In Re The Dependency Of C.j.f., 03/22/03, Jake Fair v. Dshs ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Dependency of: No. 74875-1-1
(consolidated with No. 74876-9-1)
C.J.F. (DOB: 03/22/2003),
DIVISION ONE %
Minor child.
re
INES FAIR and JAKE FAIR,
Appellants,
v.
STATE OF WASHINGTON, UNPUBLISHED
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, FILED: January 23. 2017
Respondent.
Cox, J. -Jake and Ines Fair appeal the trial court's order terminating their
parental rights to their son, C.J.F. Both parents contend that the State failed to
prove (1) that all necessary and available services capable of correcting their
parental deficiencies were provided, (2) that there was little likelihood their
parental deficiencies could be remedied so that C.J.F. could be returned in the
near future, and (3) that termination of parental rights was in C.J.F.'s best
interests. The parents also challenge the trial court's finding that the State made
active efforts to provide remedial services as required by the federal and state
Indian Child Welfare Act (ICWA). Because substantial evidence supports the
trial court's findings and the findings support the conclusions of law, we affirm the
termination order.
No. 74875-1-1 (consolidated with No. 74876-9-l)/2
The Fairs are the parents of four children: daughter S.F. (born March 31,
2001), son C.J.F. (born March 22, 2003), son R.P.F. (born July 26, 2006) and
son B.C.F. (born September 27, 2008).
C.J.F. was diagnosed with autism spectrum disorder in 2006. He has also
been diagnosed with attention deficit hyperactivity disorder (ADHD), obsessive
compulsive disorder (OCD) and posttraumatic stress disorder (PTSD). C.J.F.
presents with serious behavioral challenges, including aggression, self-injury,
and running away. He requires constant adult supervision.
On June 17, 2012, the Fairs were putting their children to bed when C.J.F.
refused to put on his pajamas. Jake1 hit C.J.F. with a belt on his bare skin
approximately 60 to 75 times. C.J.F. arrived at school the following day with
extensive bruising on his legs and buttocks. C.J.F.'s teacher described the
bruising as so severe she was surprised C.J.F. could even sit down.
Further investigation revealed several other instances of physical and
verbal abuse, particularly against C.J.F.2 C.J.F.'s school bus driver had
observed bloody scratches on C.J.F.'s neck that Ines admitted inflicting. The bus
driver had also observed Ines grabbing C.J.F. by the throat and yelling at him.
On another occasion, when C.J.F. resisted getting off the bus, Ines grabbed
C.J.F. by the leg and dragged him down the steps onto the sidewalk. C.J.F.'s
1 Because the parents share the same last name, we refer to them by their first
names for clarity.
2According to the testimony at trial, when 2-year-old S.F. complained she was
hot and repeatedly tried to take off a sweater, Ines pinned her down and spanked her
severely. The Fairs also admitted they spanked R.P.F. and B.C.F. with a belt.
No. 74875-1-1 (consolidated with No. 74876-9-l)/3
teacher observed Ines tell C.J.F. that he would have a cold shower and no dinner
because he had misbehaved in class.
The Department filed a dependency petition and all four children were
placed with their paternal aunt and her partner. Jake reported to the Department
that he had Cherokee heritage. The Department promptly contacted the three
federally-recognized Cherokee tribes, all of which responded that the children did
not qualify as Indian children under the Indian Child Welfare Act (ICWA).
On January 7, 2013, Jake pled guilty to one count of assault of a child in
the second degree. He was subsequently sentenced to a term of 31 months.
The terms of Jake's community custody prevented him from living with any of the
children until April 2016. A separate no-contact order prevented Jake from
having any contact with C.J.F. until 2023 except for professionally supervised
visits.
On January 23, 2013, both parents agreed to the establishment of
dependency. The court order required Ines to participate in a parenting class,
parent coaching, mental health counseling, a psychological evaluation, an anger
management evaluation and a domestic violence assessment. The court also
ordered Ines to participate in classes and support groups at The ARC of
Snohomish County (ARC), a nonprofit outreach center for people with disabilities,
including autism. The court ordered Jake to participate in a psychological
evaluation, mental health counseling, parenting classes and a parenting coach.
