FILED APRIL 6, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Parental Rights to ) ) No. 38863-8-III C.G. ) (Consol. w/ No. 38864-6-III) ) In the Matter of the Parental Rights to ) UNPUBLISHED OPINION ) N.G., Jr. )
SIDDOWAY, J. — The father of now-five-year-old C.G. and eight-year-old
N.G. Jr. appeals the order terminating his parental rights.
Almost three years into dependency proceedings for the children, the social
worker assigned to their cases by the Department of Children, Youth and Families
(Department) learned that the father had reported during a 2014 psychological evaluation
that he had suffered a head trauma and concussion four years earlier. Based on this
information, the social worker recommended a neuropsychological evaluation that was
court-ordered in November 2021. An evaluation was scheduled for April 2022, the
earliest available date.
A few months earlier, however, trial of the Department’s petition to terminate the
father’s parental rights had been set to begin in mid-January 2022. The trial went
forward, and evidence presented demonstrated that the father had a high attempted Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
participation rate in court-ordered services but failed to demonstrate progress in the
important area of his mental health. He had repeatedly been discharged by providers for
angry, emotional or otherwise disruptive behaviors. For that reason, a court order ending
all contact with his children had been entered in April 2021 and a modification permitting
therapeutic visits via Zoom had led to only a couple of short visits thereafter, ending in
August 2021. The children were reportedly doing well in an adoptive family. Presented
with this evidence, the trial court found that the Department had met its burden and
terminated the father’s parental rights.
The father argues persuasively on appeal that where a traumatic brain injury might
explain the behaviors that led to the failure of services, clear, cogent, and convincing
evidence does not establish that all necessary services reasonably available and capable
of correcting his parental deficiencies within the foreseeable future had been offered and
provided. We reverse the order terminating the father’s parental rights and remand for
further proceedings consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
In or about June 2018, the mother of the father’s two children abandoned the
family, leaving the father to rear the children on his own. C.G., his daughter, was then
one year old and N.G. Jr., his son, was then three. The mother later voluntarily
relinquished her parental rights.
2 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
By September 2018, the Department had received intake reports suggesting the
father was overwhelmed by single parenting and might be struggling with mental health
and substance abuse problems, as well as housing insecurity. Shaylyn Gunnels, an
employee with the Department’s Family Assessment Response Division, paid a visit to
the father and the children. She observed that the father appeared to particularly struggle
parenting N.G. Jr., who displayed traits of autism. The father agreed to involve Family
Preservation Services (FPS), an in-home supportive program offered by the Department.
Alyssa Brudnicki, an FPS social worker, visited the father and the children. She,
too, noted that N.G. Jr. appeared to have high needs and that the father’s preoccupation
with the mother’s absence negatively affected his parenting abilities:
Oftentimes [the father] would talk about the kids’—his previous partner . . . —[and] . . . become very upset[,] . . . which led to his inability to pick up cues, like the children crying and needing comforting or asking for food or those type of caretaking tasks.
Rep. of Proc. (RP) at 343. Ms. Brudnicki also observed that the father took alcohol into
the bathroom during her visit and continuously stepped out to take sips, despite denying a
substance misuse problem. After a month and a half of working with the father, assisting
him with scheduling appointments for the children and providing FPS funds for needed
child care equipment and supplies, she concluded that he father could benefit from more
frequent Department contact and support and referred his case to the Department’s
3 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Intensive Family Preservation Services (IFPS) division. IFPS is able to offer a broader
range of services, including appointment transportation.
Dependencies are triggered
The father’s relationship with IFPS ended abruptly in October 2018 following a
report to law enforcement by an IFPS therapist and an intake received by Child Protective
Services (CPS) on October 23, 2018, that N.G. Jr. appeared to have been physically
abused. The report of physical abuse came from nurse practitioner Kathryn Ormsby, who
had examined N.G. Jr. at a routine medical appointment and found significant bruising
across his back and bottom. The father’s explanation was that N.G. Jr. fell off his
bunkbed and had also taken a tumble at his preschool, but in Ms. Ormsby’s opinion, the
“level of bruising was [the result of] blunt force trauma.” RP at 311. She was the source
of the intake to CPS and contacted Partners with Families and Children, a child advocacy
center.
Ms. Ormsby also observed during that time frame that N.G. Jr. appeared to be on
the autism spectrum. Shortly after the October appointment, Dr. Nalini Gupta diagnosed
N.G. Jr. with autism.
Following the CPS report, Ms. Gunnels paid a visit to the father’s home, observed
the bruising on N.B.G. Jr., and sent photos to a Department forensic specialist. She
began preparing dependency petitions.
