In Re The Dependency Of: J.d.p. And J.d.p. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of ) No. 80490-1-I
)
J.D.P. and J.D.P., ) DIVISION ONE
)
Minor Children. ) PUBLISHED OPINION
)
MANN, C.J. — Amber Heilman-Blanton and Anthony Parker, the biological
parents of Jae and Jav, appeal the trial court’s order terminating their parent-child
relationships with their two youngest children. 1 They argue that the court violated their
right to due process by excluding evidence of the sibling relationships as part of the
termination trial, that the Department of Children, Youth, and Families (Department)
failed to provide Heilman-Blanton with all the necessary services required in a
termination proceeding, and that the best interests of the child statute is
unconstitutionally vague as applied to the facts of the case. We affirm.
1 The two children who are the subject of this appeal share the initials J.D.P. We refer to them as
Jae and Jav. Their two older siblings are referred to collectively as “the older siblings” and individually as
J.A. and A.E.
Citations and pin cites are based on the Westlaw online version of the cited material.
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FACTS
Heilman-Blanton and Parker were married and have four children together: J.A.
A.E., Jae, and Jav. At the time of the termination trial, the children were 14 years old,
10 years old, 3 years and 7 months, and 1 year and 9 months, respectively.
The parents first became involved with the Department in connection with the
older siblings. J.A. was dependent from October 2007 to May 2008 and then returned
home. A.E. was dependent from March 2012 to March 2015 and then returned home.
In July 2015, the older siblings were living with their paternal grandmother; the parents’
whereabouts were unknown. The older siblings were taken into protective custody in
late July 2015 after they reported abuse by their grandmother.
Jae was born exposed to opiates in October 2015. The mother used heroin two
days prior to Jae’s birth and was hospitalized for drug-withdrawal several times during
her pregnancy. Although the court originally placed Jae with his father, he was arrested
two days later for drug possession, theft, and counterfeiting. The father was arrested
again a month later on multiple warrants, a new drug charge, and forgery. The mother
also had a lengthy criminal history, including convictions for drug use and delivery,
counterfeiting, drug possession, prostitution, and identity theft. The mother agreed to
an order of dependency on August 22, 2016, and the father agreed to an order of
dependency on March 2, 2016. Both parents were in custody at the time the
dependency orders were entered. Except for the brief time he was with the father prior
to his arrest, Jae has never lived with his parents.
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While the parents did not visit A.E., J.A., or Jae, for almost a year, they had
progressed in services and resumed visitation by the summer of 2016. The court
placed J.A. with the parents in May 2017. The parents had overnight unsupervised
visits with A.E. and Jae during this time.
Jav was born in September 2017 and resided with his parents for the first two-
and-a-half months of his life, as the parents were complying with the required services
under the dependencies of the older children. On November 15, 2017, U.S. Marshals
executed federal arrest warrants on the parents for failure to comply with their
conditions of release. J.A. and Jav were at the home. The Marshals discovered Jav in
a bedroom with a plastic bag containing a black, sticky, tar-like substance, later
identified as heroin. Both parents were incarcerated, and the Department subsequently
filed a dependency petition for Jav. The court declared Jav dependent as to the mother
on March 2, 2018, and declared Jav dependent as to the father on April 3, 2018.
While the parents had periods of compliance with services, they have been
unable to maintain sobriety, be free from criminal activity, or keep a stable home. In the
dependency cases of Jae and Jav, the mother agreed to 90 days of weekly urinalysis
(UA) tests, to complete a new drug and alcohol evaluation and to follow the treatment
recommendations, to attend parenting classes, to complete a psychological evaluation
with a parenting component, and to continue to follow the treatment recommendations
in place in the dependencies of the older siblings.
The mother received multiple referrals to conduct the UAs, but failed to show up
three times. The mother’s probation was revoked for violations including missed
treatments and UAs and cocaine use. A warrant was issued for her in October 2018
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and March 2019. She was further found not in compliance based on the allegations of
possession of heroin and reckless endangerment of a child from the execution of the
warrant. The mother violated her federal probation when she used methamphetamine
in January 2017 and consumed alcohol in July 2017. The Department offered her
parenting classes, bus tokens, and ORCA cards throughout the dependencies.
