In re Welfare of B.P.

• Court: Washington Supreme Court
• Decided: July 28, 2016
• Docket: 91925-9
• Status: Published

Opinion

Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Parental Rights to B.P. NO. 91925-9 (DOB 7/8/11)

STATE OF WASHINGTON, ENBANC DEPARTMENT OF SOCIAL & HEALTH SERVICES, JU_L_2_8_20_16_ Filed _ _

Respondent,

v.

H.O. (Mother),

Petitioner.

GORDON McCLOUD, I.-Petitioner H.O. asks us to reverse the Court of

Appeals' decision affirming the termination of her parental rights. She argues that

the State failed to prove two prerequisites to termination, one statutory and one

constitutional. The statutory prerequisite is codified at RCW 13.34.180(1)(d); it

requires the State to prove that it has offered and provided "all necessary services,

reasonably available, capable of correcting the parental deficiencies within the

foreseeable future." The constitutional prerequisite is a finding (express or implied)

of parental unfitness. We agree with H.O. that the State failed to prove the first No. 91925-9

prerequisite by the necessary evidentiary standard (clear, cogent, and convincing

evidence). We therefore reverse the Court of Appeals and reverse the order

terminating H.O. 's parental rights. 1

ISSUE PRESENTED

The mother in this case, H.O., suffered from drug addiction, depression and

other mental health issues, and the effects of long term childhood trauma. The child

in this case, B.P., suffered as well: she was born addicted to methamphetamine,

endured withdrawal, was abandoned by H.O. during infancy, and experienced

multiple disruptions when forming attachments with H.O. and various foster

parents. On the other hand, after several tries, I--I.O. achieved sobriety; benefited

from treatment in a structured environment; and became an attentive and caring

mother to another child, A., in that structured environment. She also engaged in

partially supervised, therapeutic visitation with B.P., and the two began to form what

witnesses at the termination hearing called a social relationship with an emerging

emotional attachment.

----!h

H.O. maintains that B.P. would have formed a stronger attachment to her if the

1 H.O. filed a motion to accept additional evidence on review pursuant to RAP 9.11, which was passed to the merits. We now deny the motion and decline to accept the additional evidence submitted by H.O. 2 No. 91925-9

Department of Social and Health Services (Department) had fulfilled its duty to

provide "necessary services," RCW 13 .34.180(1 )(d), to facilitate reunification. (It

is undisputed that the Department provided B.P.'s foster parents with attachment

therapy services.) The Department argues that it fulfilled this obligation but the

services were futile. It maintains that the absence of a stronger attachment bond and

H.O. 's risk of relapse now make her unfit to parent B.P. The trial court agreed with

the Department.

The trial court is certainly in the best position to weigh the evidence presented

about H.O. 's fits and starts, B.P.'s needs, and the Department's attempts to fulfill its

responsibilities. And if those were the only issues presented by the tragic facts of

this case, we would certainly defer to the trial court's judgment.

Our court, however, must resolve a legal question about the framework the

trial court should use to make decisions in a parental rights termination hearing.

As discussed above, the legislature mandated that the Department provide all

"necessary services" to parents like H.O. to try to move toward the goal of family

reunification. RCW 13.34.180(1)(d). The trial court may not terminate a parent's

rights unless it determines that the Department fulfilled that duty or that services

would be futile. The legislature did not specify how to implement this mandate

where, as here, the Department identifies a child's special needs and provides the

foster parents, but not the biological parent, with the tools to try to address those

3 No. 91925-9

needs. But recent precedent from this court and the Court of Appeals has addressed

that issue, and we reaffirm that precedent now: where a child has special needs (here,

special attachment needs); and where, as here, those special needs are exacerbated

by the State's failure to timely provide necessary services to the biological parent;

then the State has failed to prove this legislatively mandated prerequisite to

termination (absent futility, which was not shown here). See discussion of In re

Welfare ofC.S., 168 Wn.2d 51,225 P.3d 953 (2010), and In re Termination ofS.J,

162 Wn. App. 873, 256 P.3d 470 (2011), in Part 1 below. Because we adhere to the

holdings of C.S. and S.J, we reverse the decision of the Court of Appeals.

FACTS

1. Dependency proceedings

Petitioner H.O. gave birth to B.P. on July 8, 2011. Because H.O. was a

methamphetamine user throughout her pregnancy, B.P. was born addicted and the

hospital placed a "hold" on her. Clerk's Papers (CP) at 180. B.P. was released into

foster care July 13, 2011. In August 2011, an order of dependency was entered for

B.P. That order and subsequent review orders required H.O. to complete random

urinalysis (UA) testing, mental health treatment, chemical dependency evaluation

and treatment, hands-on parenting training, therapeutic visitation, and family

therapy. H.O. participated in mental health counseling and parenting services, and,

in September 2011, B.P. was placed with her at Isabella House, a six-month

4 No. 91925-9

residential chemical dependency program. Isabella House is a highly structured

program: residents follow a regular schedule of chores, group therapy, exercise, and

educational classes. Isabella House provides child care while residents participate

in these activities. Residents of Isabella House follow a curfew, must sign in and

out when they leave the facility, and must get permission to visit with any outsiders.

H.O. successfully completed treatment at Isabella House in January 2012 and moved

into the organization's "[t]ransition [h]ouse" located next door. CP at 182. The

transition house required residents to submit to UAs, observe a curfew, and

participate in outpatient treatment and self-help groups.

H.O. relapsed, and B.P. was again removed from her care in July 2012, when

B.P. was one year old. H.O. was allowed visitation with B.P. immediately upon her

removal, but H.O. frequently arrived high for visits or missed them altogether. The

dependency court suspended visitation in October 2012 after H.O. missed 10

scheduled visits and B.P. began displaying aggression and disorganized behavior

toward H.O. during the visits she did attend. The court ordered that visitation would

not resume unless H.O. obtained another court order reinstating visits. In November

2012, B.P. was placed into her fourth and final foster home, with her paternal aunt

and uncle. B.P. did well in this placement, but when there was a change in her

routine she showed significant distress. She displayed "disorganized" attachment

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behavior and was unable to regulate her emotions. 2 Verbatim Report of

Proceedings (RP) at 161 (Feb. 11, 2014).

H.O. became pregnant again in the fall of 2012 and continued to use

methamphetamine for most of the pregnancy. The Department filed a petition to

terminate H.O.'s parental rights to B.P. When she was eight months pregnant,

however, in May 2013, H.O. returned to Isabella House. H.O. gave birth to A. in

June 2013, and the Department agreed to an in-home dependency so that A. could

remain with H.O. at Isabella House. H.O. remained sober through the time of trial

in this case, and A. has never been removed from her care.

In August 2013, H.O. obtained a court order provisionally reinstating

visitation with B.P. The order granted her "1 visit in [a] therapeutic setting" and

provided that "[a]ny additional visits shall be based upon [the] therapist's [r]eport."

Ex. P-11, at 3. In August 2013, H.O. and B.P. had a visit supervised by Lori Eastep,

a family therapist. At that point, the termination trial was set for September 16,

2013. Eastep reported that the visit went well, but she found it "contraindicated to

begin visitation ifthe Department is moving toward termination," and recommended

at that time that visitation continue only if the State did not intend to seek

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termination. 2 1 RP at 64 (Feb. 10, 2014). On August 28,2013, the trial court denied

further visitation because the case was proceeding toward termination.

On September 13, 2013, however, the trial court reversed that order and

continued the termination hearing four months, until January 13, 2014. That

continuation order stated, in relevant part:

2.1 The parties have shown good cause for a continuance of the termination hearing scheduled for September 16, at 9:00a.m., in that: the parties agree that the mother needs to have some visitation in order to determine if the parent child relationship can be repaired.

The parties agree that the trial should be continued to the first available date in January 2014.

Despite the court order entered on August 28, 2013, the mother should begin to have weekly therapeutic contact with the child. A parenting assessment should also be scheduled for sometime in November 2013. After the assessment is completed, the parties should hold a staffing to assess the current case plan.

CP at 66 (emphasis added).

As a result of this new order, H.O. had 22 two-hour visits with B.P. between

October 2013 and February 2014, all supervised by Eastep. By November 2013, the

supervised visits occurred twice a week, consistent with the trial court's order. By

2 1 RP at 65 (Feb. 10, 2014) ("[i]fvisitation is only to satisfy a service requirement, it would be detrimental to [B.P.]'s emotional stability and create placement instability and possible upset and would not be in the best interest of [B.P.]"). 7 No. 91925-9

December, Eastep decreased supervision to once a week because H.O. was handling

the visits well on her own.

H.O. also progressed m treatment during this time. She successfully

completed her treatment program at Isabella House in December 2013 and moved

into transitional housing. During her treatment at Isabella House, I-I.O. committed

only one violation of house rules: she accepted a ride from B.P. 's foster father. This

violation resulted in I-I.O. 's spending an additional six weeks at Isabella House, but

I-I.O. self-reported it and continued to test clean afterward.