4 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Dependency petitions were filed in October 2018, shelter care hearings were
conducted, and the children were placed in foster care. Supervised visitation was ordered
for the father twice a week for two hours at a time. Two months later, in December 2018,
the father stipulated to the children’s dependency. Among the requirements of the agreed
disposition order were that the father:
(a) Successfully complete a chemical dependency assessment and any recommended treatment. (b) Participate in random testing with Cordant Health Solutions as recommended by treatment providers or the DCYF social worker and obtain negative test results. Oral swabs approved; 30 days, then only upon reasonable suspicion. If positive or no show then 30 days re- starts. (c) Successfully complete a psychological evaluation . . . and follow all recommendations. (d) Successfully complete a scheduled parenting assessment . . . and follow all recommendations. (e) Successfully complete an evidence-based parenting program with a provider approved by the parties or ordered by the court and follow all recommendations. (f) Successfully complete mental health treatment/individual counseling . . . and follow all recommendations. (g) Successfully complete domestic violence assessment . . . and follow all recommendations. .... (l) Maintain regular visitation with the child[ren] and attend all scheduled visitations. The father shall not be under the influence of drugs and/or alcohol at the visit.
Ex. P4, at 4-5.
5 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
The father attended dependency review and other hearings in March, June, and
October 2019; March and September 2020; and May, June and November 2021. He
completed or attempted a number of the required services, but was unable to demonstrate
progress in mental health treatment, anger management and family therapy, as testified to
by multiple providers.
Psychological evaluation and mental health treatment
In June 2019, six months after entry of the dispositional order, Dr. Walter Mabee
conducted a psychological evaluation of the father. Dr. Mabee observed that the father
“was generally polite,” “presented with at least average intelligence,” and “seemed to be
more than competent . . . to engage in the psychological evaluation.” RP at 147. Dr.
Mabee learned that the father had his GED1 and was presently unemployed due to a
physical disability (a back injury). Dr. Mabee thought it significant that the father had his
GED because “an individual who has a GED typically has sufficient intellectual
capabilities or cognitive processing capabilities to be able to understand information . . .
whether it’s counseling or . . . parent training classes . . . and . . . should be able to profit
from those types of experiences.” RP at 149.
Based on psychological testing, Dr. Mabee diagnosed the father with a personality
disorder and mood disturbance order, which he concluded impaired the father’s ability
1 General education development degree or certificate.
6 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
“to engage appropriately with intimate [partners and to] sustain[ing] parenting behavior.”
RP at 152. The father’s scores for acute depression, suspiciousness, anger, and
interpersonal sensitivity “were all within the clinical range; in other words . . . greater
than you would expect in a—in a general individual.” RP at 153. Dr. Mabee suspected
that the father tended to minimize his alcohol use, but noted he was living in a clean-and-
sober house at the time of the evaluation.
Based on his observations, Dr. Mabee recommended the father enroll in
individualized counseling, avoid using substances, and participate in parent training
classes, particularly for N.G. Jr. Dr. Mabee noted the father’s report that he was not
taking and had not previously taken psychotropic medications, and his comment that he
did not believe in pills. Dr. Mabee did not discuss medication with the father, since the
depression and anxiety the father exhibited was only in the mild to moderate range.
Over the course of the dependency, the Department was required to refer the father
to multiple therapy and visitation service providers. Although he often made progress in
initial sessions and no provider questioned his sincere commitment to his children, he
was repeatedly discharged by providers due to an inability to get along with staff, follow
rules, and make adequate treatment progress.
Jessica Kaluza was one of the first therapists to offer individual and family therapy
for the father and the children. As with Ms. Brudnicki, the FPS social worker, Ms.
7 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Kaluza noted in her initial assessment that the father often missed basic cues from the
children and required prompting as to how to appropriately interact with them. After the
third session, she discharged the father from further sessions following an emotional
outburst by the father when he was told he could not take both children into the office’s
small restroom at the same time for a diaper change. She noted that in response to the
father’s escalation, the children “actually did not react, which is a trauma response.”
RP at 215; see also RP at 219 (“I would describe [the children’s] attachment as fearful
avoidant.”). After his discharge, she recommended further mental health therapy, a
psychological evaluation and medication management. At the termination trial, the
father’s lawyer questioned Ms. Kaluza about whether the father’s behavior was consistent
with someone who had a traumatic brain injury:
Q. Does [the father] show any signs of having a traumatic brain injury? A. I would say that part of my recommendation for a psychological evaluation was I just didn’t know. And so I knew that there . . . were symptoms that were outside of what I would diagnose and I would want someone who’s more specialized to look [at] that. Q. Sure. But did he show many signs, classic signs, of having a traumatic brain injury, did he not? A. He did.
RP at 223-24. On redirect, the Department’s lawyer obtained Ms. Kaluza’s agreement
that the father’s mood swings, inability to read the room and follow cues, and
impulsivity, while signs of a traumatic brain injury, are “also signs of other diagnoses,
8 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
which is why it was important that he receive [a] psychological evaluation.” RP at 224.
She testified that they could indicate a pervasive mental health disorder; she “just knew
. . . these symptoms were pretty extreme and I needed to make a recommendation.”
RP at 225
Following his discharge from Ms. Kaluza’s office, the Department arranged for
the father to meet with Patricia O’Neill for individual and family therapy. The father met
with Ms. O’Neill for about a year and a half, from approximately May 2019 through
November 2020. For group sessions, the family often engaged in outdoor play therapy at
a park.