The State referred the mother to three different providers to complete her
psychological evaluation. The State referred her to Dr. Dana Harmon but the mother
terminated the visit. The State referred her to an evaluation with Dr. Lauren McCollom
but she refused to complete the required re-testing. The State also referred her to Dr.
Steve Tutty and she completed the initial testing, but she did not complete the parent-
child observation prior to being remanded into custody.
Additionally, Family Treatment Court (FTC) accepted the mother in August 2018.
She agreed to remain drug and alcohol free, to engage in random drug tests, and to
attend two sober support meetings a week. FTC discharged her in April 2019 after she
missed UAs, failed to obtain a drug and alcohol assessment, was not in treatment, and
did not sign releases of information.
Jae and Jav were placed together with foster parents and have never been
returned to the biological parents’ care. After the parents’ arrests, the older siblings
were placed with the mother’s fictive aunt, Dayna Hicks, in Philadelphia. After a year
living with Hicks, J.A. disrupted his placement and returned to Washington, where he
lacked a permanent placement. A.E. remained in Philadelphia with Hicks. The older
siblings remain dependent and have had periods of infrequent contact with Jae and Jav.
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The Department filed for termination of parental rights to Jae and Jav in
December 2018. Prior to trial, the parents subpoenaed Jae and Jav’s foster parents for
depositions. They argued that “the foster parents’ testimony is relevant to inform the
court about the siblings’ prospects for continued communication and relationships if the
court determines that severing the sibling relationship via termination of the parent-child
relationship should occur.” The Department and the children’s Court Appointed Special
Advocate (CASA), Eddie Hill, moved to quash the subpoenas, arguing that sibling
relationships were not at issue in the termination. On January 8, 2019, the trial court
agreed and quashed the subpoenas after finding that the foster parents were not “likely
to have information that is likely to lead to any relevant information to the pending
termination matters or dependency review cases, even under the liberal discovery rules
outlined in CR 26.”
In May 2019, the older siblings moved to intervene in the termination proceeding.
The parents supported these motions and argued that the trial court should hear
evidence about the sibling bonds when determining whether termination of parental
rights was in the best interests of Jae and Jav. The Department and CASA opposed
intervention. On May 26, 2019, the trial court denied the motions to intervene, after
weighing the requirements for permissive intervention under CR 24, and finding that
“the siblings have failed to articulate a common question of law or fact that would
support intervention.” The court further explained that “concerns about ongoing sibling
contact are best addressed in other proceedings, namely the dependency.”
The mother identified Dr. JoAnne Solchany as a potential expert witness who
would testify about the best interests of the children, their relationship with their parents
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and their siblings, as well as their current bond and current placements. The court
excluded the testimony, finding that “[a]ny evidence about the longevity and future of the
sibling communication, visits or relationship is not relevant in determining whether the
Department has met its burden of proving termination under RCW 13.34.180 and.190,
and current unfitness.” The court limited the evidence about sibling relationships to
RCW 13.34.200(3).
The termination trial was held over nine days in June and July 2019. Both
parents had relapsed on illegal substances in February 2019. During the termination
trial, both parents were incarcerated, but were present at trial and represented by
counsel.
The trial court considered the testimony of both parents, two primary social
workers involved in the case, the CASA, and limited testimony on behalf of the mother
by Dr. Solchany. Consistent with pretrial rulings, the trial court sustained objections
from the Department and CASA during the trial when the parents attempted to bring up
sibling bonding and placement through other witnesses. Some testimony was allowed
in on basic facts about where each sibling lived and the frequency of current contacts
with each other.
The trial court terminated the rights of both parents to Jae and Jav. The court
found that the Department offered and provided the services ordered under RCW
13.34.136, but both parents failed to comply with their court ordered services. The court
found that “any progress made by the parents in correcting their parental deficiencies
has been minimal to date. These parental deficiencies, which directly relate to their
ability to parent [Jae and Jav] . . . include failure to satisfactorily address issues related
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to their substance use and addiction, undiagnosed mental health disorders, and failure
to remain out of incarceration.”
