In re Dependency of D.L.B. ( 2016 )

Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Dependency ofD.L.B.
NO. 92448-1
(DOB 11/01/08), minor child.
STATE OF WASHINGTON, ENBANC
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, Filed JUL 1 11 2016
Respondent,
v.
EDELYN SAINT-LOUIS,
Petitioner.
GORDON McCLOUD, J.-In 2013, the legislature enacted amendments to
the dependency statutes to expressly address "the rights of parents who are
incarcerated." FINAL B. REP. ON SUBSTITUTE H.B. 1284, 63d Leg., Reg. Sess. (Wash.
2013) (SHB 1284). One critical provision in those amendments requires the
dependency court to consider several factors "[i]fthe parent is incarcerated." RCW
13.34.180(1)(1) (emphasis added). Those factors bar a court from assuming that
incarceration will make it impossible to parent; they focus instead on the sufficiency
In re Dependency ofD.L.B., No. 92448-1
of the Department of Social and Health Services' (Department) services and the
parent's efforts, requiring the court to evaluate those things on a case-by-case basis.
Petitioner Edelyn Saint-Louis was incarcerated in the middle of a dependency
proceeding that lasted just over 2 years, but was released 1 month and 10 days before
the termination trial began. The main question presented here is one of statutory
interpretation: does RCW 13.34.180(l)(t)'s requirement that certain factors be
considered at the termination hearing "[i]f the parent is incarcerated" apply if the
parent isn't incarcerated at that time?
We hold, based on the language and purpose of the amendments, that the
answer is no. Other portions of the amended statute already require the Department
to offer adequate services to all parents (incarcerated or not), and other portions of
the amended statute already bar termination if the Department has failed to offer
such services to parents (incarcerated or not); hence, other portions of the statute
already ensure that the parent's history (including past incarceration) is considered
and accommodated. The provision at issue in this case, by contrast, looks to the
incarcerated parent's ability to parent in the future. Limiting its application to those
incarcerated at the time of the termination hearing thus fits well into the statutory
scheme. 1
1
Saint-Louis moved to strike the brief tiled in this court by D.L.B. 's court-appointed
special advocate (CASA). The appellate court has discretion to accept such a brief for
2
In re Dependency ofD.L.B., No. 92448-1
FACTS
Saint-Louis gave birth to D.L.B. on November 1, 2008. In February 2012,
D.L.B. was taken into protective custody and Saint-Louis entered a voluntary
agreement placing D.L.B. in temporary (30-day) foster care. Saint-Louis also told
department social workers that she planned to move from Seattle to Chicago to live
with D.L.B. 's father and paternal aunt. But the Department soon learned that a
lifetime no-contact order barred D.L.B. 's father from contacting both Saint-Louis
andD.L.B.
Nevertheless, on March 15, 2012, a shelter care hearing was held and the
juvenile court released D.L.B. back to Saint-Louis's care, contingent on her abiding
by the terms of the no-contact order against D.L.B.'s father and having no other men
in her home with D.L.B.
Then, on Aprill7, 2012, D.L.B. was placed back into foster care. This time
it was at Saint-Louis's request. 2
filing. See RCW 13.34.030(11) (CASA performing substantially the same duties as
guardian ad litem shall be deemed a guardian ad litem for all purposes of dependency and
termination statutes); GALR 2U), 4(h) (guardian ad litem is treated as a party, but only for
certain purposes and only in superior court). Exercising our discretion, we deny the motion
to strike.
2 This fact, like many others, was disputed. This opinion takes its summary of the
facts from the trial court order resolving those disputes.
3
In re Dependency ofD.L.B., No. 92448-1
D .L .B. was found dependent on May 11, 20 12. The dependency court ordered
Saint-Louis to obtain a psychological evaluation with a parenting component, follow
the recommended treatment, participate in a domestic violence support group,
submit to random urine analyses (UAs) for 90 days, and obtain a drug and alcohol
evaluation. The court also allowed Saint-Louis to have two supervised visits with
D.L.B. per week, with the possibility of more visits to be worked out in consultation
with D.L.B.'s court-appointed special advocate (CASA).
The psychologist who performed the court-ordered evaluation (Dr. Steve
Tutty) diagnosed Saint-Louis with bipolar II disorder, alcohol and marijuana abuse,
a panic disorder, and a learning disorder with "a rule out" of Histrionic personality
disorder. He recommended that Saint-Louis obtain a medical consultation regarding
medication for her disorders and a drug and alcohol evaluation to address her alcohol
and cannabis use, that she enroll in a parenting class called the Incredible Years
parent education program, and that she attend a domestic violence support group.
Tutty' s report stated that "[i]t is expected that [Saint-Louis will] complete these
services in the next six months," and recommended that reunification with D.L.B.
not occur unless Saint-Louis made "significant progress in ... mood regulation,
sobriety, parenting skills, and stable housing" during that time. Ex. 16, at 16.
