz did not receive the report until approximately 19 months after the dependency petition had been filed and 9 months after the Department filed to move from reunification to termination. She was not trained to work with cognitively impaired individuals. At trial, Ms. Pelz admitted she did not know whether C.M.’s problems with progressing in therapy were related to her intellectual deficits. 2 VRP (Sept. 10, 2015) at 271.

¶10 Although C.M.’s primary parental deficiency related to substance abuse, Dr. Smitham’s report was never shared with C.M.’s chemical dependency counselors. Not surprisingly, C.M. struggled to make progress. According to Kolleen Seward, C.M.’s counselor, C.M. “would do really well processing in a one-on-one” setting and in clinic groups, but she “appeared to have difficulty when she got out of that structure and out into—transferring that knowledge to the real world.” 1 VRP (Sept. 9, 2015) at 50. Ms. Seward testified she did not know of any cognitive difficulties that needed to be addressed with C.M. Id. at 47-48, 56. However she did observe C.M. had problems with homework and with interpreting what she was asked to do. Id. at 51. In response to this difficulty, Ms. Seward took time to review C.M.’s homework one-on-one. Id.

¶11 During the period C.M. spent in treatment, she submitted numerous positive urinalysis tests and failed to show for others. C.M. was ultimately discharged from Ms. [920]*920Seward’s treatment program prior to graduation. Although C.M. was subsequently referred to another provider, she failed to follow through.

¶12 Apart from treatment, C.M. did not make notable progress developing her parenting skills. C.M.’s family therapy provider was an individual named Dave Smith. Mr. Smith found C.M. difficult to work with because she had an overinflated perception of her parenting abilities. C.M. would insist she already knew how to do things, but then would later forget and not follow though until coached. Mr. Smith expressed frustration with C.M.’s inability to retain information and develop her skills. During his testimony, Mr. Smith stated he had concerns about C.M.’s intellectual abilities and attempted to provide some accommodations. But he could not recall seeing C.M.’s mental health evaluation. There is no indication Mr. Smith was trained to work with cognitively impaired persons.

¶13 After considering testimony presented at a two-day trial, the trial court terminated C.M.’s parental rights. The court rejected the argument that C.M. should have been provided developmental disability services, finding the evidence was insufficient to conclude C.M. was disabled. The court also found many of C.M.’s service providers were aware of her intellectual difficulties and provided appropriate accommodations. In addition the court found that even if C.M. should have been provided services tailored to her disability, this omission would not bar termination because enhanced services would not have remedied C.M.’s parental deficiencies in the foreseeable future.

¶14 C.M. timely appealed the order of termination to this court.

ANALYSIS

¶15 Our decision is guided by well-established legal principles.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In The Matter Of The Parental Rights To C.j-l.h.
Court of Appeals of Washington, 2026
In the Matter of the Dependency of: I.A.L. & L.J.
Court of Appeals of Washington, 2025
In the Matter of Dependency of: J.S.P. & J.J.P
Court of Appeals of Washington, 2025
In The Matter Of The Parental Rights To S.k.
Court of Appeals of Washington, 2025
In the Matter of the Parental Rights to: E.J.O.
Court of Appeals of Washington, 2023
In Re The Dependency Of: R.l.s.
Court of Appeals of Washington, 2023
In Re The Dependency Of R.e. L-g
Court of Appeals of Washington, 2023
In the Matter of the Parental Rights to: C.W.
Court of Appeals of Washington, 2023
In Re The Dependency Of A.d.y.
Court of Appeals of Washington, 2023
In Re The Dependency Of J.l.l.m-m.
Court of Appeals of Washington, 2023
In the Matter of the Parental Rights to: C.G.
Court of Appeals of Washington, 2023
In the Matter of the Parental Rights to: D.L.E.
Court of Appeals of Washington, 2023
In the Matter of the Parental Rights to: L.P.
Court of Appeals of Washington, 2022
In Re The Guardianship Of: G.m.o.
Court of Appeals of Washington, 2022
In re the Welfare of: E.J.G.
Court of Appeals of Washington, 2022
In Re The Dependency Of: G.l.l.
499 P.3d 984 (Court of Appeals of Washington, 2021)
In Re The Dependency Of S.E.S.
Court of Appeals of Washington, 2021
In the Matter of the Welfare of: Z.M.Y.
Court of Appeals of Washington, 2021

Cite This Page — Counsel Stack

Bluebook (online)
196 Wash. App. 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-termination-of-im-m-zm-m-washctapp-2016.