Both parents appealed. 2 The father passed away while this appeal was
pending. 3
ANALYSIS
Termination may be ordered when the six statutory elements of RCW
13.34.180(1)(a) through (1)(f) are established by clear, cogent, and convincing
evidence. 4 RCW 13.34.190(1)(a). The clear, cogent, and convincing evidence
standard is satisfied when a court determines that the ultimate fact at issue is shown to
be “highly probable.” In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973).
The court must also find by a preponderance of the evidence that termination is in the
best interests of the child. RCW 13.34.190(2); In re Dependency of H.W., 92 Wn. App.
2 The CASA filed a brief in support of the Department. The parents object to our consideration of
the CASA’s brief. Although we declined to consider a guardian ad litem (GAL) brief in Matter of W.W.S.,
14 Wn. App. 2d 342, 351, 469 P.3d 1190 (2020), our holding does not indicate that we will never consider
brief from a GAL or CASA. This court has the discretion to consider briefs from nonparties. RAP 10.1(h).
In an exercise of discretion, we have reviewed the CASA’s brief.
3 The Department moved to dismiss the father’s appeal for mootness. “Generally, this court will
not review a moot case; but we will review the case if it presents issues of continuing and substantial
public interest. In re Dependency of Z.J.G., 196 Wn.2d 152 n.7, 161, 471 P.3d 853 (2020). While we
agree with the Department that we cannot grant the father relief, we have considered his briefing and
argument.
4 The six statutory elements in RCW 13.34.180(1) are:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the hearing, have been
removed from the custody of the parent for a period of at least six months pursuant to a
finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been expressly and
understandably offered or provided and all necessary services, reasonably available,
capable of correcting the parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so that the child
can be returned to the parent in the near future. . . ., 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.
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420, 425, 961 P.2d 963 (1998). The preponderance of the evidence standard is
satisfied when the findings of fact are supported by “substantial evidence,” which is
evidence in sufficient quantum to persuade a fair-minded person of the truth of the
declared premise. Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.3d 1231(1982). Whether termination is in a child’s best interests must be determined by the
unique facts of each case. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d
1245 (1980).
In a termination proceeding, the trial court is afforded broad discretion and its
decision is entitled to great deference on review. In re Dependency of A.M., 106 Wn.
App. 123, 131, 22 P.3d 828 (2001). The deference paid to a trial judge’s advantage in
having the witnesses before it is particularly important in termination proceedings
because only a trial court can observe a witness’s demeanor. Sego, 82 Wn.2d at 739-
40.
A. Evidence of Sibling Relationships
The parents argue that the trial court violated their right to present a defense by
excluding evidence of the sibling relationships. This includes the trial court’s decisions
limiting the testimony of Dr. Solchany, denying intervention of the older siblings, and
quashing subpoenas for the foster parents.
“The due process clause of the Fourteenth Amendment protects a parent’s right
to the custody, care, and companionship of her children,” a right which “cannot be
abridged without due process of law.” In re Welfare of Key, 119 Wn.2d 600, 609, 836
P.2d 200 (1992). In assessing whether a parent has been provided with a procedure
that comports with the requirements of due process, courts consider “(1) the parents’
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interests; (2) the risk of error created by the State’s chosen procedure; and (3) the
State’s interest.” Key, 119 Wn.2d at 611; Mathews v. Eldridge, 424 U.S. 319, 335, 96
S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976). “[T]he State and the child have a strong
interest not only in establishing a stable and permanent home for the child, but also
doing it as soon as possible.” In re Dependency of C.R.B., 62 Wn. App. 608, 615, 814
P.2d 1197 (1997); see also RCW 13.34.020 (“The right of a child to basic nurturing
includes the right to a safe, stable, and permanent home and a speedy resolution of any
proceeding under this chapter.”).
At a minimum, “[d]ue process requires that parents have notice, an opportunity to
be heard, and the right to be represented by counsel.” Key, 119 Wn.2d at 611. Due
process also requires that “parents have the ability to present all relevant evidence for
the juvenile court to consider” before terminating parental rights. In re Welfare of R.H.,
176 Wn. App. 419, 425-26, 309 P.3d 620 (2013). At issue here, is whether the parents
were deprived of their right to present relevant evidence.
