In Re The Dependency Of: L.j.s. Amy Sweet, App. v. State Of Wa., Dshs, Res. ( 2018 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 77281-3-I/Consolidated w/
No. 77282-1-1
X.C.S.-H., DOB: 04/20/2012,
L.J.S., DOB: 09/04/2008, DIVISION ONE
Minors,
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
UNPUBLISHED OPINION
Respondent,
V.
AMY SWEET,
Appellant. FILED: April 30, 2018
SPEARMAN, J. — Amy Sweet appeals from the order terminating her
parental rights to her two sons, X.C.S.-H. and L.J.S. She contends that the court
failed to prove that there was little likelihood that parental deficiencies would be
remedied in the near future, that continuation of the parent-child relationship
diminished the boys' prospects for integration into a stable and permanent home,
and that termination was in the best interests of the children. Substantial
evidence supports these findings. We affirm.
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FACTS
Amy Sweet is the biological mother of two boys.' L.J.S was born on
September 4, 2008, and X.C.S.-H. was born on April 20, 2012. On February 2.
2015, after Sweet's arrest on a third degree assault charge, the children were
placed in protective custody. Soon thereafter, on February 4, the Department of
Social & Health Services (Department)filed a dependency petition and placed
the boys in foster care with family friends. At the time, the boys were two and a
half and six and a half years old. In March 2015, Sweet entered into an agreed
order of dependency. As part of the acknowledged issues related to alcohol and
to her mental health, she agreed that the services ordered to address the issues
were ri,ece5sary and appropriate. In the disposition order, Sweet agreed to
participate in a substance abuse evaluation, to follow any resulting
recommendations, submit to random urinalysis, to participate in a mental health
assessment, to follow any resulting recommendations and to participate in
counseling.
Throughout the dependency, the Department offered and provided the
mother with appropriate services, including substance abuse evaluation and
treatment,2 random urinalysis tests, mental health assessment and counseling,
parenting instruction, Family Drug Treatment Court, Moral Reconation Therapy,
Therapeutic Alternatives Program, a domestic violence assessment and
1 Sweet also has a daughter, Leigha, who was 18 years old at the time of trial and not
subject to the proceeding.
2 Sweet attempted drug and alcohol treatment prior to this dependency in 2009 or 2010,
and again in 2013. She did not stop using drugs or alcohol after these treatment attempts.
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treatment, medication management, a psychological evaluation with a parenting
component, and a Foster Care Assessment Program assessment.
Sweet entered into and completed inpatient drug and alcohol treatment in
May 2015. At the time she began the program, she was using alcohol, cocaine,
and marijuana. After completing the program, she relapsed throughout the
summer. But Sweet continued with intensive outpatient treatment and graduated
from Family Drug Treatment Court in June 2016. The Department stopped
asking Sweet for urinalysis testing in December 2016.
Also in December 2016, the Department filed termination petitions for both
X.C.S.-H. and L.J.S. In April 2017, Sweet requested that the court return the
boys to her or grant unsupervised visits, declaring that she had been clean and
sober for 618 days. But the Department received a report that Sweet was using
and referred for urinalysis testing. Sweet admitted that she had been using
marijuana since February 2017. She tested positive for marijuana and cocaine.
Her motion for a return home or unsupervised visits was denied, and the
Department referred her for additional evaluation and treatment.
Sweet's sons were eight and a half and five years old, respectively, at the
time of Sweet's termination hearing in June 2017. They had been out of the
home for 29 months. At trial, Sweet's various social workers, case managers,
and the guardian ad litem testified about her strengths and deficits as a parent,
which included her mental health, parenting skills, substance abuse, and choice
of romantic partner.
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Sweet reported having anxiety and depression. Sweet's depression raised
concerns about her parenting. After evaluating her, forensic psychologist, Dr.
Evan Freedman testified that
some of the withdrawal and lack of engagement that I observed in
the parent-child visit would relate to either depression or a sense of
hopelessness, a lack of confidence, and so that — there's a
connection there between the information on the [Minnesota
Multiphasic Personality Inventory] and the actual behavior that we
observe when she's parenting. . . . depression can have a negative
impact on parenting.
Verbatim Report of Proceedings(VRP)at 227-28. Sweet's court-appointed
diversion case manager, Christine Lee, recommended that she see a therapist
once a week. But Sweet attended therapy appointments far less frequently. In
the four months leading up to trial, Sweet attended therapy between three and
six times. At another point in the dependency, Sweet went two or three months
without attending therapy. These periods of inconsistent attendance were usually
due to a change in mental health provider. A psychiatrist recommended that
Sweet take medication for her mental health condition, but Sweet discontinued
use after trying it.