She therefore moved to continue the termination trial on December 6, 2013.

She filed a declaration explaining that she had not yet had sufficient visitation with

B.P. and was still seeking stable housing.

Of most relevance to this appeal, I-I.O. 's declaration stated:

At this time I feel that I have not had enough one on one time with [B.P.] .... [W]hile I understand that [B.P.] could come to [my current transitional housing] and live there with me[,] if I am going to be moving to a more permanent home[] then I think that is where her transition should occur. I think it would be difficult for her to come home to me and then move to a different home. I want to do a transition in a thoughtful and careful manner. I want to be in a stable place so that I can focus on [B.P.] and her needs as she transitions to my care.

I know that a transition to my care is going to be difficult for [B.P.] I know that I let her down in the past, but I am doing everything that I can to make that right for her. I missed out on a lot of time with her. A lot of that is my responsibility, but there is also some that is the Department's responsibility. At a recent shared planning meeting, our therapist Lori Eastep stated that [B.P.] would not attach to me unless

8 No. 91925-9

she was forced to do it. My understanding of that is that if she were moved to my care and had to depend on me then she would start attaching to me. I have also learned, at my family therapy appointment on December 10, 2013 that the foster parents are doing family preservation services with [B.P.] because they have started detaching from her. This is very distressing to me. At this point I feel that I just need a bit more one on one time with [B.P.] and a more stable home for my daughter to which my daughter can come home.

CP at 81-82 (emphasis added).

In response to H.O. 's report that she discovered the Department was providing

family preservation services to the foster parents, but not to H.O., Marcey Monahan,

the social worker assigned to B.P. 's dependency, filed a declaration. Monahan

denied that B.P. had ever started to detach from her foster parents, but acknowledged

that an attachment therapist had been working with the foster family. She explained

that this was necessary because "[B.P.]'s ability to form a healthy attachment has

been compromised by her mother's relapse and subsequent removal from her care,

especially given the important developmental age when this occurred." CP at 90.

At the time of the final dependency review hearing on December 18, 2013,

H.O. was compliant with all ordered services and the court ordered her to continue

family therapy with Eastep. At the termination hearing, however, Eastep testified

that she never provided "family therapy" for H.O.; she instead provided only what

she called "therapeutic visits." 1 RP at 67 (Feb. 10, 2014). These were aimed at

helping I-I.O. identify B.P.'s "cues and boundaries" and allowing Eastep to assess

9 No. 91925-9

"[B.P.]'s social/emotional relationship with [H.O.] and her sibling, [A.]." !d. Eastep

distinguished these aspects of the therapeutic visits from "family therapy" and

"bonding and attachment work" and testified that she was not a "certified attachment

person." !d. at 94-95. She also testified that "when you have a young child, you

don't ever really do family therapy," but instead help the parent "process[] external

... and internal factors." !d. at 100.

At the time of the termination hearing, H.O. was living in a transitional

housing facility with a curfew, random UAs, weekly chore assignments, and various

other rules. She had been living there for a little over two months.

2. Termination trial

Eleven witnesses testified at the termination trial in February 2014, 9 for the

State. I--I.O. and her case manager in the transitional facility testified for I--I.O. All

of the witnesses testified primarily about I--I.O.'s progress in addiction recovery and

B.P.'s potential for attachment with I--I.O. The State's theory was that I--I.O. was a fit

parent to A., but was unfit to parent B.P. due to B.P.'s potential for developing an

attachment disorder. According to the State, I--I.O. would need to be stable and "in

tune with her own emotions" in order to help B.P. grieve the detachment from her

foster parents and reattach to I--I.O. 3 RP at 407 (Feb. 20, 2014). The State

maintained that I--I.O. lacked these qualities, and it argued that B.P. needed

permanence immediately or her mental health would be "at great risk." !d. at 413.

10 No. 91925-9

Overall, Eastep testified in positive terms about H.O.'s insight into the facts

that (1) she was a stranger to B.P. before visitation began and (2) B.P. would not

bond with her solely because she was B.P.'s biological mother. She praised H.O.

for preparing well for the visits and asking a lot of good questions about B.P.'s

behaviors and needs. She also testified that H.O. was "A[.]'s primary attachment

person" and that A. appeared to be "a very healthy, happy little girl." 1 RP at 70, 73

(Feb. 10, 2014).

Eastep's testimony about B.P.'s attachment was more ambiguous: she said

that although B.P. had an "emerging emotional connection" with H.O., B.P. did not

identify H.O. as her primary attachment person and might never do so. Id. at 75.

She said that over the four to five months she worked with H.O. and B.P., their

relationship had "moments where it ... improved," but was overall "a bit up and

down." Id. at 70. She testified that the research on infant attachment shows that it

tends to occur at 11 months, and that if a child attaches to another person, "it makes

it very difficult from an attachment strategy to change that without forcing it." Id.

at 71. She explained that no one can be sure which children will have the resilience

needed to repair a disrupted attachment with an adult. She opined that it generally

takes "hundreds and sometimes thousands of contacts for children to establish a

secure attachment," and likened it to the process of a child becoming comfortable

with a babysitter over the course of a year or two. I d. at 77-79. She also explained

11 No. 91925-9

that in order for B.P. to form an attachment to H.O., she would need to sever her

attachment to her foster parents. Finally, Eastep explained that when children return

home from a foster home where they have formed an attachment, therapists usually

recommend ongoing contact with the foster family to help the child handle the

transition. 3

When asked whether B.P. would be able to return to H.O.'s care in the near

future, Eastep responded that it was not a "yes/no question." I d. at 84. She said that

the State would be taking a "calculated risk" by placing B.P. with H.O. because H.O.

had not demonstrated the ability to parent a child older than A. and did not have a

long track record of sobriety. Ultimately, she recommended a guardianship, in

which B.P. would remain with her foster family but H.O. would retain her parental

rights. Other parts of her testimony indicate that H.O. 's treating professionals

viewed the supervised visits as preparation for B.P.'s possible, eventual return to

H.O.'s care. E.g., id. at 96 (testifying that H.O.'s individual therapist and counselor

encouraged H.O. to bring A. to every supervised visit "because [H.O.] would be

parenting both if [B.P.] were to go home").

3 Eastep also testified that she had counseled H.O. to increase her contact with the foster family prior to the termination hearing, so that B .P. could "see them all together functioning that way." 1 RP (Feb. 10, 2014) at 78. In response to this advice, H.O. set up regular playdates with B.P. and her foster parents, prior to the termination hearing, and sought Eastep's advice on how to improve their relationship. 12 No. 91925-9

On cross-examination, Eastep acknowledged that she is not certified in

attachment work but that evidence-based attachment work is offered in Spokane,

where H.O. and B.P.lived.

Carol Thomas, a child therapist and evaluator, testified at length about

attachment theory and the consequences of failing to form a secure attachment in

infancy. She explained that B.P. had experienced multiple disruptions just as she

was forming attachments to H.O. and to various foster parents, and that when a child

suffers too many disrupted attachments, that child may "detach completely" and stop

trying to connect emotionally or socially. Id. at 115. She also testified that she

conducted a parenting assessment with H.O., B.P., and A. in November 2013 and

determined that B.P. was developing a social relationship with H.O., which lacked

any characteristics of an attachment. She said that H.O. "did well" managing both

children and responding to their cues. Id. at 128. She opined that ending contact

between B.P. and H.O. would have a minimal effect on B.P.'s well-being because

the two had only a social relationship. She also testified that ifB.P. were returned

to H.O. 'scare, she would be available to provide therapy to help H.O. address B.P. 's

disrupted attachment to her foster parents.

Sandra Gormon-Brown, H.O. 's individual therapist, testified that she was

helping H.O. address difficult childhood traumas that H.O. endured over a long

period of time. She stated that she had "very specific and intensive training in the 13 No. 91925-9

field of attachment, pediatric trauma and grief," but was working only with H.O.,

not with H.O. in relation to B.P. or A. Id. at 150. Gormon-Brown did not believe

that H.O. had any mental health problems that would "impact her ability to have a

child that was removed from her care brought back into her care," but also said she

was unsure whether H.O. could be sufficiently emotionally available to B.P. to

reunify with her. Id. at 147. Gormon-Brown testified that she thought B.P. would

have more difficulty reuniting with H.O. than H.O. would have reunifying with B.P.

She opined that H.O. would need at least another six months of therapy to work

through her own trauma. Gormon-Brown acknowledged that H.O. was highly

motivated to succeed in therapy and that Gormon-Brown was available to do

attachment work with H. 0. and B .P. if H. 0. 's parental rights were not terminated.

