IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 87390-3-I (consolidated with No. 87391-1-I)
J.H.W., JR., and J.K.W. DIVISION ONE
PUBLISHED OPINION
SMITH, J. — J.H.W. is the father of two boys, J.H.W., Jr., born in 2018, and
J.K.W., born in 2020. On October 30, 2024, the father’s parental rights were
terminated. The father appeals, asserting that the Department of Children, Youth
and Families failed to provide all necessary and reasonable services or court-
ordered visitation; that the State failed to prove there was little likelihood the
father’s parental deficiencies would be remedied in the near future; that the State
failed to prove that the father’s relationship with the children would diminish their
prospects for early integration into a stable and permanent home; and that
termination was in the children’s best interest.
Substantial evidence supports the court’s orders and finding no error, we
affirm in part and remand specifically for findings consistent with the requirement
RCW 13.34.200(3) to address the children’s sibling relationships.
FACTS
Background
J.H.W. is the father of two boys, J.H.W., Jr., born in 2018, and J.K.W.,
born in 2020. J.H.W., Jr., lived with the father and mother and the mother’s two No. 87390-3-I (consolidated with No. 87391-1-I)/2
older children.1 The father also has two older children who lived outside the
home with their respective mothers.
In March 2019, the Department received a complaint alleging negligent
treatment of J.H.W., Jr. The complaint stated that drug use, drug sales, and
intimate partner violence were occurring in the home. The mother reportedly
drank alcohol and used drugs to such an extent that she was unable to care for
J.H.W., Jr. Family members reported that the mother said the father threatened
to hurt her and “shoot up the apartment.” Family members also reported that
when J.H.W., Jr., was born, he was affected by drugs and alcohol and had
crystal meth in his system. J.H.W., Jr., and his two older siblings were removed
from the home.
In June 2019, J.H.W., Jr., was found dependent as to the father under
RCW 13.34.030(6)(c). At the time of dependency, the findings on the father’s
deficiencies included: Substance abuse issues resulting in risk of child neglect and inability to meet the children’s needs; criminal activity which has resulted in frequent incarceration, making the father unavailable to care for the children; untreated issues related to perpetration of domestic violence and risk of exposing the children to violence; and inadequate parenting skills to provide for the children’s emotional, physical, mental and developmental needs.
The dispositional order required the father to: (1) submit to random urinalysis
(UA) testing; (2) have a drug and alcohol evaluation and follow all treatment
1 The mother had two older daughters, ages 12 and 10 at the time, who were living in the home. The father is not the father of the two daughters.
2 No. 87390-3-I (consolidated with No. 87391-1-I)/3
recommendations; (3) have a parenting assessment and follow all
recommendations; (4) have in-home service upon the child’s return home; and
(5) take a domestic violence batterer’s assessment by a state certified provider
and follow through with any treatment recommendations. The order called for
supervised visitation up to two times a week. The Department’s social worker
gave the father referrals for chemical dependency, UA, and visitation.
After J.H.W., Jr., was removed from the father’s care, the father had
supervised visits with J.H.W., Jr., mostly at the Department’s office and in a park.
From June 2019 to August 2019, the father completed a total of seven random
weekly UA tests. All tests were positive for cannabis, and one test was positive
for alcohol and amphetamines.
In November 2019, the father completed a substance use evaluation. The
evaluation recommended Level 1 intensive outpatient treatment for a minimum of
36 sessions, followed by Level 1 relapse prevention for a minimum of 24
sessions, outpatient for a minimum of 12 sessions followed by continuing care
and monthly monitoring. At trial, the court found that the father did not complete
the recommended follow-up treatment.
In early 2020, the father participated in a parenting assessment but did not
follow through with the treatment recommendations.2
2 The parental assessment recommendations included a domestic violence assessment, which the father did not complete.
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In May 2020, the mother gave birth to J.K.W. on the floor of their home. A
family member reported that the father and mother were in a physical argument
when the mother’s water broke. The father then dragged the mother into the
bathroom and told her to have the baby in the bathroom. J.K.W. was removed
from his parents’ care three days after he was born. J.K.W. was exposed to
multiple drugs in utero.
In September 2020, the father was arrested for assaulting and raping the
mother and was held in custody at the King County Jail and Regional Justice
Center (King County jail). J.H.W., Jr., and J.K.W. were placed with maternal
relatives. At the time of placement, J.H.W., Jr., was under two years old and had
been out of the parents’ home for 18 months. J.K.W. was four months old and
had been out of the parents’ home since he was three days old.