Ms. O’Neill generally painted a more positive portrayal of the father than his other
providers. She observed that “there was an affectionate appropriate relationship between
he and the children” and that he was committed to “show[ing] up” and “working on
issues related to reunification.” RP at 235. Asked about anxiety or negative behaviors
from the children during play therapy, she attributed them more to their placement in
foster care and Department-scheduled appointments than to the father’s behaviors. She
testified, “I did not see [the father] at any time demonstrate any anger or inappropriate
behavior towards the kids. And he was receptive to my suggestions about how to ease
anxiety around transitions.” RP at 240.
9 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Ms. O’Neill vacillated in response to the question of whether the father’s
discharge was due to her own unwillingness to host Zoom/video therapy sessions during
COVID and personal affairs or the father’s behaviors. She later clarified that the father’s
behavior and failure to make progress played a role in her decision to discharge him:
A. I didn’t have a conflict with him but I had a deal with him. Q. Okay. A. And the deal was engage in these services that are recommended or required by the court and I will continue to work with you, and if you do not engage in these services, then I’m going to terminate this counseling relationship. And—and that definitely played into me dismissing him . . . . .... Q. Okay. And during [the time you saw him], he was—must have been engaging, because he was continuing the services with you, then? A. Well, I—I tend to give people, you know, a lot of space and room and chances and one more time and one more time. And I . . . I just had to create a boundary around going forward. And [I had] gone through a really, really difficult personal time [after] losing my older brother, [and] . . . I just said, “This is it. You know, I’ve been beating this drum for 18 months, and you keep having the same issue. And we can work for another year on—on reunification, but if these other things aren’t happening, it’s not going to happen.”
RP at 259; see also RP at 265 (Ms. O’Neill confirming to the court that one of the
reasons for the discharge was the father’s failure to make adequate progress).
Like Ms. Kaluza, Ms. O’Neill testified that she thought the father could potentially
benefit from medication management but stressed that the role of deciding that was better
left to a psychiatrist or physician.
10 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
At or around the same time, therapist Julie Rudmann provided counseling services
to the father and the children. As with Ms. Kaluza and Ms. O’Neill, Ms. Rudmann
discharged the father due to concerns with his engagement. She noted that while he made
initial progress, he often struggled to focus on the topic at hand and the children in
subsequent sessions. While her observed interactions of him and the children were
“overall . . . positive,” she noted he still needed to work toward accepting N.G. Jr.’s
autism diagnosis and stated that he continued to lack “insight into his own emotional
well-being and how that impacted the kids.” RP at 362-63. She discharged him
following his cancellation of several sessions.
The father was next seen by mental health counselor Taya Zavala, who worked
with him individually from his discharge with Ms. O’Neill for almost a year (from
November 2020 through October 2021). She, too, perceived that he sometimes struggled
to stay on the topic of his own behaviors. He was discharged following a litany of issues
with staff that ranged from him playing his music too loudly to failing to wear his mask
and ultimately culminated in a confrontation in October 2021. Ms. Zavala explained that
it appeared the father understood the skills she wanted him to use in strengthening his
emotional regulation, but he appeared to fail to actually apply those skills. At the
termination trial, the father’s lawyer asked her about the necessity of a psychiatric
evaluations and medication management:
11 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Q. . . . Do you know typical symptoms of traumatic brain injuries? .... A. Um, difficulty concentrating and focusing, forgetting things, difficulty remembering . . . and paying attention. Q. What about regulating emotions? A. That I don’t know. .... Q. . . . Do you think that [medication] could have been . . . a useful tool for [the father]? A. Yes. Q. Okay. And then a psychiatric evaluation as well? A. Yes.
RP at 397-98.
The father next met with David Wilson from September 2020 through April 2021
for individual and family counseling. Unlike the other providers, Mr. Wilson stated that
the father sometimes behaved inappropriately towards the children and was aggressive
with him personally. He observed the father grow angry and dysregulated with N.G. Jr.
and C.G. when they referred to their foster parents as “mom” or “dad,” and testified the
father accused the foster parents of not feeding and abusing the children directly in front
of N.G. Jr. and C.G. He also sometimes asked inappropriate leading questions, such as
“Would you like to come home with me?” RP at 569. Once, in an elevator with C.G.’s
foster parents, the father apparently yelled, “You’ll never be her father” and threw down
a toy in front of the children. RP at 563. He also yelled at a volunteer transportation
12 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
officer after he perceived her grab N.G. Jr.’s arm—reportedly to stop N.G. Jr. from
running into traffic. In another instance, he tried to show the children a horror film
before Mr. Wilson shut it down.
The father also experienced tension with Mr. Wilson personally. The father
struggled to follow some of Mr. Wilson’s clinic’s rules, such as not bringing in outside
food. When Mr. Wilson explained to the father that his clinic decided to discharge him
due to the combination of behavioral issues he was having, the father threatened him,
telling him “[d]on’t rock the boat” and “[i]f you push, you’ll see how hard I can push
back. . . . You’ll find out.” RP at 570. Despite these struggles, Mr. Wilson testified that
the father truly loved his children, and his anger was coming from a place of “just
really hurting and [feeling] like nobody kind of cared about . . . what was going on with
his kids. . . . I believe it was more so passion and . . . need[ing] and wanting to be
understood.” RP at 575.