Saint-Louis completed a 28-day inpatient treatment program for drug and
alcohol addiction at Sound Mental Health in December 2012. She then met twice
4
In re Dependency ofD.L.B., No. 92448-1
with Alyssa Livingston, the department social worker assigned to D.L.B. 's
dependency, to make a formal service plan. This plan included outpatient addiction
treatment with random UAs, participation in the Incredible Years program and a
domestic violence support group, and mental health counseling.
Saint-Louis's participation in these services, however, was spotty. She
completed a formal outpatient addiction treatment program but was never able to
complete the required 90 days of clean UAs afterward. She completed participation
in a domestic violence support group, but not the Incredible Years program, even
though she was referred to it four different times. Saint-Louis also regularly missed
scheduled visitations with D.L.B.
In May 2013, the Department held another meeting with Saint-Louis.
Livingston and others at this meeting explained to Saint-Louis how serious her
situation was, given that D.L.B. had already been in foster care for over 12 months,
but they also told Saint-Louis that they would give her three more months before
referring the case for termination. They told Saint-Louis that they needed to see
significant progress during these months or the Department would not agree to
reunification.
Two months later, Saint-Louis was involved in a hit-and-run. She was
arrested, spent a month in jail (July 2013 to August 2013), and was then released to
5
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a jail alternative (King County's Community Center for Alternative Programs
(CCAP)).
On November 14, 2013, the dependency court entered an updated
"Permanency Planning Hearing Order," fmding that Saint-Louis had not progressed
toward correcting her parental deficiencies, Ex. 6, at 5, making no modifications to
the existing services plan, and directing the Department to file a petition for
termination. Meanwhile, in the criminal case, Saint-Louis violated CCAP's
requirements and was returned to jail on November 21, 2013, pending trial.
Saint-Louis's progress in required services at this point was disputed. Saint-
Louis testified that she was 5 weeks along in the 18-week Incredible Years program
when she returned to jail. Livingston testified that Saint-Louis was not engaged in
any required services between the planning meeting in May 2013 and her return to
jail in November 2013, even though Saint-Louis was incarcerated for only 1 of those
6 months.
Saint-Louis pleaded guilty on December 16, 2013, to hit-and-run (attended),
a gross misdemeanor, and vehicular assault and taking a car without permission,
both felonies. In January 2014, she was sentenced to 12 months for one felony and
3 months for the other. The sentencing court allowed Saint-Louis to serve her entire
term on work release, which would have enabled her to participate in all dependency
court-ordered services. But Saint-Louis actually participated in work release for
6
In re Dependency ofD.L.B., No. 92448-1
only 22 days over two separate periods. The first period of work release was from
March 17 to March 25; this ended because Saint-Louis violated a work release
requirement. The second period was for 15 days, beginning Aprilll, 2014. At some
point during these 15 days, Saint-Louis met with Livingston to discuss visitation,
reenrollment in the Incredible Years program, and other services. Livingston once
again referred her for the required services. But before Saint-Louis could begin any
of them, she again violated the conditions of her release, and it was revoked. The
trial court offered to reinstate work release almost immediately, but Saint-Louis
declined. She chose to finish her sentence in total confinement instead. She testified
that she knew this meant she would not see D.L.B. until her sentence expired about
two months later. She also knew that she would not be able to provide the required
UAs if she relinquished work release, but could provide them if she remained on
work release.
In jail, Saint-Louis received one-on-one mental health services twice a week
from November 2013 (the beginning of her sentence) until March 2014 (the first
time she attempted work release). She also voluntarily participated in domestic
violence classes. Saint-Louis testified that the jail had other structured services,
including a chemical dependency program, but that the domestic violence class was
the only one available to her. Livingston testified that she contacted the jail to find
7
In re Dependency ofD.L.B., No. 92448-1
out what services Saint-Louis could receive there, and that the only services to which
she could refer Saint-Louis in jail were the mental health services.
When Saint-Louis was released on June 18, 2014, she called Livingston to
again discuss visitation and services. At the termination hearing, Saint-Louis
claimed that she had already enrolled in the Incredible Years program, relapse
prevention and anger management programs, and mental health counseling. She did
not inform the Department about her participation in any of these services, however,
until she testified at the termination hearing. Saint-Louis also moved in with her
boyfriend, a man with a history of domestic violence; Saint-Louis was expecting a
baby with this man, due in March 2015. On the first day of the termination hearing,
Saint-Louis testified that she lived with her mother. That's what she had been telling
the Department during the dependency. On the second day, however, when
confronted with contradictory information, Saint-Louis admitted for the first time
that she was actually living with this man.
All in all, Saint-Louis spent about eight months in jail (from July 2013 to
August 2013 and from November 2013 to June 2014). At the time of trial (July 28,
2014 through August 5, 2014), Saint-Louis had been in the relapse prevention
program for one week. She was also enrolled in the Incredible Years program
(which had not yet started at the time of trial), an anger management program, and
one-on-one mental health counseling. She testified, however, that all these services
8
In re Dependency ofD.L.B., No. 92448-1
were arranged in the last week and that she was still at the stage of making a
treatment plan.