The Department also referred Jake to ARC upon his release from prison.
No. 74875-1-1 (consolidated with No. 74876-9-l)/4
The parents complied with all of these services, though Ines made only
limited use of ARC's resources and Jake did not contact them at all. Though
providers testified that the Fairs generally made progress in their services, they
continued to have difficulty handling C.J.F. during visits. For example, the Fairs
continued to demonstrate unrealistic expectations for C.J.F.'s behavior. They
also continued to physically restrain C.J.F. at visits for minor transgressions,
despite the advice of multiple professionals, which caused C.J.F. to react
aggressively. At the time of trial, the parents' visits with C.J.F. were still limited to
once a week. And C.J.F. was rarely incorporated into the Fairs' visits with their
other children because it was too overstimulating for C.J.F. On August 15, 2014,
the Department filed a termination petition.3
In June 2015, Jake was enrolled as a member of the Cherokee Nation.
The Cherokee Nation subsequently notified the Department that the tribe
considered the children to be Indian children as defined by the ICWA.
Trial on the termination petition began on November 16, 2015. At the time
of trial, C.J.F. was 12 years old and had been out of his parents' custody for
more than three years. Following the testimony of 23 witnesses and the
admission of 88 exhibits, the trial court entered findings of fact and conclusions of
3 The Department did not include S.F. in the termination petition because she
had been returned to her mother's care by that time. The trial court did not terminate the
parents' rights to R.P.F. and B.C.F., finding that termination was not in R.P.F.'s best
interests and that the State had not shown that B.C.F. could not be returned to his
mother's care in the near future. Only C.J.F. is the subject of this appeal.
No. 74875-1-1 (consolidated with No. 74876-9-l)/5
law and an order terminating the Fairs' parental rights to C.J.F. Both parents
appeal.
SERVICES
The Fairs contend that the Department failed to provide them with all
necessary services capable of correcting their parental deficiencies. Specifically,
the Fairs argue that they were not provided with hands-on parenting training for
children with autism. We disagree.
Parental rights are a fundamental liberty interest protected by the United
States Constitution.4 To terminate the parent-child relationship, the Department
must prove each of six statutory elements of RCW 13.34.180(1) by clear, cogent,
and convincing evidence.5 Ifthe trial court finds that the State has met its burden
under RCW 13.34.180, it may terminate parental rights if it also finds by a
preponderance of the evidence that termination is in the "best interests" of the
child.6
One of these elements the Department must prove is that "the services
ordered [by the court] 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
4 Santoskv v. Kramer. 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed. 2d 599
(1982).
5 In re Dependency of K.N.J.. 171 Wn.2d 568, 576-77, 257 P.3d 522 (2011).
6 RCW 13.34.190(1 )(b).
5
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understandably offered or provided."7 A service is "necessary" if it is "needed to
address a condition that precludes reunification of the parent and child."8 A
service is "reasonably available" if it is "available within the department or
supervising agency, or within the community" or "the department has existing
contracts to purchase" it.9 However, if a parent is unwilling or unable to make
use of the services offered or provided, the Department is not required to offer
additional services that might have been helpful.10
Findings of fact must be supported by substantial evidence.11
Unchallenged findings of fact are verities on appeal.12 In determining whether
substantial evidence supports the trial court's findings, we will not weigh the
evidence or the credibility of witnesses.13
Here, substantial evidence supports the trial court's finding that all
necessary and reasonably available services were offered to the parents. Prior
to the dependency petition, C.J.F.'s teachers worked to help the Fairs
understand C.J.F.'s condition. They also explained to the Fairs that physical
discipline was not effective on children with autism. They referred the Fairs to
7 RCW 13.34.180(1 )(d).
8 In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332 P.3d 500 (2014).
9 RCW 13.34.136(1 )(b)(vii).
10 In re Dependency of S.M.H.. 128 Wn. App. 45, 54, 115 P.3d 990 (2005).
11 Pep. ofKN.J.. 171 Wn.2d at 577.
12 In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).
13 In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003).
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ARC. ARC offers a wide variety of resources for parents of children with autism,
including trainings, lectures and workshops, support groups for parents and
siblings, and socialization activities for children. Workshop topics have included
medications, legal issues, individual education plans (lEPs) and dietary changes.