We review questions concerning the admissibility of evidence in a dependency
proceeding for an abuse of discretion. In re Interest of J.F., 109 Wn. App. 718, 728, 37
P.3d 1227 (2001). Although we disagree with the State’s argument that evidence of a
sibling relationship is never relevant at termination, here, the trial court did not abuse its
discretion by barring evidence of Jae and Jav’s relationship with their older siblings
beyond the evidence necessary for the statement on sibling relationships as required by
RCW 13.34.200(3).
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1. Juvenile Courts Act
The mother argues that the Juvenile Courts Act (Act), ch. 13.34 RCW, as a
whole reflects the importance of sibling relationships throughout various provisions.
The mother’s argument fails to acknowledge that there are separate phases in the Act
with different purposes and requirements. Her citations are to dependency and
placement requirements; not terminations. The termination provisions are in place as
an alternative to dependency, for when the family unit no longer serves the best needs
of the child as set forth in RCW 13.34.020. 5 Requirements for dependency proceedings
are not the same as for termination proceedings:
A dependency proceeding and a termination proceeding have different
objectives, statutory requirements, and safeguards. In re Hiebert, 28 [Wn.
App.] 905, 908, 627 P.2d 551 (1981); compare RCW 13.34.130 with RCW
13.34.180 and RCW 13.34.190. The key difference is the dependency
hearing is “a preliminary, remedial, nonadversary proceeding” that does
not permanently deprive a parent of any rights. In re A.W., 53 [Wn. App.]
22, 30, 765 P.2d 307 (1988), review denied, 112 [Wn.2d] 1017 (1989). A
finding of dependency does not inevitably lead to a termination of parental
rights. In re [Welfare of] Churape, 43 [Wn. App.] 634, 639-40, 719 P.2d
127 (1986) (fact that child in long-term foster care not determinative in
deciding whether to terminate parental rights). In re J.P.’s focus is solely
on termination proceedings. Its reasoning does not apply to dependency
proceedings.
Key, 119 Wn.2d at 609.
5 RCW 13.34.020 provides:
The legislature declares that the family unit is a fundamental resource of American life
which should be nurtured. Toward the continuance of this principle, the legislature
declares that the family unit should remain intact unless a child's right to conditions of
basic nurture, health, or safety is jeopardized. When 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 of the child should prevail. In making reasonable efforts
under this chapter, the child's health and safety shall be the paramount concern. The
right of a child to basic nurturing includes the right to a safe, stable, and permanent home
and a speedy resolution of any proceeding under this chapter.
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The statutes cited by the mother all seek to preserve and strengthen family ties
within the dependency or permanent placement portions of the Act. See RCW
13.34.060 (shelter care provider must be willing to facilitate visitation with siblings);
RCW 13.34.065 (during shelter care hearing, court must inquire into the terms and
conditions for sibling visitation); RCW 13.34.130 (after a finding of dependency the
department may consider placement with sibling); RCW 13.34.138 (permanent
placement plan of care must include steps to promote existing sibling relationships
and/or placement together); RCW 13.34.145 (permanency placement planning hearing
must consider sibling relationships); RCW 13.34.210 (when a child is not immediately
adopted after termination, Department must take reasonable steps to ensure sibling
relationships); and RCW 13.34.260 (preferences for sibling relationships must be
considered when matching children to foster homes). These dependency and
placement requirements are distinct from the termination requirements in RCW
13.34.180(1) and .190(1)(b).
In contrast with dependency and placement requirements, the status of sibling
relationships is not included within the six required elements of RCW 13.34.180(1) or
RCW 13.34.190(1)(b). This is because the termination proceeding is focused solely on
whether the parental relationship should be terminated as to the children involved in the
proceeding. Just because the parents might have other children that were previously
placed in separate households, those separate placements cannot form a basis for
denying termination where the needs of the children involved in the termination before
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the court are not being met. Sibling relationships are addressed during dependency,
placement, and adoption—not during a termination. 6
2. RCW 13.34.200(3)
The mother next argues that RCW 13.34.200(3) provides an independent
specific requirement for the court to consider sibling relations as part of the termination
proceeding. RCW 13.34.200(3) states
An order terminating the parent-child relationship shall include a statement
addressing the status of the child’s sibling relationships and the nature
and extent of sibling placement, contact, or visits.
