In re Parental Rights to K.M.M. ( 2016 )

This opinion was filed for record
at 5: OD {Myl on&¢: 187 Wn. App. 545,349 P.3d 929 (2015). J.M. then filed a
motion for discretionary review with this court, which we granted. In re Welfare
ofK.MM, 184 Wn.2d 1026,364 P.3d 119 (2016). 4
ANALYSIS
Our role in reviewing a trial court's decision to terminate parental rights is to
determine whether substantial evidence supports the trial court's findings of fact by
clear, cogent, and convincing evidence. See In re Dependency ofK.S.C., 137
Wn.2d 918, 925, 976 P.2d 113 (1999). Because of the highly fact-specific nature
of termination proceedings, deference to the trial court is "particularly important."
In re Welfare ofHall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). We defer to the
trial court's determinations of witness credibility and the persuasiveness of the
4
J.M. filed a motion to accept additional evidence on review pursuant to RAP 9.11,
which was passed to the merits. We now deny the motion and decline to accept the additional
evidence submitted by J.M.
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In re Parental Rights to KM.M., No. 91757-4
evidence, and "its findings will not be disturbed unless clear, cogent, and
convincing evidence does not exist in the record." In re Dependency ofKR., 128
Wn.2d 129, 144, 904 P.2d 1132 (1995). We review de novo whether the court's
findings of fact support its conclusions oflaw. See In re Dependency of Schermer,
161 Wn.2d 927, 940, 169 P.3d 452 (2007).
We recognize that parents have a fundamental liberty and privacy interest in
the care, custody, and companionship of their children. In re Welfare of Sumey, 94
Wn.2d 757, 762, 621 P.2d 108 (1980). However, this right is not absolute. It is
"well established that 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." !d. at 762. Furthermore, our
legislature has declared that "[w]hen the rights ofbasic nurture, physical and
mental health, and safety of the child and the legal rights of the parents are in
conflict, the rights and safety ofthe child should prevail." RCW 13.34.020.
Chapter 13.34 RCW creates a two-step framework for terminating parental
rights: first, the Department must show that it has satisfied its statutory obligations
pursuant to RCW 13.34.180(1), and then it must establish that termination of
parental rights would be in the child's best interests. In re Welfare ofA.B., 168
Wn.2d 908, 911, 232 P.3d 1104 (2010). The first step focuses on the adequacy of
the parents, while the second step looks at the child's best interests. !d.
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A petition seeking termination of parental rights pursuant to RCW
13.34.180(1) must allege all of the following:
(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.
The State must prove these allegations by clear, cogent, and convincing evidence.
RCW 13.34.190(1)(a)(i). This requires that the ultimate facts are shown to be
"'highly probable."' In re Welfare ofSego, 82 Wn.2d 736,739,513 P.2d 831(1973) (quoting Supove v. Densmoor, 225 Or. 365,358 P.2d 510 (1961)).
In addition to finding that the six statutory elements ofRCW 13.34.180(1)
have been satisfied, due process protections require that a court make a finding of
current unfitness before parental rights can be terminated. K.R., 128 Wn.2d at 142
(citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 71 L. Ed. 2d
10In re Parental Rights to K.MM, No. 91757-4
599 (1982)). This finding need not be made explicitly. Id. at 142-43. Satisfying
all six of the statutory elements raises an implied finding of parental unfitness. In
re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011).
Once the court determines that the Department satisfied its requirements in
accordance with RCW 13.34.180(1 ), parental rights may be tenninated if doing so
is in the best interests of the child. RCW 13 .34.190( 1)(b). The Department must
prove that termination is in the best interests of the child by a preponderance of the
evidence. A.B., 168 Wn.2d at 911.
J.M. challenges the termination order on two grounds, one statutory and the
other constitutional. First, J.M. alleges that his parental rights cannot be
terminated because the Department failed to fulfill its statutory obligation to
provide all necessary services pursuant to RCW 13.34.180(1)(d). 5 Second, J.M.
claims that his right to due process was violated because the trial court failed to
make a proper finding of current parental unfitness.
A. NECESSARY SERVICES
The Department has a statutory obligation to provide all the services ordered
by the permanency plan, as well as "all necessary services, reasonably available,
capable of correcting the parental deficiencies within the foreseeable future."
5
.T.M. does not challenge the trial court's findings on any other requirements ofRCW
13.34.180(1).
11
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RCW 13.34.180(1)(d). "Necessary services" are not defined in the statute, but the
Department is required to specify in a permanency plan "what services the parents
will be offered to enable them to resume custody." RCW 13.34.136(2)(b)(i). We
have observed that "[ w]hen a 'condition' precludes reunion of parent and child, as
here, regardless of whether it can be labeled a 'parental deficiency,' the State must
provide any necessary services to address that condition as set forth in RCW
13.34.180(l)(d)." In re Welfare ofC.S., 168 Wn.2d 51,56 n.3, 225 P.3d 953(2010). The Court of Appeals has relied on this statement to define "necessary
services" as those services "needed to address a condition that precludes
reunification of the parent and child." In re Dependency ofA.MM, 182 Wn. App.
776, 793, 332 P.3d 500 (2014) (citing C.S., 168 Wn.2d at 56 n.3). This definition
of"necessary services" is consistent with the plain language ofRCW
13 .34.180(1 )(d).
The trial court found that "[a]ll services reasonably available, capable of
correcting the parental deficiencies within the foreseeable future, have been offered
or provided to the father with the exception of reunification services which if
provided are no longer capable of providing a solution." 6 CP at 107. J.M.,
however, asserts that the Department failed to fulfill its statutory obligations in
6
The trial court referred to "reunification services" and "reunification therapy" in its oral
and written rulings. CP at 107-08; 4 VRP at 706. However, J.M. specifically alleges that he did
not receive family therapy and attachment and bonding services. Pet'r's Suppl. Br. at 13.
12
In re Parental Rights to K.MM, No. 91757-4
accordance with RCW 13.34.180(1)(d) because he was never provided with
reunification services, specifically family therapy and attachment and bonding
services.
1. Family therapy was not a necessary service because it was never an
appropriate service that could have been provided to J.M
Although family therapy was not provided to J.M., the record shows that this
service was not reasonably available to him because a plan for reunification was
never recommended or implemented. According to the service providers who
testified, family therapy is not offered until reunification occurs, and the record
shows that J.M. never became stable enough for reunification with K.M.M.