The Fairs attended some meetings and support groups at ARC prior to the
dependency proceedings. However, their participation declined dramatically
after dependency was established. Jake did not attend any ARC events after his
release from prison in October 2014 and Ines attended only one workshop. Ines
testified that she was unwilling to make use of ARC's resources unless C.J.F.
was in her care. She testified that "to apply the principles and ideas that they
had there, which are good ones, in a visit doesn't really work" because "the
situation which visitations are is an artificial one."14 Ines also stated that she felt
uncomfortable at ARC because she believed the other parents did not like her.
In addition, the Department referred both parents to Marie Preftes-Arenz,
a parent coach and in-home therapist who has both personal and professional
experience involving children with autism. Preftes-Arenz began working with
both parents in November 2012. When Jake went to prison in January 2013,
Preftes-Arenz continued to work with Ines until March 2013. Preftes-Arenz
worked with the family again from late 2014 until January 2015, and from April
2015 up until the termination trial.
14 Report of Proceedings (Nov. 30, 2015) at 795.
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No. 74875-1-1 (consolidated with No. 74876-9-l)/8
Preftes-Arenz explained that parent coaching is "hands-on and interactive"
and "different from formal education."15 Preftes-Arenz was present for the Fairs'
visits with C.J.F. She taught the parents skills that were effective for autistic
children, including positive reinforcement, appropriate discipline strategies, and
stress management techniques. After teaching a specific skill, Preftes-Arenz
would model the skill for the parents to observe. Preftes-Arenz would then give
the parents the opportunity to practice the skill, and provide feedback. However,
Preftes-Arenz testified that all autistic children were different and that there was
no "one-size-fits-all" strategy for parenting children with autism. She explained
that "trying to understand how autism affects [C.J.F.] specifically is one of the
ways that I can help the parents parent him better."16 Preftes-Arenz also
encouraged the parents to develop a "tool kit" of strategies so that if C.J.F. was
not responding to one technique, they had other available options.
In addition, Preftes-Arenz talked to C.J.F.'s caregivers about what was
working in their home, and communicated that to the parents. Preftes-Arenz also
encouraged Ines "to attend any workshop or class she can and to keep reading
and researching about Autism." However, Preftes-Arenz noted that Ines did not
follow through with this goal.
Moreover, the Department referred C.J.F. to Christina Alexander, a
therapist at Ryther Child Center, for trauma-focused cognitive behavioral therapy
(TF-CBT). Alexander taught C.J.F. coping skills such as muscle relaxation, deep
15 id (Nov. 19, 2015) at 637-38.
16 Id at 574.
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No. 74875-1-1 (consolidated with No. 74876-9-l)/9
breathing and visualization. By the time of trial, Alexander had been working with
C.J.F. for over two years. Alexander met with Ines twice in 2014 and went over
some of these techniques. However, Ines did not contact Alexander again after
these two meetings.
The Department also attempted to provide C.J.F. with Applied Behavior
Analysis (ABA) therapy, a behavioral therapy specifically targeted for children on
the autism spectrum. Unfortunately, there were no ABA providers in Snohomish
County that would accept C.J.F. as a client. The Fairs do not challenge the trial
court's finding that the Department "made a significant effort to find this service,
but was not able to do so" and "ABA therapy for [C.J.F.] was not reasonably
available."17
C.J.F.'s aunt and her partner had great success managing C.J.F.'s
behaviors. The aunt testified that she was willing to work with the Fairs to show
them which behavior management techniques worked well with C.J.F. Ines
refused to speak to the aunt, even referring to her as "it" in front of the children.
Both the Department and the aunt offered to participate in mediation or dispute
resolution to improve the relationship. Ines refused.