RCW 13.34.200(3) must be interpreted from its ordinary meaning, within the
context of the statute, related provisions, and the statutory scheme as a whole.
Christensen v. Ellsworth, 162 Wn.2d 365, 373, 172 P.3d 228 (2007). Unlike RCW
13.34.190(1)(a) and (b), which require the trial court to make findings that the
requirements of RCW 13.34.180(1) are established by clear and convincing evidence,
and a finding that termination is in the best interests of the child, RCW 13.34.200(3) is a
separate provision. As discussed above, the status of sibling relations is not a required
element to support a termination finding. Instead, RCW 13.34.200(3) requires only that
the trial court include a statement in the termination order concerning the status of
sibling relationships. Unlike the required findings in RCW 13.34.190(1)(a) and (b), RCW
13.34.200(3) is more akin to a ministerial requirement that ensures that the termination
6 Indeed here, after the order terminating the parental rights was entered, A.E. moved that Jav
and Jae be placed with him under the care of Dayna Hicks. While the Department and CASA advocated
for Jav and Jae to remain with the foster parents, the trial court granted A.E.’s motion and concluded that
it was in the best interests of the children to be placed with Hicks.
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order acknowledges the existence and status of sibling relationships. Here, the trial
court included just such a statement:
The status of the children’s sibling relationships and the nature and extent
of sibling placement, contact, or visits is as follows: the older siblings
remain dependent and visitation is ordered in the dependency matters.
[Jav and Jae] have had infrequent contact with their two older brothers;
some of this contact has been by telephone or video/skype services. One
of the two older brothers lives in Pennsylvania and the other was most
recently out of state in Mississippi for a month or had been on the run from
his ordered placement here in King County.
RCW 13.34.200(3) does not create an independent requirement that the trial
court consider sibling relationships in making the required findings in RCW
13.34.190(1)(a) and (b) necessary for termination. The trial court did not abuse its
discretion in excluding testimony of sibling relationships over that required to make the
statement required by RCW 13.34.200(3).
3. Best Interests of the Child
The parents argue that the best interests of the child analysis required by RCW
13.34.190(1)(b) necessarily encompasses all relevant considerations, including the
sibling relationship.
The Department must prove that termination is in the best interests of the child
under RCW 13.34.190(1)(b) by a preponderance of the evidence. In re Parental Rights
to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016). “The criteria for establishing the
best interests of the child are not capable of exact specification because each case is
largely dependent upon its own facts and circumstances.” In re Dependency of J.S.,
111 Wn. App. 796, 804, 46 P.3d 273 (2002). Due to the individual facts of each case,
“the courts have broad discretion and are allowed considerable flexibility to receive and
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evaluate all relevant evidence in reaching a decision that recognizes both the welfare of
the child and parental rights.” In re Welfare of Becker, 87 Wn.2d 470, 478, 553 P.2d
1339 (1976).
The parents again muddle the termination proceeding with the distinct issues of
dependency, placement, and adoption. A child’s best interests in the dependency
context include the right to a safe and suitable placement and require comparisons of
alternative living situations. RCW 13.34.130; RCW 13.34.136(2) and (6); RCW
13.34.145(1), (4), (8), and (15). In adoption proceedings, the best interests analysis
includes evaluation of how potential adoptive parents will deal with a child’s relative
connections. RCW 26.33.190; RCW 26.33.240. Neither of these standards address
the best interests of a child at termination, which focuses on whether the parent-child
relationship should continue. In re Dependency of A.W., 53. Wn. App. 22, 33, 765 P.2d
307 (1988) (termination is “fully justified” as in child’s best interests when balancing
parent’s inability to improve verses leaving child “in limbo . . . for an indefinite period”).
