In re Welfare of B.P. ( 2016 )

Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Parental Rights to B.P.
NO. 91925-9
(DOB 7/8/11)
STATE OF WASHINGTON, ENBANC
DEPARTMENT OF SOCIAL &
HEALTH SERVICES, JU_L_2_8_20_16_
Filed _ _
Respondent,
v.
H.O. (Mother),
Petitioner.
GORDON McCLOUD, I.-Petitioner H.O. asks us to reverse the Court of
Appeals' decision affirming the termination of her parental rights. She argues that
the State failed to prove two prerequisites to termination, one statutory and one
constitutional. The statutory prerequisite is codified at RCW 13.34.180(1)(d); it
requires the State to prove that it has offered and provided "all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future." The constitutional prerequisite is a finding (express or implied)
of parental unfitness. We agree with H.O. that the State failed to prove the first
No. 91925-9
prerequisite by the necessary evidentiary standard (clear, cogent, and convincing
evidence). We therefore reverse the Court of Appeals and reverse the order
terminating H.O. 's parental rights. 1
ISSUE PRESENTED
The mother in this case, H.O., suffered from drug addiction, depression and
other mental health issues, and the effects of long term childhood trauma. The child
in this case, B.P., suffered as well: she was born addicted to methamphetamine,
endured withdrawal, was abandoned by H.O. during infancy, and experienced
multiple disruptions when forming attachments with H.O. and various foster
parents. On the other hand, after several tries, I--I.O. achieved sobriety; benefited
from treatment in a structured environment; and became an attentive and caring
mother to another child, A., in that structured environment. She also engaged in
partially supervised, therapeutic visitation with B.P., and the two began to form what
witnesses at the termination hearing called a social relationship with an emerging
emotional attachment.
----!h168 Wn.2d 51,225 P.3d 953 (2010), and In re Termination ofS.J,
162 Wn. App. 873, 256 P.3d 470 (2011), in Part 1 below. Because we adhere to the
holdings of C.S. and S.J, we reverse the decision of the Court of Appeals.
FACTS
1. Dependency proceedings
Petitioner H.O. gave birth to B.P. on July 8, 2011. Because H.O. was a
methamphetamine user throughout her pregnancy, B.P. was born addicted and the
hospital placed a "hold" on her. Clerk's Papers (CP) at 180. B.P. was released into
foster care July 13, 2011. In August 2011, an order of dependency was entered for
B.P. That order and subsequent review orders required H.O. to complete random
urinalysis (UA) testing, mental health treatment, chemical dependency evaluation
and treatment, hands-on parenting training, therapeutic visitation, and family
therapy. H.O. participated in mental health counseling and parenting services, and,
in September 2011, B.P. was placed with her at Isabella House, a six-month
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No. 91925-9
residential chemical dependency program. Isabella House is a highly structured
program: residents follow a regular schedule of chores, group therapy, exercise, and
educational classes. Isabella House provides child care while residents participate
in these activities. Residents of Isabella House follow a curfew, must sign in and
out when they leave the facility, and must get permission to visit with any outsiders.
H.O. successfully completed treatment at Isabella House in January 2012 and moved
into the organization's "[t]ransition [h]ouse" located next door. CP at 182. The
transition house required residents to submit to UAs, observe a curfew, and
participate in outpatient treatment and self-help groups.
H.O. relapsed, and B.P. was again removed from her care in July 2012, when
B.P. was one year old. H.O. was allowed visitation with B.P. immediately upon her
removal, but H.O. frequently arrived high for visits or missed them altogether. The
dependency court suspended visitation in October 2012 after H.O. missed 10
scheduled visits and B.P. began displaying aggression and disorganized behavior
toward H.O. during the visits she did attend. The court ordered that visitation would
not resume unless H.O. obtained another court order reinstating visits. In November
2012, B.P. was placed into her fourth and final foster home, with her paternal aunt
and uncle. B.P. did well in this placement, but when there was a change in her
routine she showed significant distress. She displayed "disorganized" attachment
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No. 91925-9
behavior and was unable to regulate her emotions. 2 Verbatim Report of
Proceedings (RP) at 161 (Feb. 11, 2014).
H.O. became pregnant again in the fall of 2012 and continued to use
methamphetamine for most of the pregnancy. The Department filed a petition to
terminate H.O.'s parental rights to B.P. When she was eight months pregnant,
however, in May 2013, H.O. returned to Isabella House. H.O. gave birth to A. in
June 2013, and the Department agreed to an in-home dependency so that A. could
remain with H.O. at Isabella House. H.O. remained sober through the time of trial
in this case, and A. has never been removed from her care.
In August 2013, H.O. obtained a court order provisionally reinstating
visitation with B.P. The order granted her "1 visit in [a] therapeutic setting" and
provided that "[a]ny additional visits shall be based upon [the] therapist's [r]eport."
Ex. P-11, at 3. In August 2013, H.O. and B.P. had a visit supervised by Lori Eastep,
a family therapist. At that point, the termination trial was set for September 16,
2013. Eastep reported that the visit went well, but she found it "contraindicated to
begin visitation ifthe Department is moving toward termination," and recommended
at that time that visitation continue only if the State did not intend to seek
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No. 91925-9
termination. 2 1 RP at 64 (Feb. 10, 2014). On August 28,2013, the trial court denied
further visitation because the case was proceeding toward termination.
On September 13, 2013, however, the trial court reversed that order and
continued the termination hearing four months, until January 13, 2014. That
continuation order stated, in relevant part:
2.1 The parties have shown good cause for a continuance of the
termination hearing scheduled for September 16, at 9:00a.m., in that:
the parties agree that the mother needs to have some visitation in order
to determine if the parent child relationship can be repaired.
The parties agree that the trial should be continued to the first
available date in January 2014.
Despite the court order entered on August 28, 2013, the mother
should begin to have weekly therapeutic contact with the child. A
parenting assessment should also be scheduled for sometime in
November 2013. After the assessment is completed, the parties should
hold a staffing to assess the current case plan.
CP at 66 (emphasis added).
As a result of this new order, H.O. had 22 two-hour visits with B.P. between
October 2013 and February 2014, all supervised by Eastep. By November 2013, the
supervised visits occurred twice a week, consistent with the trial court's order. By
2 1 RP at 65 (Feb. 10, 2014) ("[i]fvisitation is only to satisfy a service requirement,
it would be detrimental to [B.P.]'s emotional stability and create placement instability and
possible upset and would not be in the best interest of [B.P.]").
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No. 91925-9
December, Eastep decreased supervision to once a week because H.O. was handling
the visits well on her own.
H.O. also progressed m treatment during this time. She successfully
completed her treatment program at Isabella House in December 2013 and moved
into transitional housing. During her treatment at Isabella House, I-I.O. committed
only one violation of house rules: she accepted a ride from B.P. 's foster father. This
violation resulted in I-I.O. 's spending an additional six weeks at Isabella House, but
I-I.O. self-reported it and continued to test clean afterward.
She therefore moved to continue the termination trial on December 6, 2013.
She filed a declaration explaining that she had not yet had sufficient visitation with
B.P. and was still seeking stable housing.
Of most relevance to this appeal, I-I.O. 's declaration stated:
At this time I feel that I have not had enough one on one time
with [B.P.] .... [W]hile I understand that [B.P.] could come to [my
current transitional housing] and live there with me[,] if I am going to
be moving to a more permanent home[] then I think that is where her
transition should occur. I think it would be difficult for her to come
home to me and then move to a different home. I want to do a transition
in a thoughtful and careful manner. I want to be in a stable place so
that I can focus on [B.P.] and her needs as she transitions to my care.
I know that a transition to my care is going to be difficult for
[B.P.] I know that I let her down in the past, but I am doing everything
that I can to make that right for her. I missed out on a lot of time with
her. A lot of that is my responsibility, but there is also some that is the
Department's responsibility. At a recent shared planning meeting, our
therapist Lori Eastep stated that [B.P.] would not attach to me unless
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No. 91925-9
she was forced to do it. My understanding of that is that if she were
moved to my care and had to depend on me then she would start
attaching to me. I have also learned, at my family therapy appointment
on December 10, 2013 that the foster parents are doing family
preservation services with [B.P.] because they have started detaching
from her. This is very distressing to me. At this point I feel that I just
need a bit more one on one time with [B.P.] and a more stable home for
my daughter to which my daughter can come home.
CP at 81-82 (emphasis added).
