In Re The Dependency Of S.n.w. ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of ) No. 82276-4-I (consolidated with
) No. 82277-2-I)
S.N.W. and H.W., )
) DIVISION ONE
Minor Children. )
) UNPUBLISHED OPINION
MANN, C.J. — J.W. appeals the termination of his parental rights to S.N.W. and
H.W.1 J.W. argues that the State did not meet its burden under RCW 13.34.180(1)(d)
because the Department of Children, Youth, and Families (Department) refused to fund
court-ordered domestic violence (DV) treatment and failed to inform the court of this
decision. J.W. also alleges that he was denied his right to effective assistance of
counsel when he was not provided continuous and contemporaneous consult with
counsel in Zoom 2 proceedings, when counsel failed to bring a motion to compel the
Department to pay for DV treatment, and when counsel could not assist him in
maintaining a reasonable courtroom demeanor. We affirm.
1 The termination proceeding involved both J.W. and the children’s mother. The mother entered
a relinquishment and signed an open adoption agreement. Termination of the mother’s parental rights is
not before us.
2 Zoom is a video teleconferencing platform.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82276-4-I/2
FACTS
S.N.W. and H.W. were removed from the care of their parents in 2016. At the
time of removal, S.N.W. and H.W. were four and five respectively. On November 3,
2017, J.W. agreed to entry of a dependency and dispositional order. J.W. was in
custody on multiple charges when the dependency order was entered. Under the
dependency order, J.W. agreed to complete the Triple P parenting program, a
psychological evaluation with a parenting component and any recommended treatment,
random urinalysis testing, drug/alcohol evaluation and recommended treatments, and a
DV batterer’s assessment and recommended treatment. Colleen Stark-Bell was J.W.’s
social worker from the time the dependency was established through the termination
trial.
The Department referred J.W. to Washington National Counseling for Triple P
and assigned therapist Noel Villarivera. At first, J.W. attended over half of the Triple P
sessions, but began to routinely miss sessions with Villarivera. Because of J.W.’s
noncompliance, the referral was returned to the Department in June 2018. The
Department encouraged J.W. to reenter Triple P, but he was mostly out of
communication until late October 2018. In November 2018, J.W. reentered Triple P but
Villarivera closed the referral again, due to lack of participation. The Department
referred J.W. to Dr. Benjamin Johnson for psychological evaluation. J.W. cancelled his
first appointment in February 2018 and failed to cooperate and reschedule the
appointment until October 2018. On December 14, 2018, Dr. Johnson completed the
evaluation and diagnosed J.W. with adjustment disorder with mixed anxiety and
depression, alcohol use disorder, severe, in remission, amphetamine use in early
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remission, and unspecified personality disorder. Dr. Johnson recommended that J.W.
establish a therapeutic relationship with a mental health professional for 180 days, enter
substance use treatment and support, and participate in parent coaching for a period of
90 days.
J.W. was referred to Valley Cities for mental health treatment but he never went
beyond the initial mental health intake. Stark-Bell also suggested Harborview for mental
health counseling, but J.W. never engaged in that service. J.W. failed to provide the
Department with records of any mental health treatment.
J.W. participated in Valley Cities’ intensive outpatient substance abuse
treatment. But he was sporadic in attendance, difficult to reach when not present, and
used marijuana throughout the treatment. Treatment specialist Seairra Wheatley
testified that J.W. constantly needed reassessment because he would leave the
program for longer than 30 days at a time. J.W. also had to restart the treatment
program after reporting several relapses in substance use. Eventually Valley Cities
discharged J.W. from the program for lack of attendance and violating rules.
The court-ordered random urinalysis (UAs) at a frequency of one time a week for
90 days. The Department tried to work with J.W. and provided him with repeated
referrals for UAs at locations convenient to J.W., but he never completed them. J.W.
never successfully completed the UA requirement with any provider.
J.W. was ordered to complete a DV evaluation and follow any treatment
recommendations. In January 2018, the Department referred J.W. to La Esperanza for
DV assessment. After a period of little contact from J.W., the social worker finally
received a report from La Esperanza in January 2019. La Esperanza recommended
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that J.W. complete a 12-month treatment protocol based on his criminal history and the
protection orders against him. J.W. did not engage in DV treatment services. J.W.
testified that he took a “Thinking for Change” class through the Department of
Corrections and was under the impression that his “DV was taken care of.” J.W. also
claimed that he needed another referral for services for DV treatment, but his social
worker explained that he did not need another referral.