Consequently, family therapy was never reasonably available to J.M.
Following the initial termination trial in February 2012, additional services
were identified for J.M. Kristopher Richardson, the second social worker assigned
to K.M.M.' s case, testified that there "was a need to readdress mental health
services with the father. More work needed to be done on individual-level
objectives with the parents." 1 VRP at 20. According to Mr. Richardson, the
Department operates within a framework of first addressing a parent's individual-
level issues before providing services to address family-level issues. Id. at 20-21.
The parent is in a better position to deal with family-level concerns once individual
issues, like chemical dependency and mental health conditions, have been
addressed. I d. at 21. Within this framework, family therapy to address J .M. 's
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relationship with K.M.M. would not be appropriate until J.M.' s underlying mental
health issues had improved.
The service providers consistently testified that J.M. 's mental health issues
continued to affect his ability to parent K.M.M. Although the Department worked
with J.M. to set up mental health services, J.M. had difficulty maintaining his
mental health treatment. J.M. eventually had regular treatment with David Walker,
but it is unknown what progress, if any, J.M. made in therapy because Mr. Walker
did not testify. 7
Consistent with Mr. Richardson's testimony, Ms. Staton stated that it was
not her policy to work with biological parents in family therapy until reunification
was underway. I d. at 68. Once a child was in the process oftransitioning home, it
would be appropriate to work with the biological parents because they would
become "the caretakers meeting the child's needs." Jd. at 69. She further
explained that one of the prerequisites to family attachment therapy was that the
parent had worked through his or her own issues enough for the child to be
returned home. I d. at 138. This never occurred in K.M.M. 's case. I d.
Similarly, after meeting with J.M. and K.M.M. separately to assess whether
visitation should continue, Mr. Sherry did not recommend reunification. He saw
7
Jennifer Martin, the GAL, testified that although Mr. Walker was available to continue
therapy, J.M. did not want to participate in therapy with him because Mr. Walker apparently
refused to testify on J.M. 's behalf at the termination trial. 4 VRP at 643.
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In re Parental Rights to K.MM, No. 91757-4
little possibility that K.M.M. would want to return to her parents' custody because
she was "adamant about not wanting visitation, period." 2 VRP at 226-27.
Although a dependency review hearing order did state that "[t]he father will
participate in family therapy with Thomas Sherry ... to address issues with
visitation," CP at 334, Mr. Sherry clarified in his testimony that his
recommendation for family therapy was not for reunification with the parents, but
to "maintain the sibling relationships" once the sisters were in different
placements, 2 VRP at 243, 246.
Thus, because J.M. was unable to improve his underlying mental health
issues to the point where he could parent K.M.M., reunification was never more
than a theoretical possibility. Neither reunification nor family therapy was ever
recommended by the service providers or ordered by the dependency court.
Moreover, it was never contemplated that J .M. would be K.M.M. 's primary
caregiver. 8 CP at 109; 4 VRP at 653. Before the permanency plan was switched to
adoption, the plan was to return K.M.M. to her mother's custody, anticipating that
J.M. would have visitation with her. 4 VRP at 653. Family therapy was thus never
8
The concurrence disregards these facts and fails to acknowledge that .T.M. simply never
reached a point at which reunification services could have been provided. Moreover, it is clear
from the record that the Department did not become aware of K.M.M. 's lack of attachment until
she began resisting visitation with her father, at which point it was impossible to offer the
services the concurrence claims should have been offered. By attempting to shift the blame
entirely to the Department's shoulders, the concurrence fails to present the facts in their entirety
as they existed at the relevant time.
15
In re Parental Rights to K.MM, No. 91757-4
"reasonably available" to J.M., and it did not constitute a "necessary service"
within the meaning ofRCW 13.34.180(1)(d).
2. Attachment and bonding services were not necessary services because
it would have been futile to provide them
'"Where the record establishes that the offer of services would be futile, the
trial court can make a finding that the Department has offered all reasonable
services."' C.S., 168 Wn.2d at 56 n.2 (quoting In re Welfare ofMR.H, 145 Wn.
App. 10, 25, 188 P.3d 510 (2008)). 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. See In re Dependency ofRamquist, 52 Wn. App.
854, 861, 765 P.2d 30 (1988); see also In re Welfare ofAschauer, 93 Wn.2d 689,
699 n.6, 611 P.2d 1245 (1980). Given the specific circumstances in this case, the
trial court correctly determined that providing attachment and bonding services
would be futile because J.M. would not have benefited from the services.
Although J.M. was willing to participate in attachment and bonding services,
these services would not have been able to remedy K.M.M. 's lack of attachment.
K.M.M. could not tolerate interactions with her father and refused to attend
visitation. Thus, as a practical matter, K.M.M. would not be a willing participant
in any therapeutic services with her father. There was no way for the social
workers to force K.M.M. to participate in services, short of lying to her or using
physical force, which are both prohibited by department policy. 3 VRP at 448. As
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In re Parental Rights to K.MM, No. 91757-4
the trial court observed, "[K.M.M.] herself has taken the strong position that she
will not engage with her parents during visits and does not want to be a part of that
family." CP at 109.
Additionally, there is no evidence in the record that attachment and bonding
services could have repaired J.M.'s relationship with K.M.M. Rather, the evidence
strongly supports the trial court's determination that the parent-child relationship
was beyond repair and any attempt to reunify K.M.M. with her father would be
detrimental and harmful to her. !d. Testimony from Ms. Staton and Mr. Sherry
amply supports the trial court's finding that "[K.M.M.] would suffer emotional
derailment of her progress, and any such attempt would likely compromise her
ability to begin to establish the other social and emotional stages she needs to go
through, such as developing an ability for empathy." !d. While it is possible that
attachment and bonding services might have prevented K.M.M. 's detachment from
her father had they been previously provided, we cannot go back in time to prevent
the damage from occurring.
