IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 88644-4-I
O.N.R.-A.
DIVISION ONE
UNPUBLISHED OPINION
FELDMAN, J. — J.A. appeals the termination of his parental rights to his daughter, O.N.R.-A. J.A. argues the Department of Children, Youth, and Families (DCYF) failed to prove (a) it provided necessary services while J.A. was incarcerated at the Monroe Correctional Complex (MCC), (b) there is little likelihood that J.A.’s identified parental deficiencies could be remedied in the near future, (c) continuing the parent-child relationship clearly diminished O.N.R.-A.’s prospects for integration into a stable and permanent home, (d) J.A. was currently unfit to parent, and (e) termination of J.A.’s parental rights was in O.N.R.-A.’s best interests. Because substantial evidence supports the trial court’s findings and J.A. has not established an entitlement to relief, we affirm.
I
O.N.R.-A. was born in September 2022 and was drug-affected due to her mother’s use of illicit substances during her pregnancy. At the time of her birth,
J.A. was incarcerated. O.N.R.-A. was removed from her parents’ care and custody on October 5, 2022, and placed in a foster home where her two older half-sisters were already residing.
DCYF filed a dependency petition in Skagit County on October 5, 2022. On May 23, 2023, the trial court found under RCW 13.34.030(6)(c) that O.N.R.-A. was dependent as to J.A. The dispositional order required J.A. to (a) complete a substance abuse evaluation and follow any recommendations, (b) submit to random substance use testing, and (c) complete age-appropriate parenting instruction with a DCYF-approved provider. The order called for two visits per week while J.A. remained at the Whatcom County Jail and two supervised visits per week at an approved location with an approved provider after his release.
J.A. obtained a substance use disorder evaluation while in custody at the jail in June 2023. The assessor recommended that J.A. enroll in in-patient treatment after his release. J.A. was released a few months later. Despite being out of custody for approximately six months, J.A. did not enroll in in-patient substance abuse treatment. While J.A. was out of custody, DCYF made multiple attempts to locate him to assist him in obtaining services. DCYF provided J.A. with a phone, phone minutes, and bus passes to remove barriers to engagement with services. DCYF referred J.A. to approved parenting instruction at Family Preservation Services. J.A. did not engage with this service. 1 Also while J.A. was out of custody, DCYF referred him to the Color Line—a substance use testing service in the Whatcom County area—and offered oral
1 While J.A. attended a parenting class at the Whatcom County Jail, this class was not approved by DCYF because it was not evidence-based.
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swabs for substance use testing. J.A. declined to provide an oral swab, reporting that it would have tested positive for illicit substances. Instead, J.A. completed a second substance abuse evaluation. The assessor recommended that J.A. undergo intensive out-patient treatment three times per week. The assessor would have recommended in-patient treatment were it not for J.A.’s medical condition at the time.
In February 2024, O.N.R.-A.’s dependency was transferred to Whatcom County. The following month, J.A. was incarcerated again. In the fall of 2024, J.A. was moved to MCC, where he remained through the duration of the dependency proceedings. DCYF consistently communicated with J.A.’s counselor at MCC and inquired about what services were available at the facility. MCC does not provide substance abuse treatment or parenting instruction. MCC does offer random substance use testing, which J.A. participated in. J.A.’s release date from MCC was set for September 2026. Although early release programs were potentially available, J.A. had not been accepted into any of them by the time of trial.
A joint termination trial for O.N.R.-A. and her half-sister E.R. was held over a four-day period between June 24 and June 30, 2025. The court heard testimony from numerous witnesses, including J.A., J.A.’s wife, O.N.R.-A.’s caregiver, O.N.R.-A’s guardian ad litem (GAL), E.R.’s therapist, and J.A.’s counselor at MCC. On July 25, 2025, the trial court issued an order terminating J.A.’s parental rights to O.N.R.-A. 2 J.A. appeals.