Amanda Clemons, a therapist specializing in family therapy and attachment

services, testified that she had contracted with the Department to assist B .P.' s foster

family "in terms of attachment and ... meeting [B.P.]'s needs." 2 RP at 159 (Feb.

11, 2014). At the time Clemons testified (February 11, 2014), she had been

providing this assistance two to three times per month for about four months.

Clemons stated that B.P. generally exhibited a secure attachment to her foster

parents, but that during three of eight total sessions, B.P. demonstrated

"disorganized" attachment. Id. at 161. According to Clemons, this disorganized

behavior always corresponded to some change in B.P. 's routine, including visitation

14 No. 91925-9

with H.O. She opined that this indicated B.P. had difficulty handling change, that

B.P. needed stability, and that this was attributable to the multiple caregiving

disruptions B.P. endured during the first months of her life. Clemons explained that

the "first three years are critical" for attachment. ld. at 162. She opined that B.P.

was at risk for developing an attachment disorder and that it would not be in B.P.' s

best interests to experience another disruption. Clemons testified that she could be

doing attachment work with H.O. and B.P., but had not received a referral to do such

work. ·She also testified that healthy attachments generally make it easier for

children to handle transitions, but that B.P.'s attachment to her foster parents was

"not very healthy based on the disruptions." Id. at 168-69. She also predicted that

the attachment work she had done with the foster parents would make it "even more

difficult" for B.P. to endure yet another disruption. ld. at 168.

B.P.'s and A.'s guardian ad litem, Karen Schweigert, testified that H.O. was

a remarkably attentive mother when B.P. was returned to her care at Isabella House

from fall2011 to spring 2012. Schweigert recalled that during this period H.O. was

able to get B.P. "onto a nursing-on-demand schedule, which took an unbelievable

amount of dedication and patience." I d. at 223. She also testified that B.P. appeared

more stressed and less happy when she and H.O. moved out oflsabella House and

into the less structured transitional housing, and that when H.O. relapsed and B.P.

was removed from her care, the change was "horrifying for this little girl." Id. at

15 No. 91925-9

226. Schweigert described B.P. 's behavior since that time as changing from

"meltdowns," so serious that her caregivers suspected a medical cause, to "happy,

healthy" behavior that seems"[ d]evelopmentally ... on track." !d. at 228, 230. She

continued, however, that by December 2012, H.O. had stopped returning her calls,

making it difficult for Schweigert to schedule visits with H.O. and A., and that H.O.

had also started lying to her. She opined that H.O. was a "really good mother," but

only when she was sober and "under a microscope." Id. at 240. Schweigert stated

that she did not think H.O. was capable of putting B.P. 's needs above her own,

providing a consistent schedule for B.P., or reading B.P. 's emotional cues. She

opined that it was unlikely B.P. would be able to reattach to H.O., "especially

without significant trauma," but also admitted that she had not seen H.O. and B.P.

together since August 2013. Id. at 245. She also acknowledged that B.P. might

reattach to H.O. if she were returned to H.O. full time because "anything is possible."

Id. at 246.

Kolleen Seward, H.O. 's chemical dependency treatment counselor, testified

that H.O. began intensive outpatient drug treatment with Seward's organization,

Partners with Families and Children (Partners), in December 2013. She explained

that Partners requires participants in intensive outpatient treatment to come to three

group therapy sessions per week, one or two individual sessions per month, and two

outside support meetings per week. She stated that the purpose of the outside group

16 No. 91925-9

requirement was to help participants build "clean and sober peer support

network[s]," and that participants can, if they choose, fulfill half of the requirement

by attending one church service per week. !d. at 172. The other group meeting must

be "something surrounding recovery." Id. at 176. She stated that H.O. had not

verified her participation in the outside group meetings, but also said she had no

current concerns about H.O.'s recovery.

Carla Paullin, who provided H.O. with weekly one-on-one chemical

dependency therapy from October 2011 until July 2012, testified to H.O.'s history

of childhood abuse, criminal activity and incarceration, failed relationships,

depression, and drug addiction. She testified that although she had not seen a

psychiatric evaluation of H.O., she felt H.O. had "personality disorder traits" and

"due to the time she'd spent incarcerated ... some antisocial stuff." !d. at 188-89,

194. She also opined that H.O. was "institutionalized" and that she did well in

Isabella House's highly structured environment but "f[e]ll apart" when she

graduated and moved to the less structured transition house. !d. at 191. Paullin

opined that someone with H.O.'s history of drug abuse would probably need two

years of structured "wrap-around" treatment therapy before she would "feel good"

about H.O.'s prospects for continued sobriety. Id. at 198. She also indicated that

that type of therapy was not available in Spokane. Paullin also opined that a support

17 No. 91925-9

network would be crucial to H.O. 's sobriety outside a structured living situation.

Finally, Paullin admitted that she had not worked with H.O. since July 2012.

Marcey Monohan, the social worker assigned to monitor B.P.'s dependency,

testified that she was surprised to hear Eastep say she had not provided family

therapy for B.P. and H.O. Monohan said that the Department had used Eastep for

family therapy referrals in other cases and that Eastep's reports for H.O.'s case

indicated to Monohan that Eastep was providing what the Department regarded as

typical "family therapy." Jd. at 274. Monohan described A. as a happy and

expressive baby who was developmentally on track; she said that H.O. was patient

with B.P. during the visits that Monohan observed. But she also said that B.P. was

anxious and confused around H.O. during visits. Monohan opined that B.P. could

not be safely returned to H.O. 'scare at that time because H.O. 's substance abuse and

mental health were still concerns "in regards to her ability to be emotionally

available for a child like [B.P.]." Id. at 275. She said that she did not think H.O.

understood the nature of the trauma her relapse had caused B.P. She testified that

when she asked H.O. whether she had any insight into what the visitation process

was like for B.P., H.O said, '"I don't know how to answer that question. I don't

know what you want me to say."' Id. at 280. Monohan expressed concern that H.O.

had not verified her participation in all of the chemical dependency group work that

Partners required because a similar failure had preceded H.O.'s prior relapse. She

18 No. 91925-9

said that H.O. would need to demonstrate 18 months to 2 years of sobriety before

Monahan would be comfortable that H.O. was in solid recovery. Finally, Monahan

opined that B.P. did not treat H.O. like a mother, that B.P. could not wait any longer

for permanent stability, and that H.O. 's legal parenthood was a barrier to that

stability. On cross-examination, Monahan admitted that she had not seen H.O. and

B.P. together since late December (about seven weeks before her testimony).

Paige Beerbohm, a licensed chemical dependency counselor employed at

Isabella House, testified that at the time of trial H.O. was in "early recovery" from

her addiction, meaning that she had not yet demonstrated an ability to sustain her

sobriety. 1 RP at 35 (Feb. 10, 2014). She said that she was not aware of any period

of time during B.P. 's life that H.O. was able to sustain sobriety in an unstructured

setting. But Beerbohm also testified that she had worked hard to create a better

treatment plan for H.O. during her second stay at Isabella House and that H.O.

appeared to be "much more open, ... willing, ... [and] honest" about treatment than

during her first stay. I d. at 43. Beerbohm said she did not have any current concerns

about H.O.'s sobriety.

Amber Eggert, H.O. 's case manager in the transitional housing facility where

H.O. lived at the time of trial, testified that H.O. was in compliance with all the

facility's rules.

19 No. 91925-9

Finally, H.O. testified that she received different and much better treatment at

Isabella House during her second stay than she received during her first stay. She

also testified that she was approaching her treatment differently this time, with more

active engagement and dedication. She explained that she had attended every

outside group support meeting that Partners required, but had documented only half

the meetings because she was confused about whether one of the meetings she was

regularly attending counted as "church" or treatment. 3 RP at 367 (Feb. 13, 2014).

She said that she had cleared up the misunderstanding with her treatment provider.

H.O. continued that she had a strong support network of relatives, including

her father, and friends fi·om church. She described her relationship with B.P. as

improving as their visits continued. She said that she could not completely

understand what B.P. had experienced due to her relapse, but knew she had caused

hurt and confusion for B.P. H.O. believed that she could address B.P.'s problems

because she loved her, was committed to fixing their relationship, and knew that the

best place for B.P. was with her sister and mother. She acknowledged the testimony

regarding the risks that reunification posed for B.P. 's emotional development, but

testified that she thought "those were all things that could change if services like

attachment therapy had been something that [Ms. Clemons] had been working on

with me and not the foster family." Id. at 383.

20 No. 91925-9

The trial court terminated H.O. 's parental rights to B.P. Of most significance

to this appeal, the trial court found that

all necessary services, reasonably available, capable of correcting parental deficiencies within the foreseeable future have been offered or provided including: chemical dependency inpatient treatment, outpatient treatment, UA/[blood alcohol] monitoring, individual counseling, parenting assessment, parenting services including family preservation services and therapeutic visits with Ms. Eastep in part to address the mother child relationship ....