The futility of any additional services was further supported by J.M.' s
demonstrated lack of empathy for K.M.M. 's needs. When asked what was in
K.M.M.'s best interest, J.M. did not express any recognition that he needed to be a
better parent, but instead asserted that K.M.M.' s foster parents were "hindering her
return home." 3 VRP at 526. J.M. was willing to assign blame to the Department,
17
In re Parental Rights to K.MM, No. 91757-4
foster parents, K.M.M. 's therapist, and his own therapists for the fact that
reunification never occurred, but he did not fully acknowledge the role that he
played in K.M.M.'s continued dependency. This mindset was further illustrated by
Mr. Sherry's testimony that J.M. did not seem to understand why reunification had
not yet happened. 2 VRP at 236. According to Mr. Sherry, J.M.'s thinking was
"more linear" in that he seemed to believe that because he had made some efforts
to improve himself, reunification should be the next step. I d. He could not
understand that K.M.M. did not want to have a connection with him any longer.
Similarly, Lisa Sinnett, a social worker assigned to K.M.M.'s case, stated
that she believed "[J.M.] is unable to meet [K.M.M.]'s needs" because of his
"inability to kind of understand what her needs are. He has an inflexibility in
regards to that, and so he isn't able to meet her where she is at." 3 VRP at 396-97.
Ms. Sitmett testified that despite lengthy conversations with J.M.,
[he] has been unable to see things from [K.M.M.]'s point of view, in
my opinion. He hasn't been able to fully tmderstand why the length
of time that she has been involved in this and that she -- what she
wants in regards to what she wants long term for herself and also in
regards to why she was not going to continue with the sibling visits,
so a lack of understanding and insight into her needs.
Id. at 397-98. J.M.'s inability to meet K.M.M. "where she is at," id. at 397, was
exemplified by the failed natural contact. J.M. overwhelmed K.M.M. against the
18
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social worker's instructions and did not understand why the interaction was so
traumatic and upsetting for his daughter. 2 VRP at 326, 330.
Furthermore, because he had not addressed his underlying mental health
issues, J.M. "hasn't become ready to support [K.M.M.] 's attachment to him." 4
VRP at 664. J.M. had been unable to maintain regular mental health treatment,
and there was no evidence that he would be able to in the future. In fact, his
testimony at trial suggested an unwillingness to continue with mental health
services, which he described as "a waste of time and money and waste of energy."
3 VRP at 496. Unfortunately, as long as J.M.'s mental health issues remain
untreated, attachment and bonding therapy would be ineffective.
"[A] parent's unwillingness or inability to make use of the services provided
excuses the State from offering extra services that might have been helpful."
Ramquist, 52 Wn. App. at 861. Furthermore, a parent's lack of insight into his
own condition and the child's needs is relevant to assessing whether the parent
would benefit from additional services. See In re Welfare ofH.S., 94 Wn. App.
511, 528, 973 P.2d 474 (1999) (citing Krause v. Catholic Cmty. Servs., 47 Wn.
App. 734, 747, 737 P.2d 280 (1987)). Thus, in light of J.M.'s unwillingness to
take advantage of the services that had already been provided to him, the
Department was not required to provide additional services.
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In re Parental Rights to K.MM, No. 91757-4
3. Providing additional services would not remedy JM 's parental
deficiencies within the foreseeable future
Even in instances where the Department inexcusably fails to offer all
necessary services, termination may still be appropriate if the service would not
remedy the parent's deficiencies within the foreseeable future. In re Dependency
ofT.R., 108 Wn. App. 149, 164,29 P.3d 1275 (2001). The '"foreseeable future"'
is determined from the point of view of the child. Hall, 99 Wn.2d at 851. Here,
the trial court concluded that even if attachment and bonding services could
remedy the lack of attachment between J.M. and K.M.M., "there is no reasonable
probability that reunification therapy, or any other kind of therapy, can remedy [the
severed parent-child bond] within the foreseeable future." CP at 108 (emphasis
added). There is substantial evidence in the record to support this conclusion.
The testimony was consistent about K.M.M.' s need for immediate stability
and permanence. Ms. Staton, who has worked with K.M.M. since almost the
beginning of dependency, testified that K.M.M. "has a lot of anxiety over what is
t'
going to happen, whether or not she is going to be able to be adopted, or whether
or not she is going to be returned." 1 VRP at 92. Ms. Staton further testified that
this fear and anxiety is already "delaying [K.M.M.] from entering this new
developmental stage in a healthy way." Id. at 92-93. Ms. Staton opined that
K.M.M. had a short-term need for permanency so that she could "let go of this
fear" and "move on to the next developmental stage." Id. at 93. According to Ms.
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Staton, K.M.M. would need to maintain her secure attachment to her foster parents
in order to move forward in her development. I d. at 141.
K.M.M. herself was clear about the fact that she did not want to be reunited
with her parents. K.M.M. testified that she did not want to live with her biological
parents and wanted to be adopted by her foster parents. 9 2 VRP at 285, 303.
K.M.M. expressed this desire to the adults around her. Mr. Sherry testified that it
became clear from their first meeting that K.M.M. was "adamant" about not
wanting visitation with her parents. I d. at 226-27. Mr. Richardson testified that he
had never had a case where a child had "drawn a line in the sand" to the same
extent as K.M.M. 1 VRP at 54. Jennifer Martin, the GAL, explained that
"[K.M.M.], as an older child and having grown up over the last ... four and a half
years, she has [begun] to develop an identity, and that identity is separate from her
parents." 4 VRP at 665.
9
It is worth noting that pursuant to RCW 26.33.160(1)(a), a child's consent to adoption is
required if the child is 14 years of age or older. This suggests that the legislature recognizes that
children, particularly children at K.M.M. 's age, should have a say in what happens to them. The
value of this child-centered approach is supported by amici curiae Center for Children & Youth
Justice et al., who observe that "[t]here is evidence to suggest that a child's chances of success in
a placement are improved when a youth feels comfortable and safe in their placement." Br. of
Amici Curiae Ctr. for Children & Youth Justice, Mockingbird Soc'y, & Children & Youth
Advocacy Clinic at Univ. of Wash. Sch. of Law (Br. of Amici Curiae CCYJ) at I 0-11. In this
case, K.M.M. has repeatedly asked why no one listens to her with regard to what she wants. 4
VRP at 665. The importance of considering K.M.M.'s point of view is underscored by the
testimony that disregarding K.M.M. 's adamant desire to be adopted by her foster parents would
be detrimental to her sense of self. 2 VRP at 272.
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There was no evidence that the parent-child relationship could be repaired.