Procedural History
The trial court terminated Saint-Louis's parental rights, and Saint-Louis
appealed on three grounds. First, she argued that the trial court erred by failing to
apply a 2013 amendment to the dependency statutes that requires trial courts to make
certain considerations before terminating the rights of a parent who "is incarcerated."
In re Dependency ofD.L.B., 188 Wn. App. 905,915, 355 P.3d 345 (2015) (quoting
LAWS OF 2013, ch. 173, § 4(1)(f)), review granted, 184 Wn.2d 1034, 366 P.3d 932(2016). Second, she argued that the Department failed to prove it made reasonable
efforts to provide her with all available services during her incarceration and thus
failed to satisfy the prerequisite to termination codified at RCW 13.34.180(1 )(d). I d.
at 919. In support of this argument, she relied mainly on a different part of the 2013
amendment, which provides that the permanency plan for a dependency involving
an incarcerated parent "must 'include treatment that reflects the resources available
at the facility where the parent is confined."' I d. at 921 n.l 0 (quoting RCW
13.34.136(2)(b)(i)(A)). Third, she challenged the sufficiency of the evidence to
support two other prerequisites to termination: that she was currently unfit to parent
and that there was little likelihood that her parental deficiencies would be remedied
9
In re Dependency ofD.L.B., No. 92448-1
in the near future. Id. at 921 (citing RCW 13.34.180(1)(e); In re Welfare of A.B.,
168 Wn.2d 908, 921, 232 P.3d 1104 (2010)).
The Court of Appeals rejected all three arguments. 3 Saint-Louis filed a
motion for discretionary review, raising all three challenges again. 4
ANALYSIS
The main issue in this case is the interpretation of a single provision within
the much broader 2013 amendment to the dependency statutes. We begin with an
overview of that 2013 amendment to provide context.
In 2013, the legislature passed SHB 1284, a law amending the existing
dependency statutes to expressly address "the rights of parents who are
incarcerated." This law took effect on July 28, 2013, around the same time that
Saint-Louis was involved in the hit-and-run. LAWS OF 2013, ch. 173, § 1;
Termination Trial (TR) (July 28, 2014) at 63. SHB 1284 enacted seven new
provisions related to a parent's incarceration at various stages of a dependency.
3
The court did, however, address all of these arguments on the merits, despite the
Department's assertion that Saint-Louis waived her first argument by failing to raise it at
the termination hearing. D.L.B., 188 Wn. App. at 916 n.8 ("this court has discretion to
review a claim raised for the first time on appeal, and we exercise that discretion here"
(citing State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015))).
4
She also moved in this court for a stay of adoption proceedings, which our
commissioner granted.
10
In re Dependency ofD.L.B., No. 92448-1
Two of these provisions relate to family reunification services for incarcerated
parents. One provision grants an incarcerated parent the absolute right to participate
in case conferences 5 "through the use of a teleconference or videoconference" if the
parent is unable to attend in person. LAWS OF 2013, ch. 173, § 1(3). The other
provides that the permanency plan6 developed for the child of an incarcerated parent
must, "where possible, ... include treatment that reflects the resources available at
the facility where the parent is confined [and] ... provide for visitation opportunities,
unless visitation is not in the best interests of the child." LAWS OF 2013, ch. 173, §
2(2)(b )(i).
Two other provisions address a parent's incarceration as it relates to the
timeline for filing a termination petition. One states that a parent's current or prior
incarceration constitutes "good cause" to extend the normal timeline for filing a
termination petition, if the parent still "maintains a meaningful role in the child's
5 These must occur "[flo IIowing shelter care and no later than thirty days prior to
fact-finding," and "[a]t any other stage in a dependency ... upon the parent's request."
RCW l3.34.067(1)(a), (2).
6
A permanency plan must be developed "no later than sixty days from the time the
supervising agency assumes responsibility for providing services, including placing the
child, or at the time of [the dependency] hearing ... whichever occurs first." RCW
13.34.136(1 ). It must address, among other things, "what services the parents will be
offered to enable them to resume custody, what requirements the parents must meet to
resume custody, and a time limit for each service plan and parental requirement." RCW
13 .34.136(2)(b )(i).
11
In re Dependency ofD.L.B., No. 92448-1
life[] and the department has not documented another reason why it would be
otherwise appropriate to file a petition pursuant to this section." LAWS OF 2013, ch.
173, §§ 2(3), 3(4)(a)(iv). This provision includes a list of six factors that a
dependency court "may" consider when "assess[ing] ... whether a parent who is
incarcerated maintains a meaningful role in the child's life." LAWS OF 2013, ch. 173,
§ 3(4)(b). The other provision allows the dependency court to consider
incarceration-related barriers in "rebuttal" to the Department's allegation that
"aggravated circumstances" justify an accelerated termination timeline. LAws OF
2013, ch. 173, § 3(4)(c); former RCW 13.34.132(4)(g) (2012) (currently codified as
RCW 13.34.132(4)(h))_7
Another provision in the 2013 law concerns parents with lengthy sentences.