The dependency order provided for J.W. to have two supervised visitations per
week with the children after his discharge from corrections. From July to October 2018,
J.W. did not visit his children or engage in any services. He again stopped visitation,
communication, and engaging in services in March 2019 and did not respond for the
next nine months. J.W. engaged in in-person visits in January 2020, then stopped until
May 2020, where he was provided several video visits because of COVID-19. On June
1, 2020, J.W. became angry that his children attended a Black Lives Matter Protest but
could only attend video visitations. J.W. did not attend his next three visits and the
visitation contract was canceled. J.W. did not respond to any further scheduling
attempts or to direct contact with his children through calls to the foster parents.
The Department petitioned for termination of J.W.’s parental rights as to S.N.W.
and H.W. on June 12, 2019. After COVID-19 related delays, the trial began in October
2020. J.W. requested a continuance of the trial on September 29, 2020, based on the
attorney’s contention that he could not represent J.W. properly in a hybrid-remote
setting. After considering and weighing the Mathews 3 factors, the trial court determined
a hybrid-remote trial provided sufficient safeguards to protect J.W. from the risk of
3 Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
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erroneous deprivation of his right to counsel and denied the motion. The trial was
conducted over Zoom and lasted 19 days. The judge was in the courtroom, which was
open to the public, and J.W. mostly appeared in person. J.W. was provided a laptop to
participate via Zoom, and could communicate with his attorney via text, e-mail, or in a
private breakout room within Zoom.
The trial court terminated J.W.’s parental rights on December 8, 2020, finding
that J.W. had not completed any of his court-ordered services, and had not progressed
in his ability to be a safe and stable parent to H.W. and S.N.W. The court was
particularly influenced by J.W.’s lack of effort over time, finding he routinely failed to
improve his parental deficiencies in the 36 months following the entry of the
dispositional order. The court found that J.W. had shown no ability to fully engage in
and complete services, or even contact his children.
J.W. appeals.
ANALYSIS
A. State’s Burden under RCW 13.34.180(1)(d)
J.W. argues that the State did not meet its burden under RCW 13.34.180(1)(d)
because it failed to provide J.W. with court-ordered DV treatment. We disagree.
Parental rights are a fundamental liberty interest protected by the state and
federal constitutions. U.S. CONST. amends. V, XIV; WASH. CONST. art. I, § 3. The State
may interfere with a parent’s constitutional right “only if [it] can show that it has a
compelling interest and such interference is narrowly drawn to meet only the compelling
state interest involved.” In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998).
To terminate a parent’s rights, the State must prove the statutory elements found in
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RCW 13.34.180(1) by clear, cogent, and convincing evidence. In re Dependency of M-
A.F.-S., 4 Wn. App. 2d 425, 449, 421 P.3d 482 (2018). Evidence is clear, cogent, and
convincing “when the ultimate fact in issue is shown by the evidence to be ‘highly
probable.’” In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995). A
trial court’s findings of fact will not be disturbed on appeal if they are supported by
substantial evidence. In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). Thus, the
ultimate fact in issue must be shown by evidence to be highly probable. Sego, 82
Wn.2d at 739.
RCW 13.34.180(1)(d) requires:
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.
To meet its statutory duties in offering and providing services, at a minimum, the
Department must give the parent a referral list of agencies or organizations that provide
the service. In re Welfare of Hall, 99 Wn.2d 842, 850, 664 P.2d 1245 (1983).
Furthermore, the Department is tasked with coordinating with contracted service
providers and supervising agencies to ensure parents in dependency may quickly
access remedial services. RCW 13.34.025(2). The Department has a duty to “provide”
court-ordered services and if a court-ordered remedial service is “unavailable for any
reason, including lack of funding,” the Department must promptly notify the court. RCW
13.34.025(2)(c); RCW 13.34.136(2)(b)(vii).
The dependency order required J.W. obtain a DV assessment and follow through
with any treatment recommendations. The Department referred J.W. to La Esperanza
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for an assessment. J.W. completed the assessment, which recommended he engage
in a 36-week DV treatment protocol. To attend the DV treatment, J.W. needed to pay
using their sliding scale system based on income or request to receive funding through
the Department. J.W. insisted he needed a “referral” for DV treatment, however Stark-
Bell explained that La Esperanza only needed another referral if the Department was
paying for the service. Stark-Bell then consulted her supervisor and determined that
Department policy was to require parents to use the sliding pay scale for DV treatment
unless funding was specifically ordered by the dependency court.
J.W. asserts that the Department refused to assist him in funding his DV
treatment after he stated he needed help with payment. This assertion is not supported
by the record. Stark-Bell testified she reached out to J.W. via e-mail and stated the
Department could not authorize a referral for payment and that he needed to contact La
Esperanza to discuss the sliding pay scale or consult his attorney if he has issues with
that. Stark-Bell testified to providing multiple written documentations to both J.W. and
his attorney, over many months, articulating the Department’s stance about referral for
this payment and that “we could certainly come to the table, or they could file a motion if
there was continued disagreement about who bears the responsibility for payment of
that service.” J.W. never followed up with his attorney or Stark-Bell indicating he could
not pay the sliding pay scale amount.