And even if an attachment between J.M. and K.M.M. could be restored, there was
no reason to believe that this would be possible within a time frame that would be
conducive to K.M.M.'s emotional development and well-being. Therefore, based
on the unique facts presented by this particular case, we find substantial support for
the trial court's conclusion that "all necessary services, reasonably available,
capable of correcting the parental deficiencies within the foreseeable future have
been expressly and understandably offered or provided" in accordance with RCW
13 .34.180(1 )(d).
4. There is no requirement for identical services between foster parents
and noncustodial parents
J.M. asserts that K.M.M.'s foster parents were provided with attachment and
bonding services that allowed them to form an attachment with her. The foster
parents received instructions to treat K.M.M. like a much younger child in order to
address her developmental delays, which included rocking her in a blanket. 1 VRP
at 101-02. Relying on C.S., 168 Wn.2d 51, J.M. asserts that offering services to
the foster parents but not to him constitutes a failure to provide all necessary
services as required by RCW 13 .34.180(1 )(d). However, contrary to J.M.'s
interpretation, C.S. does not stand for the proposition that noncustodial parents
must receive services identical to the foster parents.
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In C.S., the mother had not been provided with the same training as the
foster mother to manage the child's behavioral problems. Id. at 56. The foster
mother was able to successfully care for the child after the services were offered.
Id. at 55-56. The crux ofthe decision in C.S. was that the mother was not provided
with reasonably available services that could have helped her parent her child.
While the fact that foster parents receive certain services may be evidence of
reasonable availability, it does not create an inflexible requirement that
noncustodial parents receive identical services. As the primary caregiver, a foster
parent has a fundamentally different relationship with a dependent child than a
noncustodial parent. The services needed by the foster parents to adequately care
for a child will likely be different from what may be reasonably available to a
parent in many cases.
This is precisely what the facts before us demonstrate. Ms. Staton testified
that the foster parents were involved in K.M.M.'s therapy only because they were
her primary caregivers. 1 VRP at 68. The goal ofK.M.M. 's individual therapy
was to help her form healthy attachments to adults generally, not to her foster
parents specifically. The hope was that once K.M.M. formed an attachment to her
foster parents, she would be able to transfer that attachment to her parents ifthe
time for reunification ever arrived. Id. at 71-74. Moreover, because K.M.M. could
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In re Parental Rights to K.MM, No. 91757-4
no longer tolerate contact with J.M., his involvement in K.M.M. 's individual
therapy was neither possible nor appropriate.
B. CURRENT PARENTAL UNFITNESS
The trial court concluded that J.M. was "unable to parent" K.M.M. due to
her lack of attachment to him and his inability to remedy that lack of attachment at
the time of trial. J.M. contends that this does not constitute a finding of current
parental unfitness, and even if it did, the facts are not sufficient to support such a
finding. J.M. further asserts that the trial court implicitly found that he was fit
when it concluded that all parental deficiencies had been remedied and his inability
to parent was not due to any fault on his part. We hold that the trial court did
properly find J.M. was currently unfit to parent K.M.M. at the time of trial.
This court has previously stated that the first part of the termination
proceeding focuses on the adequacy of the parent, and it is "'premature'" to
consider the child's best interests before resolving the question of parental
unfitness. A.B., 168 Wn.2d at 925 (quoting In re Welfare ofChurape, 43 Wn. App.
634, 639, 719 P.2d 127 (1986)). Applying this principle, J.M. argues that the
unfitness inquiry is limited to the qualities of the parent and cannot look "to
outside circumstances that already inform other termination elements." Pet'r's
Suppl. Br. at 11. In J.M. 's view, by finding that he was currently "unable to
parent" K.M.M. due to the lack of a bond between them, the trial court improperly
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In re Parental Rights to K.MM, No. 91757-4
considered factors beyond his personal characteristics in determining parental
unfitness.
While it is true that the best interests of the child inquiry is a different and
separate consideration from parental unfitness, the statute and case law do not
support the argument that the parental unfitness inquiry is limited solely to
consideration of the parent's deficiencies. The parent-child relationship
necessarily involves both the parent and the child; thus, it is necessary to consider
whether a parent is capable of parenting the particular child given the child's
specific, individual needs. This approach is supported by a plain reading of the
statute and case law interpreting "unfitness" as applied to chapter 13.34 RCW.
1. A plain reading o[RCW 13.34.180 and related statutes demonstrates
that the unfitness inquiry goes beyond a parent's deficiencies
There is no statutory definition of "unfitness," but the statutory elements of
RCW 13 .34.180( 1) "necessarily and implicitly include[] evidence of current
parental unfitness." K.R., 128 Wn.2d at 142. In other words, the elements of
RCW 13.34.180(1) form the factual basis for a finding of parental unfitness. If any
requirement ofRCW 13.34.180(1) is not satisfied by clear, cogent, and convincing
evidence, then termination of parental rights is not permissible. Along the same
lines, if all of the requirements ofRCW 13.34.180(1) have been met, there is an
implied finding of parental unfitness. !d. Thus, examining the scope of the
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statutory requirements provides insight into what may be properly considered
when determining parental unfitness.
While RCW 13.34.180(1)(d) looks specifically at a parent's deficiencies,
RCW 13.34.180(1)(e) more broadly requires "[t]hat there is little likelihood that
conditions will be remedied so that the child can be returned to the parent in the
near future." (Emphasis added.) "Where the statute's meaning is plain and
unambiguous, we derive legislative intent from the statute's plain language." In re
Welfare ofL.N.B.-L., 157 Wn. App. 215,238,237 P.3d 944 (2010) (citing City of
Seattle v. St. John, 166 Wn.2d 941, 945, 215 P.3d 194 (2009)). Here, "conditions"
is a broad term that is capable of encompassing all relevant facts and
circumstances. If the legislature had intended to limit the "conditions" that may be
considered when determining parental unfitness to specific "parental deficiencies,"
then it could have used appropriately specific language. Because it did not do so,
limiting an unfitness inquiry to parental deficiencies would draw a narrower scope
than the legislature intended. The argwnent that "conditions" extends beyond
"parental deficiencies" is further supported by language instructing that "[i]n
determining whether the conditions will be remedied the court may consider, but is
not limited to," the factors specifically enumerated in the provision. RCW
26
In re Parental Rights to K.MM, No. 91757-4
13.34.180(1)(e) (emphasis added). 10 Furthermore, RCW 13.34.180(1)(t) provides
that termination is appropriate where "continuation ofthe parent and child
relationship clearly diminishes the child's prospects for early integration into a
stable and permanent home." (Emphasis added.) This necessarily requires
consideration of the specific parent-child relationship, rather than just the parent's
deficiencies.
