In re the Termination of: M.J. & M.J. ( 2015 )

FILED
APRIL 28, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Termination of: )
) No. 32321-8-III
M.J. and M.J. ) (consolidated with
) No. 32322-6-III)
)
) OPINION PUBLISHED
) IN PART
KORSMO, J. - A prisoner challenges the termination of her parental relationship
with her two youngest children, arguing that the trial court did not properly consider the
latest amendments to Washington's statutory policy regarding incarcerated parents.
Because of conflicting evidence, the trial court's failure to explain its reasoning leaves us
uncertain how the court applied the statute. We remand for the trial court to conduct its
balancing on the record.
FACTS
Appellant A.E. is the mother of four children, the two youngest of whom are at
issue in this action. A.J. is the father of the two younger children, Mal and Mak, born in
2009 and 2010, respectively. 1 A.E.' s two older children reside with their father.
1Because the children share initials and have similarly spelled names, we use
diminutive forms of their first names to preserve privacy.
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ and MJ
By September 2011, A.J. had taken on a teenage girlfriend. A.E. then was nearly
30 years old, while Mal was 25 months of age and Mak nearly 14 months. About a
month earlier, A.E. had kicked A.J. out of the family home for acts of domestic violence
against her and the children. Nonetheless, A.J. arranged for A.E. and his new girlfriend
to fight for his affections in a public parking lot. A.E. brought a kitchen knife to the
encounter. As their fight unfolded, A.E. pulled out the knife and struck a single blow that
severed an artery, killing her 18-year-old opponent. The police arrested A.E. and the two
younger children were taken into protective custody.
A.E. pleaded guilty to one count of second degree murder in accordance with a
plea agreement. The court imposed a bottom end sentence of 123 months in prison.
A.E.'s earliest release date will be in December 2020. During the 10 months she spent in
the Walla Walla County Jail before her transfer to the women's prison at Purdy, A.E. had
one visit with both children and a second visit with Mak.
A dependency petition was filed shortly after A.E.' s arrest. The children were
found dependent. Initially, the Department of Social and Health Services (DSHS)
expected to return the children to their mother. However, DSHS was not able to find
family members willing to serve as guardians for the long-term. In view of the
significant needs of the children and the mother's lengthy prison sentence, the department
filed a petition to terminate the parent-child relationships of both A.J. and A.E. A.J.
defaulted and his parental rights were terminated.
2
No. 32321-8-III; No. 32322-6-II1
In Re the Termination ofMJ. and MJ.
After the arrest, the children went through a series of residences. E.E., mother of
A.E. and grandmother of the children, initially was watching them during the fight and
eventually sent them to her son in the tri-cities. This uncle was unable to care for the
children long-term. The children were then moved to their first foster placement. Both
the uncle and the foster placement reported struggles with Mal's behavior including
temper tantrums, throwing things, fits of screaming, biting, pinching and sleeping
problems. Meanwhile, baby Mak was showing a lack of engagement and developmental
delays including cognitive and communication delays, motor skill delay and Coombs
disease. The children were then placed with E.E. until another placement could be
arranged. E.E. was not considered for a long-term placement because she indicated that
she could not take the children beyond respite care due to her poor health and struggles
with Mal's behavior.
From their grandmother's house, the children went into another foster home where
they continued to exhibit extreme behaviors and developmental delays. A few months
later, they were moved to the home of another maternal aunt and uncle, N.D. and P.D.,
but the combination ofN.D.'s health and the children's behavioral needs made the
placement unsuitable. After another short respite with E.E., the children returned to their
previous foster home. Their behavior stabilized somewhat but in April 2013, they were
moved to yet another foster home. That family agreed to continue caring for Mak, but
3
No. 3232l-8-III; No. 32322-6-II1
In Re the Termination ofMJ and MJ
requested that Mal be moved to another horne. Mak remained with that foster family.