The final therapist the father met with was Tabitha Wyatt, who provided family
therapy for about three months beginning in summer 2021. The father behaved
inappropriately towards Ms. Wyatt, kissing and hugging her at the end of their first
session without her consent. From then on, it was decided that all therapy sessions with
Ms. Wyatt and the children would be over Zoom to prevent any untoward physical
contact by the father. However, before transitioning to fully remote therapy, Ms. Wyatt
13 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
returned to the father’s house to help him set up a tablet for Zoom and stayed in-person
for the first Zoom session. When Ms. Wyatt went to the father’s house to help him to set
up the tablet, the father was dysregulated and physically aggressive. He made
inappropriate remarks and promises to the children and threatened the foster parents.
When the foster mother ended the call, the father grew angry and threw something from
the kitchen across the room by Ms. Wyatt’s face. She noticed that he had jabbed a knife
into his kitchen ceiling.
Thereafter, Ms. Wyatt conducted all sessions via Zoom. Her relationship with the
father quickly deteriorated due to the father’s unwillingness to engage in online sessions
and Ms. Wyatt’s cutting Zoom sessions short when he grew angry at the children. She
terminated him from care following him sending her multiple aggressive text messages
and inappropriate images, and for his general unwillingness to engage in one-on-one
sessions.
Visitation problems
Visitation was also disrupted by the father being discharged from multiple
visitation services due to his unsafe interactions with the children, visitation facilitators,
and inability to follow the rules.
At the beginning of the dependency, the father was offered family visitation
through Better Futures Together. He was discharged after only a month following
14 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
inappropriate behaviors, including one instance where he grabbed the children from the
visit facilitator and attempted to run away, and another where he grabbed N.G. Jr.
aggressively by his arm and dragged him across the parking lot, causing him to cry.
Other service providers indicated that they believed the father was intoxicated for
some of his visits. At Crossroads Visitation, where the father was to receive visitation
following his discharge from Better Futures Together, he only had one session before he
was terminated from services. The father had been informed that the children’s visit that
day had been pushed from 9 a.m. to 10 a.m. but nonetheless showed up at 9 o’clock and
grew agitated when the children were not there. He went outside, and when he returned
at 10 o’clock, staff noted he smelled of alcohol and the program’s chemical dependency
professional determined the visit should not proceed. The father refused to leave until
law enforcement was called.
Similarly, at Reunified Services, where the father received biweekly visitation
from June 2021 for approximately four to five months, visitation facilitator José Uresti
observed during one visit that the father appeared to be under the influence, which led
facilitators to attempt to end the visit early. The father became upset and tried to open the
rear car door where the children were sitting as Mr. Uresti was backing the vehicle out to
leave, at which point law enforcement was called. After the children left, the father
texted Mr. Uresti a photo of a person hanging.
15 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Other facilitators, including Mr. Uresti, noted that the father’s interactions with the
children were sometimes inappropriate. Consistent with Mr. Wilson’s observations, Mr.
Uresti explained that the father “had great visits most of the time,” but other times “just
exploded and lost it” in front of the children. RP at 718. Likewise, Zoey Kepple of
UNITE Family Services, a visitation facilitator that supervised visits between December
2019 and February 2020, testified about instances when she was required to make
unusual incident reports (UI reports) regarding the father’s aggression towards the
children or staff. In one instance, the father grabbed C.G. in a harsh manner and kicked
the toy firetruck N.G. Jr. was playing with out from underneath him, which caused him to
fall face first. Another time, a UI report was generated because C.G. was consistently
mimicking the father’s use of curse words despite staff instructions to the father not to
swear in front of the children. A later UI report documented the father’s refusal to take
C.G. to the bathroom when she was toilet training despite her asking to go to the
restroom, and then delayed changing her when she had an accident. Finally, Ms. Kepple
noted that the father sometimes appeared to favor C.G. over N.G. Jr. and struggled to
interact with N.G. Jr. when he was feeling overwhelmed.
By contrast, Dorothy Bancroft, a different visitation facilitator for UNITE,
testified that most of her interactions with the father were positive. At the same time, on
16 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
cross, she testified that she sometimes felt nervous in interacting with the father due to his
volatility and anger about the case.
Substance abuse and domestic violence treatment classes
The father’s progress in substance abuse and domestic violence classes was mixed.
He completed alcohol and drug information school, as well as a parenting class for
fathers. On the whole, however, the father was unreceptive to taking classes to improve
his parenting skills and anger management. He failed to participate in 8 of 10 sessions
offered by an applied behavioral analysis therapist for parenting children with autism. He
failed to complete the recommended domestic violence course and yelled at staff and
front office workers in the office where the class was held. At a screening for substance
usage, the results indicated that the father was not being entirely truthful about his
alcohol consumption and the provider had to resort to collateral information from the
Department and criminal records to determine whether the father could benefit from a
course on drugs and alcohol.