Thus, considering the statutory language in context, it appears that the
legislature did not intend for parental unfitness to be considered in isolation, as
J.M. contends. Rather, the totality of the parent-child relationship is already part of
the unfitness inquiry.
2. Courts already consider the specific parent-child relationship when
determining unfitness
Case law also demonstrates that in appropriate circumstances, courts will
look beyond the existence of general parental deficiencies when making unfitness
determinations to consider whether the parent is able to provide for the specific
child's basic, individual needs. In Aschauer, 93 Wn.2d at 693, for example, we
10
Amici advocate for the position that where continuation of a parent-child relationship
would be significantly detrimental to the child's social and emotional development, "that fact is
and should be deemed a parental deficiency under the statute at the time of trial." Br. of Amici
Curiae CCYJ at 10. Whether the circumstances are characterized as a "parental deficienc[y]"
pursuant to RCW 13.34.180(l)(d) or a "condition[]" pursuant to RCW 13.34.180(1)(e), our case
law is consistent with the proposition that the focus of the inquiry should be determining if the
nature of the parent-child relationship constitutes a barrier to reunification. See C.S., 168 Wn.2d
at 56 n.3.
27
In re Parental Rights to K.MM, No. 91757-4
upheld a termination order, finding that "[t]he record is replete with evidence that
the persons who had the care and custody of the children from the time oftheir
infancy had not had the ability to meet their physical and emotional needs."
(Emphasis added.) Although the "the parents did their best to care for the
children," the evidence demonstrated that "both parents were incapable of giving
them the care that they needed." !d. at 694. This conclusion was not based solely
on a general parental deficiency, but on the specific context of the parent-child
relationship at issue in that case. The mother was unable to cope with her own
serious mental health condition, let alone the needs of two children with severe
physical, emotional, and social developmental delays. !d. In light of that specific
context, we held that "[t]he mother, while she undoubtedly loves the children also
and desires to have them with her, has been found, upon substantial evidence, to be
likewise incapable of nurturing them." !d. The analysis in Aschauer
demonstrates that the proper inquiry is whether the parent is able to provide care
for the child actually involved, not merely whether parental deficiencies exist in
the abstract.
Similarly, the Court of Appeals has held that the fact that a parental
deficiency exists is not necessarily sufficient to show unfitness. For example,
Division One stated that "mental illness is not, in and of itself, proof that a parent
is unfit or incapable. The court must examine the relationship between the mental
28
In re Parental Rights to K.MM, No. 91757-4
condition and parenting ability." In re Dependency ofT.L.G., 126 Wn. App. 181,
203, 108 P.3d 156 (2005). In other words, the deficiency must affect a parent's
ability to adequately care for a child. Along the same lines, Division Three
observed that "[t]he court considers behavior manifesting mental illness within the
totality of the circumstances" when determining whether a parent is unfit. HS., 94
Wn. App. at 528 (citing In re Welfare ofHauser, 15 Wn. App. 231, 235, 548 P.2d
333 (1976)). The court further stated that "[a] child should not be left in the
custody of a parent whose mental illness renders the parent unable to understand or
meet the needs of the child." Id. (citing In re Welfare ofFrederiksen, 25 Wn. App.
726, 733,610 P.2d 371 (1979)). These cases demonstrate that unfitness is not
coextensive with the existence of a parental deficiency. A deficiency rises to the
level of parental unfitness when it interferes with the parent's ability to provide for
the child's basic health, safety, and well-being.
An unfitness inquiry that extends beyond the existence of parental
deficiencies to consider the specific parent-child relationship at issue is also
consistent with how "unfitness" is examined in the context of other sections of
chapter 13.34 RCW. With regard to nonparental custody petitions, we have
previously stated that "[a]n unfit parent generally cannot meet a child's basic needs
and, in such cases, the State is justified in removing the child from the home and,
in certain cases, permanently terminating parental rights." In re Custody of
29
In re Parental Rights to K.MM, No. 91757-4
Shields, 157 Wn.2d 126, 142, 136 P.3d 117 (2006). We echoed this same
conception of "unfitness" more recently in In re Custody ofB. MI-l., 179 Wn.2d
224, 236, 315 P.3d 470 (2013) ("A parent is unfit if he or she cannot meet a child's
basic needs."). And in dependency cases, we have recognized that a showing of
parental deficiency is not the same as proving parental unfitness. Schermer, 161
Wn.2d at 943 (citing In re Welfare ofKey, 119 Wn.2d 600, 609, 836 P.2d 200(1992)).
These cases support the argument that the mere existence of a parental
deficiency does not necessarily determine whether a parent is currently unfit.
Conversely, we reject the argument that remedying general parental deficiencies is
dispositive in determining whether a parent is currently unfit to parent a particular
child. The proper inquiry is whether the existing parental deficiencies, or other
conditions, prevent the parent from providing for the child's basic health, welfare,
and safety. See In re Welfare ofA.B., 181 Wn. App. 45, 61,323 P.3d 1062 (2014).
Not all children have the same basic needs; a child with attention deficit disorder,
for example, will have needs that are specific to managing that disorder. See C.S.,
168 Wn.2d at 55. Thus, in order to determine whether a parent is a fit parent to a
30
In re Parental Rights to K.MM, No. 91757-4
particular child, the court must determine that the parent is able to meet that
child's basic needs. 11
Applying the foregoing analysis to the facts at hand, there is substantial
evidence to support the trial court's conclusion that J.M. was unable to parent
K.M.M. The trial court correctly determined that the Department had discharged
its statutory obligations under RCW 13.34.180(1). Despite receiving all necessary
available services, J.M. remains unable to parent K.M.M. due to a lack of
attachment. There is no evidence that any additional services would remedy this
condition within K.M.M. 's foreseeable future. The totality of these circumstances
is sufficient to support a finding of current parental unfitness. 12
11 Like J.M., amicus King County Department of Public Defense asks us to look at a
parent's deficiencies in a vacuum when determining parental unfitness. Br. of Amicus Curiae
King County Dep't of Pub. Def. at 4 ("the parental unfitness inquiry must focus on the parent
and not on the child"). The unfitness inquiry is not as rigid as the briefing contends. More to the
point, we do not hold that the best interests of the child should be able to overcome a parent's
constitutionally protected rights-the case law is clear on this point. However, the particular
facts of this case illustrate why an unfitness inquiry that fails to look at the specific parent-child
relationship may not only be unfair, but could result in harm to the child. Reducing termination
proceedings to a simple matter of parental rights versus the best interests of the child ignores the
fact that the rights of both sides are, more often than not, interrelated in complicated ways that
require individual and specific consideration.
