FILED
NOVEMBER 3, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN THE MATTER OF THE WELFARE ) OF: ) No. 32715-9-III ) M.P. ) ) ) ) UNPUBLISHED OPINION
FEARING, J. - We address again the sad circumstances of the State of Washington
terminating a parent's rights to a child. Jacqueline Pagel appeals the termination of her
rights to the care and custody of her young son. We affirm the termination.
FACTS
Jacquelyn Pagel, born in 1971, experienced an unfortunate childhood, teenhood,
and young adulthood. Pagel smoked cigarettes beginning at age nine, drank alcohol at
eleven, inhaled marijuana at fifteen, snorted cocaine at twenty-five, and consumed
methamphetamine at thirty. She engaged in theft and prostitution. She attempted suicide
at age twelve. She now receives Social Security benefits for a learning disability, No. 32715-9-III In re the Welfare ofMP.
posttraumatic stress, and anxiety. Pagel has lost her parental rights to six children, and
another child has been under a guardianship since 2000.
Jacqueline Pagel suffers from bunions that cause chronic pain. Pagel refused to
quit smoking long enough to undergo surgery for the bunions.
Jacquelyn Pagel bore Richard, on April 2, 2010. Richard is a fictitious name and,
under the initials M.P., is the subject of this appeal. Pagel has not identified Richard's
father. Based on Pagel's substance abuse and mental health illness, a court found
Richard dependent in June 2010.
As part of Richard's first dependency, Psychologist Walter Mabee evaluated
Jacquelyn Pagel in 2010. Dr. Mabee utilized the "Global Assessment of Functioning"
(GAF) test, which measures an individual's functioning ability on a range from one to
one hundred, with the higher number representing higher functioning. Mabee rated Pagel
at sixty on the test. According to Walter Mabee, a score of sixty indicates "moderate
impairments and moderate symptom severity and moderate limitations." Report of
Proceedings (RP) at 45. Mabee did not disclose the types of skills measured when
assessing one s functioning and what relationship the assessment bears to parenting.
Spokane therapist Carla Paullin visited with Jacquelyn Pagel three times per
month during 2010. Paullin is a licensed mental health and chemical dependency
counselor. During the period that Paullin assisted Pagel, Pagel- engaged in the Family of
Faith recovery program, which Paullin concluded temporarily changed and improved If 2 No. 32715-9-III In re the Welfare ofMP.
Pagel's condition. Paullin testified at trial: "[Y]ou could see the difference in her. It
brought her anxiety down, it helped her focus." RP at 75. At Paullin's recommendation,
the State returned Richard to his mother's care, and a court dismissed the first
dependency action in February 2012.
In late 2012, Jacquelyn Pagel commenced periodically deserting Richard with
relatives because of her chronic pain. The Department of Social and Health Services
(DSHS) received reports that Pagel deposited Richard with inappropriate caregivers and
Pagel might be utilizing unlawful drugs again. Child Protective Services (CPS)
employee Leah Furlong-Nicks investigated. In response, Pagel complained that her
brother and sister wanted to kidnap Richard. She protested harassment by CPS and foster
parents. Pagel agreed to provide a urine sample, but then failed to show to supply the
sample. Furlong-Nicks lost contact with Pagel.
On January 16, 20l3, the State of Washington petitioned the trial court to again
declare Richard dependent of the State. The State alleged:
Since dismissal of [Richard's] Dependency the Department has received reports that the mother has relapsed on drugs; has been seen prostituting; and has been leaving [Richard] with inappropriate people and leaving [Richard] with others for extended periods of time. On 9/2/12, [Jacquelyn Pagel] was arrested for shoplifting.
Ex. 1 at 2. The State identified in its petition Pagel's labile emotions, tangential speech,
mental health illness, and chronic pain.
On January 18, 2013, Jacquelyn Pagel agreed to a shelter care order by which she
No. 32715-9-III In re the Welfare ofMP.
relinquished care and custody of Richard to DSHS. The order provided for her son's
return to Pagel in one month if she completed a chemical dependency evaluation,
provided four clean urine samples, and initiated mental health treatment with Carla
Paullin.
In January 2013, a foster family assumed custody of Richard. Beginning January
2013, John Bain served as Richard's guardian ad litem (GAL) or court appointed special
advocate (CASA). Bain completed his CASA training the previous month.
In January 2013, Jacquelyn Pagel reinitiated mental health counseling with Carla
Paullin. Paullin then suspected Pagel of using illegal drugs because Pagel had lost
significant weight and struggled with coherent thoughts and focused discussions. Paullin
acted manic and spoke paranoically. Paullin concluded that losing seven other children
traumatized Pagel. Paullin sought to help Pagel regulate her emotions.
Jacquelyn Pagel tested clean from any unlawful drug use on January 22 and 25,
2013. On February 12,2013, John Dickey at New Horizons evaluated Pagel for chemical
dependency. Pagel reported to Dickey that she last consumed drugs in 2009. Based on a
lifetime of use, Dickey found Pagel chemically dependent on alcohol, cocaine, and
cannabis, but deemed Pagel in remission. Pagel underwent no follow-up chemical
dependency treatment with New Horizons. Dickey recommended continued therapy with
Carla Paullin.