In response to H.O. 's report that she discovered the Department was providing
family preservation services to the foster parents, but not to H.O., Marcey Monahan,
the social worker assigned to B.P. 's dependency, filed a declaration. Monahan
denied that B.P. had ever started to detach from her foster parents, but acknowledged
that an attachment therapist had been working with the foster family. She explained
that this was necessary because "[B.P.]'s ability to form a healthy attachment has
been compromised by her mother's relapse and subsequent removal from her care,
especially given the important developmental age when this occurred." CP at 90.
At the time of the final dependency review hearing on December 18, 2013,
H.O. was compliant with all ordered services and the court ordered her to continue
family therapy with Eastep. At the termination hearing, however, Eastep testified
that she never provided "family therapy" for H.O.; she instead provided only what
she called "therapeutic visits." 1 RP at 67 (Feb. 10, 2014). These were aimed at
helping I-I.O. identify B.P.'s "cues and boundaries" and allowing Eastep to assess
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No. 91925-9
"[B.P.]'s social/emotional relationship with [H.O.] and her sibling, [A.]." !d. Eastep
distinguished these aspects of the therapeutic visits from "family therapy" and
"bonding and attachment work" and testified that she was not a "certified attachment
person." !d. at 94-95. She also testified that "when you have a young child, you
don't ever really do family therapy," but instead help the parent "process[] external
... and internal factors." !d. at 100.
At the time of the termination hearing, H.O. was living in a transitional
housing facility with a curfew, random UAs, weekly chore assignments, and various
other rules. She had been living there for a little over two months.
2. Termination trial
Eleven witnesses testified at the termination trial in February 2014, 9 for the
State. I--I.O. and her case manager in the transitional facility testified for I--I.O. All
of the witnesses testified primarily about I--I.O.'s progress in addiction recovery and
B.P.'s potential for attachment with I--I.O. The State's theory was that I--I.O. was a fit
parent to A., but was unfit to parent B.P. due to B.P.'s potential for developing an
attachment disorder. According to the State, I--I.O. would need to be stable and "in
tune with her own emotions" in order to help B.P. grieve the detachment from her
foster parents and reattach to I--I.O. 3 RP at 407 (Feb. 20, 2014). The State
maintained that I--I.O. lacked these qualities, and it argued that B.P. needed
permanence immediately or her mental health would be "at great risk." !d. at 413.
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No. 91925-9
Overall, Eastep testified in positive terms about H.O.'s insight into the facts
that (1) she was a stranger to B.P. before visitation began and (2) B.P. would not
bond with her solely because she was B.P.'s biological mother. She praised H.O.
for preparing well for the visits and asking a lot of good questions about B.P.'s
behaviors and needs. She also testified that H.O. was "A[.]'s primary attachment
person" and that A. appeared to be "a very healthy, happy little girl." 1 RP at 70, 73
(Feb. 10, 2014).
Eastep's testimony about B.P.'s attachment was more ambiguous: she said
that although B.P. had an "emerging emotional connection" with H.O., B.P. did not
identify H.O. as her primary attachment person and might never do so. Id. at 75.
She said that over the four to five months she worked with H.O. and B.P., their
relationship had "moments where it ... improved," but was overall "a bit up and
down." Id. at 70. She testified that the research on infant attachment shows that it
tends to occur at 11 months, and that if a child attaches to another person, "it makes
it very difficult from an attachment strategy to change that without forcing it." Id.
at 71. She explained that no one can be sure which children will have the resilience
needed to repair a disrupted attachment with an adult. She opined that it generally
takes "hundreds and sometimes thousands of contacts for children to establish a
secure attachment," and likened it to the process of a child becoming comfortable
with a babysitter over the course of a year or two. I d. at 77-79. She also explained
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No. 91925-9
that in order for B.P. to form an attachment to H.O., she would need to sever her
attachment to her foster parents. Finally, Eastep explained that when children return
home from a foster home where they have formed an attachment, therapists usually
recommend ongoing contact with the foster family to help the child handle the
transition. 3
When asked whether B.P. would be able to return to H.O.'s care in the near
future, Eastep responded that it was not a "yes/no question." I d. at 84. She said that
the State would be taking a "calculated risk" by placing B.P. with H.O. because H.O.
had not demonstrated the ability to parent a child older than A. and did not have a
long track record of sobriety. Ultimately, she recommended a guardianship, in
which B.P. would remain with her foster family but H.O. would retain her parental
rights. Other parts of her testimony indicate that H.O. 's treating professionals
viewed the supervised visits as preparation for B.P.'s possible, eventual return to
H.O.'s care. E.g., id. at 96 (testifying that H.O.'s individual therapist and counselor
encouraged H.O. to bring A. to every supervised visit "because [H.O.] would be
parenting both if [B.P.] were to go home").
3
Eastep also testified that she had counseled H.O. to increase her contact with the
foster family prior to the termination hearing, so that B .P. could "see them all together
functioning that way." 1 RP (Feb. 10, 2014) at 78. In response to this advice, H.O. set up
regular playdates with B.P. and her foster parents, prior to the termination hearing, and
sought Eastep's advice on how to improve their relationship.
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No. 91925-9
On cross-examination, Eastep acknowledged that she is not certified in
attachment work but that evidence-based attachment work is offered in Spokane,
where H.O. and B.P.lived.
Carol Thomas, a child therapist and evaluator, testified at length about
attachment theory and the consequences of failing to form a secure attachment in
infancy. She explained that B.P. had experienced multiple disruptions just as she
was forming attachments to H.O. and to various foster parents, and that when a child
suffers too many disrupted attachments, that child may "detach completely" and stop
trying to connect emotionally or socially. Id. at 115. She also testified that she
conducted a parenting assessment with H.O., B.P., and A. in November 2013 and
determined that B.P. was developing a social relationship with H.O., which lacked
any characteristics of an attachment. She said that H.O. "did well" managing both
children and responding to their cues. Id. at 128. She opined that ending contact
between B.P. and H.O. would have a minimal effect on B.P.'s well-being because
the two had only a social relationship. She also testified that ifB.P. were returned
to H.O. 'scare, she would be available to provide therapy to help H.O. address B.P. 's
disrupted attachment to her foster parents.
Sandra Gormon-Brown, H.O. 's individual therapist, testified that she was
helping H.O. address difficult childhood traumas that H.O. endured over a long
period of time. She stated that she had "very specific and intensive training in the
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No. 91925-9
field of attachment, pediatric trauma and grief," but was working only with H.O.,
not with H.O. in relation to B.P. or A. Id. at 150. Gormon-Brown did not believe
that H.O. had any mental health problems that would "impact her ability to have a
child that was removed from her care brought back into her care," but also said she
was unsure whether H.O. could be sufficiently emotionally available to B.P. to
reunify with her. Id. at 147. Gormon-Brown testified that she thought B.P. would
have more difficulty reuniting with H.O. than H.O. would have reunifying with B.P.
She opined that H.O. would need at least another six months of therapy to work
through her own trauma. Gormon-Brown acknowledged that H.O. was highly
motivated to succeed in therapy and that Gormon-Brown was available to do
attachment work with H. 0. and B .P. if H. 0. 's parental rights were not terminated.
Amanda Clemons, a therapist specializing in family therapy and attachment
services, testified that she had contracted with the Department to assist B .P.' s foster
family "in terms of attachment and ... meeting [B.P.]'s needs." 2 RP at 159 (Feb.
11, 2014). At the time Clemons testified (February 11, 2014), she had been
providing this assistance two to three times per month for about four months.
Clemons stated that B.P. generally exhibited a secure attachment to her foster
parents, but that during three of eight total sessions, B.P. demonstrated
"disorganized" attachment. Id. at 161. According to Clemons, this disorganized
behavior always corresponded to some change in B.P. 's routine, including visitation
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No. 91925-9
with H.O. She opined that this indicated B.P. had difficulty handling change, that
B.P. needed stability, and that this was attributable to the multiple caregiving
disruptions B.P. endured during the first months of her life. Clemons explained that
the "first three years are critical" for attachment. ld. at 162. She opined that B.P.
was at risk for developing an attachment disorder and that it would not be in B.P.' s
best interests to experience another disruption. Clemons testified that she could be
doing attachment work with H.O. and B.P., but had not received a referral to do such
work. ·She also testified that healthy attachments generally make it easier for
children to handle transitions, but that B.P.'s attachment to her foster parents was
"not very healthy based on the disruptions." Id. at 168-69. She also predicted that
the attachment work she had done with the foster parents would make it "even more
difficult" for B.P. to endure yet another disruption. ld. at 168.
