FILED FEBRUARY 16, 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In the Matter of the Parental Rights to ) ) No. 38824-7-III D.L.E., ) ) ) ) UNPUBLISHED OPINION )
STAAB, J. — A.E.’s parental rights to his child, D.L.E. were terminated following
a trial. On appeal, A.E. contends that the Department of Children, Youth, and Families
(Department) failed to offer him all reasonably available and necessary services to
remedy his parental deficiencies in the near future pursuant to RCW 13.34.180(1)(d).
Namely, that the Department failed to offer A.E. an additional substance abuse
assessment, housing assistance, and more tailored transportation assistance. We disagree
and affirm the termination.
BACKGROUND
The facts are taken from the trial court findings, exhibits, and testimony.
In December 2019, then six-year-old D.L.E., the child’s father A.E. and mother
H.H., came to the attention of the Department. The Department filed a dependency
petition in December 2019, and dependency was established on February 6, 2020. No. 38824-7-III In re Welfare of D.L.E.
At the disposition hearing, the court found A.E.’s primary parental deficiency was
his current and chronic chemical dependency issues. Additional deficiencies included
lack of parenting skills, lack of safe housing, untreated mental health issues, and domestic
violence. The court ordered A.E. to participate in a parenting education course, a drug
and alcohol evaluation and related treatment, a domestic violence perpetrator evaluation
and related treatment, and submit to random UAs.1 The court ordered D.L.E. remain in
licensed foster care.
1. Dependency Period
In February 2020, A.E. was arrested for assault in the second degree, felony
violation of a domestic violence court order, and attempted theft in the first degree. A.E.
was incarcerated for these crimes until approximately September or October 2020. While
A.E. was incarcerated, he completed a drug and alcohol evaluation with The Center for
Alcohol and Drug Treatment. A.E. was diagnosed with severe cannabis use disorder,
severe opioid use disorder, methamphetamine-type substance use disorder, and
unspecified cocaine-induced disorder. Bias recommended A.E. complete intensive
inpatient treatment, and he was sentenced to a Drug Offender Sentencing Alternative
(DOSA).
1 Urinalysis.
2 No. 38824-7-III In re Welfare of D.L.E.
While serving his DOSA sentence, A.E. was under Department of Correction’s
(DOC) supervision that required him to provide UAs, maintain contact with DOC,
complete treatment, and not participate in criminal activity. Shortly thereafter, A.E. was
released on furlough for surgery. A.E. did not ultimately undergo surgery, and relapsed.
While on furlough, A.E. did not contact DOC to initiate services. In addition, he violated
the conditions of his DOC supervision by providing a UA sample positive for
methamphetamine and by failing to report.
A.E. was arrested again, in December 2020, for threatening a man with a knife and
was charged with disorderly conduct. A.E. was able to continue his previous DOSA
sentence, and he was released from jail and admitted into inpatient treatment in February
2021. A.E. completed the 90-day inpatient substance abuse treatment program and was
released in April 2021.
The inpatient treatment provider recommended that A.E. participate in outpatient
substance abuse treatment and began the process for intake, but A.E. did not schedule an
appointment or complete the intake process. A.E. subsequently violated his DOC
supervision, and his DOSA was revoked in June 2021. A.E. was then sentenced to 20
months with credit for time previously served and was released in approximately August
3 No. 38824-7-III In re Welfare of D.L.E.
2021. During A.E.’s time in custody, the Department attempted to provide A.E. with
additional services, but the treatment facility did not allow outside providers.2
Throughout the dependency, A.E. demonstrated an aversion to UAs and did not
provide any random UAs. A.E.’s social worker offered to collect an oral swab in lieu of
a UA. In December 2021, an oral swab was taken, and it tested positive for
methamphetamine, morphine, oxycodone, THC, and heroin.
2. Termination Trial
A termination trial was held on February 28 and March 1, 2022. Christina Bias,
program manager for The Center for Alcohol and Drug Treatment, testified about the
substance use disorder assessment for A.E. that she completed in August 2020 as part of
his DOSA. She testified that she diagnosed A.E. with severe cannabis, heroin,
oxycodone, and methamphetamine substance use disorder. Her recommendation at the
time was intensive inpatient treatment followed by outpatient treatment.