She has bonded to them and they wish to adopt her.
provided respite care for Mal while DSHS sought a new placement.
then told the Department that she was available as a long-term placement for both
children though she indicated that she could not be a permanent placement. DSHS
instead moved Mal to his current placement, a foster horne in Spokane. One of the
parents in that horne has professional experience with similar behavioral issues and the
family was willing to continue efforts to seek out services and follow the therapy plan.
They have expressed interest in adopting Mal.
Mal was evaluated by a developmental and behavioral specialist who assessed the
child to be hyper vigilant and over-tuned to sounds in his environment. The specialist
reported that Mal does not have a secure attachment with anyone. However, without any
assessment prior to shelter care, he was unable to identifY whether the behavior issues
were a result of his birth horne or the frequent changes in foster care. Mak was
overweight and not able to crawl when she entered foster care. She was enrolled in the
Early Learning Program where she was able to meet some milestones.
In light of Mal's attachment issues and Mak's developmental delays, DSHS
concluded that it was in the best interests of the children to find a permanent placement as
soon as possible. Based on these assessments, DSHS believed that maintaining a
relationship between the mother and children would negatively impact their development
4
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ.
and growth. Additionally, visits to Purdy were deemed infeasible because of the age of
the children, the length of the drive, and the need for overnight accommodations. The
specialist believed that any more than two visits annually would be bad for the children.
The termination case proceeded to trial in January, 2014. DSHS explained why it
did not consider E.E. for a permanent guardianship. A social worker, Mr. King, testified
that he had concerns about smoking in the house if the children went with their
grandmother. He noted safety concerns because of the presence of chemicals, "a lot of
stuff kind of stacked funny," and cigarette buds by the backdoor. Mr. King believed E.E.
was frustrated with the children's behaviors and the children were beyond her capabilities
for care. During one of the respites, she made negative comments about the children in
front of them. Additionally, DSHS was concerned that she did not engage with the
children by playing with them and lacked faith that she would get them to their
appointments. It did not conduct a home study with E.E. The most recent social worker
assigned to this case, Ms. Millar, testified that E.E. would not pass an adoptive home
study.
While in custody, A.E. made constant requests to visit with her children. She
diligently communicated with them by sending letters and pictures, and she made sure
they had gifts for Christmas. A social worker said, "I know that Ms. [A.E.] loves her
kids. I don't think there was ever a doubt. She was more vigilant as far as
5
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ.
providing letters for her kids than about any parent I have ever seen." Report of
Proceedings (RP) at 80.
Despite the mother's efforts, DSHS's position was that the amount of time to wait
was too long to resolve the children's attachment, instability and chaos issues. While
A.E. might be attached to the children, they were not attached to her. A.E.' s counsel
argued that it was in the best interests of the children, as recognized by the legislation
addressing an incarcerated parent's role in maintaining a relationship with her children,
for A.E. to have a meaningful role in their lives and she was making strong efforts at
having a meaningful role. Counsel contended that the sole issue in the termination
decision was the mother's incarceration.
The trial court analyzed the case in terms of the attachment issue and what could
be done about it:
The problem is it is six years. But six years isn't really correct either
because mom would have to be out in the community, stabilized so the
Department can view where she is at that point in time, which is sort of an
unknown then. I mean, that could be months or years as welL
RP at 207. The court also noted the conundrum facing reunification efforts. It would
take visitation several times a month for the children to develop a relationship with their
mother, but visiting more than twice a year was disruptive to them.
6
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ.
The court concluded that termination of the parent relationship was appropriate in
order to find a permanent placement for each child. Written findings were entered in
support of each order. A.E. then promptly appealed.
This court accelerated review in front of a panel ofjudges. A group of amici
curiae were permitted to file a brief in support of A.E. and participated in oral argument.
ANALYSIS
A.E. presents five arguments, two of which we address in the published portion of
this opinion. Amici addresses many of the same issues and we consider their brief to the
extent it addresses issues presented by A.E.2 The primary question before us is whether
the trial court failed to properly apply the 2013 amendments to RCW 13.34.145 and
RCW 13.34.180(1)( f) concerning incarcerated parents. 3
The termination of parental rights statute provides a two-step process. The first
step focuses on the adequacy of the parents and is subject to proof by clear, cogent, and
convincing evidence. The second step focuses on the child's best interests, which need
only be proven by a preponderance of the evidence. Only ifthe first step is satisfied may
the court reach the second. In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d 1104
2 Appellate courts will not address issues argued only by an amicus. E.g., State v.
Laviollette, 118 Wash. 2d 670, 680, 826 P.2d 684 (1992).