12
As required by RCW 13 .34.190(1 )(b), the trial court concluded that termination was in
K.M.M.'s best interests. There is substantial evidence to support the trial court's conclusion.
Because J.M. did not assign error to this conclusion on appeal, we do not address this issue
further.
31
In re Parental Rights to K.MM, No. 91757-4
CONCLUSION
A court's decision to terminate parental rights is rarely ever an easy one to
make. "Courts are always reluctant to deprive parents of rights with respect to
their children, and it is particularly sad when the parent cares for the child and
desires to be a good parent, as appears to be the case here." Aschauer, 93 Wn.2d at
695. J.M. 's efforts to correct his parental deficiencies and retain his parental rights
are commendable, but "the court may not accommodate the parents' rights when to
do so would ignore the basic needs of the child." HS., 94 Wn. App. at 530.
Unfortunately, as the trial court here observed, "no one had a crystal ball in
this case." CP at 107. No one could have foreseen how the confluence of events
would lead to K.M.M. 's complete detachment from her father. The sad fact
remains that his daughter no longer feels a bond of attachment to him, nothing
could have been done at the time of trial to repair the severed parent-child bond,
and any efforts to do so would cause actual harm to K.M.M.
The alternative to termination is not placing K.M.M. back in her father's
custody, but the continuation of her dependency, which has already spanned almost
seven years. The mental health experts and social workers who know K.M.M. best
all testified unequivocally that a continued lack of stability and permanence would
likely cause serious delays in her development. To borrow sentiments from the
32
In re Parental Rights to K.MM, No. 91757-4
Court of Appeals, "No child should languish for years in foster care. [K.M.M.]
should be freed to move on with her life." H.S., 94 Wn. App. at 530.
Based on the totality of the circumstances presented by the particular facts in
this case, we affirm the Court of Appeals.
33
In re Parental Rights to K.MM, No. 91757-4
WE CONCUR:
34
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
No. 91757-4
FAIRHURST, J. (concurring)--Before a parent's fundamental rights can be
terminated, the Department of Social and Health Services (Department) has the
burden to prove by clear, cogent, and convincing evidence that "all necessary
services, reasonably available, capable of correcting the parental deficiencies within
the foreseeable future have been expressly and understandably offered or provided."
RCW 13.34.180(l)(d), .190(l)(a)(i). The Department has failed to offer or provide
certain services that were "'needed to address a condition that precludes
reunification of the parent and child"'-namely, services designed to address the
failing attachment bond between the father, J.M., and his daughter, K.M.M. Majority
at 12 (quoting In re Dependency of A.MM, 182 Wn. App. 776, 793,332 P.3d 500(2014) (citing In re Welfare ofC.S., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010))).
The trial court acknowledged that J.M. never received certain necessary
services, finding that "[a]ll services reasonably available, capable of correcting the
parental deficiencies within the foreseeable future, have been offered or provided to
the father with the exception of reunification services." Clerk's Papers (CP) at 107
(emphasis added). Based on the record and the trial court's findings, the
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
Department's failure to provide such services contributed to K.M.M. 's detachment
from her father: "In 2011, the relationship between [K.M.M.] and her father was at
a critical juncture and the provision of reunification therapy at that time may have
prevented her from extinguishing her attachment to her father." CP at 108.
But instead of providing the opportunity for J.M. to repair this relationship
with relevant services, the Department worked on K.M.M. 's attachment issues
through her individual therapy, which her foster parents were invited to participate
in. Ultimately, K.M.M. refused to engage with her biological family and instead
identified only with her foster parents, which "severed" the "parent child
relationship" and "attachment bond" between J.M. and K.M.M. CP at 108; see also
CP at 127-28 ("[T]he tenuousness of her attachment to her father during that time
period was more easily extinguished because she was working hard on facilitating
attachments with adults, who happen to be her foster parents.").
Despite J.M.'s need for reunification services (particularly regarding
attachment and bonding) during a critical point in K.M.M.'s dependency, the trial
court concluded that the Department met its burden under RCW 13.34.180(1)(d)
because, by the time of the termination proceedings, K.M.M. 's detachment from her
father had exacerbated to the point that additional services could not remedy their
relationship, at least not without severely harming K.M.M. The majority upholds
this decision.
2
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
I write separately because I am concerned that this emphasis on the
harmfulness of reunification therapy and services at the time of the termination trial
allows the Department to avoid its statutory duty to provide services at a time when
they would be most helpful to promoting family reunification, then terminate
parental rights based on circumstances that may have been avoided had the
Department timely fulfilled its duty to provide services.
The majority holds that attachment and bonding services were not "necessary
services" under RCW 13.34.180(l)(d) because it would be futile for the Department
to offer them. Majority at 16. The majority focuses on three major reasons to support
its conclusion of futility. First, the majority asserts that K.M.M.'s detachment from
her father was so severe by the time of the termination trial that no further services
could remedy that relationship, at least not without harming K.M.M. I d. Second, the
majority claims that J.M.'s lack of empathy toward K.M.M.'s needs rendered
additional services futile. Id. at 17. Third, the majority points to J.M.'s mental health
issues as evidence that "attachment and bonding therapy would be ineffective." Id.
at 19. I cannot agree that these rationales support a finding of futility given the
Department's failure to even offer attachment and bonding services and considering
J .M.' s willingness and demonstrated completion of all other necessary services.