Initially, while the father was in custody, he did not have any visits with the
boys. Natasha Savage, J.H.W., Jr., and J.K.W.’s social worker, testified that
significant technology issues occurred during the COVID-19 pandemic lockdown,
and the King County jail initially did not have video visitation options.
The King County jail set up a video visitation system, and Shellie Roush,
the Department’s social worker assigned to the case at the time, testified that
once the system was set up, video visitation commenced fairly quickly. In
February 2022, weekly video visitation began between the father and the boys.
In May 2022, the father was found guilty of rape in the second degree – domestic
violence; assault in the second degree – domestic violence with deliberate
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cruelty; and assault in the second degree – domestic violence against the
mother. In July 2022, the father was transferred from the King County jail to the
Washington Corrections Center (Shelton) in Shelton, Washington. In October
2022, he was then moved to Coyote Ridge Corrections Center (Coyote Ridge) in
Connell, Washington. During the father’s stay in Shelton, he did not have
visitation with J.H.W., Jr., or J.K.W. The father did not have video visits in
November and December 2022.
In early 2023, Coyote Ridge changed to a different video visitation
technology system. Regina Austin, the Department’s social worker, reported
having significant problems with the technology and setting up visitation.
Testimony at trial established that the Department changed the father’s social
workers frequently, and transfer of information between social workers was very
limited. Savage also testified that the Department of Corrections was not
responsive to the Department’s e-mail requests regarding what services they had
available to the father. The father’s attorney made over 15 requests to the
Department in the span of three months to facilitate visitation.
In April 2023, the father reported that he believed he had Cherokee
ancestry, and the court ordered that the Indian Child Welfare Act of 1978,
§ 4(1)(i), 25 U.S.C.A. § 1903(4), and Washington State Indian Child Welfare Act,
chapter 13.38 RCW, applied to J.H.W., Jr., and J.K.W.’s case. The application of
these statutes required that the Department engage in active efforts to provide
services. The court also ordered the Department to provide visitation.
5 No. 87390-3-I (consolidated with No. 87391-1-I)/6
In May 2023, the father’s weekly video visitations with J.H.W., Jr., and
J.K.W. resumed. The boys’ foster family continued to send the father regular
written updates and pictures of the boys. The father enrolled in four online
courses through Coyote Ridge’s Reentry Life Skills program: parenting,
substance abuse, domestic violence, and anger management. The father
notified the Department of his enrollment and the Department paid for the father’s
courses.
In June 2023, the mother relinquished her parental rights and the father’s
termination trial was set for June 26, 2023. In July 2023, after the Attorney
General’s Office contacted the appropriate tribes and federal agencies, all three
Cherokee tribes that were contacted responded that the children were not eligible
for membership in their tribes. Thereafter, no reason existed to believe the boys
had Indian heritage and the Indian Child Welfare Act and the Washington State
Indian Child Welfare Act no longer applied to the proceeding.
In September 2023, the father’s rights were terminated. In October 2023,
this court reversed the father’s conviction for rape in the second degree and
ordered a new trial. As a result of the successful appeal, the father’s termination
case was also reopened.
Kimberly Nevala, the children’s court appointed special advocate (CASA),
noted that while living with their foster family, the children did well in their
placement and were well bonded with their caregivers. J.H.W., Jr., attended
preschool and had an individualized education program (IEP) for behavioral
issues.
6 No. 87390-3-I (consolidated with No. 87391-1-I)/7
J.H.W., Jr., was diagnosed with attention deficit hyperactivity disorder
(ADHD). In December 2023, the Department notified the father of J.H.W., Jr.’s,
ADHD diagnosis and requested permission for J.H.W., Jr.’s, medication. Allison
Newton-Moore, a social worker, testified that the father did not agree with giving
J.H.W., Jr., medication, believing that J.H.W., Jr., was misunderstood and he did
not have a diagnosis that needed medication. After the medication was
approved, J.H.W., Jr.’s, family and teachers noticed a change in behavior. He
was a lot more stable, able to play and interact better with other children and did
not have outbursts and violent tantrums.