The trial court heard J.W.’s and Stark-Bell’s testimony and found:
[J.W.] participated in a domestic violence assessment at [La] Esperanza
with Zoila Saritama. Ms. Saritama testified that her assessment reflected
the standard recommendations for treatment based on domestic violence
incidents, as well as made the suggestion that [J.W.] obtain a mental
health assessment and engage in substance abuse treatment. She found
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that he would benefit from Level Two Domestic Violence treatment. [J.W.]
was made aware of her recommendations by Ms. Stark-Bell, once again
through service letters, in person conversations, emails and text
messages. Ms. Stark-Bell repeatedly utilized these same methods to
advise [J.W.] that he needed to engage in domestic violence treatment,
that he could begin at La Esperanza, and that if he had any problems
accessing this service, he needed to bring it to her attention and to that of
his attorney. Although [J.W.] raised that he couldn’t access this service
because Ms. Stark-Bell wouldn’t make a referral for the service, testimony
of Ms. Stark-Bell established that a referral was not necessary to engage
in the service, and that [J.W.] had been clearly advised a referral was not
necessary repeatedly.
[J.W.] just didn’t want to do the domestic violence treatment. He was
given plenty of opportunity to figure out how to get started, he just didn’t
do it, he didn’t even try.
Substantial evidence supports the trial court’s conclusion that J.W. did not
properly request funding for DV treatment and that the Department did refer J.W. to DV
treatment and provide avenues for his attendance. J.W. simply did not act with intention
to attend.
J.W. also argues that the Department was required to pay for DV treatment.
Again, we disagree.
RCW 13.34.025(2)(b) provides:
The department shall provide funds for remedial services if the parent is
unable to pay to the extent funding is appropriated in the operating budget
or otherwise available to the department for such specific services. As a
condition for receiving funded remedial services, the court may inquire into
the parent’s ability to pay for all or part of such services or may require
that the parent make appropriate applications for funding to alternative
funding sources for such services.
While this section provides steps for the Department to take, it is triggered by a parent’s
direct action requesting funding from the Department. J.W. did ask about a referral, but
when informed of his options for attending DV treatment through the sliding pay scale,
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or by asking the court or Department for funding, he failed to act. Thus, the Department
was not required to assess J.W.’s finances or consider Department funds to pay for the
service. 4
In determining that the Department offered J.W. all court-ordered services,
including DV treatment, the court was specifically influenced by J.W.’s lack of effort over
the course of the dependency. J.W. started nearly all the services required of him, but
finished none of them. He started the Triple P parenting program twice during the
dependency but never finished. J.W. attended Valley Cities cyclically and engaged in
substance abuse treatment, but he never completed the program. He failed to begin
mental health counseling and the record shows with substantial evidence that he failed
to attend DV treatment.
While we agree that the Department could have done more to aid J.W. in
receiving funding for DV treatment, the record demonstrates that the Department tried
to assist J.W. for many years, through many services. Substantial evidence supports
the trial court’s finding that all elements of RCW 13.34.180 were proven by clear,
cogent, and convincing evidence.
B. Right to Counsel
J.W. argues he was denied his right to counsel when he was deprived of
constant and contemporaneous communications with his attorney because of the hybrid
Zoom platform, counsel failed to seek an order forcing the Department to fund DV
4 RCW 13.34.025(2)(c) states: “If court-ordered remedial services are unavailable for any reason,
including lack of funding, lack of services, or language barriers, the department shall promptly notify the
court that the parent is unable to engage in the treatment due to the inability to access such services.”
Again, J.W. was not clear in his inability to pay, thus his actions did not trigger the Department’s
obligation to notify the court.
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treatment, and counsel’s remote status prevented him from effectively helping him
maintain a reasonable courtroom demeanor. We disagree.
In termination proceedings, RCW 13.34.090(2) grants parents the right to be
represented by counsel and, if indigent, have counsel appointed at all stages of the
proceeding. These protections derive from the due process protections of the
Washington Constitution. W ASH. CONST. art. I, § 3. A parent’s right to be heard at a
termination trial includes the right to be present, or if unable, the meaningful opportunity
to be heard and defend through alternative procedures. In re Dependency of J.D.E.C.,
18 Wn. App. 2d 414, 491 P.3d 224 (2021).
1. Consult with Counsel
J.W. argues first that he was denied his right to counsel when he was unable to
continuously and contemporaneously consult counsel during trial because of the hybrid
Zoom platform. We disagree.