2 The trial court also terminated the mother’s parental rights to O.N.R.-A. The mother is not a party to this appeal.
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II
Where, as here, a parent challenges a termination order, we apply a well-
established “two-step framework.” In re Dependency of G.C.B., 28 Wn. App. 2d 157, 171, 535 P.3d 451 (2023). The first step focuses on parental fitness. Under this step, DCYF must prove six statutory elements by clear, cogent, and convincing evidence. Id. Those six elements are:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;
(d) That the 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;
(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. . . .
(f) That continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home. In making this determination, the court must consider the efforts taken by the department to support a guardianship and whether a guardianship is available as a permanent option for the child. . . .
RCW 13.34.180(1). Also in the first step, “due process protections require that a court make a finding of current unfitness before parental rights can be terminated.” In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016). For the second step, DCYF “must establish that termination of parental rights would be in
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the child’s best interest by a preponderance of the evidence.” RCW 13.34.190(1)(b); G.C.B., 28 Wn. App. 2d at 171.
Trial courts are afforded broad discretion in termination proceedings, and their decisions are “entitled to great deference on review.” In re Dependency of J.D.P., 17 Wn. App. 2d 744, 755, 487 P.3d 960 (2021). We review the court’s findings for substantial evidence. In re Dependency of A.M.F., 23 Wn. App. 2d 135, 141, 514 P.3d 755 (2022), aff’d, 1 Wn.3d 407, 526 P.3d 32 (2023). We affirm findings as to RCW 13.34.180(1)’s statutory elements where “the ultimate fact at issue is shown to be ‘highly probable.’” J.D.P., 17 Wn. App. 2d at 754 (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). In performing this analysis, we do not reweigh evidence or reassess the credibility of witnesses, and “we view the evidence and reasonable inferences drawn from it in the light most favorable to the prevailing party.” A.M.F., 23 Wn. App. 2d at 141. Here, the prevailing party is DCYF. Lastly, “unchallenged findings of fact are verities on appeal.” In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). A. Parental Fitness Addressing the first step of the termination analysis, J.A. does not contest that elements (a), (b), and (c) of RCW 13.34.180(1) have been proven. Instead, he argues that DCYF failed to prove elements (d), (e), and (f) (quoted above) and that the trial court’s finding that he was currently unfit to parent O.N.R.-A is not supported by substantial evidence. We address each issue in turn.
1. Offer or Provision of Necessary Services. RCW 13.34.180(1)(d) requires that DCYF prove that it offered or provided “all necessary services, reasonably
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available, capable of correcting the parental deficiencies within the foreseeable future.” “A service is ‘necessary’ if it is needed to address a condition that precludes reunification of the parent and child.” In re Parental Rights to I.M.-M., 196 Wn. App. 914, 921, 385 P.3d 268 (2016) (citing In re Welfare of C.S., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010)). Prior to terminating parental rights, DCYF must “identify a parent’s specific needs and provide services to meet those needs.” I.M.-M., 196 Wn. App. at 924. At a minimum, DCYF 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). Critical here, if a parent is incarcerated, DCYF must include in its offered services “treatment that reflects the resources available at the facility where the parent is confined.” RCW 13.34.136(2)(b)(i)(A).
Applying the above requirements, the evidence supports the trial court’s finding that DCYF provided all necessary reasonably available services while J.A. was incarcerated. DCYF social service specialist Haley Allison testified that she inquired of J.A.’s counselor at MCC and was informed that parenting courses “are not a regularly offered class at [MCC]” and that the facility is “currently not offering any [substance abuse] evaluations or treatment because they do not have a counselor for that.” J.A.’s counselor at MCC, Catherine Kopoian, similarly testified that MCC does not offer substance abuse disorder treatment because it does not have a chemical dependency instructor and that MCC does not offer parenting classes. Kopoian also testified that she has “never seen” an outside provider come to MCC to provide substance abuse treatment. Because DCYF provided all
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services consistent with “the resources available at the facility where the parent is confined,” as specified by RCW 13.34.136(2)(b)(i)(A), the trial court did not err in finding that DCYF had satisfied its burden to provide all necessary reasonably available services.