B.P.'s and A.'s guardian ad litem, Karen Schweigert, testified that H.O. was
a remarkably attentive mother when B.P. was returned to her care at Isabella House
from fall2011 to spring 2012. Schweigert recalled that during this period H.O. was
able to get B.P. "onto a nursing-on-demand schedule, which took an unbelievable
amount of dedication and patience." I d. at 223. She also testified that B.P. appeared
more stressed and less happy when she and H.O. moved out oflsabella House and
into the less structured transitional housing, and that when H.O. relapsed and B.P.
was removed from her care, the change was "horrifying for this little girl." Id. at
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No. 91925-9
226. Schweigert described B.P. 's behavior since that time as changing from
"meltdowns," so serious that her caregivers suspected a medical cause, to "happy,
healthy" behavior that seems"[ d]evelopmentally ... on track." !d. at 228, 230. She
continued, however, that by December 2012, H.O. had stopped returning her calls,
making it difficult for Schweigert to schedule visits with H.O. and A., and that H.O.
had also started lying to her. She opined that H.O. was a "really good mother," but
only when she was sober and "under a microscope." Id. at 240. Schweigert stated
that she did not think H.O. was capable of putting B.P. 's needs above her own,
providing a consistent schedule for B.P., or reading B.P. 's emotional cues. She
opined that it was unlikely B.P. would be able to reattach to H.O., "especially
without significant trauma," but also admitted that she had not seen H.O. and B.P.
together since August 2013. Id. at 245. She also acknowledged that B.P. might
reattach to H.O. if she were returned to H.O. full time because "anything is possible."
Id. at 246.
Kolleen Seward, H.O. 's chemical dependency treatment counselor, testified
that H.O. began intensive outpatient drug treatment with Seward's organization,
Partners with Families and Children (Partners), in December 2013. She explained
that Partners requires participants in intensive outpatient treatment to come to three
group therapy sessions per week, one or two individual sessions per month, and two
outside support meetings per week. She stated that the purpose of the outside group
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No. 91925-9
requirement was to help participants build "clean and sober peer support
network[s]," and that participants can, if they choose, fulfill half of the requirement
by attending one church service per week. !d. at 172. The other group meeting must
be "something surrounding recovery." Id. at 176. She stated that H.O. had not
verified her participation in the outside group meetings, but also said she had no
current concerns about H.O.'s recovery.
Carla Paullin, who provided H.O. with weekly one-on-one chemical
dependency therapy from October 2011 until July 2012, testified to H.O.'s history
of childhood abuse, criminal activity and incarceration, failed relationships,
depression, and drug addiction. She testified that although she had not seen a
psychiatric evaluation of H.O., she felt H.O. had "personality disorder traits" and
"due to the time she'd spent incarcerated ... some antisocial stuff." !d. at 188-89,
194. She also opined that H.O. was "institutionalized" and that she did well in
Isabella House's highly structured environment but "f[e]ll apart" when she
graduated and moved to the less structured transition house. !d. at 191. Paullin
opined that someone with H.O.'s history of drug abuse would probably need two
years of structured "wrap-around" treatment therapy before she would "feel good"
about H.O.'s prospects for continued sobriety. Id. at 198. She also indicated that
that type of therapy was not available in Spokane. Paullin also opined that a support
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No. 91925-9
network would be crucial to H.O. 's sobriety outside a structured living situation.
Finally, Paullin admitted that she had not worked with H.O. since July 2012.
Marcey Monohan, the social worker assigned to monitor B.P.'s dependency,
testified that she was surprised to hear Eastep say she had not provided family
therapy for B.P. and H.O. Monohan said that the Department had used Eastep for
family therapy referrals in other cases and that Eastep's reports for H.O.'s case
indicated to Monohan that Eastep was providing what the Department regarded as
typical "family therapy." Jd. at 274. Monohan described A. as a happy and
expressive baby who was developmentally on track; she said that H.O. was patient
with B.P. during the visits that Monohan observed. But she also said that B.P. was
anxious and confused around H.O. during visits. Monohan opined that B.P. could
not be safely returned to H.O. 'scare at that time because H.O. 's substance abuse and
mental health were still concerns "in regards to her ability to be emotionally
available for a child like [B.P.]." Id. at 275. She said that she did not think H.O.
understood the nature of the trauma her relapse had caused B.P. She testified that
when she asked H.O. whether she had any insight into what the visitation process
was like for B.P., H.O said, '"I don't know how to answer that question. I don't
know what you want me to say."' Id. at 280. Monohan expressed concern that H.O.
had not verified her participation in all of the chemical dependency group work that
Partners required because a similar failure had preceded H.O.'s prior relapse. She
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No. 91925-9
said that H.O. would need to demonstrate 18 months to 2 years of sobriety before
Monahan would be comfortable that H.O. was in solid recovery. Finally, Monahan
opined that B.P. did not treat H.O. like a mother, that B.P. could not wait any longer
for permanent stability, and that H.O. 's legal parenthood was a barrier to that
stability. On cross-examination, Monahan admitted that she had not seen H.O. and
B.P. together since late December (about seven weeks before her testimony).
Paige Beerbohm, a licensed chemical dependency counselor employed at
Isabella House, testified that at the time of trial H.O. was in "early recovery" from
her addiction, meaning that she had not yet demonstrated an ability to sustain her
sobriety. 1 RP at 35 (Feb. 10, 2014). She said that she was not aware of any period
of time during B.P. 's life that H.O. was able to sustain sobriety in an unstructured
setting. But Beerbohm also testified that she had worked hard to create a better
treatment plan for H.O. during her second stay at Isabella House and that H.O.
appeared to be "much more open, ... willing, ... [and] honest" about treatment than
during her first stay. I d. at 43. Beerbohm said she did not have any current concerns
about H.O.'s sobriety.
Amber Eggert, H.O. 's case manager in the transitional housing facility where
H.O. lived at the time of trial, testified that H.O. was in compliance with all the
facility's rules.
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Finally, H.O. testified that she received different and much better treatment at
Isabella House during her second stay than she received during her first stay. She
also testified that she was approaching her treatment differently this time, with more
active engagement and dedication. She explained that she had attended every
outside group support meeting that Partners required, but had documented only half
the meetings because she was confused about whether one of the meetings she was
regularly attending counted as "church" or treatment. 3 RP at 367 (Feb. 13, 2014).
She said that she had cleared up the misunderstanding with her treatment provider.
H.O. continued that she had a strong support network of relatives, including
her father, and friends fi·om church. She described her relationship with B.P. as
improving as their visits continued. She said that she could not completely
understand what B.P. had experienced due to her relapse, but knew she had caused
hurt and confusion for B.P. H.O. believed that she could address B.P.'s problems
because she loved her, was committed to fixing their relationship, and knew that the
best place for B.P. was with her sister and mother. She acknowledged the testimony
regarding the risks that reunification posed for B.P. 's emotional development, but
testified that she thought "those were all things that could change if services like
attachment therapy had been something that [Ms. Clemons] had been working on
with me and not the foster family." Id. at 383.
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No. 91925-9
The trial court terminated H.O. 's parental rights to B.P. Of most significance
to this appeal, the trial court found that
all necessary services, reasonably available, capable of correcting
parental deficiencies within the foreseeable future have been offered or
provided including: chemical dependency inpatient treatment,
outpatient treatment, UA/[blood alcohol] monitoring, individual
counseling, parenting assessment, parenting services including family
preservation services and therapeutic visits with Ms. Eastep in part to
address the mother child relationship ....
. . . Ms. Eastep found that while [H.O.] demonstrated insight, ..
. she was a stranger to [B.P.] and that her absence created challenges.
[H.O.] maintained an adult perspective that [B.P.] would love her
because she loved [B.P.]. Ms. Eastep indicated this was not realistic ..
. . Ms. Eastep indicated [B.P.] would not form a healthy attachment to
[H.O.] without being forced. She also testified that forcing [B.P.] to do
this would significantly impact her mental health in a negative manner.
. . . The court was concerned about what attachment services
were offered to [H.O.] However ... [B.P.] was only at a social
relationship with [H.O.] at the time of trial, the emotional relationship
was just emerging. The court finds that the services necessary to build
the type of relationship necessary to meet [B.P .]' s needs would take one
year or more and that is too long .
. . . At the time of trial, [B.P.] was at risk of an attachment
disorder .
. . . The mother is currently unfit to parent [B.P.] ... [H.O.] is
responsible for the stops and starts in her parenting. · She does not
understand [B.P.]'s needs for permanency or the risk she faces if she
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No. 91925-9
develops an attachment disorder. [H.O.] cannot claim that because [A.]
is in her care, that she must be fit to parent. [B.P.]'s needs are different
and her attachment issues are the result of her mother's actions. [H.O]
has not demonstrated an ability to understand her own feelings, or those
of [B.P.] Thus, the Department has established that [H.O.] is currently
unfit to parent.