While there might be situations where the best interests of the child mean
keeping a parent involved with a child in order to facilitate a sibling relationship, this is
not the case here. The trial court clearly considered all relevant evidence, including
recognizing Jae and Jav’s sibling relationships. Here, the uncontested finding of the
trial court indicated that (1) Jae and Jav were unlikely to return to their parents’ care in
the near future; (2) both parents testified that they were not in a position to parent; (3)
neither parent, during extended times when they were not incarcerated visited Jae and
Jav or engaged in court ordered services; (4) the children had visited sporadically with
their two older siblings, both of whom were out of state and one on the run from care at
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the time of termination; (5) Jae and Jav were adoptable and had prospects for adoption
into a stable and permanent home; (6) the parents were unfit to parent; and (7) Jae and
Jav’s “physical and psychological health would be at risk if they were placed with either
parent at this time.”
While a trial court could abuse its discretion by not considering any evidence of
the sibling relationship, the trial court did not abuse its discretion in this case by
concluding additional evidence of the sibling relationships in this case was irrelevant to
the termination proceedings, and therefore denying the older siblings’ motion to
intervene, quashing the subpoenas for the foster parents, and limiting the expert
testimony on sibling relationships. 7
The parents were provided notice, an opportunity to be heard, the right to be
represented by counsel, and the right to present relevant evidence. The parents were
not deprived of due process.
B. Related Rulings
The mother raises as separate claims that the trial court erred in denying the
older siblings’ motion to intervene and by quashing subpoenas for the foster parents.
We disagree.
1. Intervention
Civil Rule 24 governs motions to intervene in dependency and termination
proceedings. In re Dependency of J.H., 117 Wn.2d 460, 467, 815 P.2d 1380 (1991).
7 Amici King County Department of Public Defense and Washington Defenders Association
raised additional arguments about how the children’s relationships and racial identity should be
considered under the best interests standard. While we recognize the importance of the concerns raised,
here, neither parent raised this issue on appeal. We will not address arguments only raised in amicus
briefs, and not addressed by the appellant. City of Seattle v. Evans, 184 Wn.2d 856, 861 n.5, 366 P.3d
906 (2015).
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CR 24(a)(2) allows intervention as a matter of right where the party seeking to intervene
establishes “(1) timely application for intervention; (2) an applicant claims an interest
which is the subject of the action; (3) the applicant is so situated that the disposition will
impair or impede the applicant's ability to protect the interest; and (4) the applicant's
interest is not adequately represented by the existing parties.” Westerman v. Cary, 125
Wn.2d 277, 303, 892 P.2d 1067 (1994). We review a denial of a motion to intervene as
a matter of right for error of law. Westerman, 125 Wn.2d at 302.
The mother fails to demonstrate that the trial court erred as a matter of law.
While certainly the older siblings may have a natural interest in the fate of their younger
siblings, as discussed above, the Act focuses on the interests of siblings in the
dependency and placement proceedings, not in termination proceedings. There is
already a forum for the older dependent siblings to address their relationships with the
younger siblings: their own dependency proceedings. A dependent child’s contact with
siblings is addressed in the statutes describing dependency procedures, not termination
procedures. Compare RCW 13.34.130(1)(b)(iii) and RCW 13.34.130(6) (order of
disposition for a dependent child); RCW 13.34.136(2)(b)(ii)(A) and RCW 13.34.136(g)
(permanency plan of care); with RCW 13.34.180(1) and RCW 13.34.190(1)(b)
(termination). The trial court did not err in denying intervention as a matter of right.
Under CR 24(b)(2), a trial court may grant permissive intervention where the
applicant’s claim and the main action have a question of law or fact in common. The
decision of a trial court to allow or deny permissive intervention in a dependency is
within the court’s informed discretion and will not be disturbed absent an abuse of
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discretion. A trial court abuses its discretion when no reasonable person would take the
position taken by the trial court. J.H., 117 Wn.2d at 472.