J.A.’s contrary arguments lack merit. J.A.’s principal argument is DCYF did not provide all necessary services when he was incarcerated at MCC because it failed to investigate whether an outside provider could come to MCC to conduct substance abuse treatment or parenting instruction at the facility. J.A.’s argument ignores the plain language of RCW 13.34.136(2)(b)(i)(A), which expressly limits the court’s analysis to “the resources available at the facility where the parent is confined.” Instead, J.A. cites In re Dependency of J.H.W., 36 Wn. App. 2d 360, 583 P.3d 1175 (2026), and asserts that DCYF was only able to meet its burden in that case because it had found outside providers to conduct a substance abuse assessment, a parenting assessment, and a domestic violence assessment.
J.A. misreads J.H.W. There, a DCYF social worker testified that DCYF’s “ability to provide services was dependent on what services the correctional facilities had available.” Id. at 373. Nothing in the opinion indicates that the assessments offered to the father were conducted by outside providers. To the contrary, this court noted that while the father was able to complete the assessments, he was not able to engage in the recommended treatment because “bonding or therapeutic services were [not] available at any time at any of the correctional facilities.” Id. at 374. In short, J.H.W. does not stand for the
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proposition that DCYF must find and contract with providers beyond what is offered at the confinement facility for the court to find that it offered all necessary services.
J.A. also argues the trial court failed to find that the provision of services would be futile, but such a finding is necessary to support termination only where DCYF “inexcusably fails” to offer services to a parent. In re Welfare of M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008). Because the trial court did not find DCYF failed to offer any necessary reasonably available service to J.A., there was no need for it to make a finding of futility. Moreover, even if the court was required to address futility, it did so. The court found, “While it is commendable that [J.A.] appears to have maintained sobriety while incarcerated, there has been no demonstrated sobriety by [J.A.] in the community.” It also found J.A. did not engage with Family Preservation Services and, despite the offer of services, “there has been little improvement in parental function as to [J.A.].” These unchallenged findings, in turn, support the trial court’s determination that “[e]ven if [DCYF] inexcusably failed to offer any service, termination of [J.A.]’s parental rights is appropriate.”
Lastly, J.A. argues the trial court could not properly find that services would have been futile based on the record below because “the evidence showed that [J.A.] was likely to be out of prison less than two months after his rights were terminated.” Even if futility were relevant here, which it is not, this argument likewise fails. Although J.A. testified he believed he was likely to be released from MCC in September 2025, the trial court did not find this testimony credible. Instead, the trial court found credible Catherine Kopoian’s testimony that J.A.’s
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anticipated release date was September 2026 and that J.A. had not been approved for any early release program. This court does not reassess witness credibility or reweigh the evidence. In re Welfare of Ca.R., 191 Wn. App. 601, 609, 365 P.3d 186 (2015). J.A. fails to demonstrate any error in the trial court’s findings. 3 2. Likelihood Conditions will be Remedied in the Near Future. RCW 13.34.180(1)(e) focuses on whether parenting deficiencies have been corrected. In re Welfare of E.D., 195 Wn. App. 673, 689, 381 P.3d 1230 (2016). Under this step of the analysis, the court should “‘consider whether family reunification can occur within the foreseeable future’ and ultimately, the ‘best interests of the child are paramount.’” J.H.W., 36 Wn. App. 2d at 375 (quoting In re Dependency of T.L.G., 126 Wn. App. 181, 205, 108 P.3d 156 (2005)). “What constitutes ‘near future’ depends on the age of the child and the circumstances of the child’s placement.” In re Welfare of C.B., 134 Wn. App. 942, 954, 143 P.3d 856 (2006). Here, the trial court found that O.N.R.-A.’s “near future” is six months. Because J.A. does not challenge this finding, a near future of six months is a verity on appeal. See Estate of Jones, 152 Wn.2d at 8.