In August of 2024, a jury found the father guilty of rape in the second
degree – domestic violence; assault in the second degree – domestic violence
with deliberate cruelty; and assault in the second degree – domestic violence
against the mother and sentenced to 158 months. The father’s expected release
date is 2032.
In October 2024, the father’s parental rights were terminated. The court
held that the father was unfit to parent the children and had not remedied his
parenting deficiencies. The court also noted that the father would be
incarcerated for at least the next seven years. The court found that the father
was deprived of time with his children when he did not have visitation for many
months while awaiting trial and after his first conviction. However, the father was
provided visitation once the technology issues were remedied. The court found
the Department complied with the requirements of RCW 13.34.136 because it
7 No. 87390-3-I (consolidated with No. 87391-1-I)/8
offered the father the visits and services that were reasonably available. The
court found that the lack of video visits was not determinative of establishing
whether the father had a meaningful role in his children’s lives.
Additionally, the court found that before the father was in custody, the
Department offered the father all required services and visitations, and that while
still in the community, the father tested positive in all his UAs and failed to attend
substance use disorder assessments and treatment. Lastly, the court found that
even if the Department offered more services to the father, such as drug and
alcohol treatment, the services would not make the father a fit parent within the
foreseeable future because he will be incarcerated for seven or more years.
The father appeals.
ANALYSIS
The goal of child welfare is to “reunite the child with the legal parents if
reasonably possible.” In re Parental Rts. to K.J.B., 187 Wn.2d 592, 597, 387
P.3d 1072 (2017). Parents have a “fundamental liberty and privacy interest in
the care, custody, and companionship of their children.” In re Parental Rts. to
K.M.M., 186 Wn.2d 466, 477, 379 P.3d 75 (2016). “ ‘The due process clause of
the Fourteenth Amendment protects a parent's right to the custody, care, and
companionship of [his or] her children.’ ” K.J.B., 187 Wn.2d at 597 (alteration in
original) (quoting In re Welfare of Key, 119 Wn.2d 600, 609, 836, 836 P.2d 200
(1992)). But, this right is not absolute. When “ ‘parental actions or decisions
seriously conflict with the physical or mental health of the child, the State has a
parens patriae right and responsibility to intervene to protect the child.’ ” K.M.M.,
8 No. 87390-3-I (consolidated with No. 87391-1-I)/9
186 Wn.2d at 477 (quoting In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d
108 (1980)). The State may interfere with a parent's constitutional right “only if
[it] can show that it has a compelling interest and such interference is narrowly
drawn to meet only the compelling state interest involved.” In re Custody of
Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998). To terminate the parent-child
relationship, the State must meet a two-prong test. The first prong has six
elements under RCW 13.34.180(1) that focus on the adequacy of the parent.
K.J.B., 187 Wn.2d at 597-98. The second prong focuses on the best interest of
the child. K.J.B., 187 Wn.2d at 598. The first prong must be satisfied to reach
the second prong. K.J.B., 187 Wn.2d at 598.
The Department’s Burden Under RCW 13.34.180(1)(d)
The father contends that the trial court erred when it found that the
Department met its burden under RCW 13.34.180(1)(d) that all necessary and
reasonably available services were provided. RCW 13.34.180(1)(d) states that a
petition seeking termination shall allege “that the services ordered under RCW
13.34.136 have been expressly and understandably offered or provided and all
necessary services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided.” Under RCW 13.34.136(2)(b)(i)(A), if the
parent is incarcerated, the Department “must include treatment that reflects the
resources available at the facility where the parent is confined.” To terminate a
parent’s rights, the State must prove the elements of the statute by clear, cogent,
and convincing evidence. In re Dependency of K.S.C., 137 Wn.2d 918, 930, 976
9 No. 87390-3-I (consolidated with No. 87391-1-I)/10
P.2d 113 (1999). Evidence is clear, cogent, and convincing “when the ultimate
fact in issue is shown by the evidence to be ‘highly probable.’ ” In re
Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (internal
quotation marks omitted) (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513
P.2d 831 (1973)). A trial court's “findings of fact will not be disturbed on appeal if
they are supported by ‘substantial evidence.’ ” Sego, 82 Wn.2d at 739 (quoting
Sylvester v. Imhoff, 81 Wn.2d 637, 739, 503 P.2d 734 (1072)). In an appellate
review, deference to the trial court is particularly important in dependency cases.
K.R., 128 Wn.2d 129 at 144.