Jacquelyn Pagel tested clean from any drug use on February 13 and 14,2013.
Nevertheless, Richard did not return to his mother's care within the anticipated month of
shelter care. DSHS allowed Pagel to visit Richard in her home.
On April 2, 2013, Jacquelyn Pagel visited Richard, to celebrate his birthday, at
Empowering, Inc., a family preservation services provider. Pagel brought Richard heaps
of candy and multiple cakes. Pagel acted manic and under the influence of drugs. When
Richard showed more interest in the candy than his birthday party, Pagel grew upset and
agitated. Empowering, Inc. ended the visit early.
During spring 2013, CASA John Bain observed five of Jacquelyn Pagel and
Richard's visits, some at Pagel's home and some at Empowering, Inc. During trial, Bain
described the visits as chaotic. Pagel arrived late to every visit at Empowering. Once at
Pagel's home, Pagel presented Richard a bike, but inexplicably quickly altered moods
and directed Richard to brush his teeth. At trial, Bain testified:
[W]hen I was there present at her visits, I felt like she just kept-like she kept like getting distracted by me. She wanted to see how I was doing. And, you know, I wasn't-I was there just to see how they interacted. I felt like I was just kind of in the way, because she had me and she had someone from Empowering, Inc. would be like supervising it. And it was for, obviously, [Richard]. And so I felt like, you know, there was too many people in the room when I was there. She just couldn't concentrate on [Richard].
RP at 226-27.
John Bain observed Richard with his foster family five times. Bain found Richard
happy at the foster home.
No. 3271S-9-III In re the Welfare ofMP.
On April 4, 2013, the trial court once again declared Richard a dependent of the
State. The trial court identified Jacquelyn Pagel's primary parental deficiency to be her
mental health. The court found that Pagel lacked insight into her interactions with others
and failed to demonstrate the concentration and focus needed to meet Richard's needs.
The dependency order required Pagel to submit to random drug testing, complete a
psychological evaluation with Dr. Walter Mabee, follow any recommendations of Mabee,
continue individual therapy with Carla Paullin, obey any recommendations of Paullin,
participate in family therapy and family preservation services, maintain regular visitation
with Richard, demonstrate an ability to meet Richard's physical and psychological needs,
maintain a clean, safe, and nurturing home environment, remain sober, and participate in
a group relapse prevention program. Pagel tested clean from any drug use on April 23
and May 3, 2013.
On May 6, 2013, Dr. Walter Mabee reevaluated Jacquelyn Pagel. Pagel showed
the psychologist the bunions on her feet and left the evaluation early to retrieve
medication. Pagel returned the next day, at which time Mabee completed the
psychological evaluation. Dr. Mabee believed Pagel to exaggerate her complaints of
physical pain. Mabee opined that Pagel focused on her physical pain to the extent that
the focus interfered in her parenting.
Dr. Walter Mabee opined that Jacquelyn Pagel used avoidance to cope with stress.
Pagel refused to answer Mabee's questions about handling stressful situations with
Richard. Pagel did not concede any parenting weaknesses. She boasted that her devotion
to God rendered her a "good and awesome parent." RP at 45. Dr. Mabee noted that a
parent who avoids her deficiencies leads to a child who cannot adjust to his environment.
Dr. Walter Mabee diagnosed Jacquelyn Pagel with "Cluster B features" under the
psychologists' Diagnostic and Statistical Manual. RP at 42-43. Dr. Mabee explained
Cluster B features as:
the excessive emotionality that she has in her presentation of her symptoms and presentation of her life situation; a tendency to go from being calm to being kind of more activated and agitated; a tendency to feel that others are not treating her in the way that she should be treated and an entitlement issue. So"it's those types of observations, along with her reports that she's always had difficulty coping with anger, being able to control her anger, that it boils down to not a specific Axis II diagnosis, like a borderline diagnosis or an antisocial diagnosis or histrionic diagnosis or narcissistic, but it's a flavor of those types of symptoms in combination. So the label of "Cluster B" just kind of subsumes all of that rather than specific diagnosis.
RP at 43-44.
In his 2013 evaluation, Walter Mabee reassessed Jacquelyn Pagel at forty-five on
the Global Assessment of Functioning scale. Dr. Mabee testified at trial that this score
confirms significant mental health issues that interfere with social and occupational
functioning.
Jacquelyn Pagel's urinalysis was negative on May 7, 2013.
On May 10, 2013, Jacquelyn Pagel took Richard to a physician because Richard
purportedly complained about a painful penis. Pagel asked the physician to circumcise
No. 327IS-9-II1 In re the Welfare ofMP.
Richard. Richard did not report any pain to the doctor, and the physician did not
diagnose any ailment. After this incident, the trial court granted DSHS' motion to
modify visitation from unsupervised to supervised visits and to limit visitation locations
to Empowering.