3 LAWS OF 2013, c. 173, §§ 3,4.
7
No. 32321-8-III; No. 32322-6-II1
In Re the Termination ofMJ. and MJ.
(2010). When assessing the adequacy of the parents, RCW 13.34.180(1) lists six
elements, only one of which is at issue in this appeal, that the State must prove.
This court reviews factual findings for substantial evidence. In re Dependency of
A. VD., 62 Wash. App. 562, 568, 815 P .2d 277 (1991). The findings required to terminate a
parent-child relationship must be established by "clear, cogent, and convincing
evidence." RCW 13.34. 190(1)(a)(i); In re Welfare ofMR. H., 145 Wn.App.10,24, 188
P.3d 510 (2008). Where a party is required to establish its case by "clear, cogent, and
convincing evidence," this court incorporates that standard of proof into its review. In re
Trust & Estate ofMelter, 167 Wash. App. 285, 301, 273 P.3d 991 (2012). Thus:
When such a finding is appealed, the question to be resolved is not merely
whether there is substantial evidence to support it but whether there is
substantial evidence in light of the "highly probable" test. In re Welfare of
Sego, 82 Wn.2d 736,739,513 P.2d 831 (1973); [In re Reilly's Estate], 78
Wn.2d [623,] 640[,479 P.2d 1 (1970)] (recognizing that "[e]vidence which
is 'substantial' to support a preponderance may not be sufficient to support
the clear, cogent, and convincing" standard). We still view the evidence
and all reasonable inferences in the light most favorable to the prevailing
party, Woody v. Stapp, 146 Wn. App. 16,22, 189 P.3d 807 (2008) and, as
in all matters, defer to the trier of fact on issues of credibility. In re Welfare
ofL.N.B.-L., 157 Wash. App. 215, 243, 237 P.3d 944 (2010).
Id.
2013 Amendments
The 2013 amendments changed several features of our dependency statutes to
address the problem of incarcerated parents and set forth a policy of attempting to help
!
8
I
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No. 32321-8-111; No. 32322-6-111
In Re the Termination ofMJ. and MJ
the incarcerated maintain relationships with their children. 4 A.E. first takes issue with the
trial court's consideration of recently amended RCW l3.34.180(l)(f). It requires the
State to allege:
That continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent home. If
the parent is incarcerated, the court shall consider whether a parent
maintains a meaningful role in his or her child's life based on factors
identified in RCW 13.34.14S(S)(b); whether the department or supervising
agency made reasonable efforts as defined in this chapter; and whether
particular barriers existed as described in RCW 13 .34.14S( S)(b) including,
but not limited to, delays or barriers experienced in keeping the agency
apprised of his or her location and in accessing visitation or other
meaningful contact with the child.
Everything after the first sentence was added by Laws of 2013, c. 173, § 4.
In tum, the amended RCW 13.34. 14S(S)(b) defines a parent's "meaningful role" in
terms of six factors:
(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:
(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;
4 As originally proposed, H.B. 1284 (2013 legislative session) would have
imposed a good faith duty on DSHS to help the parent develop a relationship with her
child and also have prohibited DSHS from seeking to terminate the parent-child
relationship solely due to the parent's incarceration. See H.B. 1284, at 4,20, 63d Leg.,
Reg. Sess. (Wash. 2013).
9
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ.
(ii) The parent's efforts to communicate and work with the department
or supervising agency 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 or the supervising agency;
(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.
The effect of the two noted amendments was to require trial courts to consider
whether an incarcerated parent could maintain a meaningful role, as defined, in the
child's life and to require DSHS to make reasonable efforts to help the incarcerated
person remedy parental deficiencies. Other amendments will be noted later in this
opinion.