Visitation
The father argues that the Department failed to provide all court ordered
services and visitation. Under RCW 13.34.136(2)(b)(ii)(A), “[v]isitation is the right
of the family, including the child and the parent, in cases in which visitation is in
the best interest of the child. Early, consistent, and frequent visitation is crucial
for maintaining parent-child relationships and making it possible for parents and
children to safely reunify.”
Once the children were removed from the home, and before the father’s
incarceration, the Department facilitated visitation between the father and
J.H.W., Jr. After the father’s incarceration in King County jail, the father did not
have visitation for 16 months. Savage testified that during the COVID-19
pandemic lockdown, the King County jail initially did not have video visitation set
up. Once King County jail’s video visitation was set up, the father and the boys
resumed visitation. Savage testified that when the father was transferred to
10 No. 87390-3-I (consolidated with No. 87391-1-I)/11
Shelton, video visitation was not allowed. At Coyote Ridge, Austin testified that
she encountered barriers to setting up visitation and the application process was
unclear.3 Although the father’s visitation was interrupted for a significant amount
of time while he was incarcerated, the Department showed that it made
reasonable efforts to provide visitation.
All Necessary and Reasonably Available Services
The father also claims that the Department failed to provide all necessary
and reasonably available services because they failed to provide therapeutic
visitation and bonding and attachment services once visitation began.
“At a minimum, [the Department] must provide a parent with a list
of referral agencies that provide those services.” In re Dependency of D.A., 124
Wn. App. 644, 651, 102 P.3d 847 (2004). A necessary service is a “service
‘needed to address a condition that precludes reunification of the parent and
child,’ and may include counseling, mental health treatment, and educational
programs.” In re Parental Rts. to D.H., 195 Wn.2d 710, 719, 464 P.3d 215
(2020) (internal quotation marks omitted) (quoting K.M.M., 186 W.2d at 480.).
“ ‘Where the record [in a proceeding on a petition to terminate parental rights]
establishes that the offer of services [to the parent] would be futile, the trial court
3 Austin testified that there were barriers at Coyote Ridge to attaining visitation for the father. After Austin completed Coyote Ridge’s online application, she testified that the facility notified her that she incorrectly completed the application and the caregivers had to complete the application. Austin informed the caregivers to complete the required application and notaries. Austin testified that Coyote Ridge was not clear on how she incorrectly completed the application. Austin maintained contact with Coyote Ridge staff throughout the application process.
11 No. 87390-3-I (consolidated with No. 87391-1-I)/12
can make a finding that the Department has offered all reasonable services.’ ” In
re Welfare of C.S., 168 Wn.2d 51, 56 n.2, 225 P.3d 953 (2010) (quoting In re
Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008)).
The Department’s social worker testified that the father’s disposition order
required him to participate in chemical dependency assessment, UAs, and
domestic violence services. Roush testified that before the father’s incarceration,
she gave referrals for a chemical dependency assessment and UA testing. The
father repeatedly tested positive for cannabis in his UAs. Although the father
completed a substance abuse evaluation, he did not complete the recommended
treatment.
The father claims that once he was incarcerated, the Department did not
reasonably offer services to him. However, Roush testified that because of the
COVID-19 pandemic restrictions, parenting assessments, domestic violence
assessments, and chemical dependency evaluations were not available while the
father was at King County jail. Roush testified that she contacted the jail to ask if
somebody could offer services, and the jail did not identify anyone that she could
contact to discuss how to obtain services for the father. Additionally, Roush
stated that “COVID profoundly shut down the ability for service providers and for
services.” While at King County jail, the father did not ask for additional services
beyond his dispositional order.
Austin stated that the Department’s ability to provide services was
dependent on what services the correctional facilities had available. Austin also
testified that whether the correctional facility offered services was also dependent
12 No. 87390-3-I (consolidated with No. 87391-1-I)/13
on COVID-19 protocols, stating that “at the time of COVID, a lot of providers
were not willing to go into jails even if the jail allowed” it. Similarly, Savage found
difficulties in finding providers during the COVID-19 pandemic. Savage testified,
in “2020 we had all those limitations with COVID. And actually[,] we still suffer
because a lot of . . . providers stopped contracting with the [Department].”