Emergence of a prior head injury as an issue
Three social workers were assigned to work with the father over time, due to
resignation and reassignment of Department staff during the dependencies. The cases
were originally assigned to Abraham Choate. They were reassigned to Lisa Emory in
17 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
July 2020. In approximately May 2021, social service specialist Emily Haisten took over
as the lead on the father’s case, with Ms. Emory continuing to play a secondary role.
Ms. Haisten had previous experience as an investigator for the Department of
Social and Health Services, and she had continued access to electronic resources that
most other social workers lacked, including “Barcode,” a database that includes medical
evaluations of parents receiving Department services. Ms. Haisten decided to search
Barcode for the father’s information. From that search, she identified records from a
psychological evaluation of the father conducted by a Dr. Quackenbush in 2014. It
mentioned the father’s report to Dr. Quackenbush that he had been hit in the head with a
hammer in 2010, rendering him unconscious. A memory evaluation was included, which
scored the father “on the lower end.” RP at 870. Although the record of Dr.
Quackenbush’s evaluation did not include a recommendation that the father receive a
neurological evaluation, Ms. Haisten believed that one would be appropriate based on
what she learned from the 2014 evaluation and her knowledge that the father had been in
mental health counseling for a long time without much progress. When Ms. Haisten
spoke to the father directly about undergoing a neurological evaluation; he was not
agreeable.
On September 21, 2021, the superior court entered an amended schedule order
setting the termination of parental rights trial to begin on January 18, 2022. The amended
18 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
schedule order followed a final substitution of attorneys for the father, after a series of
four or five withdrawals and substitutions of counsel during the dependencies. In a
shared planning meeting with the father’s new attorneys on September 29, 2021, the
attorneys let Ms. Haisten know that the father would be agreeable to neuropsychological
and psychiatric evaluations and would potentially be amenable to taking medication
prescribed by a licensed psychiatrist. Following that agreement, both a
neuropsychological and psychiatric evaluation were identified as new court-ordered
services at the last November 2021 dependency review hearing taking place before the
scheduled January 2022 termination trial date.
Ms. Haisten recommended the father participate in psychiatric services in the
community, but could not make a direct referral since the Department lacked contracted
service providers offering psychiatric appointments. Instead, she told the father he could
obtain a referral to a psychiatrist from Frontier Behavioral Health or from his primary
care physician. By the time of the termination trial, the father had not obtained a
psychiatric evaluation.
The father also had not yet had a neuropsychological examination. Ms. Haisten
testified that after that was court-ordered, she was initially informed by the Department’s
contracted providers that there would be a two-year wait for such an evaluation. Later,
19 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
however, a provider reported availability in April 2022, and an appointment was
scheduled. As of the January 2022 trial the evaluation obviously had not taken place.
At the termination trial, the father’s lawyers questioned Department witnesses
about whether they had identified neuropsychological and psychiatric evaluations as a
needed service, and in some cases, why they had not. Mr. Choate testified that he had not
referred the father to a psychiatrist or for a neuropsychological evaluation. He also
acknowledged that he had also not referred the father to anyone for medication
management, although that had been recommended by Ms. Kaluza.
Ms. Emory testified that in conversations with the father, he never mentioned
having suffered a head or brain injury, a concussion, or unconsciousness. She had
reviewed a domestic violence evaluation report which affirmatively indicated that the
father had not ever suffered a traumatic brain injury. She testified that she had felt the
father might benefit from medication and had expressed that view to him, but he was
resistant. She testified that she felt so strongly about it that she had even contacted the
father’s former lawyer in December 2020 to request that she speak with the father about
trying medication. She testified that neither Dr. Mabee nor any other provider had ever
recommended that the father undergo a neurological examination. She expressed that in
retrospect, the perseveration and lack of impulse control the father exhibited might have
been caused by a brain injury.
20 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Like Ms. Emory, Ms. Haisten believed that the father could benefit from a
psychiatric evaluation and possibly medication prescribed by a medical doctor. When
she initially recommended these services, he was not interested, but he had changed his
mind and agreed in the end of August 2021.
Dr. Mabee was questioned about why he had not recommended a neurological
assessment and testified that he would do so if an individual had suffered multiple head
injuries and there was a concern that apart from problematic behaviors, the the brain
might not be operating correctly. He testified he had no report of that in this case, and
given the father’s education, language ability and attention during the evaluation, he did
not see red flags that would cause him to recommend a neurological evaluation. He
testified that an individual’s erratic behavior and problems regulating their emotions can
be consistent with a traumatic brain injury, and if those personality issues were
accompanied by information about a prior traumatic brain injury, a neuropsychological
evaluation might be appropriate.
The Department called the father as a witness toward the end of its case. He was
hostile. He repeatedly accused the social workers and Department-contracted providers
assigned to his case of being more interested in exercising their control than in trying to
reunify his family. He protested:
I tried to follow the rules. But, you know, it’s like every woman in my life, just I’m tired of it. I’ve got a Me-Too headache, because all the way down
21 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
from you,2 the department, Lisa Emory, Emily Haisten, Kerry Holliday [the GAL], no one’s given me a chance to reunify with my kids . . . .