It states that the Department "should" consider alternatives to termination "such as,
but not limited to, a guardianship," when such a parent "has maintained a meaningful
role in the child's life" and a continued parent-child relationship is in the child's best
interests. LAWS OF 2013, ch. 173, § 4(5).
Finally, the 2013 law addresses incarceration as it relates to the six factual
findings, codified at RCW 13.34.180(1)(a)-(f), the trial court must make before
7 Former RCW 13.34.132(4)(g) (2012) permits the court to forgo reunification
efforts if, in a prior dependency, the parent failed to complete available services, this
resulted in termination, and the parent has not made any significant change in the interim.
12
In re Dependency ofD.L.B., No. 92448-1
terminating a parent's rights. One provision says that the trial court "may" consider
incarceration-related barriers in "rebuttal" to the presumption that arises under RCW
13.34.180( e) (that there is little likelihood that conditions will be remedied if a parent
has not substantially improved his or her deficiencies in the last twelve months).
LAWS OF 2013, ch. 173, § 4(1)(f)(2). The other provision requires the court to
"consider" three things "[i]fthe parent is incarcerated" before determining whether
"continuation of the parent and child relationship clearly diminishes the child's
prospects for early integration into a stable and permanent home" (the sixth and final
prerequisite to termination of parental rights under RCW 13.34.180(1)). LAWS OF
2013, ch. 173, § 4(1)(f). These mandatory "consider[ations]" are
whether a parent maintains a meaningful role in his or her child's life
based on [the] factors identified in [subsection 3(4)(b) of the new law];
whether the department or supervising agency made reasonable efforts
as defined in this chapter; and whether particular barriers existed as
described in [subsection 3(4)(b) of the new law] 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.
!d.
Saint-Louis's first and primary challenge concerns the interpretation of this
final provision-particularly the phrase "[i]f the parent is incarcerated." !d. She
argues that this provision applied to her termination hearing even though she was
not incarcerated when the hearing occurred.
13
In re Dependency ofD.L.B., No. 92448-1
Saint-Louis's second challenge implicates the interaction between two
different provisions in the dependency statutes. One is RCW 13.34.180(1)(d), which
requires the trial court to find that the Department "understandably offered or
provided ... all necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future" before terminating a parent's
rights. The other is SHB 1284's requirement that the permanency plan, "where
possible," include services available at the facility where an incarcerated parent is
confined. LAWS OF 2013, ch. 173, § 2(2)(b)(i). Saint-Louis contends that the
Department failed to meet its obligation under these two statutes to make reasonable
efforts to provide her with necessary services while she was in jail. She also argues
that the Court of Appeals erred by refusing to address her reliance on the provision
governing the permanency plan.
Saint-Louis's third challenge does not implicate the 2013 amendments. She
argues that the evidence was insufficient to support two prerequisites to the
termination of her parental rights (parental unfitness and little likelihood that she
would remedy her parental deficiencies in the near future). In this court, she also
asserts for the first time that the trial court impermissibly determined that her status
as a domestic violence victim was a parental deficiency.
We reject all three challenges and affirm the Court of Appeals.
14
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Standard ofReview
In a dependency, as in any case, questions of statutory interpretation are
reviewed de novo and factual findings are reviewed for substantial evidence in the
record. In re Dependency ofK.D.S., 176 Wn.2d 644, 652,294 P.3d 695 (2013). But
because the State must prove its case in a termination proceeding by clear, cogent,
and convincing evidence, that evidence must be "more substantial than in the
ordinary civil case in which proof need only be by a preponderance." In re Welfare
ofHall, 99 Wn.2d 842,849,664 P.2d 1245 (1983) (citing In re Welfare ofSego, 82
Wn.2d 736,739, 513 P.2d 831 (1973)).
I. Current RCW 13.34.180(1)(f) applies only when the parent is
incarcerated at the time of the termination hearing; other parts of the
2013 amendments require the court to consider and make
accommodations for a parent's prior incarceration
Generally, when the meaning of a statute is "plain on its face," a court must
give effect to that meaning. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 3 54 (201 0)
(quoting Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002)). Thus, we resort to other interpretive aids only when the plain language of
a statute is ambiguous. State v. Armendariz, 160 Wn.2d 106, llO, 156 P.3d 201(2007). This basic rule of statutory interpretation applies so long as it does not
produce an absurd result. 8
8
Tingey v. Haisch, 159 Wn.2d 652, 663-64, 152 P.3d 1020 (2007).