When the father was transferred to Coyote Ridge, the Department was
initially unable to provide referrals for the father’s services.4 In December 2023,
Newton-Moore was assigned as the father’s social worker and offered a
substance use disorder assessment, a parenting assessment, and a domestic
violence assessment. The father completed the substance use assessment and
a parenting assessment. Samantha Patton, a licensed therapist, conducted the
parenting assessment, and she recommended a parenting class, domestic
violence assessment, and weekly therapy sessions. Patton testified that the
father would need to complete these recommendations before he would be able
to safely parent. The father also took the initiative to enroll in four classes
through the Reentry Life Skills program: Parenting Skills, Substance Use, Anger
Management, and Domestic Violence. These classes were not programs
referred to the father to correct his parenting deficiencies. Although the father’s
enrolled programs did not directly address his dispositional order, the
Department eventually paid for his courses.
4 Austin testified that she was unable to make efforts to find service providers. Austin also testified that she did not know where the father was even though she sent him a service letter.
13 No. 87390-3-I (consolidated with No. 87391-1-I)/14
Before the COVID-19 pandemic and the father’s incarceration, he had
ample opportunity to utilize the Department’s referrals. Once the father was
incarcerated, the Department met its obligation pursuant to RCW 13.34.180(1)(d)
to offer or provide all necessary services reasonably available because no
referred services were initially available at the King County jail or Coyote Ridge.
When services were available at Coyote Ridge, the Department made the
appropriate referrals. Despite the lack of available services in the father’s
disposition order, the Department covered the cost of alternative courses
identified by the father. Specifically, nothing in the record supports that bonding
or therapeutic services were available at any time at any of the correctional
facilities or were requested by the father. The Department met its obligation to
provide all necessary and reasonably available services.
Futile
The father contends that the Department cannot prove that visitation and
attachment and bonding services would have been futile. Our Supreme Court
has found that “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.
Substantial evidence shows that the father had little, if any relationship
with the children before his incarceration, and the children struggled to engage
with him during the visitations because it occurred over video and because of the
children’s ages. Those considerations along with the father’s lengthy sentence,
led the court to find that little likelihood existed that the children could return to
14 No. 87390-3-I (consolidated with No. 87391-1-I)/15
the father’s care and therefore, offering services was futile. Even if the father
completed the referred services, such as drug and alcohol treatment, random
UAs, and other treatment offered, he still would not be fit to parent the children
because he is incarcerated. The court’s finding was supported by substantial
evidence. Likelihood that the Father’s Parental Deficiencies Would Be Remedied in the Near Future
The father contends that the Department failed to prove that little
likelihood existed that the father’s parental deficiencies would be remedied in the
near future. “A determination of what constitutes the near future depends on the
age of the child and the circumstances of the placement.” In re Dependency of
T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005). A court will “consider
whether family reunification can occur within the foreseeable future” and
ultimately, the “best interests of the child are paramount.” T.L.G., 126 Wn. App.
at 205. When the Department “inexcusably fails” to offer services to a willing
parent, termination will still be deemed appropriate if the services “would not
have remedied the parent's deficiencies in the foreseeable future, which depends
on the age of the child.” In re Dependency of T.R., 108 Wn. App. 149, 164, 29
P.3d 1275 (2001).
Our court has found that one year may seem like forever for a young child.
In re Dependency of A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988). We have
also determined that a placement of six months for a 15-month-old child was not
in the near future. In re Dependency of P.D., 58 Wn. App. 18, 27, 792 P.2d 159
15 No. 87390-3-I (consolidated with No. 87391-1-I)/16
(1990). Nevala testified that given the children’s ages, the near future would be a
week to a month. Although the father expressed his desire for visitation and
willingness to complete services, because of his incarceration, J.H.W., Jr., and
J.K.W.’s placement would be over seven years. One hundred and fifty-eight
months for young children to wait is far more than what this court has determined
as the near future.
The father states that incarceration is not equivalent to unfitness. While
this is true, courts may consider incarceration-related barriers in rebuttal to the
presumption that a parent’s deficiencies will improve within 12 months of the
dispositional order. In Matter of Dependency of D.L.B., 186 Wn.2d 103, 122, 376
P.3d 1099 (2016). “Neither criminal conduct nor imprisonment alone necessarily
justifies an order of permanent deprivation.” In the Matter of Pawling, 101 Wn.2d
392, 398, 679 P.2d 916 (1984). However, a court may consider “a parent's inability to perform [their] parental obligations because of imprisonment, the nature of the crime committed, as well as the person against whom the criminal act was perpetrated are all relevant to the issue of parental fitness and child welfare, as [is] the parent's conduct prior to imprisonment and during the period of incarceration.”