. . . Ms. Eastep found that while [H.O.] demonstrated insight, .. . she was a stranger to [B.P.] and that her absence created challenges. [H.O.] maintained an adult perspective that [B.P.] would love her because she loved [B.P.]. Ms. Eastep indicated this was not realistic .. . . Ms. Eastep indicated [B.P.] would not form a healthy attachment to [H.O.] without being forced. She also testified that forcing [B.P.] to do this would significantly impact her mental health in a negative manner.

. . . The court was concerned about what attachment services were offered to [H.O.] However ... [B.P.] was only at a social relationship with [H.O.] at the time of trial, the emotional relationship was just emerging. The court finds that the services necessary to build the type of relationship necessary to meet [B.P .]' s needs would take one year or more and that is too long .

. . . At the time of trial, [B.P.] was at risk of an attachment disorder .

. . . The mother is currently unfit to parent [B.P.] ... [H.O.] is responsible for the stops and starts in her parenting. · She does not understand [B.P.]'s needs for permanency or the risk she faces if she

21 No. 91925-9

develops an attachment disorder. [H.O.] cannot claim that because [A.] is in her care, that she must be fit to parent. [B.P.]'s needs are different and her attachment issues are the result of her mother's actions. [H.O] has not demonstrated an ability to understand her own feelings, or those of [B.P.] Thus, the Department has established that [H.O.] is currently unfit to parent.

CP at 181-88.

3. Appeal

H.O. appealed the termination of her parental rights, assigning error to five of

the trial court's factual findings: (1) that all necessary services were expressly and

understandably offered or provided to her, (2) that little likelihood existed to remedy

conditions so B.P. could be returned to her in the near future, (3) that her continued

parentcchild relationship diminished B.P.'s prospects for early integration into a

stable and permanent home, (4) that terminating her parental rights was in B.P.'s

best interests, and (5) that she was unfit to parent B.P. In re Welfare of B.P., 188

Wn. App. 113, 117, 353 P.3d 224 (2015), review granted, 184 Wn.2d 1039, 366

P.3d 932 (2016). In this court, I-I.O. challenges only two of those findings: (1) that

all necessary services were offered and provided and (2) that H.O. was currently

unfit to parent B.P.

The Court of Appeals affirmed in a split decision. B.P., 188 Wn. App. 113.

22 No. 91925-9

ANALYSIS

Before a court can terminate a parent's rights, the State must prove six

statutory elements by clear, cogent, and convincing evidence. In re Dependency of

K.D.S., 176 Wn.2d 644, 652,294 P.3d 695 (2013) (citing RCW 13.34.180(l)(a)-(f)).

These elements are:

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

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

(c) That the child has been removed ... from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

(d)That the serv1ces 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;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; ... [and]

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

23 No. 91925-9

RCW 13.34.180(1). The only statutory prerequisite at issue in this appeal is (d): the

provision of all necessary and reasonably available services capable of correcting

parental deficiencies.

The other prerequisite to termination at issue in this case is the nonstatutory

prerequisite of parental unfitness. The State may not terminate a parent's rights

without showing that the parent is currently unfit to parent the child in question. In

re Welfare ofA.B. (A.B. I), 168 Wn.2d 908,918,232 P.3d 1104 (2010). Terminating

a parent's rights in the absence of such a finding, either express or implied, violates

due process clause protections. Id.; see WASI-l. CONST. art. I, § 12. The fact of

unfitness must also be proved by clear, cogent, and convincing evidence. I d. at 919.

In order to prove unfitness, the State must show that the parent's deficiencies

make him or her incapable of providing '"basic nurture, health, or safety."" In re

Welfare ofA.B. (A.B. II), 181 Wn. App. 45, 61, 323 P.3d 1062 (2004). Where a trial

court finds that the six statutory prerequisites have been met, this constitutes an

implicit finding of unfitness. In re Dependency ofK.N.J, 171 Wn.2d 568, 577, 257

P.3d 522 (2011).

The trial court's findings of fact in a termination proceeding will not be

disturbed so long as they are supported by substantial evidence in the record. In re

Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). However, because the

State must prove its case in a termination proceeding by clear, cogent, and

24 No. 91925-9

convincing evidence, that evidence must be "more substantial than in the ordinary

civil case in which proof need only be by a preponderance." !d. While the record

in this case supports certain concerns about H.O. 's parental fitness and amenability

to corrective services, those concerns do not amount to clear, cogent, and convincing

evidence warranting termination. We therefore reverse the Court of Appeals and

reverse the order terminating H.O.' s parental rights.

THE TRIAL COURT ERRED BY FINDING THAT THE STATE PROVIDED H.O. WITH ALL NECESSARY SERVICES CAPABLE OF CORRECTING PARENTAL DEFICIENCIES

As noted above, before the trial court can terminate a parent's rights, it is

required to find that "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(l)(d). Washington

courts have addressed that requirement in two cases that bear striking factual

similarities to this one.

In C.S, C.S. was found dependent due to his mother's substance abuse and

placed in foster care for the first three years of his life. 168 Wn.2d at 53-54. When

C.S. was two, his mother successfully completed an addiction treatment program.

!d. at 54. Before entering treatment, she also gave birth to a second child. Id. at 54

n.l. When C.S. was three, his mother was successfully caring for this second child

and had been sober for a year, but the State nevertheless filed a termination petition 25 No. 91925-9

as to C.S. Id. The trial court terminated the mother's rights, concluding that

although she had remedied her only identified parental deficiency, substance abuse,

"she lacked 'the patience, presence of mind, skills, experience, time in a day, and

availability to care to [C.S.] -given his special needs."' Id. at 55 (alteration in

original). C.S. had been diagnosed with ADHD (attention deficit hyperactivity

disorder) and several other disorders, and the trial court deemed his mother unfit to

parent a child with so many difficulties. Id. This court reversed the termination

because the State had offered training to C.S.'s foster parents in how to deal with his

special needs, but had not offered any such training to C.S.'s mother. Id. at 55-56.

In S.J, S.J. was found dependent when he was two and a half. 162 Wn. App.

at 876. His mother's parental deficiencies were substance abuse, unsanitary living

conditions, and mental health issues. Id. Shortly after S.J. was removed from her

care, his mother entered treatment for substance abuse but was unsuccessful. Id.

When S.J. was three, his mother discovered she was pregnant with another child and

entered treatment again. Id. This time, she was successful enough that the trial court

allowed supervised visitation with S.J. !d. During these visits, the mother received

some parenting education. !d. at 876-77. When S.J. was three and a half, his mother

graduated from her treatment program and gave birth to her other child. Id. at 877.

She maintained her sobriety, continued with mental health treatment, and

successfully parented her other child. !d. When S.J. was four, he began therapeutic

26 No. 91925-9

visitation with his mother. ld. This went well for a while, but visitation was

suspended when S.J. started acting out toward his mother and clinging to his foster

parents at visits. Id. The State filed a termination petition, and at the hearing, several

witnesses testified that the State could have provided S.J. and his mother with

bonding and attachment services but failed to do so. Id. at 877-78. Witnesses also

testified that S.J. was unlikely to develop a healthy relationship with his mother in

the near future "due to SJ's entrenched perception of his mother and [her] inability

or unwillingness to parent SJ effectively." I d. at 879. The Court of Appeals reversed

the termination for two related reasons: it found that the State delayed provision of

mental health treatment, which might have diminished S.J. 's prospects for bonding

with his mother, and it found that the State failed to provide any bonding and

attachment services whatsoever. ld. at 883-84.

In both of those cases, appellate courts reversed a termination order because

the State failed to provide the mothers with training to help them address their child's

special needs. C.S., 168 Wn.2d at 53-54; S.J, 162 Wn. App. at 877-78. In S.J, as

in H.O.'s case, these special needs arose primarily from the child's separation from

his mother and bond with the foster parents, factors that were exacerbated by the

State's failure to timely provide necessary services. 162 Wn. App. at 877-78. And

in C.S., the State argued-just as it did in H.O.'s case-that services would have

been futile because of the mother's substance abuse and mental health problems.

27 No. 91925-9

168 Wn.2d at 56 n.2. We rejected this argument because the trial court found the

mother had "no lingering deficiency from substance abuse or mental health issues

that would preclude her from caring for C.S., much less from successfully

completing training to do so." !d. C.S. impliedly holds that the State may not

unilaterally decide that an otherwise fit parent lacks the requisite lifestyle or

personality traits to benefit from necessary services. 4 Instead, absent a showing that

services would be futile, 5 the parent must have the opportunity to benefit from all

services available to address a barrier to family reunification. 6

4 In C.S., the trial court found that the mother lacked "'the patience, presence of mind, skills, experience, time in a day, and availability to care to [C.S.]- given his special needs."' 168 Wn.2d at 55. We held that the State could not seek termination until it had offered the mother training in addressing C.S.'s special needs. Id. at 56 ("Since this training, deemed necessary to address C.S. 's behavioral problems, was not offered to [the mother], termination of her parental rights was not warranted (even if this court assumes arguendo, as the State asserts, that [the mother's] inexperience in addressing C.S.'s conditions can serve as a basis for termination).").