Under RCW 13.34.180(1)(e), “[a] parent’s failure to substantially improve parental deficiencies within 12 months following entry of the dispositional order” gives rise to a presumption that that the conditions will not be remedied in the near future. Courts may consider “incarceration-related barriers” in rebuttal to this
3 J.A. also argues the trial court applied an incorrect legal standard when it ordered in
October 2024 that visits be virtual rather than in-person. Because J.A. did not assign error to this order as required by RAP 10.3(a)(4) or designate this order in his notice of appeal as required by RAP 5.3(a), we do not consider it. See, e.g., Gardner v. First Heritage Bank, 175 Wn. App. 650, 658, 303 P.3d 1065 (2013) (“Gardner did not assign error to the court's imposition of terms. We decline to address this issue.”).
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presumption. In re of Dependency of D.L.B., 186 Wn.2d 103, 114, 376 P.3d 1099 (2016). “Neither criminal conduct nor imprisonment alone necessarily justifies an order of permanent deprivation.” In re Interest of Pawling, 101 Wn.2d 392, 398, 679 P.2d 916 (1984). But courts 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,’” all of which is “‘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.’” J.H.W., 36 Wn. App. 2d at 376 (quoting Pawling, 101 Wn.2d at 398).
J.A. argues the presumption should not have arisen here under RCW 13.34.180(1)(e) because DCYF did not provide all necessary services. We reject this argument for the reasons outlined in section II.A.1 above. J.A. also asserts he rebutted the presumption because he proved he was likely to be released in September 2025. As section II.A.1 above also notes, the trial court did not find J.A.’s testimony credible. Because J.A.’s arguments are dependent upon his discredited testimony, he fails to demonstrate that substantial evidence does not support the trial court’s determination that his identified parental deficits could be remedied in O.N.R.-A.’s near future.
3. Termination Necessary to Achieve Permanency. RCW 13.34.180(1)(f)
requires that DCYF prove by clear, cogent, and convincing evidence that termination of J.A.’s parental rights was necessary for O.N.R.-A. to achieve permanency. 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
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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 where children have potential adoption resources.’” Id. at 417 (quoting In re Dependency of A.C., 123 Wn. App. 244, 250, 98 P.3d 89 (2004)). Our court has held “the existence of prospective adopters who already have a custodial relationship with the child” is sufficient to meet this element. A.M.F., 23 Wn. at 146.
When a parent is incarcerated, the trial court must consider
whether a parent maintains a meaningful role in his or her child’s life based on factors identified in RCW 13.34.145(5)(b); whether the department made reasonable efforts as defined in this chapter; and whether particular barriers existed as described in RCW 13.34.145(5)(b) including, but not limited to, delays or barriers experienced in keeping the agency apprised of his or her location and in accessing visitation or other meaningful contact with the child.
RCW 13.34.180(1)(f). The factors identified in RCW 13.34.145(5)(b) are as follows:
(i) The parent’s expressions or acts of manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child;
(ii) The parent’s efforts to communicate and work with the department or other individuals for the purpose of complying with the service plan and repairing, maintaining, or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable efforts of the department;
(iv) Information provided by individuals or agencies in a reasonable position to assist the court in making this assessment, including but not limited to the parent’s attorney, correctional and mental health personnel, or other individuals providing services to the parent;
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(v) Limitations in the parent’s access to family support programs, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability to participate in foster care planning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the child’s life is in the child’s best interest.
While consideration of the factors is mandatory, explicit findings regarding the incarcerated parent factors are not statutorily required, In re Parental Rights to K.J.B., 187 Wn.2d 592, 594, 387 P.3d 1072 (2017), and a favorable finding regarding each factor does not compel the conclusion that termination is not warranted, In re Welfare of E.D., 195 Wn. App. 673, 694-95, 381 P.3d 1230 (2016).
J.A. does not assert the trial court failed to consider the incarcerated parent factors listed in RCW 13.34.145(5)(b). Rather, J.A. contends the court erred because O.N.R.-A. “was likely mere months away from achieving permanency with her father” and therefore his parental rights did not stand in the way of permanency for O.N.R.-A. But as noted in section II.A.1 above, the court found credible Catherine Kopoian’s testimony that J.A. was not due to be released for 15 months. The court also found credible Haley Allison, who testified O.N.R.-A. could not be safely returned to J.A. until he demonstrated he was able to maintain sobriety and abstain from criminal activity while in the community, which would take “some months” beyond the date of release. The testimony of Kopoian and Allison supports the trial court’s finding that it would be a minimum of 18 months before
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J.A. could safely reunify with O.N.R.-A. For the court to reverse on this element, we would have to ignore the trial court’s credibility findings. We decline to do so.