Social worker Tony Block testified that A.E. admitted he had a drug issue. Block
testified that drug and alcohol services were ordered and provided to A.E. by the
Department and that he believed A.E. understood his parental deficiencies and the
2 It does not appear that this was due to COVID-19. Social worker Tony Block stated that ABHS (American Behavioral Health Systems) would not allow outside providers into their facility and he did not think it “had anything to do with Covid; I think that’s just their policy.” Rep. of Proc. at 76.
4 No. 38824-7-III In re Welfare of D.L.E.
services offered to him. Block stated that while A.E. was incarcerated, the Department
attempted to but could not provide services to him because most services could not go
into the jail. He also testified that though A.E. ultimately completed an inpatient
substance abuse program, A.E. did not follow up with outpatient treatment, provide UAs,
or complete a psychological evaluation or domestic violence treatment.
Block spoke to A.E. throughout the dependency about the need for substance
abuse treatment. Block testified that it was his opinion that all services capable of
correcting A.E.’s deficiencies were offered to him. Of the 17 months that Mr. Block was
A.E.’s social worker, A.E. was incarcerated for roughly 14 to 15 of them. Block testified
that during the few months that A.E. was not incarcerated, A.E. was “absconding from
DOC, [and] not contacting me to get anything set up.” Block testified that D.L.E.’s
foreseeable future was “immediate” and that “he lives in the now.” Rep. of Proc. (RP) at
74. Further, Block testified that A.E. did not appear to have the ability to remedy his
parental deficiencies within D.L.E.’s foreseeable future, evidenced by his history of
substance abuse, instability, and criminal history. Block opined that it would take “at
least 12 to 18 more months” for A.E. to remedy his parental deficiencies if he was
compliant with substance abuse and domestic violence treatment. RP at 74-75.
Social worker Ana Gonzalez testified that she provided “service letters” outlining
access to services to A.E. via mail. Additionally, she said she sent A.E. pictures of the
letters via text message to his phone. Ms. Gonzalez also completed service referrals for
5 No. 38824-7-III In re Welfare of D.L.E.
A.E. and offered to help him call service providers. Gonzalez testified that she indicated
to A.E. that the Department requested that he complete an additional substance abuse
evaluation and treatment after his positive oral swab in December 2021. Gonzalez
offered to assist A.E. with scheduling an additional substance abuse evaluation, but he
declined her assistance. Gonzalez testified that all services capable of correcting A.E.’s
deficiencies were ordered and offered to him.
Gonzalez testified that D.L.E.’s foreseeable future was days to months. Gonzalez
stated that, based on A.E.’s history and lack of compliance with services, he would not be
able to remedy his parental deficiencies within D.L.E.’s near future. Additionally,
Gonzalez testified that the Department offered A.E. transportation assistance in the form
of gas cards. She also stated that A.E. was offered free rides to access services with a
volunteer driver. Gonzalez testified that A.E. never asked for a bus pass or any other
kind of transportation assistance aside from gas cards.
The court found that D.L.E.’s foreseeable future was days to weeks and, at most,
up to two months. Ultimately, the court found that A.E. was unfit and that termination
was in D.L.E.’s best interests. The court concluded that “[t]he department has proved
element (d) [of RCW 13.34.180(1)] by clear, cogent, and convincing evidence. The
department has offered or provided . . . all services, reasonably [sic] available and
capable of correcting the parental deficiencies in the foreseeable future.” Clerk’s Papers
(CP) at 190. The court found that the “father’s lack of significant participation in the
6 No. 38824-7-III In re Welfare of D.L.E.
court ordered services is due to his unwillingness to engage in the services and inability
due to substance abuse.” CP at 188. Consequently, A.E.’s parental rights were
terminated. A.E. appeals.
ANALYSIS
On appeal, A.E. does not dispute that five of the six statutory elements necessary
to terminate his parental rights, RCW 13.34.180(1)(a), (b), (c), (e), and (f), were
established at trial. A.E. argues that substantial evidence does not support the finding
that element (d) of RCW 13.34.180(1) was proved by clear, cogent, and convincing
evidence. RCW 13.34.180(1)(d) requires the Department to offer a parent all necessary,
reasonably available services to remedy their parental deficiencies within the child’s
foreseeable future. Specifically, A.E. contends that the Department failed to offer him:
“1) additional assessment to determine the need for long-term residential treatment for
substance abuse; 2) housing assistance; and 3) more tailored transportation assistance.”
Br. Of Appellant at 16.