5 The trial court may make a finding that the Department has offered all reasonable services when "'the record establishes that [an] offer of services would be futile."' C.S., 168 Wn.2d at 56 n.2 (quoting Welfare of MR.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008) (citing Welfare ofFerguson, 32 Wn. App. 865, 869-70,650 P.2d 1118 (1982), rev'd on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983)). But that rule derives from cases in which the State made repeated offers of services but eventually gave up after the parent refused to accept any of those offers. !d. In this case, by contrast, the record shows that H.O. accepted every offer of services and did exceptionally well in the therapeutic visits the State provided (the only service the State provided to address the relationship between H.O. and B.P.).

6 See C.S., 168 Wn.2d at 56 n.3 ("The State is charged with reuniting families where possible and with providing necessary services to achieve that goal. When a 'condition' precludes reunion of parent and child, as here, regardless of whether it can be labeled as a 'parental deficiency,' the State must provide any necessary services to address that 28 No. 91925-9

In H.O.'s case, the trial court did not make an explicit finding that H.O. had

no substance abuse or mental health barriers to parenting. Indeed, the court

repeatedly emphasized H.O.'s history of substance abuse and mental health

problems. 7 But none of these deficiencies made H.O. unfit to parent A.-the State

conceded that H.O. was fit to parent A. and the testimony about her parenting of A.

was entirely positive. Thus, there is only one viable interpretation of the trial court's

findings on substance abuse and mental health: that H.O. lacked the requisite

emotional skills to ensure that attachment services would succeed in the near future.

Under C.S., this finding is improper. Absent a showing of futility, H.O. was entitled

to any available services necessary to facilitate reunification with B.P. It was not

her burden to prove that these services would succeed before the State provided

them.

condition set forth in RCW 13.34.180(1)(d). Otherwise, the State could avoid providing services to preserve the family unit simply by classifying a parental shortcoming as a 'condition' instead of a parental deficiency."' (citations omitted)). 7 E.g., CP at 185-86 ("Given the length of her history and the recent nature of her sobriety, the court could not make a long term legal conclusion about [H.O.]'s sobriety. [H.O.] had not demonstrated any ability to maintain her sobriety outside a structured living environment. ... [H.O.] also had mental health issues that impacted her ability to parent. [H.O.] has a long trauma history. She does not demonstrate the ability to feel her own feelings. She has not demonstrated the ability to place [B.P.]'s needs above her own. This is a critical skill for a parent.").

29 No. 91925-9

Additionally, the record does not support a finding that attachment services

would have been futile in this case. Six witnesses testified for the State regarding

attachment. Eastep testified that the court would be taking a "calculated risk" by

placing B.P. with H.O. 1 RP at 84 (Feb. 10, 2014). Gormon-Brown testified that

she didn't know whether H.O. had made enough progress in therapy to be able to

successfully "work on ... attachment strategies," but also stated that H.O. was highly

motivated to succeed in therapy and that Gormon-Brown was available to do

attachment work with H.O. and B.P. ifH.O.'s parental rights were not terminated.

Id. at 145. Thomas and Clemons testified that another disruption would not be in

B.P. 's best interests. But Clemons also testified that she could have been doing

attachment work with H.O. and B.P. but had not received a referral to do that work.

And Thomas testified that ifB.P. were removed from foster care, Thomas would be

available to counsel H.O. in how to assist B.P. through the grieving process

associated with that disruption. Schweigert, who has no formal education in

psychology or attachment issues, opined that it was unlikely B.P. could reattach to

H.O. "especially without significant trauma." 2 RP at 245 (Feb. 11, 2014). And

Monohan opined that B.P. could not wait any longer for permanent stability.

All of this testimony raises concerns about reunification, some of them grave,

but none of it suggests that proper bonding and attachment services were withheld

because they would have failed or taken too long. No witness testified to that effect.

30 No. 91925-9

Instead, the record indicates that the State never considered offering any attachment

services to H.O. at all. It facilitated supervised visitation that resulted, predictably,

in what the parenting evaluator described as a "social relationship." 1 RP at 113

(Feb. 10, 2014). The record indicates that Eastep, the therapist who supervised the

visitation, was initially confused about the State's goal and recommended against

continuing visitation unless the goal was reunification. I d. at 65 ("[i]f visitation is

only to satisfY a service requirement, it would be detrimental to [B.P.]'s emotional

stability and create placement instability and possible upset and would not be in the

best interest of [B.P.]"). After several more weeks of confusion, the trial court

finally ordered supervised visitation to continue for another several months "to

determine if the parent child relationship can be repaired." CP at 66. Every witness

who observed this visitation said that H.O. handled it exceptionally well. But then,

after H.O. had faithfully followed every recommendation her therapists made

regarding visitation, the State sought tennination anyway, offering testimony that

H.O. might not have the emotional wherewithal to handle real attachment work.

Indeed, the State's position remains fundamentally confused even on appeal.

On the one hand, the State argues that attachment and bonding services would have

been futile "because H.O. was unable to recognize her own emotions and express

them in a healthy way." State ofWash.'s Suppl. Br. at 13. On the other hand, the

State also argues that H.O. actually received attachment services through Eastep's

31 No. 91925-9

therapeutic visitation. Neither argument is supported by the record. If Eastep

provided attachment services, then H.O. certainly had the emotional skills necessary

to benefit from them: H.O. handled visitation so well that Eastep reduced her

supervision by half. But Eastep did not provide attachment services. Eastep testified

that she is not an attachment expert, and Clemons testified that she could be doing

attachment work with H.O. and B.P., but had not received a referral to do such work.

The record contains no testimony whatsoever indicating that H.O. received

attachment services, although it does contain evidence that she requested them.

By ignoring this request and denying H.O. any opportunity to demonstrate her

capacities for real attachment work, the State violated its statutory and constitutional

obligation to offer or provide "all necessary services, reasonably available, capable

of correcting parental deficiencies within the foreseeable future." RCW

13.34.180(1)(d); see C.S., 168 Wn.2d at 55-56. It encouraged H.O. to participate in

months of services that were not designed to address attachment issues, then cited

her alleged possible incapacity for attachment work as grounds for termination. This

falls short of the duty to offer or provide services. 8

8 The dissent's contrary conclusion depends on speculation, unsupported by the record, that the "therapeutic visit[s]" Eastep facilitated were the best attachment therapy H.O. could hope for, given the nature of her relationship with B.P. Dissent at 7 (acknowledging that Eastep is not an attachment expert and that Clemons could have provided actual attachment therapy to H.O. and B.P.; nevertheless concluding that "the services provided ... by Ms. Eastep were similar to those provided [to B.P. 's foster parents] 32 No. 91925-9

Finally, there is insufficient evidence in the record to sustain the conclusion

that attachment services would be futile at this point. The dissent credits the State's

argument on appeal that attachment services could not succeed in the "foreseeable

future," RCW 13.34.180(1)(d), because (1) H.O. had not progressed enough in her

individual therapy or addiction recovery to help B.P. grieve the loss of her foster

family, dissent at 9-11, and (2) "[i]t would take 'hundreds [or] ... thousands of

contacts"' to create a secure attachment between H.O. and B.P., and that would take

too long. Dissent at 12 (quoting 1 RP at 77 (Feb. 10, 2014)). But both of those

theories conflict with the State's actions in the six months preceding trial.

During these months, the State encouraged H.O. to participate in the services

it did provide, leading her to believe that these services were an avenue to H.O.'s

return. Then it pursued termination on the theory that B.P .' s attachment needs were

so severe that H.O. could not possibly meet them in the foreseeable future, given her

location on the path to full recovery from substance abuse and childhood trauma. If

there were evidence that H.O. had not progressed in treatment as expected during

by [the attachment expert] Ms. Clemons"), 8 (concluding, without citation to the record, that "it would be unreasonable to expect the services provided to H.O. to be identical to those provided to the foster parents"). Tills speculation amounts to fact-fmding that "exceeds this court's proper role on review." !d. at 2. And it is only by engaging in such fact-finding-by concluding that H. 0. in fact received attachment services from Eastep but that these services "resulted in limited success," id. at 6-7-that the dissent is able to conclude that further attachment therapy would have been futile. 33 No. 91925-9

the six months preceding trial, then the State's actions might be reasonable. But

H.O. 's only slipups were two technical violations: accepting a ride from B.P. 's foster

father while still living at Isabella House (a violation she self-reported to her

counselors) and failing to verify participation in two outside support meetings in the

first month of transitional housing treatment (something she attributed to her

confusion over the program's definition of an eligible meeting). H.O. never failed a

UA during treatment, and no treating professional testified that they had current

concerns about her sobriety. H.O. was successfully participating in all of the mental

health services the State provided. On this record, the State's sudden about-face in

January 2014 is fundamentally unfair.