CP at 181-88.
3. Appeal
H.O. appealed the termination of her parental rights, assigning error to five of
the trial court's factual findings: (1) that all necessary services were expressly and
understandably offered or provided to her, (2) that little likelihood existed to remedy
conditions so B.P. could be returned to her in the near future, (3) that her continued
parentcchild relationship diminished B.P.'s prospects for early integration into a
stable and permanent home, (4) that terminating her parental rights was in B.P.'s
best interests, and (5) that she was unfit to parent B.P. In re Welfare of B.P., 188
Wn. App. 113, 117, 353 P.3d 224 (2015), review granted, 184 Wn.2d 1039, 366
P.3d 932 (2016). In this court, I-I.O. challenges only two of those findings: (1) that
all necessary services were offered and provided and (2) that H.O. was currently
unfit to parent B.P.
The Court of Appeals affirmed in a split decision. B.P., 188 Wn. App. 113.
22
No. 91925-9
ANALYSIS
Before a court can terminate a parent's rights, the State must prove six
statutory elements by clear, cogent, and convincing evidence. In re Dependency of
K.D.S., 176 Wn.2d 644, 652,294 P.3d 695 (2013) (citing RCW 13.34.180(l)(a)-(f)).
These elements are:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW
13.34.130;
(c) That the child has been removed ... from the custody of the
parent for a period of at least six months pursuant to a finding of
dependency;
(d)That the serv1ces 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; ... [and]
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.
23
No. 91925-9
RCW 13.34.180(1). The only statutory prerequisite at issue in this appeal is (d): the
provision of all necessary and reasonably available services capable of correcting
parental deficiencies.
The other prerequisite to termination at issue in this case is the nonstatutory
prerequisite of parental unfitness. The State may not terminate a parent's rights
without showing that the parent is currently unfit to parent the child in question. In
re Welfare ofA.B. (A.B. I), 168 Wn.2d 908,918,232 P.3d 1104 (2010). Terminating
a parent's rights in the absence of such a finding, either express or implied, violates
due process clause protections. Id.; see WASI-l. CONST. art. I, § 12. The fact of
unfitness must also be proved by clear, cogent, and convincing evidence. I d. at 919.
In order to prove unfitness, the State must show that the parent's deficiencies
make him or her incapable of providing '"basic nurture, health, or safety." In re
Welfare ofA.B. (A.B. II), 181 Wn. App. 45, 61, 323 P.3d 1062 (2004). Where a trial
court finds that the six statutory prerequisites have been met, this constitutes an
implicit finding of unfitness. In re Dependency ofK.N.J, 171 Wn.2d 568, 577, 257
P.3d 522 (2011).
The trial court's findings of fact in a termination proceeding will not be
disturbed so long as they are supported by substantial evidence in the record. In re
Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). However, because the
State must prove its case in a termination proceeding by clear, cogent, and
24
No. 91925-9
convincing evidence, that evidence must be "more substantial than in the ordinary
civil case in which proof need only be by a preponderance." !d. While the record
in this case supports certain concerns about H.O. 's parental fitness and amenability
to corrective services, those concerns do not amount to clear, cogent, and convincing
evidence warranting termination. We therefore reverse the Court of Appeals and
reverse the order terminating H.O.' s parental rights.
THE TRIAL COURT ERRED BY FINDING THAT THE STATE PROVIDED H.O. WITH
ALL NECESSARY SERVICES CAPABLE OF CORRECTING
PARENTAL DEFICIENCIES
As noted above, before the trial court can terminate a parent's rights, it is
required to find 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). Washington
courts have addressed that requirement in two cases that bear striking factual
similarities to this one.
In C.S, C.S. was found dependent due to his mother's substance abuse and
placed in foster care for the first three years of his life. 168 Wn.2d at 53-54. When
C.S. was two, his mother successfully completed an addiction treatment program.
!d. at 54. Before entering treatment, she also gave birth to a second child. Id. at 54
n.l. When C.S. was three, his mother was successfully caring for this second child
and had been sober for a year, but the State nevertheless filed a termination petition
25
No. 91925-9
as to C.S. Id. The trial court terminated the mother's rights, concluding that
although she had remedied her only identified parental deficiency, substance abuse,
"she lacked 'the patience, presence of mind, skills, experience, time in a day, and
availability to care to [C.S.] -given his special needs."' Id. at 55 (alteration in
original). C.S. had been diagnosed with ADHD (attention deficit hyperactivity
disorder) and several other disorders, and the trial court deemed his mother unfit to
parent a child with so many difficulties. Id. This court reversed the termination
because the State had offered training to C.S.'s foster parents in how to deal with his
special needs, but had not offered any such training to C.S.'s mother. Id. at 55-56.
In S.J, S.J. was found dependent when he was two and a half. 162 Wn. App.
at 876. His mother's parental deficiencies were substance abuse, unsanitary living
conditions, and mental health issues. Id. Shortly after S.J. was removed from her
care, his mother entered treatment for substance abuse but was unsuccessful. Id.When S.J. was three, his mother discovered she was pregnant with another child and
entered treatment again. Id. This time, she was successful enough that the trial court
allowed supervised visitation with S.J. !d. During these visits, the mother received
some parenting education. !d. at 876-77. When S.J. was three and a half, his mother
graduated from her treatment program and gave birth to her other child. Id. at 877.
She maintained her sobriety, continued with mental health treatment, and
successfully parented her other child. !d. When S.J. was four, he began therapeutic
26
No. 91925-9
visitation with his mother. ld. This went well for a while, but visitation was
suspended when S.J. started acting out toward his mother and clinging to his foster
parents at visits. Id. The State filed a termination petition, and at the hearing, several
witnesses testified that the State could have provided S.J. and his mother with
bonding and attachment services but failed to do so. Id. at 877-78. Witnesses also
testified that S.J. was unlikely to develop a healthy relationship with his mother in
the near future "due to SJ's entrenched perception of his mother and [her] inability
or unwillingness to parent SJ effectively." I d. at 879. The Court of Appeals reversed
the termination for two related reasons: it found that the State delayed provision of
mental health treatment, which might have diminished S.J. 's prospects for bonding
with his mother, and it found that the State failed to provide any bonding and
attachment services whatsoever. ld. at 883-84.
In both of those cases, appellate courts reversed a termination order because
the State failed to provide the mothers with training to help them address their child's
special needs. C.S., 168 Wn.2d at 53-54; S.J, 162 Wn. App. at 877-78. In S.J, as
in H.O.'s case, these special needs arose primarily from the child's separation from
his mother and bond with the foster parents, factors that were exacerbated by the
State's failure to timely provide necessary services. 162 Wn. App. at 877-78. And
in C.S., the State argued-just as it did in H.O.'s case-that services would have
been futile because of the mother's substance abuse and mental health problems.
27
No. 91925-9
168 Wn.2d at 56 n.2. We rejected this argument because the trial court found the
mother had "no lingering deficiency from substance abuse or mental health issues
that would preclude her from caring for C.S., much less from successfully
completing training to do so." !d. C.S. impliedly holds that the State may not
unilaterally decide that an otherwise fit parent lacks the requisite lifestyle or
personality traits to benefit from necessary services. 4 Instead, absent a showing that
services would be futile, 5 the parent must have the opportunity to benefit from all
services available to address a barrier to family reunification. 6
4 In C.S., the trial court found that the mother lacked "'the patience, presence of
mind, skills, experience, time in a day, and availability to care to [C.S.]- given his special
needs."' 168 Wn.2d at 55. We held that the State could not seek termination until it had
offered the mother training in addressing C.S.'s special needs. Id. at 56 ("Since this
training, deemed necessary to address C.S. 's behavioral problems, was not offered to [the
mother], termination of her parental rights was not warranted (even if this court assumes
arguendo, as the State asserts, that [the mother's] inexperience in addressing C.S.'s
conditions can serve as a basis for termination).").
5 The trial court may make a finding that the Department has offered all reasonable
services when "'the record establishes that [an] offer of services would be futile."' C.S.,
168 Wn.2d at 56 n.2 (quoting Welfare of MR.H., 145 Wn. App. 10, 25, 188 P.3d 510(2008) (citing Welfare ofFerguson, 32 Wn. App. 865, 869-70,650 P.2d 1118 (1982), rev'd
on other grounds, 98 Wn.2d 589, 656 P.2d 503 (1983)). But that rule 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. !d. In this case, by contrast, the record shows that
H.O. accepted every offer of services and did exceptionally well in the therapeutic visits
the State provided (the only service the State provided to address the relationship between
H.O. and B.P.).