Witnesses also testified that Sweet had been unable to make progress
expanding her visits with the boys. Throughout the dependency, Sweet had
regular, monitored visits with them. At the time of trial, Sweet had a two hour visit
with X.C.S.-H. on Tuesday, a two hour visit with L.J.S. on Thursday, and a two
hour visit with both boys on Friday. At one point, the Department attempted to
expand Sweet's visits. But Sweet missed these visits, so the monitored visit
contract was cancelled. While Sweet did graduate from supervised visits to
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monitored visits, she never successfully moved to unsupervised visits, or to
expanding times for monitored visits.
Those who observed Sweet with her boys testified that she loved her
children and was bonded to them, and likewise her boys loved and were
attached to her. But they also noted concerns about Sweet's parenting skills.
Social worker Denise Hollenbeck testified that she observed X.C.S.-H. nearly put
a marble up his nostril during a visit with Sweet. When Hollenbeck took the
marble from the child and gave it to Sweet, she did not place the marbles out of
reach. In addition, Sweet was told about concerns that a bookshelf on top of a
desk was a tipping hazard. But Sweet did not promptly move the bookshelf or
secure it to the wall. Hollenbeck also criticized Sweet for feeding her children and
watching shows or movies with them when she should have been helping with
homework or more actively engaged with them. Hollenbeck criticized Sweet for
not insisting that her boys stay in timeout, and being inconsistent with them. She
testified about another incident in which Sweet took her boys to do laundry in
another building. When returning to the apartment, X.C.S.-H. did not follow
Sweet inside, and was left outside the apartment with Hollenbeck for a few
minutes.
These observations of Sweet's parenting skills were of particular concern
because X.C.S.-H. has special needs arising from his global developmental
delays and low cognitive functioning. Dr. Freedman testified that "the task of
parenting these children is going to be very difficult. So there's a mismatch there
between the level of difficulty the children present and the level of skill and
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capacity that Ms. Sweet has." VRP at 224. And in spite of invitations to medical
and school appointments, Sweet had attended only one medical and one school
appointment.
Sweet's living situation was also a concern. She continued to live with her
fiancé even though the Department advised her that it could not approve the
children living with him due to his recent domestic violence criminal history. In
spite of the Department's warnings, Sweet did not take action to move her fiancé
out of her home. In addition, Sweet's daughter lived in her home, which
concerned witnesses. The two had a volatile relationship and the daughter used
drugs in the home.
The Department's witnesses testified that, while continued contact with
Sweet would be ideal, termination of her parental rights was in the boys' best
interests. Hollenbeck testified that she saw a lot of progress with the boys after
they were placed in foster care:
When I first met [X.C.S.-1-11, the caregivers told me that he had —
came to them with about 15 words. And at that point, he acted out
angrily or he acted out a lot because he...seemed unable to use
words....
Over the course of[the] next year and a half, he became
much more verbal. . . .
He learned to not fight so much with his brother and sister
and not grab toys, and, you know,just do a variety of things that he
seemed not to be able to do when he arrived at the home.
VPR at 112. With respect to the older brother,[L.J.S.], "he seemed to be able to
kind of come out of [his] shell." VRP at 113.
Evaluator Beverley Pearl also recommended termination, testifying that in
foster care the boys
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were both progressing in school, they were doing better
behaviorally and emotionally. I think that there had been quite a
I
turnaround in behaviors...[W]hen [X.C.S.-H.] was placed at 34
months, he wasn't walking, and he wasn't really talking, and he
wasn't potty trained. He was just under three years old. And he
immediately started making really significant progress in all of those
areas.
VRP at 312-13. She also recommended termination.
The trial court entered findings and an order terminating Sweet's parental
rights to the children. Sweet appeals.
DISCUSSION
Parental rights are a fundamental liberty interest protected by the United
States Constitution. Santosky v. Kramer,455 U.S. 745, 753, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982). To terminate parental rights, the State must satisfy a two-
step test. First, it must prove the following statutory elements by clear, cogent,
and convincing evidence:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant
to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the
hearing, have been removed from the custody of the parent for a
period of at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have
been expressly and understandably offered or provided and all
necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be
remedied so that the child can be returned to the parent in the near
future. . ..
(f) That continuation of the parent and child relationship
clearly diminishes the child's prospects for early integration into a
stable and permanent home.
;
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RCW 13.34.180(1)(a-f). If the State satisfies these criteria, the court may
terminate parental rights if it finds by a preponderance of the evidence that
termination is in the "best interests" of the child. RCW 13.34.190(b).