The mother posits that the trial court abused its discretion because it based its
decision on a misunderstanding of the law—that it believed the sibling relationship was
irrelevant to the termination case. Because we agree with the trial court’s decision
limiting testimony of the sibling relationship, we cannot conclude that it abused its
discretion in denying the older siblings permissive intervention.
2. Subpoenas for Foster Parents
A trial court abuses its discretion in denying or limiting discovery if its order is
based on an erroneous view of the law, is based on untenable grounds, or is manifestly
unreasonable. Washington State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122
Wn.2d 299, 339, 858 P.2d 1054 (1993). The mother argues that the trial court abused
its discretion because it based its decision on a misunderstanding of law—again, that it
believed the sibling relationship was irrelevant to the termination case. Because we
agree with the trial court’s decision limiting testimony of the sibling relationship, we
cannot conclude that it abused its discretion in quashing the subpoenas for the foster
parents.
C. Mother’s Provision of Services
The mother argues that the Department failed to prove that it provided her with
all necessary services while she was incarcerated. We disagree.
RCW 13.34.180(1)(d) requires the Department to prove by clear, cogent, and
convincing evidence that “the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary services,
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reasonably available, capable of correcting the parental deficiencies within the
foreseeable future have been expressly and understandably offered or provided.”
“Necessary services” are those services “needed to address a condition that precludes
reunification of the parent and child.” In re Dependency of M.-A.F.-S., 4 Wn. App. 2d.
425, 465, 421 P.3d 482 (2018) (quoting K.M.M., 186 Wn.2d at 480). The record
supports that the Department provided services to the mother during the time she was
both in and out of incarceration over the course of four years. Social worker Charles
Loeffler coordinated with the mother’s federal probation officer, seeking to overlap
services in the criminal and dependency cases so that services were not duplicative.
The mother also received emotional support from the FTC Treatment Specialist who
advocated for her. FTC staff worked with the mother in a therapeutic way to engage her
in services because they were aware of the challenges she faced, giving her multiple
chances to focus on small steps to start moving forward.
The Department referred the mother for a psychological evaluation with a
parenting component on at least three different occasions. Social worker Robert Credle
referred her to Dr. Harmon sometime in 2016 or the beginning of 2017. Later the
Department referred her to the service with Dr. McCollum prior to Jav’s birth. Although
Dr. McCollum wrote the evaluation, he determined the results were invalid. The
Department then re-referred the mother for a psychological evaluation with Dr. Tutty.
The trial court considered the incarcerated parent factors set forth in RCW
13.34.180(1)(f) and .145(5)(b), 8 finding:
8RCW 13.34.145(5)(b) states:
(b) The court’s assessment of whether a parent who is incarcerated maintains a
meaningful role in the child's life may include consideration of the following:
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As the parents have each been incarcerated at times during the
dependencies of these two children and were incarcerated at the time of
trial, the Court has given consideration to factors identified in RCW
13.34.180(1)(f) and RCW 13.34.145(5)(b), including barriers to services;
reasonable efforts made by the [Department], and whether the parents
maintained a meaningful role in the lives of [Jav and Jae].
The trial court found that the testimony of Credle, Loeffler, and the CASA
“provided credible evidence supporting the above findings.” Credle testified that there
were long periods of time during the dependencies for both children when the mother
was not incarcerated. During the mother’s incarceration, Credle remained in touch with
her. During her incarceration, she did not ask to convey writings or communications to
Jae and Jav. Nor did she ask to set up phone calls. While the mother was in prison at
the SeaTac Federal Detention Facility, visitation with her and the children was arranged.
During the times she was not incarcerated, she had sufficient time to complete
the dependency services. According to Credle, the mother “was pretty much resistant
to [participating] in all services” offered by the Department. When the mother was in
prison in Victorville, California, and at SeaTac, Credle investigated what services were
available. Credle was in communication with the mother during her first incarceration as
(i) The parent’s expressions or acts of manifesting concern for the child, such as
letters, telephone calls, visits, and other forms of communication with the child;
(ii) The parent’s efforts to communicate and work with the department or other
individuals for the purpose of complying with the service plan and repairing, maintaining,
or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable efforts of the department;
(iv) Information provided by individuals or agencies in a reasonable position to
assist the court in making this assessment, including but not limited to the parent’s
attorney, correctional and mental health personnel, or other individuals providing services
to the parent;
(v) Limitations in the parent’s access to family support programs, therapeutic
services, and visiting opportunities, restrictions to telephone and mail services, inability to
participate in foster care planning meetings, and difficulty accessing lawyers and
participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the child's life is in the
child's best interest.