RP at 904; see also RP at 920 (referring to women involved in the case as “Karen[s]”
who were easily offended).
The father testified that he believed he needed no other services and had made
adequate progress with the services provided, although he also testified he would
willingly participate in other services if that would resolve the termination petition in his
favor.
The father was not questioned by the Department or cross-examined about
whether he had suffered a head injury, was amenable to taking medication, or whether he
felt he could benefit from a psychiatric or neurological exam. In closing argument, the
Department’s lawyer reminded the court that a number of witnesses had testified to the
father’s resistance to taking medication, “so that wasn’t something that became a
recommendation until very recently.” RP at 1058.3 The father’s lawyer argued in closing
that the proceeding was premature because the father had not yet received a psychiatric or
neuropsychological evaluation.
2 Ms. Vidoni, the Department attorney questioning him, is a woman. 3 It is reported that following this statement, the father interrupted, “I don’t want to . . . take pills” followed by something indistinguishable. Since the indistinguishable language that followed might be an important qualifier, we decline to attach importance to the reported statement. RP at 1058.
22 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
At the conclusion of what had been a taxing six-day hearing,4 the trial court took
the matter under advisement, stating she wished to review the relevant case law as well as
the testimony. She reconvened the parties several weeks later to announce her decision.
In announcing it, she highlighted the most difficult issue presented at trial and on appeal,
stating that she
considered very closely [counsel’s] good argument that [the father] should have time to complete the neuropsych that’s scheduled for April. And I . . . applaud Ms. Haisten for recommending that, doing what she needs to do . . . because that’s what we need to be doing is constantly trying to reunite and give people the ability to be good parents. I get the argument. I don’t . . . have any evidence that a neuropsych evaluation is going to remedy conditions or improve his parental deficiencies. There’s no evidence before the court as to how the discovery of cognitive deficits would be treated or even if they could be treated in order to remedy conditions or improve parental deficiencies. Now, I go back to the fact that [the father] has denied that he’s ever had a head trauma or head concussion or a bonk on the head. He wasn’t asked at trial if he did. He didn’t testify that he had experienced head trauma. Dr. Mabee found no cognitive delays. He found that [the father] . . . could benefit, if he embraced it, if he had the ability to have some insight, could benefit from services.
RP at 1109-10.
The court terminated the father’s parental rights. The father appeals.
4 The father repeatedly interrupted witnesses, the attorneys and the court throughout the trial.
23 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
ANALYSIS
“The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State.” Santosky v. Kramer,
455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because parents have a
fundamental liberty interest in the custody and care of their children, the State may
terminate parental rights “‘only for the most powerful [of] reasons.’” In re Welfare of
S.J., 162 Wn. App. 873, 880, 256 P.3d 470 (2011) (alteration in original) (internal
quotation marks omitted) (quoting In re Welfare of A.J.R., 78 Wn. App. 222, 229, 896
P.2d 1298 (1995)).
Washington statutes respond to this constitutional command by providing a two-
step process before a court may terminate parental rights. Under the first step of the
analysis, courts evaluate “the adequacy of the parents,” one element of which is whether
“the services ordered [to be provided to the parent] . . . 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); In re
Parental Rights to K.M.M., 186 Wn.2d 466, 478, 379 P.3d 75 (2016). The second step of
the termination process looks to the best interests of the child. Id.
24 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
The father contends that because the Department did not prove that
neuropsychological and psychiatric evaluations were offered or provided, it failed to
satisfy the first step of the process. He contends that in any event, the Department failed
to prove that termination was in the best interest of his children. He makes related
assignments of error to a handful of the trial court’s findings of fact.5
I. GIVEN WITNESS TESTIMONY THAT A NEUROPSYCHOLOGICAL EVALUATION WAS A RECOMMENDED COURT-ORDERED SERVICE THAT MIGHT IDENTIFY TREATMENT FOR THE FATHER’S DYSREGULATION, THE REQUIREMENT OF RCW 13.34.180(d) WAS NOT PROVED
The first, “adequacy of the parents” step of the two-step process requires the State
to prove six statutory elements. The first three are procedural and are seldom in dispute.6
Where a termination decision is appealed, it is the State’s proof of the remaining
elements that are most often challenged. In this case it is only one: the State’s
5 As detailed in his identification of issues, the father assigns error to the trial court’s findings that court-ordered and necessary services were offered or provided (V), the elements of RCW 13.34.180 were met (VI(1)), the father failed to report having suffered a brain injury (V(6)), a query about prior brain injury on a domestic violence assessment was checked “no” and no provider recommended a neurological exam (V(31)), Ms. Haisten testified that no service would correct the father’s deficiencies, (V(32)), it is presumed from the passage of 12 months from the disposition order without improvement that there is little likelihood deficiencies will be remedied so the children can be returned within the near future (VI(1)), all providers tried to correct the father’s parental deficiencies (VI(2)), and there is no evidence that delaying trial and completing the neuropsychological evaluation would lead to the discovery of treatable cognitive deficits (VII). Br. of Resp’t at 2-7. 6 The three rarely disputed elements appear at RCW 13.34.180(1) (a)-(c) and deal with findings, orders, and timelines that are made or pass before the termination trial.