On review, unchallenged findings of fact are considered verities. In re
Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227(2001). Challenged
findings will be upheld "[i]f there is substantial evidence which the lower court
could reasonably have found to be clear, cogent and convincing ..." In re Welfare
of Aschauer, 93 Wn.2d 689, 695,611 P.2d 1245 (1980). Because the trial court
hears the testimony and observes the witnesses, its decision is entitled to
deference. In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277(1991). Consequently, we defer to the trier of fact on issues of conflicting
testimony, credibility of the witnesses, and the weight or persuasiveness of the
evidence. Id.Likelihood That Conditions Will Be Remedied in the Near Future
Sweet argues that the Department failed to prove that her children could
not be returned to her in the near future as required by RCW 13.34.180(1)(e).
She contends that she was actively engaged in services at the time of trial, and
required merely eight weeks to complete relapse prevention, remove her fiancé
from her home, and complete her parenting classes.
The State points out that the mother failed to assign error to the finding
that "[t]here is little likelihood that conditions will be remedied so that the children
can be returned to the mother in the near future." Findings of Fact(FF) 2.30; CP
at 12. Unchallenged findings of fact are verities on appeal, and this finding
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supports that the boys could not be returned to Sweet in the near future. But
even if Sweet had challenged this finding, substantial evidence supports that the
Department met its burden to prove that there is little likelihood that conditions
will be remedied so that the children can be returned to the parent in the near
future.
Sweet continued to have significant parental deficiencies in spite of the
many services that she participated in, making her unable to successfully expand
visits with her children. She also continued to struggle with substance abuse,
which diminished her ability to parent effectively. After relapsing in February
2017, urinalysis testing demonstrated that her marijuana levels were not
decreasing. While Sweet acknowledged that she "shouldn't be using any kind of
drugs or alcohol ... [b]ecause I make bad decisions," she also minimized her use
of marijuana due to it being a legal substance, and testified that she believed her
boys should live with her even if she used marijuana. VRP at 67-68.
Sweet's living situation is additional evidence that conditions would not be
remedied in the near future to enable the boys to return home. The Department
repeatedly warned the mother that it could not approve of reunification if the
mother's fiancé was living with her due to his history as a domestic violence
perpetrator. At trial, Sweet first denied that she remembered such a warning.
Later, she acknowledged that she knew that her continued cohabitation was a
barrier to reunification with her kids. There is no evidence in the record that
Sweet was willing to remove her fiancé from her home in response to these
concerns. While Sweet argues that her fiancé offered to move out of the home,
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Hollenbeck testified that it was not a "real genuine offer to move out" because he
was "sort of having a tantrum" at the time. VRP at 163.
Sweet argues that her enrollment in a relapse awareness program
demonstrates her ability to correct her substance abuse problems in the near
future. But as the trial court found, Sweet had already experienced extensive
treatment for substance abuse, which included relapse awareness. Substantial
evidence supports the trial court's findings that additional relapse awareness
training would not correct her substance abuse. Sweet's relapse and
minimization of her use of marijuana is substantial evidence supporting the trial
court's finding that there was little likelihood that conditions will be remedied so
that the boys' can return to their mother in the near future.
Sweet contends that the trial court relied on extrinsic evidence to support
its findings of fact that she would not benefit from a relapse awareness program
and suffered from "major depressive disorder."3 She argues that the trial court
erred by relying on its "common experience" to reach its finding on relapse
awareness, and that the record did not support that Sweet had major depressive
3 "The mother claims she would be ready to parent after she completes the eight-week
relapse awareness program. It is clear to this Court from both this Court's common experience
with drug use and from the mother's history that relapse awareness is not going to cure the
mother's severe, very long-term substance abuse problem." FF 2.68
"The mother has been diagnosed with major depressive disorder." FF 2.74.
"The mother has chosen not to take medication to treat her depression even though it
was recommended." FF 2.85
CP at 15.
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disorder. The Department argues that substantial evidence in the record supports
these findings.4
With respect to the relapse awareness program, we agree with the
Department. As discussed above, there is substantial evidence that, due to the
mother's substance abuse history, an additional eight-week relapse awareness
program would not remedy conditions such that the children could return home.
This is substantial evidence supporting the trial court's finding, independent of
any "common experience" of the court.
But we agree with Sweet with respect to finding of fact 2.74 related to
major depressive disorder. Substantial evidence does not support that Sweet
was diagnosed with major depressive disorder. Rather, the record supports that
Sweet felt depressed or had situational symptoms of depression with which she
struggled. Sweet argues further that this erroneous finding is the basis for
additional findings related to her mental health and thus requires reversal. We
disagree. Regardless of its characterization, substantial evidence supports the
challenged findings that Sweet was depressed, that she was not actively
engaged in treatment of her depression, and that the depression impacted her
4 The Department initially argues that Sweet raises this issue for the first time on appeal.
But the Department does not cite authority for its proposition that a parent can waive an argument
on insufficiency of the evidence due to a failure to object at trial.