Jacquelyn Pagel tested clean from drug use on May 13,2013.
Ensuing visits between mother and son under the supervision of Empowering did
not go well. Jacquelyn Pagel did not focus on Richard's needs. At one session, Pagel fell
asleep while encouraging Richard to nap with her. Richard routinely returned to his
foster home hungry. Pagel's attendance at visitation became sporadic, with Richard
crying and hitting his foster siblings when his mother failed to show for a visit.
Empowering eventually refused to transport Richard from foster care until Pagel
appeared for a visit.
Jacquelyn Pagel missed some family therapy sessions. When a counselor
addressed Pagel's parenting of Richard, Pagel diverted the discussion to criticism of CPS
and Richard's foster family.
On May 20,2013, the trial court held the first review hearing for Richard's
dependency. The court found that Jacquelyn Pagel had participated in some, but not all,
court ordered services. Pagel failed to provide urine samples on April 2, 8, and 10. Pagel
failed to progress in family preservation services, such that the service provider
discontinued services. The court also found that Pagel had not consistently attended
therapy with Carla Paullin. Pagel provided no proof of her participation in the required
group relapse prevention program. The trial court ordered a swift completion of a
parenting assessment.
In July 2013, Jacquelyn Pagel saw Carla Paullin for the last time. In late July
2013, Pagel visited Richard at Empowering and took Richard to a nearby restaurant.
During the walk to the restaurant, Richard ran into traffic without intervention from
Pagel. In the restaurant's lobby, Richard sat in a chair while Pagel bent over and scolded
him for unsuccessful visits. An Empowering employee intervened, separated Richard
from Pagel, and demanded Pagel leave.
In September 2013, Jacquelyn Pagel became homeless. Ostensibly, Pagel's
landlord evicted her, although Pagel denied any eviction. DSHS could only sporadically
contact Pagel thereafter.
PROCEDURE
On September 13,2013, the State of Washington petitioned the trial court to
terminate the parent-child relationship between Jacquelyn Pagel and Richard.
On October 1,2013, the trial court reduced Jacquelyn Pagel's visitation with
Richard to two hours twice a week and ordered this visitation to include two hours of
therapeutic visitation. On October 15,2013, the trial court held a permanency planning
hearing for Richard. The court found that Jacquelyn Pagel visited Richard only
sporadically. Pagel excused her missing visits on illness and the lack of a telephone. In
No. 32715-9-111 In re the Welfare ofMP.
an October 15 order, the trial court listed as the services unsuccessfully completed:
chemical dependency screening, recommended substance abuse evaluation and treatment,
random drug testing, psychological evaluation, following any psychological evaluation
recommendations, and family therapy. Notably absent from this list of uncompleted
services was the originally ordered group relapse prevention program. Nevertheless,
Pagel still had not participated in a relapse prevention program.
In January 2014, DSHS social worker Shana Piper assumed case worker duties for
Richard's care. Jacquelyn Pagel then resided in jail. After Pagel left jail, Piper arranged
for Pagel to visit Richard at a new location, Fulcrum. At Fulcrum, Pagel focused on
punishing Richard for unknown reasons, while Richard ignored his mother.
On February 4, 2014, the trial court held another dependency review hearing.
During the review period, Jacquelyn Pagel submitted to no drug testing. The court found
Pagel noncompliant with her mental health treatment and relapse prevention program.
Like the October 2013 review order, the February review order lists all services as
incomplete, but omits group relapse prevention from the list.
In March or April 20 14, Jacquelyn Pagel phoned therapist Carla Paullin. Paullin
attempted to return Pagel's call, but Pagel's phone was disconnected. In April 2014, at
Jacquelyn Pagel's request, Shana Piper switched visitation from Fulcrum to the American
Indian Center. At trial, Shana Piper explained that if a parent misses three scheduled
visits at a visitation center, the DSHS referral to that center lapses. Pagel repeatedly
missed visits, so Piper repeatedly issued new referrals to additional visitation centers.
At the start of May 2014, Jaqueline Pagel lost her social security income because
of her recent jailing. Pagel remained homeless.
Trial on the termination petition proceeded on May 8 and 9, 2014. At the
beginning of trial, Jaqueline Pagel's counsel moved to continue trial to a later date,
because Pagel was missing. The trial court phoned Pagel, who expressed a desire to enter
treatment. The trial court gave Pagel until 10:00 a.m. that morning to come to the
courthouse. Pagel refused defense counsel's offer to arrange transportation. Trial started
without her.
During trial, Carla Paullin testified that Jacquelyn Pagel's mental health illness
prevented her from prioritizing a child's needs. Paullin testified that medication might
permit Pagel to attend to a child's needs, but Pagel refused medication. Paullin believed
that Pagel suffered physical pain, but thought Pagel exaggerated the pain. According to
Paullin, Pagel failed to participate in mental health therapy during the second
dependency.