Simply put, the record contains no explanation for the State's decision to

assign H.O. a regimen of individual and family therapy, watch as she progressed in

this therapy just as her treating professionals expected, and then argue that no

amount oftherapy could prepare her for the demands of real attachment work in the

foreseeable future. Absent that explanation, the record does not contain clear,

cogent, and convincing evidence that attachment services would be futile. 9

9 Nor does this case does involve overwhelming, undisputed testimony that B .P. will suffer an irreparable attachment disorder if forced to separate from her foster parents. And while the Department presented evidence that attachments normally form around age one, it did not present evidence that attachment services would have been futile for this reason- indeed, the Department provided those services for B.P.'s foster parents well after B.P.'s first birthday. Thus, amici are correct that the record does not support the conclusion that 34 No. 91925-9

To be sure, this case does involve testimony that removing B.P. from her

foster home and placing her in H.O.'s care poses risks to B.P.'s emotional well-

being. But where parental rights are at stake, such risks do not constitute parental

unfitness ifthey might be mitigated through services. See A.B. II, 181 Wn. App. at

64 (substantial evidence supported finding that mother's cognitive impairments

"resulted in a lack of understanding of child development stages and difficulty

identifying certain subtle dangers," but these parental deficiencies did not amount to

clear, cogent, and convincing evidence of unfitness; instead, they created a risk of

harm warranting participating in services). In this case, numerous expert witnesses

testified that they were available to provide services designed to help H.O. address

B.P. 's special attachment needs. No witness testified that H.O. was incapable of

benefiting from these services or that the services would be futile for some other

reason. Thus, the State did not fulfill its obligation to provide "all necessary services,

reasonably available, capable of correcting the parental deficiencies within the

foreseeable future," RCW 13.34.180(l)(d), and the termination order must be

reversed. 10

if a child is not attached to his or her parent by age one, there are no services that can rectify that problem. 10 Because we reverse on this basis, we do not address H.O.'s arguments regarding parental unfitness. 35 No. 91925-9

CONCLUSION

The trial court's findings of fact in a termination proceeding will not be

disturbed so long as they are supported by substantial evidence in the record. Hall,

99 Wn.2d at 849. However, because the State must prove its case in a termination

proceeding by clear, cogent, and convincing evidence, that evidence must be "more

substantial than in the ordinary civil case in which proof need only be by a

preponderance." !d. While the State need not provide corrective services to a parent

if those services would be futile, services are not futile just because they are not

guaranteed to succeed. See C.S., 168 Wn.2d at 56 & n.2.

Consistent with the holdings in C.S., and S.J, testimony that a parent might

not have the emotional skills or other personality traits necessary to benefit from

services does not amount to clear, cogent, and convincing evidence that the services

would be futile or that the parent's deficiencies are unlikely to be remedied in the

near future. Where there is any reasonable possibility of success, the services must

be provided.

The termination order in this case violated these protections. We therefore

reverse that order.

36 In re Welfare ofB .1., ) No. 91925-9

WE CONCUR:

~7 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

No. 91925-9

YU. J. (dissenting)-By the time of the termination trial, two-and-a-half-

year-old B.P. had already spent most of her young life in dependency, waiting for

her mother H.O. to become a stable parent. During this time, B.P. went through

four placements and, due to H.O.'s failure to maintain a consistent relationship

with her, B.P. no longer has an attachment to her mother. The instability ofB.P.'s

first few years have already taken a serious toll on her. Experts testified at trial

that B.P. was in danger of developing an attachment disorder that could delay her

social and emotional development. She could not risk yet another placement

dismption.

B.P. is now five years old. She is still in dependency but has formed a

complete and secure attachment to her foster parents. The effect of the majority's

opinion is to stop the clock yet again on B.P. 's permanent placement. "To

postpone [the child's] access to stability in the hope that the mother will be able to

correct deep-seated emotional problems and assume the obligations of parenthood,

1 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

when all the evidence shows that she lacks the capacity to do so, is to ignore the

desperate needs of the [child]." In re Welfare ofAschauer, 93 Wn.2d 689, 694-95,

611 P.2d 1245 (1980). Rather than have the stability and permanence she so

desperately needs to ensure her healthy development, the majority holds that B.P.

must continue to wait.

Weighing all of the evidence before it, the trial court made the difficult but

tenable decision to terminate H.O. 's parental rights. There is substantial evidence

in the record to support the trial court's findings of fact, yet the majority now

reweighs the evidence itself and determines otherwise. Because the record

supports the trial court's decision to terminate H.O.'s parental rights and the

majority exceeds this court's proper role on review, reaching a result that will

likely be detrimental to B.P., I must respectfully dissent.

"We are firmly committed to the rule that a trial court's findings of fact will

not be disturbed on appeal if they are supported by 'substantial evidence'." In re

Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). Our role on appeal is

to determine whether there are sufficient facts to support the trial court's findings

of fact. I d. at 740. It is not our role to assess the credibility ofthe witnesses or

determine how much weight to give the evidence presented. Yet this is precisely

what the majority does.

2 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

Contrary to the majority's assertions, there is substantial evidence in the

record to sustain the trial court's findings of fact. The testimony presented at trial

shows that all necessary services were provided to H.O., but she remained unfit to

parent B.P. at the time oftrial.

A. NECESSARY SERVICES

RCW 13 .34.180( 1)(d) requires the Department of Social and Health Services

(Department) to offer or provide "all necessary services, reasonably available,

capable of correcting the parental deficiencies within the foreseeable future." The

Department identified H.O. 's parental deficiencies as "substance abuse, mental

health issues, criminal history and an inability to meet the physical and emotional

needs of the child." Clerk's Papers (CP) at 2. It is undisputed that H.O. was

offered or provided with the following services: "chemical dependency inpatient

treatment, outpatient treatment, [urinanalysis/blood alcohol] monitoring, individual

counseling, parenting assessment, parenting services including family preservation

services and therapeutic visits with [Lori] Eastep in part to address the mother

child relationship." Id. at 181.

H.O. asserts that the Department failed to provide her with all necessary

services because she never received attachment therapy. However, the evidence

substantially shows that (1) H.O. was provided with services tailored to address her

identified parental deficiencies and (2) any additional services would not remedy

3 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

H.O. 's parental deficiencies within the foreseeable future. Consequently, there is

sufficient evidence in the record to support the trial court's finding that the

Department fulfilled its obligation to provide all necessary services under RCW

13 .34.180(1 )(d).

1. H 0. was provided with services tailored to address her identified parental deficiencies

Although concerned that "attachment services in the classical and clinical

sense were not articulated to have been provided to [H.O.]," 3 Verbatim Report of

Proceedings (VRP) at 442, the court ultimately determined that "[t]he services

offered were those needed to remedy [H.O.]'s parental deficiencies," CP at 181.

This determination is supported by the evidence in the record, and the majority

overlooks the fact that H.O. did receive services specifically tailored to address her

H.O.'s persisting parental deficiencies were her "mental health and how it

impacted her ability to parent [B.P.]" and "issues with her parental relationship

with [B.P.]." !d. at 182, 184. Among the services provided to H.O. were

"parenting services including family preservation services and therapeutic visits

with Ms. Eastep in part to address the mother child relationship." !d. at 181.

These services were clearly intended to address the parental deficiencies identified

by the Department.

4 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

When visitation resumed after H.O. 's relapse, H.O. had not had any contact

with her daughter for 11 months. 1 VRP at 62. The Department made a referral to

Ms. Eastep, a licensed independent clinical social worker, to assess parent-child

interactions. Id. at 61. The majority mischaracterizes Ms. Eastep as being

"confused" about the Department's goals regarding visitation. Majority at 30-31.

The evidence in the record, however, shows that Ms. Eastep was actually

accounting for existing and potential circumstances as they were presented to her

at the time.

Following her initial therapeutic visit, Ms. Eastep advised that "[i]t seems

contraindicated to begin visitation if the Department is moving toward termination

and [H.O.] has not made sufficient progress in a timely manner to extend or

postpone the trial." 1 VRP at 64. Bear in mind that at the time of Ms. Eastep's

evaluation, the original date of the termination hearing was imminent and H.O. had

only then filed a motion requesting visitation after an extended absence.

Ms. Eastep explained:

Because we were looking at a very short timeframe and for a child of [B.P.]'s age, being brought to a visitation place, being exposed to people that she's very unfamiliar with can create a lot of internalized stress. It can create unnecessary upset. If the termination trial was going to still move forward, it did not seem to make sense to me at that time.