A.E. and the amici argue that the trial court either did not apply the 2013
amendments or misapplied them, and that the court needed to expressly enter findings on
this factor in order to satisfy the statute. We disagree with the last argument and, unable
10
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ
to ascertain how the trial court considered the 2013 amendments, reverse and remand for
record consideration of that factor.
As to the necessity of findings in every case, the short answer to the argument is
that the legislature did not require findings. It simply mandated consideration of the
parent's ability to maintain a meaningful role despite her custodial status. RCW
13.34.180(1)(t). In contrast, the legislature has had no trouble mandating findings in
other portions of the dependency statute when it has wanted to do so. For example, RCW
13.34.110 mandates a fact-finding hearing on a dependency petition and directs that the
court "shall make written findings of fact, stating the reasons therefor." No similar
directive is found in RCW 13 .34.180( 1). Instead, the court is directed to specify only
whether it found certain allegations were established according to specific burdens of
proof. RCW 13 .34.190( 1). The legislature has not mandated that the court's resolution
of the allegations of § 180( 1) be reduced to writing.
Nonetheless, it may well be the better course of valor for trial judges to opine, on
the record, their "consideration" of the § 180( 1) factors. A "consideration" of evidence
ultimately means a weighing or balancing of facts, along with a resolution of that
weighing. In many instances, particularly where the evidence is uncontested or the
State's case is very strong, the court's conclusion will need no further explication.
This case, however, is not in that category. Here, the State's own evidence
suggested that A.E. was a concerned mother trying hard to maintain a position in her
11
No. 32321-8-111; No. 32322-6-111
In Re the Termination ofMJ. and MJ.
children's lives. One social worker described her as making greater efforts at
communicating with her children than any other mother she had seen; there was no doubt
A.E. loved her children. On its face, this evidence appeared to constitute a "meaningful
role" under RCW 13.34.145(5)(b)(i). It was then for the trial judge to decide how A.E.'s
efforts at maintaining a meaningful role in the children's lives despite her incarceration
affected the children's "prospects for early integration into a stable and permanent
home." RCW 13.34.180(1)(1). This record, however, does not tell us whether or not the
court did consider these efforts. It may have found them unavailing, or it may not have
considered them at all. Without some indication that this information was considered by
the trial court, we simply are not in a position to uphold the determination. 5
Division One of the Court of Appeals recently reached a similar result in the first
case under these amendments, In re Dependency ofA.MM, 182 Wn. App. 776,788-89,
332 P.3d 500 (2014). There the 2013 amendments took effect after the evidence had
been taken at trial, but before the court rendered its decision. Id. at 789. The trial court
did not indicate that its determination was informed by the new law; rather, the record
demonstrated that the State did not present evidence on the issue and the parties and court
5 Both A.E. (reply brief at pp. 1-4) and the amici (brief of amici curiae at pp. 9-11)
argue that the trial court erred in failing to credit A.E.' s efforts. We disagree. Although
her efforts at communicating with the children were undisputed by the State, the fact of
contact only establishes that she was maintaining a meaningful role in the children's
lives. It then becomes a consideration the trial court must undertake in its resolution of
the .180(1)(1) factor. It is not a dispositive fact.
12
No. 32321-8-111; No. 32322-6-111
In Re the Termination ofMJ. and MJ.
had not considered it. Id. at 787-88. The matter was reversed and remanded for further
proceedings consistent with the opinion. Id. at 790.
Here, the State did present evidence on both sides of this factor and counsel for
A.E. argued the new statute as the basis for denying the petition. While the new
amendments were before the court in evidence and argument, the trial court's brief
remarks at the end of the second day of trial primarily focused on the attachment issue.
Accordingly, we do not know how, if at all, the court applied the "meaningful role"
information in its assessment. Accordingly, we, too, remand for further proceedings.
The trial court is free to conduct its assessment on the basis of the information already
before it or, in its discretion, accept new information concerning the children, A.E., or
any other factor that may have changed since the trial last year. The court's assessment
may lead to a new outcome or an affirmance of its original decision. The court should
make some record of its consideration of the mother's "meaningful role" and its ultimate
ruling affirming or dismissing the termination proceeding should be reduced to writing.