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parenting.5
Diminishing Prospects for Early Integration Into a Permanent Home
Sweet next argues that the Department did not prove that continuation of
the parent-child relationship diminished the boys' prospect for early integration
into a stable and permanent home as required by RCW 13.34.180(1)(f). She
contends that the Department failed to meet its burden with respect to this
element because it did not prove that a less restrictive alternative to termination,
such as dependency guardianship or open adoption, was unavailable.
Contrary to Sweet's argument, this statutory element does not require that
the Department prove there is no less restrictive alternative to termination. The
court is under no obligation to consider a dependency guardianship as an
alternative to termination where such an option was not being considered by the
Department. In re Dependency of K.S.C., 137 Wn.2d 918, 930, 976 P.2d 113(1999). Sweet cites In re Welfare of S.V.B., 75 Wn. App. 762, 880 P.2d 80(1994)
for her contention that the trial court must consider a guardianship as a less
5 "The mother has chosen not to take medication to treat her depression even though it
was recommended." FF 2.85;"The mother's testimony and demeanor in court have convinced
the court that it would be beneficial not just for the mother's own wellbeing but also for her
interactions with her children to follow through more with her mental health treatment and
medication recommendations." FF 2.86; "The mother's depression feeds into both her chemical
dependency and her inability to actively parent." FF 2.87; The mother's depression plays a role
in the fact that when the Department added another weekly visit in summer 2016 she missed
three visits because the visits were in the morning and she could not wake up in time, which
resulted in a termination of those visits." FF 2.88;"The mother's tendency to watch videos during
brief visits indicates an inability to actively parent or actively participate with her children. This is
likely a result of the mother's depression and a lack of self-esteem." FF 2.90;"The mother's
unwillingness to do anything about the safety concern raised in Spring 2016 regarding a
bookshelf that[X.C.S.-H.] was climbing on until her home was remodeled (which didn't occur until
March 2017) is another sign of a lack of active parenting and actively doing something about a
problem." FF 2.91;"The mother has lingering parental deficiencies. The mother has an ongoing
mental health and substance abuse problem that are not being appropriately addressed." FF 2.96
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restrictive alternative prior to terminating parental rights. But S.V.B. held that
where one child was already in a guardianship, rather than foster care,
continuation of the parent-child relationship did not diminish that child's prospect
for integration into a stable and permanent home. Here, there was no
guardianship already in place, so S.V.B. is inapposite.
Similarly, the court has no obligation to find that open adoption is
unavailable as a less restrictive alternative. Sweet cites In re Welfare of H.Q.,
182 Wn. App. 541, 330 P.3d 195(2014) in support of her argument. But in that
case, the court held that due process requires that voluntary relinquishment,
which would enable open adoption, must be available. Voluntary relinquishment
was available to Sweet, but she did not avail herself of that option.
The lack of evidence regarding the availability of less restrictive
alternatives did not cause the Department to fail to prove that continuation of the
parent-child relationship diminished the boys' prospect for early integration into a
stable and permanent home.
Best Interests of the Child
Finally, Sweet argues that the Department failed to prove that termination
of her parental rights was in the children's best interests as required by RCW
13.34.190(1)(b). She contends that testimony supported that the boys would
benefit from having her in their lives.6
6 Sweet assigns error to findings of fact 2.116 and 2.117. Finding of fact 2.116 states: "It is
in the best interest of[X.C.S.-H.] and [L.J.S,] that all of the parental rights of the mother be
terminated under ROW 13.34.180 and .190." Finding of fact 2.117 states: "While the court
believes that the children would greatly benefit from a relationship with their mother that is not an
issue that the court can control." OP at 17.
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The evidence at trial established that the boys were doing well in their
current placement, were entitled to permanency as soon as possible, and that
delay for Sweet to redress her parental deficiencies would diminish the boys'
prospects for integration into a stable and permanent home. The guardian ad
litem, Department social workers, and Ms. Pearl acknowledged the affection
between Sweet and the boys, and their preference that Sweet maintain some
contact with them. But they nevertheless recommended termination of parental
rights and adoption based on the boys' progress in foster care, their high level of
needs, Sweet's ongoing substance abuse issues, her relationship with a man
with a domestic violence history, and her mental health issues that were not
properly addressed. VRP at 145; 340; 391-92; 437.
Because substantial evidence supports the trial court's findings, we reject
Sweet's appeal and affirm the termination order.
Affirmed.
WE CONCUR:
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