Psychologist Walter Mabee also testified during trial. Dr. Mabee opined that,
even if Pagel fully engaged in mental health treatment, she would not improve
significantly within the first three to six months of treatment. According to Dr. Mabee,
Pagel needed nine to twelve months at least, and more likely two to four years, to
improve her mental health.
No. 32715~9-III In re the Welfare ofMP.
DSHS social worker Wendy Seignemartin testified. Seignemartin was the first
caseworker assigned to Richard's case. Seignemartin identified Jacquelyn Pagel's
parental deficiencies as her mental health illness and chemical dependency. As a result
of these deficiencies, Pagel could not consistently meet Richard's needs. Wendy
Seignemartin described Richard as integrated into his foster family, who wished to adopt
him. Seignemartin testified that continuing Pagel and Richard's parent-child relationship
diminished Richard's ability to integrate into a permanent home. According to
Seignemartin, termination of his natural mother's parental rights served Richard's best
interest.
Wendy Seignemartin testified at trial that someone referred Jaqueline Pagel to
Alcohol Anonymous and Narcotics Anonymous, and Carla Paullin referred Pagel to New
Horizons Relapse Prevention Program. The trial court asked Seignemartin: "How does
she know where to go?" RP at 136. Seignemartin responded inartfully:
Well, and that was something that was-she-her therapist had recommended. So I-I would say I-I did not provide that one specifically.
RP at 136. Seignemartin added that Pagel needed to access such a program "through her
medical." RP at 136. One might deduce from this comment that DSHS expected Pagel
to arrange and pay for services through medical insurance. Seignemartin, however,
declared that Pagel reported attending a relapse prevention program named Celebrate
Recovery.
CASA John Bain testified at trial that termination of the mother's rights furthered
Richard's best interests. Bain maintained that Jacquelyn Pagel garnered a weak
relationship with Richard and Pagel had no ability to calm Richard. In contrast, Bain
described the foster parents as providing a loving home with good structure. Bain noted
that the foster parents sought adoption of Richard.
One year had passed between John Bain's last observations of Jaqueline Pagel
with Richard by the time ofBain's trial testimony. During trial, Bain admitted to ceasing
observation of Pagel's visit because he was uncomfortable during the visits. Bain did not
know that DSHS shifted visitation from Empowering to Fulcrum. John Bain testified: "I
must have-I must have missed that e[ -]mail, I guess." RP at 228. Bain also testified he
was unaware that visitation transferred from Fulcrum to American Indian Center. Bain
stated he also missed that e-mail.
The trial court ordered the termination of Jaqueline Pagel's parental rights to
Richard. On July 25, 2014, the trial court entered findings of facts, conclusions oflaw,
and the order of termination. On August 21, a superior court commissioner amended the
findings, conclusions, and order to clearly terminate any parental interest. The amended
findings include:
Services court-ordered under RCW 13.34.130 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting parental deficiencies within the foreseeable future have been offered or provided.
No. 32715-9-II1 In re the Welfare ofMP.
There is little likelihood that conditions will be remedied so that the child can be returned to the parent(s) in the near future.
[Pagel] is currently unfit to parent [Richard]. [Pagel's] mental health is not stable, she is homeless, likely using drugs and unable to physically or emotionally protect her son. She has been largely unengaged in services and visitation since the summer of 20 13.
It is in the child's best interests to terminate the parent-child relationship.
Clerk's Papers at 85-89.
LA W AND ANALYSIS
The State must prove many elements before terminating a parent's constitutional
rights to the care and custody of a child. Jacquelyn Pagel contends insufficient evidence
supported some of those elements and the trial court's findings that the State proved the
elements. Pagel contends that the trial court erred when finding that: (1) the State
provided her all necessary and reasonably available services, (2) her parental deficiencies
were unlikely to be remedied in Richard's near future, and (3) termination was in
Richard's best interests. Pagel also contends that John Bain, the CASA, so failed to
conduct a thorough and independent investigation that the failure violated her and
Richard's right to due process. We disagree with each contention.
Termination of parental rights is a two-step process. In re Welfare ofC.B., 134
Wn. App. 942, 952, 143 P.3d 846 (2006). First, the State must show that six statutory
requirements under RCW 13.34.180(1) are established by clear, cogent, and convincing
evidence. RCW 13 .34.190( 1)(a)(i). This means the State must show that the relevant
ultimate facts in issue are "highly probable." In re Dependency ofK.R., 128 Wn.2d 129,
141,904 P.2d 1132 (1995); In re Welfare ofSego, 82 Wn.2d 736,739,513 P.2d 831
(1973). Second, the State must show a termination order serves the best interests of the
child. RCW 13.34.l90(1)(b). The trial court must find by a preponderance of the
evidence that termination is in the best interests of the child. In re Welfare ofMR.H.,
145 Wn. App. 10,24, 188 P.3d 510 (2008).
Jacquelyn Pagel challenges some the trial court's factual findings that underlay its
termination of her parental rights. The trial court's factual findings under the first step,
for RCW 13 .34.180(1), 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. In re Dependency ofC.B., 61 Wn. App. 280, 286, 810 P .2d 518 (1991).