Pawling, 101 Wn.2d at 398 (alteration in original) (quoting Sego, 82 Wn.2d at
740).
The father’s deficiencies include more than his incarceration. The father's
parenting deficiencies include substance abuse, domestic violence, and
parenting issues as well as the criminal behavior against his sons’ mother
resulting in his incarceration. Patton testified that the father’s lengthy criminal
16 No. 87390-3-I (consolidated with No. 87391-1-I)/17
sentence meant that the father would not be a resource for the children. The
limitations created by the father’s incarceration are a significant barrier for the
father to establish any bond with the boys who did not have an established
relationship before the father’s incarceration. In addition, looking at the nature of
the crime and the father’s conduct before incarceration, the father had a history
of intimate partner violence against the mother and was convicted of assaulting
and raping her. The Department found that J.H.W., Jr., likely witnessed intimate
partner violence when he was still in the mother and father’s care. The court’s
finding that it was unlikely that the father’s parental deficiencies would be
remedied in the near future was supported by substantial evidence.
Prospects for Early Integration into a Stable and Permanent Home
The father claims that the Department did not prove that the continuation
of the relationship between him and the children would diminish their prospects
for early integration. The father asserts that the Department did not show that
the bond between J.H.W., Jr., and J.K.W. and their foster family would be
undermined by a continued relationship with the father. The father asserts that
integration would not stop if his rights were preserved.
As required under RCW 13.34.180(1)(f), the element of the children’s
prospects for early integration can be “satisfied when the parental relationship is
an impediment to a legal, permanent placement in an adoptive home.” In re
Dependency of A.M.F., 1 Wn.3d 407, 418, 526 P.3d 32 (2023).
The focus of this element is the “ ‘continued effect of the legal relationship
between parent and child, as an obstacle to adoption; it is especially a concern
17 No. 87390-3-I (consolidated with No. 87391-1-I)/18
where children have potential adoption resources.’ ” A.M.F., 1 Wn.3d at 417
(quoting In re Dependency of A.C., 123 Wn. App. 244, 250, 98 P.3d 89 (2004)).
Our court has previously held that “the existence of prospective adopters who
already have a custodial relationship with the child” is sufficient to meet this
element. In re Dependency of A.M.F., 23 Wn. App. 2d 135, 146, 514 P.3d 755
(2022).
J.H.W., Jr., and J.K.W. have been in their foster family’s care since 2020,
and the foster family testified about their absolute preference for adoption.
J.K.W. has lived with his foster family since he was four months old, and J.H.W.,
Jr., since he was about two years old. J.H.W., Jr., and J.K.W.’s foster family
testified that while J.H.W., Jr., knows that the father is his dad, they do not think
that J.K.W. fully understands. The caregivers testified that the boys “don’t know
who [the father] is.” Because the boys have an option for permanent placement,
we find that the trial court did not err.
Best Interest of the Children
The father argues that the Department did not prove that termination is in
the children’s best interest because “growing ties to their foster family are
[in]sufficient to prove that termination is in their best interest.” The father further
claims that termination is not in the children’s best interest because “it would
permanently deprive them of the care and companionship of a sincerely loving
father.”
Once the elements of RCW 13.34.180(1) are proven, the court must still
determine whether termination is in the best interests of the child. RCW
18 No. 87390-3-I (consolidated with No. 87391-1-I)/19
13.34.190(1)(b). The dominant consideration in a parental rights termination
proceeding is the moral, intellectual, and material welfare of the child. T.R., 108
Wn. App. at 161. The evidence supporting termination “must be more substantial
than in the ordinary civil case in which proof need only be by a preponderance of
the evidence.” In re Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 842 (1983).
Whether termination is in the best interest of the children is fact dependent, and
“courts therefore consider a broad range of nonexclusive factors.” A.M.F., 23
Wn. App. 2d at 147. “Where a parent has been unable to rehabilitate over a
lengthy dependency period, a court is ‘fully justified’ in finding termination in the
child's best interests rather than ‘leaving [the child] in the limbo.” T.R., 108 Wn.
App. at 167 (alteration in original) (quoting A.W., 53 Wn. App. at 33.).