Finally, Yasmin Amiri, the volunteer guardian ad litem (VGAL), attempted
to provide the parents with additional education and training opportunities. Amiri
was in a unique position to offer assistance, having previously been a provider of
17 Clerk's Papers at 38 (Findings of Fact 2.80 and 2.81). Though Ines assigns
error to these findings, she does not support her assignments of error with legal
argument or analysis. Thus, we consider them as verities. See Cowiche Canyon
Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
No. 74875-1-1 (consolidated with No. 74876-9-l)/10
ABA therapy to children. Amiri offered Ines books and articles on autism, and
suggested other trainings such as those put on by the VGAL program. Again,
Ines refused. Amiri testified that Ines "had developed a certain response
mechanism to most people involved in the case" and would shut down even
when people were trying to help her.18
Contrary to the parents' claim, there is no evidence that there were other
available services that the Department failed to offer. Dr. Jason Prinster, a
psychologist who evaluated the Fairs, recommended both parents participate in
services for parenting autistic children. However, Dr. Prinster testified that those
services "could be a program, classes, [and] other sources of parenting
education or coaching."19 Judith Bronson, Jake's domestic violence treatment
counselor, testified that the parents should be involved in a program "regarding
specific parental treatment of autistic children."20 But Bronson clarified that she
was referring to ABA therapy, which is a service for the child, not their parents or
caregivers.
In re Welfare of OS.,21 which Ines relies upon, is distinguishable. In C.S.,
the trial court terminated a mother's parental rights based on an alleged inability
to address her child's special needs. The Department had offered specialized
training to the caregivers but not the mother. But C.S. "does not stand for the
18 Report of Proceedings (Dec. 1, 2015) at 1119.
19 id (Nov. 17, 2015) at 393.
20 id (Nov. 30, 2015) at 935.
21 168 Wn.2d 51, 225 P.3d 953 (2010).
10
No. 74875-1-1 (consolidated with No. 74876-9-l)/11
proposition that noncustodial parents must receive services identical to the foster
parents."22 In any event, unlike C.S., there was no evidence here that the
caregivers received training or services that the Fairs did not.
Finally, Jake contends that the Department should have offered other
helpful services, such as alternative for family cognitive behavioral therapy (AF-
CBT), "therapeutic visits" or family therapy. But there is no evidence in the
record that any of these services were recommended or reasonably available.
Alexander testified that she did not provide AF-CBT and did not know any
providers who did. And Kelli Hogan, a Department social worker, testified that
the Department typically did not have contracts for therapeutic visitation.
ACTIVE EFFORTS
The Fairs argue the State failed to make active efforts to prevent the
breakup of the Indian family as required by RCW 13.38.130(1). The record does
not support this claim.
In the context of Indian children, federal and state statutes place additional
burdens on the State prior to termination.23 The State must also prove that
"active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful."24 "Active efforts" are defined as "a showing to
the court that the department or supervising agency social workers actively
22 Matter of KM.M., 186 Wn.2d 466, 488, 379 P.3d 75 (2016).
23 25 U.S.C. § 1912; RCW 13.38.130(1), (3).
24 25 U.S.C. § 1912(d); RCW 13.38.130(1).
11
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worked with the parent, parents, or Indian custodian to engage them in remedial
services and rehabilitation programs ordered by the court or identified in the
department or supervising agency's individual service and safety plan beyond
simply providing referrals to such services."25
The parents contend that referring them to ARC and expecting them to
learn about C.J.F.'s needs on their own does not constitute active efforts. But, as
discussed above, the Department did more than simply provide referrals. The
Department engaged service providers to teach the parents skills for parenting
an autistic child. When the parents had success working with Preftes-Arenz, the
Department extended her contract twice. The Department also updated Ines's
psychological evaluation twice in order to determine if additional services were
necessary. In addition, the Department facilitated meetings between Ines and
C.J.F.'s treatment providers. The Department also offered to improve the
relationship between the parents and the caregivers so that the caregivers could
help the parents understand C.J.F. better.
Jerrid Miller, a tribal social worker with the Cherokee Nation, testified on
behalf of the tribe. Miller reviewed 25 volumes of discovery and participated
throughout the entire termination trial as the tribe's representative. Miller agreed
the Department had made active efforts to provide appropriate services and
those efforts had been unsuccessful. He also testified that he had discussed the
case with several other Cherokee Nation social workers and that the tribe
supported termination of parental rights. Miller's testimony, in addition to the
25RCW13.38.040(1)(a)(iii).
12
No. 74875-1-1 (consolidated with No. 74876-9-IV13
other evidence in the record, was sufficient to support the trial court's finding that
active efforts were made.