6 See C.S., 168 Wn.2d at 56 n.3 ("The State is charged with reuniting families where
possible and with providing necessary services to achieve that goal. When a 'condition'
precludes reunion of parent and child, as here, regardless of whether it can be labeled as a
'parental deficiency,' the State must provide any necessary services to address that
28
No. 91925-9
In H.O.'s case, the trial court did not make an explicit finding that H.O. had
no substance abuse or mental health barriers to parenting. Indeed, the court
repeatedly emphasized H.O.'s history of substance abuse and mental health
problems. 7 But none of these deficiencies made H.O. unfit to parent A.-the State
conceded that H.O. was fit to parent A. and the testimony about her parenting of A.
was entirely positive. Thus, there is only one viable interpretation of the trial court's
findings on substance abuse and mental health: that H.O. lacked the requisite
emotional skills to ensure that attachment services would succeed in the near future.
Under C.S., this finding is improper. Absent a showing of futility, H.O. was entitled
to any available services necessary to facilitate reunification with B.P. It was not
her burden to prove that these services would succeed before the State provided
them.
condition set forth in RCW 13.34.180(1)(d). Otherwise, the State could avoid providing
services to preserve the family unit simply by classifying a parental shortcoming as a
'condition' instead of a parental deficiency."' (citations omitted)).
7
E.g., CP at 185-86 ("Given the length of her history and the recent nature of her
sobriety, the court could not make a long term legal conclusion about [H.O.]'s sobriety.
[H.O.] had not demonstrated any ability to maintain her sobriety outside a structured living
environment. ... [H.O.] also had mental health issues that impacted her ability to parent.
[H.O.] has a long trauma history. She does not demonstrate the ability to feel her own
feelings. She has not demonstrated the ability to place [B.P.]'s needs above her own. This
is a critical skill for a parent.").
29
No. 91925-9
Additionally, the record does not support a finding that attachment services
would have been futile in this case. Six witnesses testified for the State regarding
attachment. Eastep testified that the court would be taking a "calculated risk" by
placing B.P. with H.O. 1 RP at 84 (Feb. 10, 2014). Gormon-Brown testified that
she didn't know whether H.O. had made enough progress in therapy to be able to
successfully "work on ... attachment strategies," but also stated that H.O. was highly
motivated to succeed in therapy and that Gormon-Brown was available to do
attachment work with H.O. and B.P. ifH.O.'s parental rights were not terminated.
Id. at 145. Thomas and Clemons testified that another disruption would not be in
B.P. 's best interests. But Clemons also testified that she could have been doing
attachment work with H.O. and B.P. but had not received a referral to do that work.
And Thomas testified that ifB.P. were removed from foster care, Thomas would be
available to counsel H.O. in how to assist B.P. through the grieving process
associated with that disruption. Schweigert, who has no formal education in
psychology or attachment issues, opined that it was unlikely B.P. could reattach to
H.O. "especially without significant trauma." 2 RP at 245 (Feb. 11, 2014). And
Monohan opined that B.P. could not wait any longer for permanent stability.
All of this testimony raises concerns about reunification, some of them grave,
but none of it suggests that proper bonding and attachment services were withheld
because they would have failed or taken too long. No witness testified to that effect.
30
No. 91925-9
Instead, the record indicates that the State never considered offering any attachment
services to H.O. at all. It facilitated supervised visitation that resulted, predictably,
in what the parenting evaluator described as a "social relationship." 1 RP at 113
(Feb. 10, 2014). The record indicates that Eastep, the therapist who supervised the
visitation, was initially confused about the State's goal and recommended against
continuing visitation unless the goal was reunification. I d. at 65 ("[i]f visitation is
only to satisfY a service requirement, it would be detrimental to [B.P.]'s emotional
stability and create placement instability and possible upset and would not be in the
best interest of [B.P.]"). After several more weeks of confusion, the trial court
finally ordered supervised visitation to continue for another several months "to
determine if the parent child relationship can be repaired." CP at 66. Every witness
who observed this visitation said that H.O. handled it exceptionally well. But then,
after H.O. had faithfully followed every recommendation her therapists made
regarding visitation, the State sought tennination anyway, offering testimony that
H.O. might not have the emotional wherewithal to handle real attachment work.
Indeed, the State's position remains fundamentally confused even on appeal.
On the one hand, the State argues that attachment and bonding services would have
been futile "because H.O. was unable to recognize her own emotions and express
them in a healthy way." State ofWash.'s Suppl. Br. at 13. On the other hand, the
State also argues that H.O. actually received attachment services through Eastep's
31
No. 91925-9
therapeutic visitation. Neither argument is supported by the record. If Eastep
provided attachment services, then H.O. certainly had the emotional skills necessary
to benefit from them: H.O. handled visitation so well that Eastep reduced her
supervision by half. But Eastep did not provide attachment services. Eastep testified
that she is not an attachment expert, and Clemons testified that she could be doing
attachment work with H.O. and B.P., but had not received a referral to do such work.
The record contains no testimony whatsoever indicating that H.O. received
attachment services, although it does contain evidence that she requested them.
By ignoring this request and denying H.O. any opportunity to demonstrate her
capacities for real attachment work, the State violated its statutory and constitutional
obligation to offer or provide "all necessary services, reasonably available, capable
of correcting parental deficiencies within the foreseeable future." RCW
13.34.180(1)(d); see C.S., 168 Wn.2d at 55-56. It encouraged H.O. to participate in
months of services that were not designed to address attachment issues, then cited
her alleged possible incapacity for attachment work as grounds for termination. This
falls short of the duty to offer or provide services. 8
8 The dissent's contrary conclusion depends on speculation, unsupported by the
record, that the "therapeutic visit[s]" Eastep facilitated were the best attachment therapy
H.O. could hope for, given the nature of her relationship with B.P. Dissent at 7
(acknowledging that Eastep is not an attachment expert and that Clemons could have
provided actual attachment therapy to H.O. and B.P.; nevertheless concluding that "the
services provided ... by Ms. Eastep were similar to those provided [to B.P. 's foster parents]
32
No. 91925-9
Finally, there is insufficient evidence in the record to sustain the conclusion
that attachment services would be futile at this point. The dissent credits the State's
argument on appeal that attachment services could not succeed in the "foreseeable
future," RCW 13.34.180(1)(d), because (1) H.O. had not progressed enough in her
individual therapy or addiction recovery to help B.P. grieve the loss of her foster
family, dissent at 9-11, and (2) "[i]t would take 'hundreds [or] ... thousands of
contacts"' to create a secure attachment between H.O. and B.P., and that would take
too long. Dissent at 12 (quoting 1 RP at 77 (Feb. 10, 2014)). But both of those
theories conflict with the State's actions in the six months preceding trial.
During these months, the State encouraged H.O. to participate in the services
it did provide, leading her to believe that these services were an avenue to H.O.'s
return. Then it pursued termination on the theory that B.P .' s attachment needs were
so severe that H.O. could not possibly meet them in the foreseeable future, given her
location on the path to full recovery from substance abuse and childhood trauma. If
there were evidence that H.O. had not progressed in treatment as expected during
by [the attachment expert] Ms. Clemons"), 8 (concluding, without citation to the record,
that "it would be unreasonable to expect the services provided to H.O. to be identical to
those provided to the foster parents"). Tills speculation amounts to fact-fmding that
"exceeds this court's proper role on review." !d. at 2. And it is only by engaging in such
fact-finding-by concluding that H. 0. in fact received attachment services from Eastep but
that these services "resulted in limited success," id. at 6-7-that the dissent is able to
conclude that further attachment therapy would have been futile.
33
No. 91925-9
the six months preceding trial, then the State's actions might be reasonable. But
H.O. 's only slipups were two technical violations: accepting a ride from B.P. 's foster
father while still living at Isabella House (a violation she self-reported to her
counselors) and failing to verify participation in two outside support meetings in the
first month of transitional housing treatment (something she attributed to her
confusion over the program's definition of an eligible meeting). H.O. never failed a
UA during treatment, and no treating professional testified that they had current
concerns about her sobriety. H.O. was successfully participating in all of the mental
health services the State provided. On this record, the State's sudden about-face in
January 2014 is fundamentally unfair.