3
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
1. Timeliness of reunification services
It is undisputed that K.M.M. had special needs involving her attachment to
adults and that J.M. was never offered any sort of attachment and bonding services
that would allow him to adequately respond to those needs. The majority admits that
J.M. was willing to participate in such services, but claims that it is simply too late
now. By jumping so quickly to a conclusion offutility, the majority fails to take into
account significant factors, such as J.M. 's willingness and ability to complete all
services, the crucial need for such services during the dependency, and the effect
that the Department's failure to offer those services had on K.M.M.'s detachment
from her father. The majority also seems to expand the scope of the judicially created
futility doctrine.
The trial court repeatedly emphasized that its decision to terminate parental
rights had nothing to do with J.M.'s parental deficiencies. CP at 108 ("[i]t is not due
to parental deficiencies" that K.M.M. would no longer engage with her biological
family; "[t]hrough no fault of the father, [K.M.M.] had taken the strong position that
she did not want to engage in visitation"), 109 ("The lack of the attachment bond is
not due to any of [J.M.]'s parental deficits. [J.M.]'s parental deficits have been
corrected. The father here has successfully participated in the court ordered
rehabilitative services and has remedied these individual parental deficits.").
According to the trial court, "The record is replete with the father's willingness to
4
In re Parental Rights to K.MM., No. 91757-4
Fairhurst, J. (concurring)
enter into, to attend, make progress in, and complete all of the services that were
offered to him by the State." CP at 120. The trial court also concluded that J.M. was
an "appropriate parent" to his other daughter. CP at 109, 133.
J.M. worked hard to complete all of the services the Department offered, and
he remedied all of his parental deficiencies, yet ultimately his parental rights were
still terminated without the Department ever offering him necessary attachment and
bonding services. Given J.M.'s positive history of completing all services, the
Department cannot now claim that attachment and bonding training would be futile
when it did not even attempt offering him that sort of therapy. The majority's
conclusion that additional services would be futile disregards essential aspects of our
futility doctrine and creates a new exception.
The majority's own definition of"futile" states, "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." Majority at 16 (emphasis added). Based
on this definition, a service cannot be futile when the Department has never even
offered it. Similarly, in B.P. we noted that the futility mle "derives from cases in
which the State made repeated offers of services but eventually gave up after the
parent refused to accept any of those offers." In re Parental Rights to B.P., _
Wn.2d _ , 376 P.3d 350, 362 n.5 (2016). In that case, we reversed a termination
order lmder RCW 13.34.180(l)(d) for failing to provide necessary attachment and
5
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
bonding services. We noted that such services would not be futile where the parent
had "accepted every offer of services and did exceptionally well" in the limited
services that the Department did provide to address the parent's relationship with the
child. Id.Based on these definitions of "futility," I cannot say that attachment and
bonding services would be futile in this case given J.M.'s dedication to all other
services offered and the Department's undisputed failure to ever offer such services,
especially during a time period that the trial court identified as "critical" to saving
the parent-child relationship. CP at 108, 118, 127, 134.
Notably, the Department's failure to timely provide attachment and bonding
services contributed to K.M.M.'s detachment from her father. Although K.M.M.
expressed a desire to be adopted and that she no longer wanted to see her biological
parents at a time when visits and services with her parents were still ongoing,
K.M.M.'s counselor failed to advise the Department about these sentiments or to
explore possible need for attachment or reunification services for the biological
parents. CP at 126. The trial court's written findings explain that the Department
offered services for K.M.M. to develop secure attachments to adults, but then she
ultimately attached only to her foster parents and severed her relationship with her
biological parents. CP at 107-08.
6
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
As the trial court's oral ruling explains more fully, the Department's failure
to offer reunification therapy for J.M., particularly considering K.M.M.'s individual
therapy that encouraged attachments to her foster parents, directly impacted
K.M.M.'s detachment from J.M. See CP at 129 (K.M.M.'s refusal to visit her
biological parents "is a circumstance ... or a combination ... of a lapse of time, not
striking while the iron was hot, in terms of getting reunification therapy started in
2011 [,] ... and the focus of all of the therapy, which was to facilitate [K.M.M.] to
shore up and encourage her to form secure attachments with adults."), 134 ("[T]here
was a failure to provide reunification therapy at a critical juncture[;] ... because
there was that failure, [K.M.M.] was allowed to form a strong attachment bond with
her foster parents such that ... that relationship between her dad and her cannot now
be repaired without great harm being caused to [K.M.M.]."), 134-35 ("The
relationship is not due to a parental deficiency today. It is due, as I said, to that earlier
moment in time, which was missed in terms of the ability for [K.M.M.] and her dad
to reunify."); see also CP at 118 (the critical services "capable of correcting the
parental deficiencies within a foreseeable future were not provided at a time when
those deficiencies or those problems could have been corrected").
I am deeply troubled that the Department's failure to provide necessary
attachment and bonding services in a timely manner appears to be the main reason
that reunification is no longer available between this parent and his child. In contrast
7
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
to the cases in which the Department has offered services but the parent refuses to
take advantage of them, there are no such grounds for a finding of futility here. 1
2. Empathy
The second reason the majority claims that attachment and bonding services
would be futile involves J .M. 's supposed "lack of empathy for K.M.M. 's needs."
Majority 17. However, the examples cited by the majority point more to J.M.'s lack
of understanding of K.M.M. 's unique needs and how he should respond to them.
This is exactly why additional services are necessary, not a reason to claim that they
would be futile. See 1 Verbatim Report ofProceedings (VRP) (Oct. 29, 2013) at 112
(explaining that family therapy can help a parent to meet the child's emotional
needs). From the record, it appears that understanding K.M.M.' s specialized needs
was a prerequisite for any adult hoping to establish a parental bond with her. See 1
VRP at 67. As we stated in C.S., "When a 'condition' precludes reunion of parent
and child, as here, regardless of whether it can be labeled a 'parental deficiency,' the
1
See, e.g., In re Welfare ofAschauer, 93 Wn.2d 689, 699 n.6, 611 P.2d 1245 (1980) (stating
that offering services would be futile because "the mother was unwilling to move from Portland,
and thus the department could not effectively offer her services"); In re Welfare ofHall, 99 Wn.2d
842, 850, 664 P.2d 1245 (1983) ("This is not a case where a parent refused services or referrals
which were actually offered." (citing In re Jones, 436 N.E.2d 849, 853-54 (Ind. App. 1982))); In
re Welfare ofMR.H, 145 Wn. App. 10, 26, 188 P.3d 510 (2008) (finding services futile "[w]here
the Department offers services but the parent refuses to participate").