Likewise, the trial court's factual findings under the second step, RCW 13 .34.190(1 )(b),
must be upheld if supported by substantial evidence from which a rational trier of fact
could find the necessary facts by a preponderance. In re Dependency ofH. w., 92 Wn.
App. 420, 425, 961 P.2d 963,969 P.2d 1082 (1998). Because only the trial court has the
opportunity to hear the testimony and observe the witnesses, its decision is entitled to
deference and this court will not judge the credibility of the witnesses or reweigh the
evidence. In re Welfare ofMR.H., 145 Wn. App. at 24.
Provision of Services
Under one of the six statutory requirements, the State must establish that it
provided services to Jacqueline Pagel to correct deficient parenting skills. When DSHS
seeks to terminate a parent's rights, it must show by clear, cogent, and convincing
evidence:
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). RCW 13.34.136 further addresses services to the parent and
reads, in pertinent part:
(2) The agency supervising the dependency shall submit a written permanency plan to all parties and the court not less than fourteen days prior to the scheduled hearing ....
(b)(i) The ... supervising agency's plan shall specify what services the parents will be offered to enable them to resume custody, what requirements the parents must meet to resume custody, and a time limit for each service plan and parental requirement.
(b )(vii) The supervising agency or department shall provide all reasonable services that are available within the department or supervising agency, or within the community, or those services which the department has existing contracts to purchase. It shall report to the court if it is unable to provide such services.
To meet its statutory burden, the State must tailor the services it offers to meet
each individual parent's needs. In re Dependency ofT.R., 108 Wn. App. 149, 161,29
P.3d 1275 (2001). The State must provide all court-ordered and necessary services to the
No. 32715-9-111 In re the Welfare 0/ MP.
parent. In re Dependency o/D.A., 124 Wn. App. 644, 651, 102 P.3d 847 (2004).
Nevertheless, the court may consider any service received, from whatever source, bearing
on the potential correction of parental deficiencies regardless of whether the State
provides or arranges for the service. In re Dependency 0/ D.A., 124 Wn. App. at 651-52.
The State need not offer services when a parent is unable to benefit from the services. In
re Welfare o/SJ., 162 Wn. App. 873,881,256 P.3d 470 (2011). Even when the State
inexcusably fails to offer a service to a willing parent, termination is appropriate if the
service would not have remedied the parent's deficiencies in the foreseeable future. In re
Welfare o/SJ., 162 Wn. App. at 881.
Jacquelyn Pagel contends insufficient evidence supports the trial court's findings
that the State supplied all necessary and reasonably available services. Pagel identifies
five services the State failed to deliver: a relapse prevention program, a parenting
evaluation, a medication consultation, medical care for her bunions, and housing
assistance. We agree that the State failed to provide the five categories of services, but
note that the evidence showed that Pagel received one service elsewhere, the State could
not provide some of the services because of Pagel's failure to cooperate, and the services
would not have remedied PageFs parental deficiencies.
The undisputed evidence established that the State failed to offer a group relapse
prevention program to Jacquelyn Pagel. DSHS caseworker Wendy Seignemartin testified
she did not refer Pagel to a relapse prevention program because of the absence of a
contract for such a service. Nevertheless, Seignemartin never informed the court of the
unavailability of this program as RCW 13 .34.136 requires. Furthermore, Seignemartin
indicated Pagel needed to access such a program "through her medical." RP at 136.
Seignemartin delivered no testimony that she informed Pagel that Pagel needed to
arrange this service for herself. Nevertheless, despite DSHS' failure to offer the program,
Jacquelyn Pagel reported that she attended a relapse prevention program named Celebrate
Recovery. The provision of the service by another entity supports the trial court's finding
that Pagel received needed services.
As part of the dependency action, the trial court ordered a parenting evaluation,
but the State failed to offer Jacqueline Pagel such an evaluation. The State argues that
the court's ordering of this service was a scrivener's error. An early order listed the
service but no later order repeated the need for an evaluation. We disagree with the
State's argument, but do not reverse on this ground. The trial court ordered the
evaluation in May 2013. Thereafter Pagel disengaged from services. An evaluation
would not have corrected the parental deficiencies.
The trial court never ordered a medication consultation and one might question the
reasonableness and necessity for a consultation. Carla Paullin testified that Pagel refused
to take medication for her mental health issues, suggesting that a medication consultation
would have been pointless. Pagel reported chronic pain from bunions to most providers.
Each believed Pagel exaggerated her pain, a symptom of her poor mental health. Pagel
refused to quit smoking long enough to get surgery for the bunions.
The trial court never ordered housing assistance. Nevertheless, Pagel
halfheartedly and inconsistently participated in services when she had adequate housing.
By the time Pagel needed housing assistance in September 2013, Pagel had stopped
attending mental health therapy.