Because of the COVID-19 pandemic and medical vulnerabilities, defense
counsel was not present in the courtroom with J.W. during trial. J.W.’s counsel moved
to continue the proceeding until he could be present because of due process concerns.
The court denied the motion. To aid client and counsel communication, the court
allowed J.W. to text or e-mail counsel during trial and allowed him to interrupt the trial to
request a virtual conference with counsel.
In J.D.E.C., this court reviewed a Zoom termination trial and found that the
procedures satisfied due process when the father could not access the Zoom platform
and appeared instead by telephone. 18 Wn. App. 2d at 422. There, a party or attorney
wishing to speak privately with the other was required to inform the court and consult via
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a private, virtual breakout room. J.D.E.C., 18 Wn. App. 2d at 417. The father
participated telephonically and most other parties participated via videoconference. The
court applied the Mathews 5 factors to determine whether a parent’s due process rights
were violated by the electronic court system. J.D.E.C., 18 Wn. App. 2d at 418. The
court concluded the risk of error from the father being present by phone was slight and
that he had a meaningful opportunity to be heard through assisting his attorney to
present his case and direct his attorney on questions to ask in his testimony. J.D.E.C.,
18 Wn. App. 2d at 422-24.
Here, as in J.D.E.C., the court balanced the Mathews factors to weigh the
competing interests. J.W. was equipped with more access than the father in J.D.E.C.
J.W. had unfettered access to his attorney via cell phone and e-mail communication, he
was in person to see the judge and witnesses, and he was offered unlimited ability to
stop the trial and confer with his attorney through a private virtual breakout room with a
laptop the court provided.
In In re Welfare of M.B., 195 Wn.2d 859, 467 P.3d 969 (2020), the Washington
Supreme Court held that due process protects a parent’s ability to participate in a
termination trial even if the parent is incarcerated. There, the court reversed because
N.B. was absent for most of the trial due to lack of cooperation from the correctional
facility. But the court recognized the protections have limits, and approved of remote
appearances by parents that allow consultation with their attorneys. M.B., 195 Wn.2d at
872-77. This case is factually distinct from M.B. because J.W. was present at the trial
5 Under the Mathews factors, the court balances the: (1) private interests affected, (2) the State’s
interest in using the challenged procedures, and (3) the risk of erroneous deprivation of the private
interests due to the procedures used.
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and had consistent, real-time opportunities to discuss the case with his attorney. Both
courts in J.C.E.D. and M.B. approved the electronic modifications as long as a client
could be present (electronically or in person) and had access to their attorney.
J.D.E.C., 18 Wn. App. 2d at 422-24; M.B., 195 Wn.2d at 872-77.
J.W. was not denied his right to effective counsel during the Zoom trial.
2. Ineffective Assistance of Counsel
J.W. argues that he was denied effective assistance of counsel. We disagree.
To establish ineffective assistance of counsel, a parent needs to show deficient
performance and resulting prejudice. In re Dependency of S.M.H., 128 Wn. App. 45,
61, 115 P.3d 990 (2005). The first prong requires a showing that counsel’s
representation “fell below an objective standard of reasonableness based on
consideration of all of the circumstances.” State v. Estes, 188 Wn.2d 450, 457-58, 395
P.3d 1045 (2017). The second prong requires demonstrating there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).
J.W. argues first that his counsel was ineffective when he failed, during the
dependency, to move the court to compel the Department to pay for DV treatment. A
termination trial is not an opportunity to relitigate dependency determinations. In re
Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995). Dependency and
termination require separate petitions, cause numbers, and appointments of counsel. In
re Dependency Hiebert, 28 Wn. App. 905, 908-09, 627 P.2d 551 (1981). A claim of
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ineffective assistance of counsel on appeal pertains to the termination proceedings, not
the attorney’s actions during dependency.
J.W. next argues he received ineffective assistance of counsel because his
attorney’s absence from the room prevented him from aiding J.W. in maintaining a
reasonable courtroom demeanor. We disagree.
At various times during the trial, J.W. made comments under his breath while
witnesses were testifying, interrupted the court, and left the courtroom because of his
emotional state. But while it is an attorney’s responsibility to aid a client in courtroom
demeanor, the attorney’s absence is not grounds for ineffective assistance of counsel
and reversal. Simply, J.W. cannot show prejudice. Termination hearings are often
emotional and the trial court did not fault J.W. for his agitation during trial past asking
him to refrain and allow witnesses to testify. The trial court used 12 pages explaining
the many reasons why termination was appropriate because of J.W.’s inability to comply
with court recommended services throughout the dependency. J.W.’s courtroom
demeanor and actions were not a reason. The trial court did not discuss his courtroom
demeanor in its ruling orally either. J.W. has not met the prejudice prong required of an
ineffective assistance of counsel claim.
Affirmed.
WE CONCUR:
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