15
In re Dependency ofD.L.B., No. 92448-1
The main statute at issue here is the provision in the 2013 amendment that
requires the court to make three specific considerations "[i]f the parent is
incarcerated" when determining whether "continuation of the parent and child
relationship clearly diminishes the child's prospects for early integration into a stable
and permanent home" (the sixth and final prerequisite to termination of parental
rights under RCW 13.34.180(1)). LAWS OF 2013, ch. 173, § 4(1)(t). 9 The State
contends this provision is triggered only if the parent is incarcerated at the time of
the termination hearing: "[T]he present tense phrase 'if the parent is incarcerated[]'
refers to the time of the termination trial, not other stages." Suppl. Br. ofResp't at
11. Saint-Louis disagrees. She acknowledges that subsection 4(1)(t) is written in
the present tense but argues that it is ambiguous about the "pertinent time point."
Pet'r's Suppl. Br. at 10.
9
As discussed above, these considerations are
whether a parent maintains a meaningful role in his or her child's life
based on [the] factors identified in [subsection 3(4)(b) of the new
law]; whether the department or supervising agency made reasonable
efforts as defined in this chapter; and whether particular barriers
existed as described in [subsection 3(4)(b) of the new law] 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.
LAWS OF 2013, ch. 173, § 4(1)(t).
16
In re Dependency ofD.L.B., No. 92448-1
t
We agree with the State. A statute is ambiguous if its plain language is
susceptible to more than one reasonable interpretation. Armendariz, 160 Wn.2d at
110. The disputed provision requires the court to consider several factors "[i]f the
parent is incarcerated" when it determines whether "continuation of the parent and
child relationship clearly diminishes the child's prospects for early integration into
a stable and permanent home." LAWS OF 2013, ch. 173, § 4(1)(f) ("[i]fthe parent is
incarcerated, the court shall consider ... "). According to the statute's plain terms,
the "pertinent time point" is the point at which the court makes the "clearly
diminishes" determination-and that occurs at the termination hearing. Id. There
is no ambiguity in the statute's plain terms.
We also agree with the State that the legislature's use of the present tense in
subsection 4(1)(f) appears to have been intentional. As the State points out, the 2013
amendment explicitly distinguishes, in several different provisions, between a
parent's past and present incarceration. A parent's "current or prior incarceration"
may rebut the State's allegation that aggravating circumstances justify an accelerated
termination timeline, LAWS OF 2013, ch. 173, § 3(4)(c) (emphasis added); and the
parent's "current or prior incarceration" may rebut the presumption that a parent
who fails to substantially improve deficiencies within 12 months of the current
dispositional order has little likelihood of remedying his or her deficiencies in the
near future, LAWS OF 2013, ch. 173, §§ 4(1)(e), 4(2) (emphasis added). Most
17
In re Dependency ofD.L.B., No. 92448-1
relevant to Saint-Louis's argument, SHB 1284's "good cause" provision directs the
court to consider whether "[t]he parent is incarcerated[] or the parent's prior
incarceration is a significant factor in why the child has been in foster care .... "
LAWS OF 2013, ch. 173, § 3(4)(a)(iv) (emphases added).
When the legislature uses different terms within the same statute, we presume
that it intended different meanings. Densley v. Dep 't of Ret. Sys., 162 Wn.2d 210,
219, 173 P.3d 885 (2007). SHB 1284 uses three different phrases to refer to a
parent's incarceration: "a parent's current ... incarceration," 10 "a parent's ... prior
incarceration," 11 and "the parent is incarcerated." 12 These differences in wording
support the State's interpretation of subsection 4(1)(f). They indicate that the
legislature knew how to direct the termination court to consider a parent's prior
incarceration, but chose not to do so in the provision that applies when the court
considers the sixth and final statutory prerequisite to termination-whether
"continuation of the parent and child relationship clearly diminishes the child's
prospects for early integration into a stable and permanent home." LAWS OF 2013,
ch. 173, § 4(1)(f).
10 LAWSOF2013, ch. 173, § 3(4)(c).
II Id.
12
LAWS OF 2013, ch. 173, §§ 2(2)(b )(i), 3(4)(a)(iv), 4(1 )(f).
18
In re Dependency ofD.L.B., No. 92448-1
Saint-Louis (who maintains that the statute is ambiguous) argues that we must
not '"rigidly appl[y]'" canons of construction to defeat the legislature's clear intent.
Pet'r's Suppl. Br. at 12 (quoting State v. Williams, 94 Wn.2d 531, 538, 617 P.2d
1012 (1980)). And she contends that the legislature can't possibly have intended the
State's interpretation of subsection 4(1)(f), since this interpretation would lead to
"absurd and strained results ... if the parent is released from ... incarceration shortly
before trial." I d. at 13. Saint-Louis urges us to avoid this result by reading the phrase
"during the dependency" into subsection 4(1)(f): "Given the purpose of the act, the
statute is more reasonably read to mean '[i]fthe parent is incarcerated [during the
dependency]."' I d. at 10.