5 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

!d. at 65. Therefore, she stated that "[i]fvisitation is only to satisfy a service

requirement, it would be detrimental to [B.P.]'s emotional stability and create

placement instability and possible upset and would not be in the best interest of

[B.P.]." !d. In the alternative, however, Ms. Eastep recommended that "if [H.O.]

has demonstrated the necessary progress and is given an opportunity to

demonstrate this further, [she] would support reinstatement of visitation with

[B.P.]." !d. Thus, it is apparent that Ms. Eastep's recommendations were

dependent on H.O.'s ability to remedy her parental deficiencies in the context of

the upcoming termination trial.

Consistent with Ms. Eastep's recommendation, the dependency court

ultimately decided to continue the termination hearing based on the fact that "the

parties agree that the mother needs to have some visitation in order to determine if

the parent child relationship can be repaired." CP at 66. The majority correctly

observes that the order for continuance was contrary to a prior order that denied

visitation. Majority at 7; see CP at 66. It is unclear from the record why the

dependency court changed its mind. However, what is clear is that H.O. was

granted additional time and services-weekly therapeutic contact and a parenting

assessment-specifically to address her relationship with B.P. CP at 66.

Ms. Eastep continued working with B.P. and H.O., ultimately conducting a

total of22 sessions. 1 VRP at 82. Ms. Eastep's work with B.P. and H.O. resulted

6 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

in limited success. She observed that mother and child had developed a social

relationship and there was an emerging emotional connection but no evidence of

an attachment. !d. at 67-68, 75.

The majority unfairly rebukes the Department for providing only therapeutic

visitation with Ms. Eastep that "predictably" resulted in a social relationship

between H.O. and B.P. Majority at 30. However, this assessment overlooks the

fact that when visitation resumed after an extended period of no contact, H.O. and

B .P. had no relationship at all. 1 VRP at 63. The development of an emotional

relationship that would allow for a secure attachment requires emotional stability,

which H.O. has yet to achieve, and significant time, which B.P. does not have.

The majority also disregards the services provided by Ms. Eastep because

"Eastep testified that she is not an attachment expert, and [Amanda] Clemons

testified that she could be doing attachment work with H.O. and B.P ." Majority at

31. However, there was no testimony that the services Ms. Eastep provided were

inappropriate, inadequate, or different from what other service providers would

have provided. In fact, the evidence suggests that the services provided to I--I.O. by

Ms. Eastep were similar to those provided by Ms. Clemons to B.P.'s foster

parents-Ms. Eastep testified that her treatment goals with H.O. included "to assist

[H.O.] in identifying cues and boundaries that [B.P.] has related to their physical

and emotional contact," 1 VRP at 67, while Ms. Clemons testified that her work

7 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

with the foster parents included helping them understand what B.P. 's underlying

needs were when she "miscue[s]", 2 VRP at 166. H.O. has a completely different

relationship with B.P. than her foster parents, who are her primary caregivers and

primary attachments. It appears that both H.O. and the foster parents were

provided with training on how to interact with B.P. given the particular nature of

their relationships, and under the circumstances presented, it would be

unreasonable to expect the services provided to H.O. to be identical to those

provided to the foster parents.

Consequently, reliance on In re Welfare ofS.J, 162 Wn. App. 873,256 P.3d

470 (2011), and In re Welfare ofC.S., 168 Wn.2d 51, 225 P.3d 953 (2010), is

misplaced. In S.J., the Court of Appeals concluded that the Department had failed

to tailor services to the mother's needs. 162 Wn. App. at 882. Similarly, in C.S.,

the Department failed to provide services to the mother that had been provided to

the foster parents and would have helped the mother manage the child's behavioral

problems. 168 Wn.2d at 55-56. Neither of these factual scenarios is present here.

In this case, H.O. was provided with services that were tailored to her specific

parental deficiencies-treatment for her substance abuse, individual therapy to

address her mental health issues that were affecting her ability to parent B.P., and

also therapeutic visitation aimed at building a relationship with B.P.

8 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

2. Additional services would not correct parental deficiencies within the foreseeable future

RCW 13 .34.180( 1)(d) does not require the provision of all services capable

of correcting parental deficiencies, only those capable of doing so within the

foreseeable future. The majority gives short shrift to this statutory requirement and

fails to consider that the foreseeable future is determined from the point of view of

the child. See In re Welfare of Hall, 99 Wn.2d 842, 851,664 P.2d 1245 (1983).

The trial court concluded that "[B.P.]'s foreseeable future is now," CP at 187, and

additional services would not have been capable of remedying H.O. 's parental

deficiencies within the foreseeable future because "the services necessary to build

the type of relationship necessary to meet [B.P.]'s needs would take one year or

more and that is too long," id. at 186; see also 3 VRP at 443 ("necessary services

were certainly given and they were quality services, but they simply were not able

to overcome the fact that the foreseeable future cannot be yet another year"). The

record amply supports this finding; indeed, the record suggests that the one-year

time frame is conservative at best.

In order for I-I.O. to be a stable parent to B.P., she would need to first

address her significant mental health issues. Ms. Eastep testified that B.P. would

not form an attachment with H.O. unless B.P. was removed from her current foster

placement and returned to H.O.'s custody. See 1 VRP at 77-79. In the event of

9 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

such removal, B.P. would need substantial emotional support to grieve the loss of

her attachment to her foster parents. CP at 92. However, testimony indicated H.O.

would not be able to provide such support in the near future. Although H.O. had

made strides in individual therapy, her therapist Sandra Gorman-Brown was unsure

ifH.O. had "made enough progress therapeutically to be able to be emotionally

available to [B.P.]" to allow for reunification. 1 VRP at 147-48. According to

Ms. Gorman-Brown, it would take "at least another six months in individual

therapy" to resolve H.O.'s trauma history. !d. at 149-50. Six months may not

seem like a significant amount of time, but it might as well be an eternity for B.P.

See Hall, 99 Wn.2d at 851 ('"Three months may not be a long time for an adult

decisionmaker. For a young child it may be forever."' (quoting JOSEPH

GOLDSTEIN, ANNA FREUD & ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF

TI-IECHILD 43 (1973))).

There was also consistent testimony about B.P.'s pressing need for stability

and permanence. By the time oftrial, B.P. had already been through four

placements. CP at 90. Carol Thomas, a licensed mental health therapist who

conducted a parent-child assessment ofH.O. and B.P., testified that continued

disruptions in B.P. 's ability to form attachments would turn into an attachment

disorder. 2 VRP at 163. Ms. Thomas explained that an attachment disorder

"impacts pretty much every arena of [a person's] life: [!]ow self-esteem, can create

10 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

depression, anxiety issues, other mental health concerns, emotional disregulation in

children, behavioral issues as a result." Id. Thus, the absence of permanent

placement in the immediate future would likely have "significant ramifications"

for B.P. 's emotional development and mental well-being. I d.

Furthermore, six months was not the amount of time it would take to make

H.O. fit to parent B.P.-six months was only the minimum amount of time H.O.

would need in individual therapy to work through her own trauma. In addition to

this work in individual therapy, H.O. would need to maintain her sobriety for an

extended period of time. Marcey Monahan, the social worker assigned to B.P.'s

case, testified that given the length ofH.O.'s drug addiction, she would want to see

H.O. maintain sobriety for 18 months to 2 years before she would feel comfortable

that H.O. was solidly in recovery this time. Jd. at 283. This time period was

echoed by Carla Paullin, who provided H.O. with chemical dependency therapy.

Ms. Paullin testified that for someone with H.O. 's extensive history of intravenous

drug use, she would want to see two years of structured treatment therapy before

she would consider the addiction to be in remission. 1 I d. at 198.

On top of the work needed to resolve her parental deficiencies, developing a

relationship that would allow B.P. to securely attach to H.O. would likely take

1 Ms. Paullin also pointed out that the type of therapy that H. 0. would need to achieve remission is not even offered in her service area. 2 VRP at 198. 11 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

much longer. By the time of trial, Ms. Eastep testified that B.P. and H.O. had

developed only a social relationship, aldn to a child's relationship with a

babysitter, and an emotional connection was just emerging. 1 VRP at 75, 77-78. It

would take "hundreds and sometimes thousands of contacts" to transition from an

emerging emotional relationship to a secure attachment that would allow for

reunification. Id. at 77. There simply is no way of telling how long it would take

for this to occur-or if it would occur at all. See id. at 71.

While it is possible that H.O. will be able to maintain her sobriety and

continue to successfully work on her mental health issues, there was no evidence

provided that she would reach a point of stability within a time period that would

be conducive to B.P. 's emotional well-being. I am sympathetic to H.O. 's

concerted effort to become a stable parent and recognize that past behavior is not

necessarily a measure of :future success. However, it is undeniable that the threat

of relapse is real and the potential harm to B.P. would be significant.