25 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
requirement to prove “[t]hat the services ordered [to be provided to the parent] 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).
Like the other six elements, the Department must prove this by “clear, cogent, and
convincing evidence.” In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
“Clear, cogent and convincing evidence exists when the evidence shows the ultimate fact
at issue to be highly probable.” In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976
P.2d 113 (1999).7
In reviewing a trial court’s decision to terminate parental rights, we will uphold its
factual findings “if supported by substantial evidence from which a rational trier of fact
could find the necessary facts by clear, cogent, and convincing evidence.” Id. “Because
of the highly fact-specific nature of termination proceedings, deference to the trial court
is ‘particularly important.’” K.M.M., 186 Wn.2d at 477 (quoting In re Welfare of Hall,
99 Wn.2d 842, 849, 664 P.2d 1245 (1983)). We defer to the trial court’s determinations
7 In addition to finding the six statutory elements, due process requires that a court make a finding of current parental unfitness before parental rights can be terminated. In re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995) (citing Santosky, 455 U.S. at 747-48). This finding need not be made explicitly, and satisfying all six of the statutory elements raises an implied finding of parental unfitness. K.M.M., 186 Wn.2d at 479.
26 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
of witness credibility and the persuasiveness of the evidence. Id. We review de novo
whether its findings of fact support its conclusions of law. Id.
The Department responds to the father’s challenge to its proof of this first step of
the process by arguing that neuropsychological and psychiatric evaluations were not a
necessary service, a neuropsychological evaluation was not reasonably available, the
evaluations would have been futile, and they would not have remedied the father’s
parental deficiencies in the foreseeable future.
A. The Department did not prove by clear, cogent, and convincing evidence that neuropsychological and psychiatric evaluations were not a necessary service
“[N]ecessary services” are those “needed to address a condition . . . preclud[ing]
reunification of the parent and child.” In re Dependency of A.M.M., 182 Wn. App. 776,
793, 332 P.3d 500 (2014). In evaluating which services are necessary, the Department
must “identify a parent’s specific needs and provide services to meet those needs,”
tailoring them to the needs of the individual. In re Parental Rights to I.M.-M., 196 Wn.
App. 914, 924, 385 P.3d 268 (2016). It was undisputed at the termination trial that the
father’s mental health was one of his deficiencies. Ms. Haisten identified the significant
mental health concerns that had led to the father being unable to control his behaviors as
his principal deficiency. See RP at 876.
27 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
Ms. Haisten testified that upon learning of the father’s possible brain injury, she
recommended neuropsychological and psychiatric evaluations and at the September 29,
2021 shared planning meeting, the father’s lawyers reported he would participate in them.
At the November 2021 dependency review, they were court-ordered. Ms. Emory
testified that she had felt strongly that the father might benefit from medication and in
retrospect, that the perseveration and lack of impulse control the father exhibited might
have been caused by a brain injury. Even Dr. Mabee testified that an individual’s erratic
behavior and problems regulating their emotions can be consistent with a traumatic brain
injury, and if those personality issues were accompanied by information about a prior
traumatic brain injury, a neuropsychological evaluation might be appropriate.
The Department first argues that a neuropsychological evaluation was not a
necessary service because it was only late in the dependencies that Department personnel
became aware that the father might have suffered a brain injury. Br. of Resp’t at 35-37.
No legal authority is cited, nor does the Department make a reasoned argument why a
delay in recognizing that a service is necessary makes it unnecessary.
The trial court points out that during the trial, the father did not present evidence
that he had suffered a brain injury or that he continued to be willing to be evaluated and
medicated if a brain injury was the cause of his disruptive behaviors. But it was the
Department’s burden to prove that the requirements of RCW 13.34.180(1) had been met,
28 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
by clear, cogent, and convincing evidence. It was not the father’s burden to prove that
they had not been met. The Department did not prove that these recommended and court-
ordered services were not necessary services.
B. Both services were “reasonably available” but only a psychiatric evaluation was proved by the Department to have been offered or provided
The Department next contends that a neuropsychological evaluation was not
“reasonably available,” and that a psychiatric evaluation had been adequately provided.
The meaning of “reasonably available” in RCW 13.34.180(1)(d) is informed by
RCW 13.34.136, which dictates the Department’s obligations in developing a
permanency plan for a child ordered removed from the home. RCW 13.34.136(2)(b)(vii)
provides that the Department “shall provide all reasonable services that are available
within the department, or within the community, or those services which the department
has existing contracts to purchase.”