LIKELIHOOD OF REUNIFICATION
The Fairs argue that the Department failed to prove there was little
likelihood that that C.J.F. could be returned in the near future, as required by
RCW 13.34.180(1 )(e). Again, the trial court's findings to the contrary are
supported by substantial evidence.
The focus of RCW 13.34.180(1 )(e) is whether a parent's identified
deficiencies have been corrected.26 "Even where there is evidence that the
parent may eventually be capable of correcting parental deficiencies, termination
is still appropriate where deficiencies will not be corrected within the foreseeable
future."27 Although the law provides no numerical standard to measure the
foreseeable future, this determination is a factual inquiry evaluated from "the
child's point of view," which varies with the child's age.28
At the time of trial, the parents were visiting with C.J.F. only once a week
for an hour. The visits with C.J.F. were separate from the Fairs' visits with their
other children, and were typically supervised by both a professional visitation
supervisor as well as Preftes-Arenz. Department social worker Katrina Maloney
testified that moving towards unsupervised visits with C.J.F. could take
26 In re Welfare of M.R.H.. 145 Wn. App. 10, 27, 188 P.3d 510 (2008).
27 In re Welfare of AG.. 155 Wn. App. 578, 590, 229 P.3d 935 (2010).
28 In re Dependency of A.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004).
13
No. 74875-1-1 (consolidated with No. 74876-9-l)/14
"months."29 Preftes-Arenz testified that reunification of C.J.F. would take "quite a
period of time" due to his need for structure and consistency.30 According to
Preftes-Arenz, any reunification plan was "going to be more on [C.J.F.'s]
timeline."31 In addition, Preftes-Arenz testified that C.J.F. should not be reunified
until after R.P.F. and B.C.F. had been successfully transitioned back to Ines's
home, something that had not yet begun.
Moreover, Jake was not permitted to live in the family home or to have any
contact with C.J.F. unless supervised by a professional until 2023. Jake argues
that this should not be a basis for termination of his parental rights. He argues
that he should be permitted to share parenting responsibility for C.J.F. even if he
does not live in the home, as is the case with many noncustodial parents. But
this proposal is unworkable if C.J.F. cannot be returned to Ines's care. The trial
court did not err in finding that there was little likelihood that C.J.F. could have
been returned to the parents in the near future.
BEST INTERESTS
Finally, the Fairs challenge the trial court's finding that termination was in
C.J.F.'s best interest.
As an initial matter, Ines argues that the trial court prematurely reached
this issue because the State had not established the statutory elements set forth
in RCW 13.34.180(1 )(d) and (e). But as discussed above, there was substantial
29 Report of Proceedings (Dec. 1, 2015) at 1216.
30 id (Nov. 19, 2015) at 605.
31 id at 650.
14
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evidence in the record to support the court's findings that these elements were
proved by clear, cogent, and convincing evidence. Thus, the court properly
reached the second prong of analysis: whether it was in C.J.F.'s best interest to
terminate parental rights.
The parents also contend that termination was not in C.J.F.'s best
interests because he was bonded to them and to his siblings. A child has a right
to "a safe, stable, and permanent home and a speedy resolution" of dependency
proceedings.32
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 rehabilitates himself or herself.33
The best interests of a child must be decided on the facts and
circumstances of each case.34 A trial court is afforded broad discretion in making
a "best interests" determination, and we give its decision great deference on
review.35
The trial court did not ignore the parent-child bond in making its decision.
The parents do not challenge the trial court's finding that "[h]is parents clearly
32 RCW 13.34.020.
33 In re Dependency of T.R.. 108 Wn. App. 149, 167, 29 P.3d 1275 (2001).
34 In re Dependency of A.V.D.. 62 Wn. App. 562, 572, 815 P.2d 277 (1991).
35 In re Welfare of Young. 24 Wn. App. 392, 395, 600 P.2d 1312 (1979).
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love [C.J.F.], however they cannot effectively parent him."36 But at the time of
trial, C.J.F. had been dependent and out of his parents' care for more than three
years. During that time, the parents made progress but did not gain enough
skills to be able to parent C.J.F. safely or effectively.
We affirm the trial court's order terminating the Fairs' parental rights.
WE CONCUR:
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