Ms. Eastep testified that the Department would be taking a "calculated risk"

by returning B.P. to her mother's custody. Id. at 84. H.O. has not been able to

maintain her sobriety outside of a structured living environment, and, just prior to

the termination trial, I-I.O. was already exhibiting worrisome behaviors. Karen

Schweigert, the guardian ad litem, expressed concern that H.O. lied to a counselor

about returning her phone calls. 2 VRP at 237-38. Even more troubling was

12 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

Ms. Monohan's testimony about H.O.'s failure to attend support groups, a behavior

that had preceded H.O. 's prior relapse. I d. at 281-82. This contravened her

counselor's explicit recommendations. 1 VRP at 38. Paige Beerbohm, H.O.'s

counselor at Isabella House, testified that it was concerning that H.O. was

struggling to attend self-help groups so early in her recovery. Id. Failure to attend

self-help meetings can increase the risk of relapse. Id. at 37. H.O.'s therapist

emphasized the importance of building a strong support system to help maintain

her sobriety. 2 VRP at 198.

Whether a parent is capable of correcting parental deficiencies is not the

only question that we must ask here. RCW 13.34.180(1)(d) requires us to inquire

into the probable length oftime that it will take for parental deficiencies to be

remedied by specifying that the services to be offered or provided are limited to

those services "capable of correcting the parental deficiencies within the

foreseeable future." (Emphasis added.) Whether the length oftime it will take to

correct parental deficiencies warrants delaying termination so the parent may

receive additional services depends on the child's developmental needs as

determined by the context of the child's placement and age. See In re Dependency

ofTR., 108 Wn. App. 149, 164-65,29 P.3d 1275 (2001) ("T.R. was six years old

at the time of trial and had been in foster care all her life. To wait another year, or

longer, is to wait well beyond T.R. 's foreseeable future."); In re Dependency of

13 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990) (6 months was not within the "near

future" of a 15 month old).

In this case, there was evidence ofB.P.'s urgent-if not immediate-need

for permanence in order to allow for her healthy emotional development. The

testimony was consistent on the fact that H.O. was not stable at the time of trial

and that it would take a considerable amount of time beyond the time that B.P. had

already spent in dependency before H.O. might be stable enough to provide for

B.P. 's emotional needs. These facts substantially support the trial court's finding

that H.O. 's parental deficiencies cannot be remedied within the foreseeable future. 2

B. CURRENT PARENTAL UNFITNESS

The majority declines to address the issue of current parental unfitness, but

the record substantially supports the trial court's finding that H.O. was unfit to

parent B.P at the time of the termination trial. The focus at a termination trial is

current parental unfitness. In re Welfare ofH.S., 94 Wn. App. 511, 523,973 P.2d

474 (1999) (citing In re Dependency ofK.R., 128 Wn.2d 129, 142, 904 P.2d 1132

2 The majority misinterprets this assertion as an application of the futility doctrine. Majority at 32-33. We should not conflate the question of whether providing a service would be futile with whether the service could remedy a parental deficiency within the foreseeable future, as required by RCW 13.34.180(1)(d). The issue here is not whether it would be futile to provide H.O. with additional services. Rather, the issue is whether there is substantial support in the record for the trial court's finding that any additional services would not remedy H.O.'s parental deficiencies within the foreseeable future, as determined from B.P.'s point of view in accordance with our case law. See Hall, 99 Wn.2d at 851. I conclude that the evidence presented at trial does support such a conclusion and the majority's reweighing of the evidence is troubling. 14 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

(1995)). Because every parent-child relationship is different, parental unfitness is

determined on a case-by-case basis. See In re Welfare ofA.B., 168 Wn.2d 908,

921, 232 P.3d 1104 (2010). However, in the broadest sense, a parent must be able

to fulfill his or her duty to provide a child with "basic nurture." RCW 13.34.020.

There was substantial evidence showing that H.O. was unable to provide for B.P.'s

emotional needs, which is a component of basic nurture. This is sufficient to

support the trial court's finding of current parental unfitness.

The tragic story that the record tells about H.O. is of a deeply troubled

person who is unable to put the needs ofB.P. above her own. See 2 VRP at 213.

B.P. was born addicted to methamphetamine, a drug that H.O. first used at the age

of 13 and continued to use through all ofher pregnancies, including her pregnancy

with H.O.'s younger sibling, A. B.P. was immediately removed from H.O.'s

custody at birth and spent the first two months of her life in dependency. She was

eventually returned to H.O. 's custody for 10 months, only to be removed again

when H.O. relapsed. B.P. has been in dependency ever since.

H.O. has been a sporadic presence in B.P.' s life. After missing 10 scheduled

visits with B.P., the dependency court decided to suspend H.O. 's visitation at the

end of October 2012. I d. at 261. The court ordered that visitation would not

resume unless H.O. brought a motion to reinstate visitation. CP at 89. H.O. did

not file her motion to reinstate visits until almost nine months later, in July 2013-

15 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

which was more than six months after the Department filed its petition to terminate

parental rights. During this time, B.P. had no contact with her mother. When

visitation resumed in August 2013, B.P. no longer recognized H.O. as her

mother-in fact, B.P. no longer recognized H.O. at all.

Now, after an extensive absence from B.P. 's life, H.O. wants to be a parent

to her daughter. Yet the consistent testimony at trial was that H.O. has not

remedied her parental deficiencies. Her recent sobriety is relatively short

compared to her decades-long struggle with substance abuse; she has yet to

establish that her recovery is stable. H.O. has no track record of maintaining her

sobriety outside of a structured living environment. There was testimony that the

longest she had been able to maintain sobriety was five years. 1 VRP at 34-35.

H.O. has never successfully parented a child for an extended period of time, nor

has she ever parented without assistance or supervision. See 2 VRP at 235. H.O.

cannot remain in structured living indefinitely. Furthermore, H.O. was beginning

to exhibit the same behavior that led up to her prior relapse.

Not one of the service providers assigned to this case testified that B.P.

should be returned to H.O. 's custody. The trial court stated:

The mother is currently unfit to parent [B.P.]. This element requires the court to determine if [H.O.] is able to meet [B.P.]'s needs. The evidence clearly indicates that she cannot. [H.O.] relapsed causing a disruption in her relationship with [B.P.]. She failed to consistently visit [B.P.] and did not maintain a relationship with her. [H.O.] is

16 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

responsible for the stops and starts in her parenting. She does not understand [B.P.]'s needs for permanency or the risk she faces if she develops an attachment disorder. [H.O.] cannot claim that because [A.] is in her care, that she must be fit to parent. [B.P.]'s needs are different and her attachment issues are the result of her mother's actions. [H.O.] has not demonstrated an ability to understand her own feelings, or those of [B.P.]. Thus, the Department has established that [H.O.] is currently unfit to parent.

CP at 187-88. The trial court's findings regarding H.O.'s inability to provide for

B.P. 's emotional needs are supported by testimony presented at trial. See, e.g., 2

VRP at 275 (Ms. Monahan testified that H.O.'s mental health remains a concern

"in regards to her ability to be emotionally available for a child like [B.P.]").

The evidence presented at trial shows that H.O. was currently unable to

provide for B.P.'s emotional needs. Consequently, there is substantial evidence in

the record to support the trial court's finding that H.O. is unfit to parent B.P.

Under our laws, B.P. has a right to "basic nurture," which includes "the right

to a safe, stable, and permanent home and a speedy resolution of any proceeding

under this chapter." RCW 13.34.020. Furthermore, our legislature has explicitly

declared that "[w]hen the rights of basic nurture, physical and mental health, and

safety of the child and the legal rights of the parents are in conflict, the rights and

safety ofthe child should prevail." !d. The majority ignores this mandate and fails

to properly consider B.P. 's rights.

17 In re Welfare ofB.P., No. 91925-9 (Yu, J., dissenting)

I agree with the trial court's assessment that "[H.O.] clearly loves [B.P.] and

wants to parent her. However, [B.P.] can no longer wait for [H.O.] to remedy her

parental deficiencies." CP at 187. There is no question that H.O. was "dealt a

difficult set of cards." 3 VRP at 438. The progress that she has achieved thus far

is commendable. However, although H.O. has started down the road to recovery,

progress is rarely ever a straight path, and there is no question that H.O. has a

difficult and long journey ahead of her. The sad reality is that H.O. 's progress

comes too little, too late for B.P.

The facts show that H.O. was provided with all necessary services to remedy

her parental deficiencies as required by RCW 13.34.180(l)(d), yet she still remains

unfit to parent B.P. What she asks for now is more time to remedy her parental

deficiencies despite a demonstrated inability to do so. As the trial court observed,

"Without termination, the child remains in the limbo of foster care indefinitely."

CP at 187. How much longer must B.P. remain there?

I would affirm the Court of Appeals and must respectfully dissent.

18 In re Welfare ofB.P., No. 91925-9 (Yu, J., Dissenting)