8
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
State must provide any necessary services to address that condition as set forth in
RCW 13.34.180(1)(d)." 168 Wn.2d at 56 n.3; accord B.P., 376 P.3d at 361.
I find it notable that the Department offered K.M.M.'s foster parents some
sessions on "how to meet her needs" and "attachment," but J .M. did not receive such
services. See 1 VRP at 99-101. I agree with the majority that the Department is not
necessarily obligated to provide biological parents with services that are "identical"
to those provided to foster parents. Majority at 22. However, in C.S., a case that is
in many ways analogous to the one at issue, we reasoned that when the Department
recognizes that certain available services are necessary and capable of remedying
the very deficiency that is preventing reunification and the Department fails to offer
those services to the biological parent when the same services have been offered to
the foster parent, termination is improper. 168 Wn.2d at 55-56.
In that case, the child, C.S., was diagnosed with attention deficit hyperactivity
disorder, oppositional defiant disorder, obsessive-compulsive disorder, and sensory
integration disorder, all of which made it difficult for adults to manage C.S.'s
behavior at times. !d. at 55. The foster mother faced various difficulties in controlling
C.S. until the Department placed C.S. on medication and provided the foster mother
with training on how to effectively manage C.S. Id. at 55-56. The combination of
medication and proper training proved successful. Id. at 56. Although C.S.'s
biological mother had remedied the underlying parental deficiencies that justified
9
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
the dependency, the Department did not offer her the same services because it
believed the services would be futile. I d. at 56 n.2. The trial court acknowledged that
the biological mother had remedied her parental deficiencies but nevertheless
terminated the biological mother's parental rights, finding that she "lacked 'the
patience, presence of mind, skills, experience, time in a day, and availability to care
for [C.S.]-given his special needs,' and these conditions showed there was little
likelihood C.S. could be returned to [his biological mother] in the near future." Jd.
at 55. We reversed, holding that because medication and training were necessary to
address C.S.'s behavioral problems regardless of who was caring for him, and
because the training was not offered to his biological mother, RCW 13.34.180(1)(d)
had not been met and termination was improper. Jd. at 56. The fact that the
Department provided training for his foster parent and medication for C.S. in order
to control C.S.'s behavior indicated that proper services were not only available, but
that they were necessary in order to permit any adult to care for C.S. and his special
needs.
Like the mother in C.S., J.M. completed every offered service and remedied
each parental deficiency underlying the initial dependency and termination. CP at
109. Importantly, according to K.M.M. 's therapist's testimony, the attachment and
bonding services that K.M.M. received and her foster parents were able to participate
in were essential for K.M.M. to form healthy attachments to adults and for her foster
10
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
parents to be able to understand and address K.M.M.'s behavior. 1 VRP at 67-68,
106; see also CP at 107. In other words, attachment and bonding services were
required in order to address K.M.M. 's unique issues, and therefore should have been
deemed "necessary" under RCW 13.34.180(1)(d). As in C.S., the fact that certain
services (here, attachment and bonding services) were available to K.M.M. 's foster
parents and proved successful in addressing K.M.M.' s behavioral and attachment
issues indicates that such services were not only available to J.M., but that the
services may have been successful had they been timely provided to J.M. Unlike the
majority, I do not blame J.M.'s misunderstanding of his daughter's needs on his lack
of empathy, but rather on the Department's failure to provide training and services
for J.M. to understand and address her unique needs.
3. Mental health
Finally, the majority suggests that it would have been futile for the
Department to offer additional services because J.M. failed to complete mental
health treatment. However, this conclusion is directly contradicted by the trial
court's findings. Although the trial court acknowledged J.M. may have had some
mental health issues, the court found that his mental health needs and treatment were
wholly distinct from his parenting capabilities. CP at 107, 121-24, 132. In addition,
the trial court repeatedly emphasized that J.M. completed all services offered that
were relevant to his parental deficiencies. CP at 109, 120. Substantial evidence in
11
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
the record supports these findings. Given the unrelatedness of J.M.'s mental health
and his successful track record in all relevant services, I would not find the provision
of additional services futile. See C.S., 168 Wn.2d at 56 (disavowing the
Department's argument that additional services would be futile when biological
mother had complied with all offered services, remedied underlying parental
deficiencies, and was not offered services that could have permitted reunification).
4. Conclusion
I cannot agree that the Department fulfilled its burden of providing necessary
services under RCW 13.34.180(1)(d) by showing that additional services would be
futile due to J.M.'s empathy or mental health issues. Despite all efforts on J.M.'s
part, the court has terminated parental rights because the severed parent-child
relationship between K.M.M and J.M. is now beyond repair. I am very concerned
that K.M.M.'s detachment from her father was exacerbated by the Department's
failure to provide necessary services in a timely manner.
However, I recognize that under the express terms ofRCW 13.34.180(1)(d),
necessary services must be "capable of correcting parental deficiencies within the
foreseeable future." (Emphasis added.) At the termination proceeding, testimony
from the mental health experts and other witnesses consistently agreed that the lack
of attachment between J .M. and K.M.M. was so severe that there were no longer any
services available that could promote reunification. See CP at 108 (noting the
12
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
"severed" parent-child attachment bond and stating, "Everyone has agreed and
testified that there is no reasonable probability that reunification therapy, or any
other kind of therapy, can remedy this situation within the foreseeable future").
Based on the language of RCW 13.34.180(1)(d), which requires "necessary
services" to be capable of remedying deficiencies "within the foreseeable future,"
coupled with the consistent agreement that no services could repair the attachment
bond once it was severed, I must reluctantly affirm the termination order. Despite
the Department's failure to provide essential services at a time when they could have
helped promote reunification, I cannot ignore the legislature's choice to include the
term "within the foreseeable future" with its definition of "necessary services" and
the reality that there are no longer any services that could correct the severed parent-
child bond. Therefore, I must ultimately concur in the majority's decision to affirm
the termination order, but not without emphasizing J.M.'s commendable efforts in
attempting reunification and expressing my frustration and disappointment with the
Department's failure to provide essential reunification and attachment services at a
time when they may have preserved and strengthened the now failed bond between
K.M.M. and J.M.
13
In re Parental Rights to K.MM, No. 91757-4
Fairhurst, J. (concurring)
14