4. Current Unfitness to Parent. Our Supreme Court “has held satisfaction of the six statutory elements of subsection .180(1) is an implicit finding of unfitness, satisfying the due process requirement that a court must find parents currently unfit before terminating the parent-child relationship.” In re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011). Nevertheless, addressing the due process consideration, J.A. argues the trial court’s finding that he was currently unfit to parent O.N.R.-A is not supported by substantial evidence because he “had a sound plan for safely caring for his daughter,” which consisted of having his wife assume parenting duties if he relapsed. J.A.’s argument relies solely on the testimony of his wife, and the trial court expressly found that J.A.’s wife was “either not persuasive or not credible.” Because this court does not review credibility or weight, Ca.R., 191 Wn. App. at 609, J.A. fails to demonstrate any error by the trial court. 4 B. Best Interests of the Child Turning to the second step of the termination analysis—determining whether the preponderance of the evidence shows termination would be in the best interest of the child—J.A. assigns error to two findings:
2.139 Termination of the parent-child relationship is in the best interests of the child to allow the adoption to move forward
4 Quoting J.H.W., which we discuss in section II.A.1 above, J.A. also argues that “incarceration is
not equivalent to unfitness.” 36 Wn. App. 2d at 376. While we recognize “this is true,” id., J.A.’s parental deficiency was not his incarceration but rather substance abuse and parenting issues. And while J.A.’s progress inside the highly controlled setting of a correctional facility was commendable, it is not a substitute for demonstrable improvement in the community where he would eventually be expected to parent.
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and to foster the creation of a stable and permanent placement for the child.
...
2.146 J.A. cannot provide [stability and a permanent home that can consistently and reliably provide the care the child needs] at this time and will not be able to do so in the near future.
J.A. argues these findings are contrary to the evidence presented at trial.
Here too, J.A.’s argument relies on testimony the trial court found either not persuasive or not credible. Viewing the evidence in light of the trial court’s credibility and weight determinations, substantial evidence supports the trial court’s finding that termination was in O.N.R.-A.’s best interests. The GAL, who the trial court found credible, testified that it was in O.N.R.-A.’s best interests to be adopted by her current caregivers because O.N.R.-A. is “very bonded to her sisters,” one of whom had already been adopted by the caregivers, “and should not be separated from them.” The GAL’s testimony, combined with the unchallenged findings regarding J.A.’s failure to demonstrate sobriety and consistent parenting while in the community, as well as the evidence that J.A. would not be able to safely parent O.N.R.-A. for at least 18 months, all support the trial court’s findings that J.A. could not provide a stable, permanent home and that termination was in O.N.R.-A.’s best interests. J.A. fails to demonstrate error. 5
5 Nor does the record support J.A.’s argument that the trial court impermissibly considered
O.N.R.-A.’s best interests when determining whether DCYF satisfied its burden under RCW 13.34.180(1)(e) and (f). Finding 2.106 is consistent with the trial court’s unchallenged finding that O.N.R.-A.’s near future was six months. As to DCYF’s burden under RCW 13.34.180(1)(f), whether the continuation of the parent-child relationship diminishes the child’s prospects for early integration into a stable and permanent home “implicitly touches on the best interest of the child standard.” In re Parental Rights to J.B., 197 Wn. App. 430, 438, 387 P.3d 1152 (2016). Moreover, because J.A. was incarcerated, the trial court was explicitly required to consider “[w]hether the continued involvement of the parent in the child’s life is in the child’s best interest.” RCW 13.34.145(5)(b)(vi).
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III
Because substantial evidence supports the trial court’s findings and J.A.
has not established an entitlement to relief, we affirm the court’s order terminating his parental rights to O.N.R.-A.
WE CONCUR:
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As DCYF correctly notes, the challenged findings (2.106 and 2.126) merely reflect that the trial court engaged in the required analysis.