Timely Remedy of Parental Deficiencies
Jacquelyn Pagel next contends insufficient evidence supports the trial court's
findings that Pagel's parental deficiencies were unlikely to be remedied in Richard's near
future. Under RCW 13.34.l80(l)(e), DSHS must show:
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. The 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. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors: (i) Use of intoxicating or controlled substances so 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 documented mUltiple failed treatment attempts; (ii) 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; or (iii) Failure of the parent to have contact with the child for an extended period of time after the filing of the dependency petition if the parent was provided an opportunity to have a relationship with the child by the department or the court and received documented notice of the potential consequences of this failure, except that the actual inability of a parent to have visitation with the child including, but not limited to, mitigating circumstances such as a parent's current or prior incarceration or service in the military does not in and of itself constitute failure to have contact with the child.
(Emphasis added.)
The "near future" is a key term in RCW 13.34. 180(1)(e). The parental
deficiencies must be remedied such that the child may be returned to the parent in the
"near future." "Near future" is determined from the child's point of view. In re
Dependency ofA.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004). What constitutes "near
future" depends on the age of the child and the circumstances of the child's placement.
In re Dependency ofT.L.G., 126 Wn. App. 181,205,108 P.3d 156 (2005).
Washington cases support the proposition that the younger the child the shorter is
the "near future." A matter of months for young children is not within the foreseeable
future to determine if there is sufficient time for a parent to remedy his or her parental
deficiency. In re Welfare ofMR.H., 145 Wn. App. at 28 (2008). Eight months was not
in the foreseeable future of a four-year-old. In re Welfare ofHall, 99 Wn.2d 842, 844,
664 P.2d 1245 (1983). One year was not in the foreseeable future of a three year-old. In
re A. W, 53 Wn. App. 22, 31-32, 765 P.2d 307 (1988). Six months was not foreseeable in
No. 32715·9-II1 In re the Welfare ofMP.
the near future of a 15 month-old. In re Dependency ofP.D., 58 Wn. App. 18, 27, 792
P.2d 159 (1990).
The focus ofRCW 13.34.180(1 )(e) is "whetherthe identified deficiencies have
been corrected." MR.H., 145 Wn. App. at 27. Even when there is evidence that the
parent may eventually be capable of correcting parental deficiencies, termination is still
appropriate when deficiencies will not be corrected within the foreseeable future. In re
Dependency ofA. W:, 53 Wn. App. at 32. The State need not give a parent an unlimited
time to become a fit parent. In re Dependency ofT.R., 108 Wn. App. at 167 (2001).
When it is eventually possible, but not imminent, for a parent to be reunited with a child,
the child's present need for stability and permanence is more important and can justifY
termination. T.R., 108 Wn. App. at 166.
The State argues that the one year rebuttable presumption in RCW 13.34.l80(1)(e)
applies to Jacqueline Pagel's proceedings. The presumption only arises if the State
showed it offered all necessary services reasonably capable of correcting Jacquelyn
Pagel's parental deficiencies. Because the State did not offer all services even ordered by
the trial court, we decline to employ the presumption.
We need not apply the presumption ofRCW 13.34.180(1)(e) to affirm the trial
court since clear, cogent, and convincing evidence supports the trial court's finding that
Jacqueline Pagel would not cure her parental deficiencies in Richard's near future. Pagel
challenges the trial court's finding by highlighting contradictory evidence, not undisputed
evidence. Pagel underscores that Wendy Seignemartin estimated Richard's near future at
six to twelve months, while Dr. Walter Mabee testified that Pagel's mental health could
improve within nine months, if Pagel complied with necessary services. Nevertheless,
Dr. Mabee also testified that Pagel would need two to four years for fuller stabilization.
This court does not reweigh the evidence, and the trial court could have accepted the
longer period as the time needed for Pagel to cure her deficiencies.
Jacqueline Pagel's argument predominantly fails because the contention assumes
she would comply with services in the near or immediate future. The weight of evidence
indicates that Pagel would not cooperate with service providers and suffer needed
services for the ensuing nine to twelve months. By the date of trial, Pagel had refused to
visit Carla Paullin, her mental health therapist, for one year. Unlike the first dependency,
Pagel failed to consistently participate in mental health therapy. Pagel repeatedly failed
to show for visits with Richard. DSHS caseworkers encountered increasing difficulty in
contacting Pagel.
A parent's unwillingness to avail herself of remedial services within a reasonable
period bears relevance to a trial court's determination as to whether the State has satisfied
RCW 13.34.lS0(l)(e). In re Welfare ofT.B., ISO Wn. App. 599, 60S, 209 P.3d 497
(2009). Substantial evidence supports our trial court's finding.
Richard's Best Interests
The second step in the State's burden in a parental termination case involves
proving by a preponderance of evidence that tennination is in the child's best interest.