As noted above, this court will avoid an absurd result even if it must disregard
unambiguous statutory language to do so. State v. McDougal, 120 Wn.2d 334,351-
52, 841 P.2d 1232 (1992). But we must always apply this canon of construction
"sparingly," consistent with separation of powers principles. Five Corners Family
Farmers v. State, 173 Wn.2d 296,311,268 P.3d 892 (2011). The purpose of the
"absurd results" canon is to prevent obviously inept wording from thwarting clear
legislative intent. !d. We may not invoke that canon just because we question the
wisdom of the legislature's policy choice. Id.The plain language result in this case is not absurd. The provision at issue
here relates to a forward-looking determination: whether "continuation of the parent
19
In re Dependency ofD.L.B., No. 92448-1
and child relationship clearly diminishes the child's prospects for early integration
into a stable and permanent home." RCW 13.34.180(1)(±) (emphasis added).
Without the protections afforded by SHB 1284, a court might conclude that a
parent's incarceration alone necessarily satisfies this termination factor; our
legislature might well have enacted SHB 1284 to prevent that result. 13
Moreover, a parent's release from incarceration prior to the termination
hearing does not make that incarceration irrelevant to the dependency or termination
court's analysis. On the contrary, SHB 1284 either specifically requires or strongly
suggests that the court must make special considerations, at three separate points
prior to termination, when a parent was incarcerated during any part of the
dependency.
First, when the court determines whether "there is little likelihood that
conditions will be remedied so that the child can be returned to the parent in the near
future"-the fifth prerequisite to termination-it may not conclude that a parent's
"actual inability ... to have visitation with the child" due to incarceration "in and of
itself' constitutes a failure to have contact with the child. RCW 13 .34.180(1 )(e)(iii).
Indeed, this has been true since 2009, four years before SHB 1284 was enacted.
13
See Br. of Amici Wash. Def. Ass'n eta!. at 7 ("SHB 1284 was the legislature's
response to the mounting social science ... evidence that maintaining contact with one's
incarcerated parent" improves outcomes for children and their families.).
20
In re Dependency ofD.L.B., No. 92448-1
LAWS OF 2009, ch. 477, § 5(1)(e)(iii). SHB 1284 altered this provision only by
adding the words "current or prior" before the word "incarceration," clarifying that
the termination court may not penalize a parent for his or her incarceration at any
time during the dependency. LAws OF 2013, ch. 173, § 4(1 )(e)(iii). Thus, contrary
to Saint-Louis's assertion, the termination court must always consider "whether [a
recently released] parent experienced barriers during incarceration that impeded
contact with the child." Pet'r's Suppl. Br. at 13. It just considers these barriers when
ruling on the fifth prerequisite to termination (likelihood that reunification can occur
in the near future) instead of the sixth.
The dependency court must also consider and accommodate incarceration-
related barriers at the permanency planning hearing, when it determines whether to
direct the Department to file a petition for termination. SI-IB 1284 provides that
there is "good cause" to extend the termination deadline when
[t]he parent is incarcerated, or the parent's prior incarceration is
a significant factor in why the child has been in foster care for fifteen
of the last twenty-two months, the parent maintains a meaningful role
in the child's life, and the department has not documented another
reason why it would be otherwise appropriate to file a [termination]
petition ....
LAWS OF 2013, ch. 173, § 3(4)(a)(iv). (And, as noted above, the amendment also
allows the dependency court to consider incarceration-related barriers in rebuttal to
21
In re Dependency ofD.L.B., No. 92448-1
the Department's allegation that "aggravated circumstances" justify an accelerated
termination timeline. LAWS OF 2013, ch. 173, § 3(4)(c).)
Also contrary to Saint-Louis's assertion, SHB 1284 contemplates that the
dependency court will consider "whether the parent tried to maintain a relationship
with the child despite incarceration" during the dependency. Pet'r's Suppl. Br. at
13. In fact, the "good cause" provision in SHB 1284 contains a detailed list of factors
that the court "may" consider in "assess[ing] ... whether a parent who is incarcerated
maintains a meaningful role in the child's life." LAWS OF 2013, ch. 173, § 3(4)(b).
These are the same factors that the court must consider when applying current RCW
13.34.180(1)(±) (the disputed provision in this case).
Finally, SHB 1284 provides that the dependency court may consider
incarceration-related barriers in rebuttal to the "presumption" that arises under RCW
13.34.180(l)(e) (that a parent's failure to improve parental deficiencies within 12
months of the dispositional order means there is little likelihood that reunification
can occur in the near future). LAWS OF 2013, ch. 173, §§ 4(1)( e), 4(2).
To be sure, some of these provisions are only permissive-they allow, but do
not require, the court to consider specific issues associated with a parent's
incarceration prior to the termination hearing. Thus, they don't provide quite as
much protection for parental rights as subsection 4(1)(f) does-though if counsel
raises those issues, the court should certainly not disregard them without a good
22
In re Dependency ofD.L.B., No. 92448-1
reason. But this does not make the State's interpretation of subsection 4(1)(±)
absurd. The termination court is still required to consider and accommodate a
parent's prior incarceration before ruling on the fifth prerequisite to termination
(likelihood that reunification can occur in the near future). And a parent can always
argue that incarceration constitutes good cause to extend the termination deadline.
LAWSOF2013,ch.l73, § 3(4)(a)(iv).