1. STANDARD OF REVIEW
An order terminating parental rights must be affirmed if substantial evidence
supports the trial court’s findings in light of the degree of proof required. In re Aschauer,
93 Wn.2d 689, 695, 611 P.2d 1245 (1980). Substantial evidence is evidence in sufficient
quantity to persuade a fair-minded, rational person of the truth of the declared premise.
7 No. 38824-7-III In re Welfare of D.L.E.
World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991). The
trial court’s decision is entitled to great deference, and its findings of fact must be upheld
when supported by substantial evidence. In re Dependency of K.S.C., 137 Wn.2d 918,
925, 976 P.2d 113 (1999). The reviewing court may not weigh the evidence or decide on
witness credibility. In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277
(1991).
A trial court may order that parental rights be terminated if the Department proves
the six statutory elements of RCW 13.34.180(1) by clear, cogent, and convincing
evidence. RCW 13.34.190. Additionally, the court must find that termination is in the
child’s best interests and that the parent is currently unfit by a preponderance of the
evidence. In re Dependency of K.M.M., 186 Wn.2d 466, 478-79, 379 P.3d 75 (2016).
The clear, cogent, and convincing evidence standard is satisfied when the court
determines that the ultimate fact at issue is shown to be “highly probable.” K.M.M., 186
Wn.2d at 478.
2. NECESSARY SERVICES—RCW 13.34.180(1)(D)
This court recognizes substantial rights at stake in cases such as these. “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). Parents have a fundamental liberty
8 No. 38824-7-III In re Welfare of D.L.E.
interest in the custody and care of their children, and the Department 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)).
To terminate parental rights, the court considers whether the parent or parents are
fit. In order for the Department to meet its burden of proving that the parents are unfit,
the Department must satisfy the six elements of RCW 13.34.180(1). At issue here is
RCW 13.34.180(1)(d), which states that the Department must show that “services ordered
under RCW 13.34.136 have been expressly and understandably offered or provided and
all necessary services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and understandably offered
or provided.” The term “necessary services” is defined as “those services ‘needed to
address a condition that precludes reunification of the parent and child.’” K.M.M., 186
Wn.2d at 480 (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332 P.3d
500 (2014)). In other words, the Department must show that it provided all court-ordered
and necessary services capable of correcting A.E.’s parental deficiencies within the
foreseeable future of the child.
The Department must identify a parent’s specific needs and tailor its services to
meet those needs. In re Parental Rights of D.H., 195 Wn.2d 710, 727, 464 P.3d 215
(2020) (citing In re Parental Rights of I.M.-M., 196 Wn. App. 914, 921, 385 P.3d 268
9 No. 38824-7-III In re Welfare of D.L.E.
(2016)); see also In re Welfare of S.J., 162 Wn. App.at 881 (citing In re Dependency of
T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001)). Even when the underlying cause of
a parental deficiency cannot be remedied, the trial court must determine whether services
were offered to remedy the deficiency and whether the deficiency can be remedied in the
future. In re Welfare of A.B., 181 Wn. App. 45, 323 P.3d 1062 (2014).
A parent’s persistent refusal to participate in a service can satisfy the Department’s
obligation under RCW 13.34.180(1)(d). In re Welfare of M.R.H., 145 Wn. App. 10, 26,
188 P.3d 510 (2008). The Department has offered all reasonable services when the
record establishes that the further offer of services would be futile. K.M.M., 186 Wn.2d
at 483. The provision of services is futile when a parent is unwilling or unable to benefit
from an offered service within a foreseeable time. Id.
Here, A.E.’s primary deficiency was “his current and chronic chemical
dependency issues.” CP at 187. His secondary parental deficiencies included a lack of
parenting skills, a lack of safe housing, untreated mental health issues, and domestic
violence. The court found that D.L.E.’s foreseeable future was “just days to weeks, up to
two months at most.”
Additional Substance Abuse Assessment
A.E. argues that an additional assessment to determine the need for long-term
residential treatment for substance abuse was a necessary service that the Department
should have, but did not offer or provide to him. Social worker Tony Block testified that
10 No. 38824-7-III In re Welfare of D.L.E.
though A.E. ultimately completed a 90-day inpatient substance abuse program as part of
his DOSA, A.E. did not follow up with outpatient substance abuse treatment or provide
UAs. Consequently, A.E.’s DOSA was revoked in June 2021, and he was sentenced to
twenty months with credit for time served. A.E. was released sometime around August
2021. Mr. Block stated that he spoke to A.E. throughout the dependency about the need
for substance abuse treatment, but A.E.’s compliance with services was sorely lacking.