RCW 13.34. 190(1)(b). As noted in In re Welfare ofA.B.:
By virtue ofRCW 13.34.180(1) and RCW 13.34.190, a Washington court uses a two-step process when deciding whether to terminate the right of a parent to relate to his or her natural child. The first step focuses on the adequacy of the parents and must be proved by clear, cogent, and convincing evidence. The second step focuses on the child's best interests and need be proved by only a preponderance of the evidence. Only if the first step is satisfied may the court reach the second.
168 Wn.2d 908,911,232 P.3d 1104 (2010) (footnotes omitted). No specific factors are
involved in a best interest determination, and each case must be decided on its own facts
and circumstances. In re Welfare ofMR.H, 145 Wn. App. at 28 (2008). When a parent
has failed to remedy her parental deficiencies over a lengthy dependency, a court is
justified in finding termination is in the child's best interest rather than leaving the child
in the limbo of foster care for an indefinite period while the parent seeks to rehabilitate
herself. In re Dependency ofT.R., 108 Wn. App. at 167 (2001).
Jacquelyn Pagel contends insufficient evidence supports the trial court's findings
that termination was in Richard's best interests. She highlights the love and bond she and
Richard shared. The trial court recognized that Pagel loves her child. Despite that love,
substantial evidence supports the trial court's finding that termination was in Richard's
best interests. Dr. Walter Mabee diagnosed Pagel with serious, significant mental health
impediments that interfere with social and occupational functioning. Pagel presented as
suspicious and unstable. Pagel took Richard to a physician and requested an unnecessary
circumcision. Carla Paullin testified that Pagel's various mental health issues prevent her
from prioritizing a child's needs. Wendy Seignemartin believed termination to be in
Richard's best interest, so he could achieve permanence with adopting parents. Richard
lived happily and integrated with his foster home.
CASA Investigation
Jacquelyn Pagel contends that John Bain, Richard's guardian ad litem or CASA,
neglected to conduct a thorough and independent investigation and his failure violated
her and Richard's right to due process. The terms CASA and guardian ad litem are
synonymous in this context, and we will employ the term CASA.
Both the United States and Washington Constitutions recognize a parent's
fundamental liberty interest in the care and custody of her child. U.S. CONST. amends. V,
XIV; WASH. CONST. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982); In re Custody ofSmith, 137 Wn.2d 1, 13-14,969 P.2d 21
(1998). That right cannot be abridged without due process oflaw. U.S. CONST. amend.
XIV; In re Dependency ofA.MM, 182 Wn. App. 776, 790-91, 332 P.3d 500 (2014).
Accordingly, parental termination proceedings are afforded strict due process protections.
In re Darrow, 32 Wn. App. 803, 806,649 P.2d 858 (1982).
Due process requires that parents have notice, an opportunity to be heard, and the
right to be represented by counsel. In re Welfare ofKey, 119 Wn.2d 600, 611,836 P.2d
200 (1992); In re Welfare ofMy ricks , 85 Wn.2d 252, 254, 533 P.2d 841 (1975). More
specifically, the due process protections afforded parents in a termination hearing include
notice, open testimony, time to prepare and respond to charges, and a meaningful hearing
before a competent tribunal in an orderly proceeding. In re Dependency ofH W., 70 Wn.
App. 552, 555 n.1, 854 P.2d 1100 (1993); In re Moseley, 34 Wn. App. 179, 184,660 P.2d
315 (1983). The trial court must ensure that the parent is afforded a full and fair
opportunity to present evidence or rebut evidence presented against her. A.MM, 182
Wn. App. at 791. No decision imposes a requirement of a CASA in order to satisfy the
due process clause, let alone any minimum standard for a CASA' s investigation.
Under RCW 13.34.100(1): "The court shall appoint a guardian ad litem for a child
who is the subject of an action under this chapter, unles's a court for good cause finds the
appointment unnecessary." "If a party reasonably believes that the appointed guardian ad
litem lacks the necessary expertise for the proceeding," within three days of the
appointment, the party may move for substitution of the appointed CASA. RCW
13.34.102(2)(c). Jacqueline Pagel did not seek to remove John Bain.
A CASA assumes an important role in a parental termination case.
Judges are forced to make incredibly difficult and important determinations. The judge must rely upon the information provided by others. GALs and volunteer CASAs are invaluable to courts. They are often the eyes and ears of the court and provide critical information about the child and the child's circumstances.
In reDependency ofMS.R., 174 Wn.2d 1,20-21,271 P.3d234 (2012). Unless a court
directs otherwise, a CASA holds the duties:
25 No. 32715-9-III In re the Welfare ofMP.
(a) To investigate, collect relevant information about the child's situation, and report to the court factual information regarding the best interests of the child; (b) To meet with, interview, or observe the child, depending on the child's age and developmental status, and report to the court any views or positions expressed by the child on issues pending before the court; (c) To monitor all court orders for compliance and to bring to the court's attention any change in circumstances that may require a modification of the court's order; (d) To report to the court information on the legal status ofa child's membership in any Indian tribe or band; (e) Court-appointed special advocates and guardians ad litem may make recommendations based upon an independent investigation regarding the best interests of the child, which the court may consider and weigh in conjunction with the recommendations of all of the parties; (f) To represent and be an advocate for the best interests of the child[.]