Simply put, the record contains no explanation for the State's decision to
assign H.O. a regimen of individual and family therapy, watch as she progressed in
this therapy just as her treating professionals expected, and then argue that no
amount oftherapy could prepare her for the demands of real attachment work in the
foreseeable future. Absent that explanation, the record does not contain clear,
cogent, and convincing evidence that attachment services would be futile. 9
9
Nor does this case does involve overwhelming, undisputed testimony that B .P. will
suffer an irreparable attachment disorder if forced to separate from her foster parents. And
while the Department presented evidence that attachments normally form around age one,
it did not present evidence that attachment services would have been futile for this reason-
indeed, the Department provided those services for B.P.'s foster parents well after B.P.'s
first birthday. Thus, amici are correct that the record does not support the conclusion that
34
No. 91925-9
To be sure, this case does involve testimony that removing B.P. from her
foster home and placing her in H.O.'s care poses risks to B.P.'s emotional well-
being. But where parental rights are at stake, such risks do not constitute parental
unfitness ifthey might be mitigated through services. See A.B. II, 181 Wn. App. at
64 (substantial evidence supported finding that mother's cognitive impairments
"resulted in a lack of understanding of child development stages and difficulty
identifying certain subtle dangers," but these parental deficiencies did not amount to
clear, cogent, and convincing evidence of unfitness; instead, they created a risk of
harm warranting participating in services). In this case, numerous expert witnesses
testified that they were available to provide services designed to help H.O. address
B.P. 's special attachment needs. No witness testified that H.O. was incapable of
benefiting from these services or that the services would be futile for some other
reason. Thus, the State did not fulfill its obligation to provide "all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future," RCW 13.34.180(l)(d), and the termination order must be
reversed. 10
if a child is not attached to his or her parent by age one, there are no services that can rectify
that problem.
10
Because we reverse on this basis, we do not address H.O.'s arguments regarding
parental unfitness.
35
No. 91925-9
CONCLUSION
The trial court's findings of fact in a termination proceeding will not be
disturbed so long as they are supported by substantial evidence in the record. Hall,
99 Wn.2d at 849. However, 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." !d. While the State need not provide corrective services to a parent
if those services would be futile, services are not futile just because they are not
guaranteed to succeed. See C.S., 168 Wn.2d at 56 & n.2.
Consistent with the holdings in C.S., and S.J, testimony that a parent might
not have the emotional skills or other personality traits necessary to benefit from
services does not amount to clear, cogent, and convincing evidence that the services
would be futile or that the parent's deficiencies are unlikely to be remedied in the
near future. Where there is any reasonable possibility of success, the services must
be provided.
The termination order in this case violated these protections. We therefore
reverse that order.
36
In re Welfare ofB .1.,
) No. 91925-9
WE CONCUR:
~7
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
No. 91925-9
YU. J. (dissenting)-By the time of the termination trial, two-and-a-half-
year-old B.P. had already spent most of her young life in dependency, waiting for
her mother H.O. to become a stable parent. During this time, B.P. went through
four placements and, due to H.O.'s failure to maintain a consistent relationship
with her, B.P. no longer has an attachment to her mother. The instability ofB.P.'s
first few years have already taken a serious toll on her. Experts testified at trial
that B.P. was in danger of developing an attachment disorder that could delay her
social and emotional development. She could not risk yet another placement
dismption.
B.P. is now five years old. She is still in dependency but has formed a
complete and secure attachment to her foster parents. The effect of the majority's
opinion is to stop the clock yet again on B.P. 's permanent placement. "To
postpone [the child's] access to stability in the hope that the mother will be able to
correct deep-seated emotional problems and assume the obligations of parenthood,
1
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
when all the evidence shows that she lacks the capacity to do so, is to ignore the
desperate needs of the [child]." In re Welfare ofAschauer, 93 Wn.2d 689, 694-95,
611 P.2d 1245 (1980). Rather than have the stability and permanence she so
desperately needs to ensure her healthy development, the majority holds that B.P.
must continue to wait.
Weighing all of the evidence before it, the trial court made the difficult but
tenable decision to terminate H.O. 's parental rights. There is substantial evidence
in the record to support the trial court's findings of fact, yet the majority now
reweighs the evidence itself and determines otherwise. Because the record
supports the trial court's decision to terminate H.O.'s parental rights and the
majority exceeds this court's proper role on review, reaching a result that will
likely be detrimental to B.P., I must respectfully dissent.
ANALYSIS
"We are firmly committed to the rule that a trial court's findings of fact will
not be disturbed on appeal if they are supported by 'substantial evidence'." In re
Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). Our role on appeal is
to determine whether there are sufficient facts to support the trial court's findings
of fact. I d. at 740. It is not our role to assess the credibility ofthe witnesses or
determine how much weight to give the evidence presented. Yet this is precisely
what the majority does.
2
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
Contrary to the majority's assertions, there is substantial evidence in the
record to sustain the trial court's findings of fact. The testimony presented at trial
shows that all necessary services were provided to H.O., but she remained unfit to
parent B.P. at the time oftrial.
A. NECESSARY SERVICES
RCW 13 .34.180( 1)(d) requires the Department of Social and Health Services
(Department) to offer or provide "all necessary services, reasonably available,
capable of correcting the parental deficiencies within the foreseeable future." The
Department identified H.O. 's parental deficiencies as "substance abuse, mental
health issues, criminal history and an inability to meet the physical and emotional
needs of the child." Clerk's Papers (CP) at 2. It is undisputed that H.O. was
offered or provided with the following services: "chemical dependency inpatient
treatment, outpatient treatment, [urinanalysis/blood alcohol] monitoring, individual
counseling, parenting assessment, parenting services including family preservation
services and therapeutic visits with [Lori] Eastep in part to address the mother
child relationship." Id. at 181.
H.O. asserts that the Department failed to provide her with all necessary
services because she never received attachment therapy. However, the evidence
substantially shows that (1) H.O. was provided with services tailored to address her
identified parental deficiencies and (2) any additional services would not remedy
3
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
H.O. 's parental deficiencies within the foreseeable future. Consequently, there is
sufficient evidence in the record to support the trial court's finding that the
Department fulfilled its obligation to provide all necessary services under RCW
13 .34.180(1 )(d).
1. H 0. was provided with services tailored to address her identified
parental deficiencies
Although concerned that "attachment services in the classical and clinical
sense were not articulated to have been provided to [H.O.]," 3 Verbatim Report of
Proceedings (VRP) at 442, the court ultimately determined that "[t]he services
offered were those needed to remedy [H.O.]'s parental deficiencies," CP at 181.
This determination is supported by the evidence in the record, and the majority
overlooks the fact that H.O. did receive services specifically tailored to address her
parental deficiencies.
H.O.'s persisting parental deficiencies were her "mental health and how it
impacted her ability to parent [B.P.]" and "issues with her parental relationship
with [B.P.]." !d. at 182, 184. Among the services provided to H.O. were
"parenting services including family preservation services and therapeutic visits
with Ms. Eastep in part to address the mother child relationship." !d. at 181.
These services were clearly intended to address the parental deficiencies identified
by the Department.
4
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
When visitation resumed after H.O. 's relapse, H.O. had not had any contact
with her daughter for 11 months. 1 VRP at 62. The Department made a referral to
Ms. Eastep, a licensed independent clinical social worker, to assess parent-child
interactions. Id. at 61. The majority mischaracterizes Ms. Eastep as being
"confused" about the Department's goals regarding visitation. Majority at 30-31.
The evidence in the record, however, shows that Ms. Eastep was actually
accounting for existing and potential circumstances as they were presented to her
at the time.
Following her initial therapeutic visit, Ms. Eastep advised that "[i]t seems
contraindicated to begin visitation if the Department is moving toward termination
and [H.O.] has not made sufficient progress in a timely manner to extend or
postpone the trial." 1 VRP at 64. Bear in mind that at the time of Ms. Eastep's
evaluation, the original date of the termination hearing was imminent and H.O. had
only then filed a motion requesting visitation after an extended absence.
Ms. Eastep explained:
Because we were looking at a very short timeframe and for a child of
[B.P.]'s age, being brought to a visitation place, being exposed to
people that she's very unfamiliar with can create a lot of internalized
stress. It can create unnecessary upset. If the termination trial was
going to still move forward, it did not seem to make sense to me at
that time.
5
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
!d. at 65. Therefore, she stated that "[i]fvisitation is only to satisfy a service
requirement, it would be detrimental to [B.P.]'s emotional stability and create
placement instability and possible upset and would not be in the best interest of
[B.P.]." !d. In the alternative, however, Ms. Eastep recommended that "if [H.O.]
has demonstrated the necessary progress and is given an opportunity to
demonstrate this further, [she] would support reinstatement of visitation with
[B.P.]." !d. Thus, it is apparent that Ms. Eastep's recommendations were
dependent on H.O.'s ability to remedy her parental deficiencies in the context of
the upcoming termination trial.