The trial court found that termination was in the best interest of J.H.W., Jr.,
and J.K.W. because the children could achieve permanency through adoption. If
the father’s rights were not terminated, J.H.W., Jr., and J.K.W. would have to wait
at least seven years until they could be in their father’s care again. After the
father is released from incarceration, the father would still need to correct his
parenting deficiencies, find housing and a stable income before he could have
the children back in his care. Both boys need permanency, especially J.H.W., Jr.
After video visitations with the father, the foster family observed J.H.W., Jr.,
experience behavioral issues and lashing out. The court found that because of
J.H.W., Jr.’s, social and emotional issues, he needs structure, consistency, and
stability. Permanent adoption is in the best interest of the children given their
age and social and emotional needs. Substantial evidence supports the trial
19 No. 87390-3-I (consolidated with No. 87391-1-I)/20
court’s determination that the State proved by a preponderance of the evidence
that preserving the father’s parental rights is not in the best interest of the
children, despite the father’s sincere love for them.
Statutory Requirement to Address Other Sibling’s Relationships
Lastly, the father argues that the termination order is invalid because it did
not include a statement addressing the status of the child’s sibling relationships.
RCW 13.34.200(3) states that “an order terminating the parent-child
relationship shall include a statement addressing the status of the child's sibling
relationships and the nature and extent of sibling placement, contact, or visits.”
The Legislature’s use of shall indicates that this is mandatory. Erection Co. v.
Dep't of Lab. & Indus., 121 Wn.2d 513, 519, 852 P.2d 288 (1993). Therefore, the
trial court’s decision is not complete without including such a statement. Our
court has found that this requirement “is more akin to a ministerial requirement
that ensures that the termination order acknowledges the existence and status of
sibling relationships.” In re Dependency of J.D.P., 17 Wn. App.2d 744, 759, 487
P.3d 960 (2021). But this does not mean that we do not recognize the
importance of sibling relationships nor does it mean that it is permissible for the
court to ignore this requirement. Though “the status of sibling relations is not a
required element to support a termination finding[,] . . . the trial court must include
a statement concerning the status of sibling relationships.” J.D.P., 17 Wn. App.
2d at 759.
The legislative intent of RCW 13.34.200(3) was to recognize “the
importance of sibling relationships” and to encourage “courts and public agencies
20 No. 87390-3-I (consolidated with No. 87391-1-I)/21
to consider the sibling relationships when intervening in the family situations.”
H.B. REP., ENGROSSED SUBSTITUTE S.B. (ESSB) 5779, at 2, 58th Leg., Reg. Sess.
(Wash. 2003). The House Bill Report also stated that the legislature did not
“intend[] to create any new relationships which do not currently exist.” Id.
The record from the trial established significant information regarding
sibling relationships. J.H.W., Jr., and J.K.W. have a total of four older siblings,
two on their father’s side and two on their mother’s side. At trial, the father
testified that both of his older children live with their respective mothers. Before
dependency, when the father and mother lived together, the father testified that
his second oldest child came over to his house “every other day.” The father
testified that J.H.W., Jr., and his oldest son saw each other at least two or three
times a month and spent the holidays together.5 Additionally, the mother had two
older children who lived in the home when J.H.W., Jr., was born.
In 2020, when J.H.W., Jr., was removed from the mother and father’s
care, he was placed with the mother of the father’s second oldest child. Four
months later, J.H.W., Jr., was moved to a foster home. Savage, the boys’ social
worker, testified that J.H.W., Jr., had not seen his older siblings since 2020.
J.K.W. met his oldest brother once at the Department’s office. J.H.W., Jr.’s,
teacher testified that the only sibling that he mentioned at school was J.K.W.
The children’s relationship with their other siblings is mentioned
throughout the record. The record provides information regarding the
5 The father testified that the last time J.H.W., Jr., and the oldest child spent the holidays together was in 2019.
21 No. 87390-3-I (consolidated with No. 87391-1-I)/22
interactions between the boys and the father’s other children. Although the boys’
relationship with the older children may not be a determinative factor regarding
the termination of the father’s rights, the court’s findings failed to include any
information about the children’s siblings as is required by the statute. We
remand for entry of such findings consistent with the record which address the
requirements stated in RCW 13.34.200(3).
We affirm in part and remand for findings consistent with the requirement
RCW 13.34.200(3) to address the children’s sibling relationships.
WE CONCUR:
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