In December 2021, after A.E. provided an oral swab that tested positive for
methamphetamine, morphine, oxycodone, THC, and heroin, Social Worker Ana
Gonzalez testified that she offered to help A.E. call a treatment provider to set up a new
substance abuse assessment to begin treatment. Though Gonzalez told A.E. that the
Department requested that he complete an additional substance abuse evaluation and
treatment, A.E. declined her assistance. Gonzalez also completed service referrals for
A.E. and offered to help A.E. call service providers. Still, A.E. remained non-compliant
with court-ordered substance abuse treatment.
There is no evidence in the record that indicates that A.E. was not offered
additional substance abuse treatment. Instead, A.E. was given two opportunities for
inpatient treatment through his DOSA. After completing the inpatient treatment, A.E.’s
DOSA was revoked when he failed to participate in the outpatient treatment portion of
the program. Nevertheless, after his release from incarceration and positive oral swab,
his social worker, Gonzalez, offered to help A.E. call a treatment provider and set up a
11 No. 38824-7-III In re Welfare of D.L.E.
new assessment, which A.E. declined. The superior court found that A.E.’s lack of
attendance at substance abuse treatment “was due to his unwillingness to attend these
services.” CP at 184. Further offers of services would be futile. Consequently, A.E.’s
claim that the Department did not offer him enough substance abuse treatment fails.
Housing Assistance
For the first time on appeal, A.E. argues that housing assistance was a necessary
service because it would have assisted him with accessing services and maintaining his
sobriety. Further, A.E. argues that his lack of stable housing was “repeatedly” cited as a
reason for terminating his parental rights. As stated previously, A.E.’s primary
deficiency was his past and present substance abuse issue, the record reflects as much.
Nothing in the record supports A.E.’s claim that housing assistance would have aided
him in remedying his pattern of substance abuse.
Housing assistance is generally not a remedial service for a parent during a
dependency. In re Dependency of Z.M.Y., No. 37674-5-III (Wash. Ct. App. June 15,
2021) (unpublished), https://courts.wa.gov/opinions/pdf/376745_unp.pdf. Remedial
services are available in a dependency action which facilitate the reunification of the
parent and child in a safe and timely manner. RCW 13.34.025(2)(a). The definition of
“remedial services” does not include “housing assistance.” RCW 13.34.030(15). In fact,
RCW 13.34.030(15) states that: “For purposes of this chapter, ‘housing assistance’ is not
a remedial service or family reunification service as described in RCW 13.34.025(2).”
12 No. 38824-7-III In re Welfare of D.L.E.
However, if homelessness is a primary factor preventing reunification, the court may
order that some form of housing assistance be provided. Washington State Coal. for the
Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 901, 949 P.2d 1291 (1997).
Here, it is clear from the record and the court’s findings that A.E.’s primary
deficiency preventing reunification with D.L.E. was his substance abuse issues, not his
lack of stable housing. Though A.E. contends that his lack of stable housing was
“repeatedly” cited as an aspect of the case termination, there is no support for this in the
record. Though unstable housing was identified as one of A.E.’s parental deficiencies, at
the termination trial A.E.’s social workers consistently testified that A.E.’s substance
abuse issues and lack of participation in services were primarily what had prevented him
from being reunited with D.L.E. The trial court’s findings of fact and conclusions of law
reflected this testimony. There is no evidence in the record that providing A.E. with
housing assistance would have remedied his substance abuse issues, its only an
argumentative assertion.
Tailored Transportation Assistance
A.E. argues that more tailored transportation assistance was a necessary service
that was not provided to him. There is no support for this contention in the record.
It is undisputed that the Department offered A.E. gas cards. Ms. Gonzalez stated
that A.E. never asked for any transportation assistance but picked up gas cards. Further,
Ms. Gonzalez testified that a volunteer driver could sometimes provide A.E. with
13 No. 38824-7-III In re Welfare of D.L.E.
transportation. A.E. also testified that someone was giving him rides to access services
for a period of time. There is no evidence to support the contention that more
transportation assistance would have remedied A.E.’s parental deficiencies in the near
future.
Given these facts, substantial evidence supports the trial court’s conclusion that
the Department proved, by clear, cogent, and convincing evidence that it offered A.E. all
services necessary, reasonably available, and capable of correcting his parental
deficiencies in the foreseeable future.
We Affirm.
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.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Lawrence-Berrey, A.C.J.
_________________________________ Pennell, J.