For these reasons, we hold that subsection 4( 1)(f) applies only when a parent
"is incarcerated" at the time of the termination ruling.
II. The Department is required to provide all reasonably available services
to incarcerated parents; the record shows that the Department did so
Saint-Louis argues that the Department failed to prove a necessary factual
prerequisite to termination: that it "made reasonable efforts to offer ... Saint-Louis
services during her incarceration." Pet'r's Suppl. Br. at 17. Saint-Louis cites current
RCW 13.34.136(2)(b)(i)(A) (subsection 2(2)(b)(i) ofthe 2013 amendment), which
governs the contents of the pennanency plan and provides in relevant part: "If the
parent is incarcerated, the plan must address how the parent will participate in the
case conference and permanency planning meetings and, where possible, must
include treatment that reflects the resources available at the facility where the parent
is confined."
23
In re Dependency ofD.L.B., No. 92448-1
In this case, the final updated permanency plan was entered about one week
before Saint-Louis violated CCAP's requirements and was returned to jail for the
first time. Perhaps because of this, Saint-Louis does not argue that the Department
violated this provision directly. Instead, she argues that this provision, "read
together" with RCW 13 .34.180(1 )(d) (the provision-of-services prerequisite to
termination), "mean[s] that the Department must, where possible, provide all court-
ordered and necessary services to incarcerated parents." Pet'r's Suppl. Br. at 16-17.
And she contends that the record does not show reasonable efforts were made during
her period of incarceration.
We disagree. As noted above, Livingston testified that she contacted the jail
to inquire about services for Saint-Louis and learned that the only required service
available was one-on-one mental health counseling. (Domestic violence classes
were available, and Saint-Louis participated in them, but they were not required at
that point.) Livingston's testimony on this issue was undisputed. Indeed, it was
corroborated by Saint-Louis's testimony that the only people she knew in the jail's
chemical dependency program were referred there by drug court. Thus, we reject
Saint-Louis's argument that the Department violated any duty to provide services.
The record shows the Department made reasonable efforts to refer her to the
necessary services available in jail.
24
In re Dependency ofD.L.B., No. 92448-1
III. The trial court's finding of parental unfitness is supported by substantial
evidence
The Court of Appeals concluded that three parental deficiencies supported the
trial court's finding of unfitness: "unresolved domestic violence issues, lack of
parenting skills, and potential chemical dependency issues." D.L.B., 188 Wn. App.
at 922. Saint-Louis challenges all three conclusions.
First, she argues that "the risk that a child might be exposed to domestic
violence is not a parental deficiency." Pet'r's Suppl. Br. at 19. 14 Saint-Louis relies
on RCW 26.44.020(16), which defines "negligent treatment or maltreatment" for
purposes of Washington's child abuse statute. RCW 26.44.020(16) provides that
"[p]overty, homelessness, or exposure to domestic violence as defined in RCW
26.50.010 that is perpetrated against someone other than the child does not constitute
negligent treatment or maltreatment in and of itself." Saint-Louis also argues that
there was no evidence that her current partner had perpetrated domestic violence
against her. Finally, Saint-Louis argues that there was no evidence she had a current
14
Saint-Louis did not raise this argument in her motion for discretionary review,
although she did challenge the trial court's factual finding of unfitness. Amici Washington
Defender Association eta!. raised this argument in their brief supporting review. We have
discretion to address an issue raised only by amici. See State v. Hirschfelder, 170 Wn.2d
536, 552, 242 P.3d 876 (2010) ("[w]e need not address issues raised only by amici and
decline to do so here"). We have declined to address such issues where they are
inadequately briefed. E.g., State v. Gonzalez, 110 Wn.2d 738, 752 n.2, 757 P.2d 925(1988). But because this argument is thoroughly briefed, the record is sufficiently
developed, and there is no disagreement among the parties as to the legal principles
involved, we address it on the merits.
25
In re Dependency ofD.L.B., No. 92448-1
substance abuse problem and that her parenting deficiencies could be remedied in
the near future by her participation in the Incredible Years program.
The record does not support any of Saint-Louis's arguments on parental
fitness.
A. Being the victim of domestic violence is not a parental deficiency:
the Department has never advanced that position, and the trial court
made no finding to that effect
The parties agree that being the victim of domestic violence is not a parental
deficiency. And the trial court made no such finding in this case.