RCW 13.34.105(1); see also GALR 3.
A CASA is not the child's lawyer. MSR, 174 Wn.2d at 21. For purposes of
fulfilling his or her duties, the CASA shall be deemed an officer of the court and thus
immune from civil liability. RCW 13.34.105(2); Kelley v. Pierce County., 179 Wn. App.
566,576,319 P.3d 74, review denied, 180 Wn.2d 1019,327 P.3d 55 (2014).
Jacquelyn Pagel forwards a procedural due process claim. A familiar test of
procedural due process arises from Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,47
L. Ed. 2d 18 (1976), in which the Supreme Court directed lower courts to weigh the
private interests at stake, the government's interest, and the risk that the procedures used
will lead to erroneous decisions, when assessing infringement of a party's procedural due
process. Lassiter v. Dep'tofSoc. Servs., 452 U.S. 18,27,101 S. Ct. 2153,68 L. Ed. 2d
640 (1981).
Pagel does not contend that RCW 13.34.100 and .105 are constitutionally
deficient. Rather, Pagel contends that John Bain denied Richard and her the process that
chapter 13.34 RCW affords. More specifically, Pagel argues that Bain failed in his
statutory duties by focusing on Richard's relationship with his foster family. Bain had
not seen Richard with Pagel for one year when he testified at trial. Thus, Pagel maintains
Bain could not gauge Richard's best interests. Pagel asks this court to apply the Mathews
factors and hold that the procedure Richard and she received did not pass constitutional
muster.
The State observes that Jacqueline Pagel did not complain about John Bain's
performance at the trial court level. The State argues that Jacquelyn Pagel cannot raise
this argument for the first time on appeal. We agree.
RAP 2.5(a) provides, in relevant part: "The appellate court may refuse to review
any claim of error which was not raised in the trial court. However, a party may raise the
following claimed errors for the first time in the appellate court ... (3) manifest error
affecting a constitutional right." Washington courts have announced differing
formulations for "manifest error." One articulation is that the error is one "truly of
constitutional magnitude." State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988).
Another test is whether the alleged error actually affected the defendant's rights. A
No. 327 15-9-III In re the Welfare oIMP.
showing of actual prejudice makes the error "manifest," allowing appellate review. State
v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). The focus of the actual prejudice
must be on whether the error is so obvious on the record that the error warrants appellate
review. State v. O'Hara, 167 Wn.2d at 99-100.
We decline to address Jacqueline Pagel's assignment of error of a neglectful
investigation by the CASA. Pagel did not object to John Bain's initial appointment under
RCW 13.34.102(2)(c). Pagel did challenge the foundation ofBain's testimony or his
conclusions. Pagel had a full opportunity to cross-examine Bain in open court and, in
doing so, defense counsel thoroughly exposed the potential weaknesses in his testimony.
Even ignoring Bain's testimony, substantial evidence supports the trial court's finding
that termination was in Richard's best interests. Pagel does not enlighten the court as to
what helpful information the CASA may have unearthed if he engaged in a thorougher
investigation. Pagel forwards no decision that holds a neglected investigation by a CASA
constitutes a due process violation.
A case of some relevance is In re Welfare oITB., 150 Wn. App. 599,209 P.3d
497 (2009). In T.B., the CASA met with one child twice, the second child once, relative
placements six to eleven times, and the mother whose rights were at issue once. T.B.,
150 Wn. App. at 615. The CASA did not communicate with the children during the year
preceding the termination trial. The CASA explained that he had not observed the
children recently because they appeared stable in their placements. Over objection, the
trial court allowed the CASA to testify to the children's best interests, but indicated it
would later decide the weight to afford the CASA's recommendations.
The mother in TB. argued on appeal that the CASA's investigation breached the
statutory requirements imposed on an advocate. We held:
The trial court indicated that under former RCW 13.34.10S, it would take into account the extent of the GAL's investigation in deciding what weight to give the GAL's recommendation. We hold that the trial court appropriately considered the GAL's recommendation. Even if we determined that the trial court erred, such error would be harmless because there is no reason to believe that the trial court's decision would have differed without the GAL's recommendation .... Certain cases establish the standard that a GAL must satisfy to justify a finding. This is a case that sets the minimal standards for a GAL investigation under the version of former RCW 13.34.10S in effect at the time of this termination hearing. As we have noted, it would not be adequate under the new requirements, but we have examined the record and are satisfied that an investigation took place. We agree with the State that it was "not the most thorough investigation possible." Br. ofResp't at 26. We hold that the court did not err in considering the GAL's recommendation and giving it the appropriate weight considering the lack of current personal contact with the children.
TB., ISO Wn. App. at 61S-16.
CONCLUSION
We affirm the trial court's termination of Jacqueline Pagel's parental rights to
Richard.
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.
WE CONCUR:
Lawrence-Berrey, J.