Consistent with Ms. Eastep's recommendation, the dependency court
ultimately decided to continue the termination hearing based on the fact that "the
parties agree that the mother needs to have some visitation in order to determine if
the parent child relationship can be repaired." CP at 66. The majority correctly
observes that the order for continuance was contrary to a prior order that denied
visitation. Majority at 7; see CP at 66. It is unclear from the record why the
dependency court changed its mind. However, what is clear is that H.O. was
granted additional time and services-weekly therapeutic contact and a parenting
assessment-specifically to address her relationship with B.P. CP at 66.
Ms. Eastep continued working with B.P. and H.O., ultimately conducting a
total of22 sessions. 1 VRP at 82. Ms. Eastep's work with B.P. and H.O. resulted
6
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
in limited success. She observed that mother and child had developed a social
relationship and there was an emerging emotional connection but no evidence of
an attachment. !d. at 67-68, 75.
The majority unfairly rebukes the Department for providing only therapeutic
visitation with Ms. Eastep that "predictably" resulted in a social relationship
between H.O. and B.P. Majority at 30. However, this assessment overlooks the
fact that when visitation resumed after an extended period of no contact, H.O. and
B .P. had no relationship at all. 1 VRP at 63. The development of an emotional
relationship that would allow for a secure attachment requires emotional stability,
which H.O. has yet to achieve, and significant time, which B.P. does not have.
The majority also disregards the services provided by Ms. Eastep because
"Eastep testified that she is not an attachment expert, and [Amanda] Clemons
testified that she could be doing attachment work with H.O. and B.P ." Majority at
31. However, there was no testimony that the services Ms. Eastep provided were
inappropriate, inadequate, or different from what other service providers would
have provided. In fact, the evidence suggests that the services provided to I--I.O. by
Ms. Eastep were similar to those provided by Ms. Clemons to B.P.'s foster
parents-Ms. Eastep testified that her treatment goals with H.O. included "to assist
[H.O.] in identifying cues and boundaries that [B.P.] has related to their physical
and emotional contact," 1 VRP at 67, while Ms. Clemons testified that her work
7
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
with the foster parents included helping them understand what B.P. 's underlying
needs were when she "miscue[s]", 2 VRP at 166. H.O. has a completely different
relationship with B.P. than her foster parents, who are her primary caregivers and
primary attachments. It appears that both H.O. and the foster parents were
provided with training on how to interact with B.P. given the particular nature of
their relationships, and under the circumstances presented, it would be
unreasonable to expect the services provided to H.O. to be identical to those
provided to the foster parents.
Consequently, reliance on In re Welfare ofS.J, 162 Wn. App. 873,256 P.3d
470 (2011), and In re Welfare ofC.S., 168 Wn.2d 51, 225 P.3d 953 (2010), is
misplaced. In S.J., the Court of Appeals concluded that the Department had failed
to tailor services to the mother's needs. 162 Wn. App. at 882. Similarly, in C.S.,
the Department failed to provide services to the mother that had been provided to
the foster parents and would have helped the mother manage the child's behavioral
problems. 168 Wn.2d at 55-56. Neither of these factual scenarios is present here.
In this case, H.O. was provided with services that were tailored to her specific
parental deficiencies-treatment for her substance abuse, individual therapy to
address her mental health issues that were affecting her ability to parent B.P., and
also therapeutic visitation aimed at building a relationship with B.P.
8
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
2. Additional services would not correct parental deficiencies within the
foreseeable future
RCW 13 .34.180( 1)(d) does not require the provision of all services capable
of correcting parental deficiencies, only those capable of doing so within the
foreseeable future. The majority gives short shrift to this statutory requirement and
fails to consider that the foreseeable future is determined from the point of view of
the child. See In re Welfare of Hall, 99 Wn.2d 842, 851,664 P.2d 1245 (1983).
The trial court concluded that "[B.P.]'s foreseeable future is now," CP at 187, and
additional services would not have been capable of remedying H.O. 's parental
deficiencies within the foreseeable future because "the services necessary to build
the type of relationship necessary to meet [B.P.]'s needs would take one year or
more and that is too long," id. at 186; see also 3 VRP at 443 ("necessary services
were certainly given and they were quality services, but they simply were not able
to overcome the fact that the foreseeable future cannot be yet another year"). The
record amply supports this finding; indeed, the record suggests that the one-year
time frame is conservative at best.
In order for I-I.O. to be a stable parent to B.P., she would need to first
address her significant mental health issues. Ms. Eastep testified that B.P. would
not form an attachment with H.O. unless B.P. was removed from her current foster
placement and returned to H.O.'s custody. See 1 VRP at 77-79. In the event of
9
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
such removal, B.P. would need substantial emotional support to grieve the loss of
her attachment to her foster parents. CP at 92. However, testimony indicated H.O.
would not be able to provide such support in the near future. Although H.O. had
made strides in individual therapy, her therapist Sandra Gorman-Brown was unsure
ifH.O. had "made enough progress therapeutically to be able to be emotionally
available to [B.P.]" to allow for reunification. 1 VRP at 147-48. According to
Ms. Gorman-Brown, it would take "at least another six months in individual
therapy" to resolve H.O.'s trauma history. !d. at 149-50. Six months may not
seem like a significant amount of time, but it might as well be an eternity for B.P.
See Hall, 99 Wn.2d at 851 ('"Three months may not be a long time for an adult
decisionmaker. For a young child it may be forever."' (quoting JOSEPH
GOLDSTEIN, ANNA FREUD & ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF
TI-IECHILD 43 (1973))).
There was also consistent testimony about B.P.'s pressing need for stability
and permanence. By the time oftrial, B.P. had already been through four
placements. CP at 90. Carol Thomas, a licensed mental health therapist who
conducted a parent-child assessment ofH.O. and B.P., testified that continued
disruptions in B.P. 's ability to form attachments would turn into an attachment
disorder. 2 VRP at 163. Ms. Thomas explained that an attachment disorder
"impacts pretty much every arena of [a person's] life: [!]ow self-esteem, can create
10
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
depression, anxiety issues, other mental health concerns, emotional disregulation in
children, behavioral issues as a result." Id. Thus, the absence of permanent
placement in the immediate future would likely have "significant ramifications"
for B.P. 's emotional development and mental well-being. I d.
Furthermore, six months was not the amount of time it would take to make
H.O. fit to parent B.P.-six months was only the minimum amount of time H.O.
would need in individual therapy to work through her own trauma. In addition to
this work in individual therapy, H.O. would need to maintain her sobriety for an
extended period of time. Marcey Monahan, the social worker assigned to B.P.'s
case, testified that given the length ofH.O.'s drug addiction, she would want to see
H.O. maintain sobriety for 18 months to 2 years before she would feel comfortable
that H.O. was solidly in recovery this time. Jd. at 283. This time period was
echoed by Carla Paullin, who provided H.O. with chemical dependency therapy.
Ms. Paullin testified that for someone with H.O. 's extensive history of intravenous
drug use, she would want to see two years of structured treatment therapy before
she would consider the addiction to be in remission. 1 I d. at 198.
On top of the work needed to resolve her parental deficiencies, developing a
relationship that would allow B.P. to securely attach to H.O. would likely take
1
Ms. Paullin also pointed out that the type of therapy that H. 0. would need to achieve
remission is not even offered in her service area. 2 VRP at 198.
11
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
much longer. By the time of trial, Ms. Eastep testified that B.P. and H.O. had
developed only a social relationship, aldn to a child's relationship with a
babysitter, and an emotional connection was just emerging. 1 VRP at 75, 77-78. It
would take "hundreds and sometimes thousands of contacts" to transition from an
emerging emotional relationship to a secure attachment that would allow for
reunification. Id. at 77. There simply is no way of telling how long it would take
for this to occur-or if it would occur at all. See id. at 71.
While it is possible that H.O. will be able to maintain her sobriety and
continue to successfully work on her mental health issues, there was no evidence
provided that she would reach a point of stability within a time period that would
be conducive to B.P. 's emotional well-being. I am sympathetic to H.O. 's
concerted effort to become a stable parent and recognize that past behavior is not
necessarily a measure of :future success. However, it is undeniable that the threat
of relapse is real and the potential harm to B.P. would be significant.