Instead, the trial court concluded (1) that Saint-Louis had a long-standing
pattern of maintaining relationships with abusers, despite the risks that this posed for
herself and D.L.B.; (2) that before participating in domestic violence classes, she
maintained two such relationships in violation of no-contact orders (with D.L.B. 's
father and with a boyfriend at the time D.L.B. was first placed in protective custody);
(3) that Saint-Louis misrepresented crucial aspects of these relationships in her
communications with the Department and that her sister and her therapist had to
push Saint-Louis to take measures to protect herself from these men; (4) that she
currently lived with and was pregnant by a mm1 who had committed at least three
documented domestic violence assaults between 1988 and 2010 and who violated a
protection order in 2012; (5) that Saint-Louis was unemployed and 30 years younger
than this man and that this man had never before had any children; (6) that Saint-
26
In re Dependency ofD.L.B., No. 92448-1
Louis hid her relationship with this man from the Department while pursuing
reunification, even though she planned to move D.L.B. into his home; (7) that Saint-
Louis's relationship with this man and decision to hide it from the Department raised
concerns about "control issues and the potential for stress in the home as [Saint-
Louis] plan[ ned] for both [D.L.B.] and the expected newborn to be raised in [this
man's] home," Clerk's Papers (CP) at 353 (Finding of Fact (FF) 2.17); and (8) that
these facts damaged Saint-Louis's credibility and "indicate[d] an inability to put into
practice what was taught/discussed at [the domestic violence] programs" in which
Saint-Louis participated, CP at 354 (FF 2.19-2.21).
These findings were only part of the reason the trial court concluded Saint-
Louis was unfit to parent D.L.B. The trial court also based that conclusion on its
finding that Saint-Louis "demonstrated an unwillingness to participate in and/or
successfully complete series [sic] offered to correct parental deficiencies." CP at
355 (FF 2.32). The trial court ultimately concluded that Saint-Louis had not made
sufficient progress in addressing her chemical dependency issues, lack of parenting
skills, or mental health concerns. I d. (FF 2.27).
Nothing in the trial court's conclusions amounts to a ruling that domestic
violence victimization is a parental deficiency. To the extent that the trial court
expressed domestic violence concerns, this reflected its reasonable doubts that Saint-
Louis would protect D.L.B. from violence if she regained custody. Those doubts
27
In re Dependency ofD.L.B., No. 92448-1
stemmed in significant part from credibility assessments that are the province of the
trial court.
Saint-Louis appears to be asking us to rule, as a matter oflaw, that her current
relationship could not sustain any concerns about domestic violence unless the
Department proved her boyfriend had perpetrated violence against Saint-Louis. We
will not restrict the trial court's discretion in this way.
B. The record supports the trial court's conclusions that Saint-Louis's
chemical dependency and lack of parenting skills would not be
remedied in the near future
The Department tried repeatedly to get Saint-Louis to provide 90 days of clean
UAs. She repeatedly failed. First, she failed by missing several UAs despite
knowing that the Department would regard these missed UAs as positive results. 15
Then, she failed by testing positive for alcohol in May 2013. 16 Finally, she failed by
voluntarily relinquishing her work release privileges, even though she knew that she
could provide UAs while on work release and could not provide them if she returned
15 Livingston testified that the Department considers any missed or diluted UA to
be positive for drugs or alcohol and that she or other department personnel explained this
to Saint-Louis on "multiple occasions." 3 TR (July 30, 2014) at 397.
16
At the termination hearing, Saint-Louis maintained that her only positive UA
occurred after she went to a wedding in May 2013, where she had some champagne. She
also claimed that she immediately reported this slipup to Livingston. Livingston disagreed
with this narrative. She testified at the termination trial that Saint-Louis tried to lie about
the positive UA and had already missed several UAs prior to that slipup (a total of at least
six between January and May 2013).
28
In re Dependency ofD.L.B., No. 92448-1
to total confinement. All of this is evidence that Saint-Louis had not remedied her
chemical dependency problem in the more than two years that had elapsed between
the initial dependency order on May 11, 2012, and the termination hearing in late
July 2014. Her failure to remedy this problem in two years supports the trial court's
conclusion that she was unlikely to do so in the near future.
With respect to the Incredible Years program, the record shows a similar
inability to achieve compliance. Saint-Louis was referred to that program four times
but never completed more than a few classes. Her initial failure to enroll may have
been excusable: testimony at the termination hearing indicated that there were not
enough students to hold the program at that point and that when classes did become
available in early 2013, they conflicted with Saint-Louis's work schedule. But when
Saint-Louis did finally enroll, sometime after August 2013, she was discharged for
missing four classes. When Saint-Louis was on work release in April 2014,
Livingston again tried to refer her to the Incredible Years program; that effort failed
because Saint-Louis voluntarily relinquished her work release privileges. Nothing
in the record indicates that Saint-Louis's fifth attempt to complete the Incredible
Years program would be more successful than the four prior attempts.
The trial court's factual findings on chemical dependency and parenting skills
are supported by substantial evidence. There is no basis to disturb its conclusion
that Saint-Louis was unfit to parent D.L.B.
29
In re Dependency ofD.L.B., No. 92448-1
CONCLUSION
We hold that current RCW 13.34.180(l)(t) (LAWS OF 2013, ch. 173, § 4(1)(t))
applies only when a parent "is incarcerated" at the time of the termination hearing.
We reject Saint-Louis's other challenges because the record provides substantial
support for the trial court's findings, even under the heightened standard of review
that applies to decisions terminating a parent's rights. We therefore affirm.
30
Dependency ofD.L.B., No. 92448-1
WE CONCUR:
31