Ms. Haisten testified that it was a contracted provider who proved available to
schedule the father for a neuropsychological evaluation in April 2022. The Department
argues that the April 2022 date, being after the trial date, means “the service was not
reasonably available.” Br. of Resp’t at 37. It provides no authority that “reasonable
availability” is a time-related limitation, given the separate statutory consideration that
services required to be offered or provided must be “capable of correcting the parental
29 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
deficiencies within the foreseeable future.” RCW 13.34.180(1)(d). Where no authorities
are cited in support of a proposition, we may assume that counsel, after diligent search,
has found none. State v. Manajares, 197 Wn. App. 798, 810, 391 P.3d 530 (2017) (citing
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). We hold
that “reasonable availability” is not a time-related limitation.
The Department presented evidence that the psychiatric evaluation was provided.
Ms. Haisten testified that the Department does not have contracted providers for
psychiatry, so it provides the parent with community resources that provide the service.
She testified that she told the father that either Frontier Behavioral Health or his primary
care doctor could refer him to a psychiatrist. The father provided no contrary evidence.
C. The Department did not present clear, cogent, and convincing evidence that the neuropsychological evaluation would have been futile
“The provision of services is futile where a parent is unwilling or unable to
participate in a reasonably available service that has been offered or provided.” K.M.M.,
186 Wn.2d at 483. The futility 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.” In re Parental Rights to B.P., 186 Wn.2d 292, 316 n.5, 376 P.3d 350 (2016);
accord In re Welfare of M.R.H., 145 Wn. App. 10, 26, 188 P.3d 510 (2008) (“Where the
Department offers services, but the parent refuses to participate, RCW 13.34.180(1)(d) is
30 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
satisfied.”). Where the record establishes that the offer of services would be futile, the
trial court can make the finding that the Department has offered all reasonable services.
K.M.M., 186 Wn.2d at 483.
Straying from this concept of futility, the Department engages in lengthy argument
about why a neuropsychological evaluation would not address the father’s deficiencies.
Br. of Resp’t at 40-49. The Department does not point to any testimony by a medical
professional that such a neuropsychological evaluation would not provide useful
information; instead, appellate counsel simply points to testimony about the father’s
deficiencies and asks us to accept her argument that information gained from the
evaluation would not be helpful.
As already addressed, there was sufficient evidence at trial to establish that the
court-ordered neuropsychological evaluation was a necessary service. And while the
father had been resistant to medication in the past, Ms. Haisten testified that, represented
by new lawyers, he agreed to neuropsychological and psychiatric evaluations along with
medication management in late September 2021. The Department fails to demonstrate by
clear, cogent, and convincing evidence that providing the neurophysiological evaluation
would be futile.
31 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
D. The Department presented argument, but no evidence, that the April 2022 neuropsychological evaluation could not result in treatment recommendations that could remedy the father’s deficiencies in the foreseeable future
Finally, the Department argues that the impending neuropsychological evaluation
could not result in treatment recommendations that could remedy the father’s deficiencies
in the foreseeable future. Even where the Department “inexcusably fails to offer all
necessary services, termination may still be appropriate if the service would not remedy
the parent’s deficiencies within the foreseeable future.” K.M.M., 186 Wn.2d at 486. The
“foreseeable future” is determined from the child’s perspective, which takes account of
the child’s age. In re Dependency of T.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001).
It is frustrating for us, and was presumably frustrating for the trial court, that
despite the importance of this issue—given an evaluation that was scheduled to take
place within three months—the Department presented literally no evidence on how
quickly any useful information gleaned from a neuropsychological evaluation can be put
to use in treatment. We agree with the trial court’s finding, on the issue of the impending
neuropsychological examination, that
the court has no evidence that delaying termination in order for [the father] to complete this service is going to remedy conditions or improve his parental deficiencies. There is no evidence before the court that the discovery of cognitive deficits could be treated in order to remedy conditions or improve parental deficiencies.
32 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
CP at 534 (emphasis added). But there was no evidence before the court that completing
the service would not remedy conditions, or that any cognitive deficits could not be
treated and remedy the parent’s deficiencies within the foreseeable future. The
Department bore the burden of proof, and the lack of evidence on these scores is the
Department’s problem, not the father’s. “No evidence” cannot satisfy the burden to
present clear, cogent, and convincing evidence.
Given this failure of proof of the element required by RCW 13.34.180(1)(d), we
conclude that the order terminating the father’s parental rights must be reversed and
remanded for further proceedings.
II. BEST INTERESTS OF THE CHILD
The second step of the termination process is for the court to ascertain the best
interests of the child. RCW 13.34.190(l)(b). “Because the parent’s rights will already
have been observed in the first step, this second step need be proved by only a
preponderance of the evidence.” A.B., 168 Wn.2d at 912.
No specific factors are to be considered in determining the best interests of the
child; the analysis is a case-by-case one that looks to the child’s specific circumstances.
In re Dependency of A.D., 193 Wn. App. 445, 459-60, 376 P.3d 1140 (2016). Because of
this nature of the analysis could change in future proceedings, we decline to address it on
the current facts.
33 Nos. 38863-8-III and 38864-6-III (consolidated) In re Parental Rights to C.G. and N.G., Jr.
We reverse the order terminating the father’s parental rights and remand for
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.
Siddoway, J.
WE CONCUR:
Pennell, J. Staab, J.