Ms. Eastep testified that the Department would be taking a "calculated risk"
by returning B.P. to her mother's custody. Id. at 84. H.O. has not been able to
maintain her sobriety outside of a structured living environment, and, just prior to
the termination trial, I-I.O. was already exhibiting worrisome behaviors. Karen
Schweigert, the guardian ad litem, expressed concern that H.O. lied to a counselor
about returning her phone calls. 2 VRP at 237-38. Even more troubling was
12
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
Ms. Monohan's testimony about H.O.'s failure to attend support groups, a behavior
that had preceded H.O. 's prior relapse. I d. at 281-82. This contravened her
counselor's explicit recommendations. 1 VRP at 38. Paige Beerbohm, H.O.'s
counselor at Isabella House, testified that it was concerning that H.O. was
struggling to attend self-help groups so early in her recovery. Id. Failure to attend
self-help meetings can increase the risk of relapse. Id. at 37. H.O.'s therapist
emphasized the importance of building a strong support system to help maintain
her sobriety. 2 VRP at 198.
Whether a parent is capable of correcting parental deficiencies is not the
only question that we must ask here. RCW 13.34.180(1)(d) requires us to inquire
into the probable length oftime that it will take for parental deficiencies to be
remedied by specifying that the services to be offered or provided are limited to
those services "capable of correcting the parental deficiencies within the
foreseeable future." (Emphasis added.) Whether the length oftime it will take to
correct parental deficiencies warrants delaying termination so the parent may
receive additional services depends on the child's developmental needs as
determined by the context of the child's placement and age. See In re Dependency
ofTR., 108 Wn. App. 149, 164-65,29 P.3d 1275 (2001) ("T.R. was six years old
at the time of trial and had been in foster care all her life. To wait another year, or
longer, is to wait well beyond T.R. 's foreseeable future."); In re Dependency of
13
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990) (6 months was not within the "near
future" of a 15 month old).
In this case, there was evidence ofB.P.'s urgent-if not immediate-need
for permanence in order to allow for her healthy emotional development. The
testimony was consistent on the fact that H.O. was not stable at the time of trial
and that it would take a considerable amount of time beyond the time that B.P. had
already spent in dependency before H.O. might be stable enough to provide for
B.P. 's emotional needs. These facts substantially support the trial court's finding
that H.O. 's parental deficiencies cannot be remedied within the foreseeable future. 2
B. CURRENT PARENTAL UNFITNESS
The majority declines to address the issue of current parental unfitness, but
the record substantially supports the trial court's finding that H.O. was unfit to
parent B.P at the time of the termination trial. The focus at a termination trial is
current parental unfitness. In re Welfare ofH.S., 94 Wn. App. 511, 523,973 P.2d
474 (1999) (citing In re Dependency ofK.R., 128 Wn.2d 129, 142, 904 P.2d 11322
The majority misinterprets this assertion as an application of the futility doctrine.
Majority at 32-33. We should not conflate the question of whether providing a service would be
futile with whether the service could remedy a parental deficiency within the foreseeable future,
as required by RCW 13.34.180(1)(d). The issue here is not whether it would be futile to provide
H.O. with additional services. Rather, the issue is whether there is substantial support in the
record for the trial court's finding that any additional services would not remedy H.O.'s parental
deficiencies within the foreseeable future, as determined from B.P.'s point of view in accordance
with our case law. See Hall, 99 Wn.2d at 851. I conclude that the evidence presented at trial
does support such a conclusion and the majority's reweighing of the evidence is troubling.
14
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
(1995)). Because every parent-child relationship is different, parental unfitness is
determined on a case-by-case basis. See In re Welfare ofA.B., 168 Wn.2d 908,
921, 232 P.3d 1104 (2010). However, in the broadest sense, a parent must be able
to fulfill his or her duty to provide a child with "basic nurture." RCW 13.34.020.
There was substantial evidence showing that H.O. was unable to provide for B.P.'s
emotional needs, which is a component of basic nurture. This is sufficient to
support the trial court's finding of current parental unfitness.
The tragic story that the record tells about H.O. is of a deeply troubled
person who is unable to put the needs ofB.P. above her own. See 2 VRP at 213.
B.P. was born addicted to methamphetamine, a drug that H.O. first used at the age
of 13 and continued to use through all ofher pregnancies, including her pregnancy
with H.O.'s younger sibling, A. B.P. was immediately removed from H.O.'s
custody at birth and spent the first two months of her life in dependency. She was
eventually returned to H.O. 's custody for 10 months, only to be removed again
when H.O. relapsed. B.P. has been in dependency ever since.
H.O. has been a sporadic presence in B.P.' s life. After missing 10 scheduled
visits with B.P., the dependency court decided to suspend H.O. 's visitation at the
end of October 2012. I d. at 261. The court ordered that visitation would not
resume unless H.O. brought a motion to reinstate visitation. CP at 89. H.O. did
not file her motion to reinstate visits until almost nine months later, in July 2013-
15
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
which was more than six months after the Department filed its petition to terminate
parental rights. During this time, B.P. had no contact with her mother. When
visitation resumed in August 2013, B.P. no longer recognized H.O. as her
mother-in fact, B.P. no longer recognized H.O. at all.
Now, after an extensive absence from B.P. 's life, H.O. wants to be a parent
to her daughter. Yet the consistent testimony at trial was that H.O. has not
remedied her parental deficiencies. Her recent sobriety is relatively short
compared to her decades-long struggle with substance abuse; she has yet to
establish that her recovery is stable. H.O. has no track record of maintaining her
sobriety outside of a structured living environment. There was testimony that the
longest she had been able to maintain sobriety was five years. 1 VRP at 34-35.
H.O. has never successfully parented a child for an extended period of time, nor
has she ever parented without assistance or supervision. See 2 VRP at 235. H.O.
cannot remain in structured living indefinitely. Furthermore, H.O. was beginning
to exhibit the same behavior that led up to her prior relapse.
Not one of the service providers assigned to this case testified that B.P.
should be returned to H.O. 's custody. The trial court stated:
The mother is currently unfit to parent [B.P.]. This element requires
the court to determine if [H.O.] is able to meet [B.P.]'s needs. The
evidence clearly indicates that she cannot. [H.O.] relapsed causing a
disruption in her relationship with [B.P.]. She failed to consistently
visit [B.P.] and did not maintain a relationship with her. [H.O.] is
16
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
responsible for the stops and starts in her parenting. She does not
understand [B.P.]'s needs for permanency or the risk she faces if she
develops an attachment disorder. [H.O.] cannot claim that because
[A.] is in her care, that she must be fit to parent. [B.P.]'s needs are
different and her attachment issues are the result of her mother's
actions. [H.O.] has not demonstrated an ability to understand her own
feelings, or those of [B.P.]. Thus, the Department has established that
[H.O.] is currently unfit to parent.
CP at 187-88. The trial court's findings regarding H.O.'s inability to provide for
B.P. 's emotional needs are supported by testimony presented at trial. See, e.g., 2
VRP at 275 (Ms. Monahan testified that H.O.'s mental health remains a concern
"in regards to her ability to be emotionally available for a child like [B.P.]").
The evidence presented at trial shows that H.O. was currently unable to
provide for B.P.'s emotional needs. Consequently, there is substantial evidence in
the record to support the trial court's finding that H.O. is unfit to parent B.P.
CONCLUSION
Under our laws, B.P. has a right to "basic nurture," which includes "the right
to a safe, stable, and permanent home and a speedy resolution of any proceeding
under this chapter." RCW 13.34.020. Furthermore, our legislature has explicitly
declared that "[w]hen the rights of basic 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." !d. The majority ignores this mandate and fails
to properly consider B.P. 's rights.
17
In re Welfare ofB.P., No. 91925-9
(Yu, J., dissenting)
I agree with the trial court's assessment that "[H.O.] clearly loves [B.P.] and
wants to parent her. However, [B.P.] can no longer wait for [H.O.] to remedy her
parental deficiencies." CP at 187. There is no question that H.O. was "dealt a
difficult set of cards." 3 VRP at 438. The progress that she has achieved thus far
is commendable. However, although H.O. has started down the road to recovery,
progress is rarely ever a straight path, and there is no question that H.O. has a
difficult and long journey ahead of her. The sad reality is that H.O. 's progress
comes too little, too late for B.P.
The facts show that H.O. was provided with all necessary services to remedy
her parental deficiencies as required by RCW 13.34.180(l)(d), yet she still remains
unfit to parent B.P. What she asks for now is more time to remedy her parental
deficiencies despite a demonstrated inability to do so. As the trial court observed,
"Without termination, the child remains in the limbo of foster care indefinitely."
CP at 187. How much longer must B.P. remain there?
I would affirm the Court of Appeals and must respectfully dissent.
18
In re Welfare ofB.P., No. 91925-9
(Yu, J., Dissenting)
19