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well from November 2017 until August 2018 and arranged for visitation with her and the
children.
The trial court also found it significant that during times when the parents were
not incarcerated, they did not visit Jae or Jav. The court further found that the children
were adoptable and had prospects for adoption into a stable and permanent home, and
that they were bonded to a home other than that of their biological parents. Sufficient
evidence supports the trial court’s findings that necessary services were provided and
its findings related to the incarcerated parent factors.
D. Best Interests of the Child Standard
The father argues that the best interests standard under RCW 13.34.190 is
unconstitutionally vague as applied to his case. We disagree.
We review the constitutionality of a statute de novo. State v. Eckblad, 152 Wn.2d
515, 518, 98 P.3d 1184 (2004). “Statutes are presumed constitutional, and the
challenger of a statute must prove beyond a reasonable doubt that the statute is
unconstitutional.” In re Welfare of A.W., 182 Wn.2d 689, 701, 344 P.3d 1186 (2015).
When considering a vagueness challenge, our first step is to determine whether
we examine the statute as it applies to the particular case or on its face. City of
Spokane v. Douglass, 115 Wn.2d 171, 181-82, 795 P.2d 693 (1990). Vagueness
challenges that do not implicate First Amendment rights are evaluated in light of the
particular facts of each case. City of Bremerton v. Spears, 134 Wn.2d 141, 159, 949
P.2d 347 (1998). Termination proceedings do not involve First Amendment rights,
therefore, we examine the vagueness challenge as applied to this case. In re Welfare
of H.S., 94 Wn. App. 511, 524, 973 P.2d 474, 482 (1999).
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“A statute is void for vagueness if it is framed in terms so vague that persons of
common intelligence must necessarily guess at its meaning and differ as to its
application.” In re Contested Election of Schoessler, 140 Wn.2d 368, 388, 998 P.2d
818 (2000). In In re Dependency of A.D., 193 Wn. App. 445, 462-63, 376 P.3d 1140(2016), this court held that meaningful appellate review is available based on RCW
13.34.190 because the trial court makes detailed, specific findings of fact to support its
decisions. We strongly rely on the trial court’s determinations of the child’s best
interests, and we will not second guess evidence and credibility determinations. In re
Interest of Pawling, 101 Wn.2d 392, 401, 679 P.2d 916 (1984).
Our case law dictates that the best interests of the child standard must take into
account each individual circumstance of the child. In re Dependency of A.V.D., 62 Wn.
App. 562, 572, 815 P.2d 277 (1991) (“Washington courts have held that the factors
involved in determining the ‘best interests’ of a child are not capable of specification;
rather, each case must be decided on its own facts and circumstances.”). Although the
father alleges the statute is vague as applied to its case, his argument rests on a broad
assertion of the importance of sibling relationships. The court made specific findings
indicating why termination was in the best interests of Jae and Jav due to the parents’
inability to overcome their parenting challenges. “Where a parent has been unable to
rehabilitate over a lengthy dependency period, a court is fully justified in finding
termination in the child’s best interests rather than leaving the child in the limbo of foster
care for an indefinite period while the parent sought to rehabilitate himself.” In re
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Dependency of T.R., 108 Wn. App. 149, 167, 29 P.3d 1275 (2001). The father has
failed to demonstrate that the best interests standard was vague as applied to him. 9
Affirmed.
WE CONCUR:
9 The father asks us to direct the legislature to compile a list of objective factors to guide a court
in exercising its discretion under RCW 13.34.190. Amici support this argument. This court cannot
address this argument. McCleary v. State, 173 Wn.2d 477, 517, 269 P.3d 227 (2012) (issues of policy
and new guidance are not within the role of the court, but rather belong to the legislature).
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