An aggrieved party may appeal to this court.
Reasonable Efforts
A.E. also argues that DSHS did not make reasonable efforts to keep her family
together, focusing on the limited visitation at the county jail and the lack of visits to the
state prison. DSHS explained why the visits were limited and showed how it was not in
the best interests of the children to do more. The trial court agreed. There was no error.
13
No. 32321-8-111; No. 32322-6-111
In Re the Termination ofMJ and MJ
As with the A.MM case, the 2013 amendments took effect during the pendency of
the termination petition-after the petition had been filed and the services provided, but
before trial and decision. Unlike the A.MM case, here DSHS presented evidence and
argument concerning the 2013 amendments and their application to this case. The trial
court's findings, likewise, addressed many of the facts relating to those amendments.
As previously noted, RCW 13 .34.180(1 )(t) provides in relevant part that the court
"shall consider" whether DSHS "made reasonable efforts as defined in this chapter."
RCW 13.34.180(5), discussed more fully in the succeeding section of this opinion, directs
DSHS to "consider a permanent placement that allows the parent to maintain a
relationship with" her children, including the possibility of a guardianship. RCW
13.34. 136(2)(b )(i)(A) requires permanency plans to provide visitation opportunities
"unless visitation is not in the best interests of the child."
From these provisions, A.E. and amici argue that DSHS had a duty to provide
visitation. This argument overstates the effect of the new legislation. Once again, as it
directed the court in RCW 13.34.180(1)(t), the legislature only directed DSHS in RCW
13.34.180(5) to "consider" a placement that would preserve the parental relationship.
Even when it otherwise has required visitation, as in RCW 13 .34. 136(2)(b)(i)(A), the
i
legislature has subjected the requirement to a proviso that the visitation must not be f
J
counter to the best interests of the children.
14 f
I
•
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No. 32321-8-111; No. 32322-6-111
In Re the Termination ofMJ and MJ
Accordingly, the legislation does not impose on DSHS a duty to provide visitation.
Rather, the legislation does impose on DSHS an obligation to consider what it can do to
preserve the family unit. RCW 13.34.180(l)(t), (5). To that end, visitation will need to
be part of a permanency plan unless it is not in the best interests of the child. RCW
13.34.136(2)(b)(i)(A).6 Thus, while visitation will frequently be a part of the services
DSHS must provide an incarcerated parent, it is not an absolute obligation in all cases.
Here, however, DSHS acted under its guiding principles at the time of the
dependency and limited the children's exposure to the jail setting. When the new
statutory policy took effect after the termination petition was filed, DSHS did consider
whether visitation was appropriate. The expert who examined these special needs
children concluded that anything more than two annual visits was detrimental to the
children. There also was testimony that due to the low or nonexistent attachment with
A.E., extensive visitation would be necessary to have even a hope of creating or
improving the parent-child attachment; two visits annually would not be sufficient. Thus,
the trial judge understandably concluded that visitation was not in the best interests of the
children, no matter how ardently their mother desired it.
6 Although not at issue in this case, where the parent has committed one of several
enumerated serious offenses against the child or a sibling, those crimes substitute for the
findings required by RCW 13.34.180(l)(b)-(t) as factors to be established in a termination
proceeding. See RCW 13.34.180(4). In a proceeding brought under that substituted
process, visitation would not be in order. This provision also undercuts the argument that
a duty to provide visitation exists in all cases.
15
No. 32321 ~8-III; No. 32322~6-III
In Re the Termination ofMJ. and MJ.
DSHS changed its approach during the course of the proceedings below and
considered its obligations under the new policy created by the 2013 amendments to
chapter 13.34 RCW. A.E. and amici argue that in light of the recognized benefits of
maintaining the parent-child relationship that the legislature enacted into law in 2013,
DSHS should have done more. This argument, however, fails to recognize that when it
adopted the general policy, the legislature expressly exempted the special cases from that
policy. Where it is not in the best interests of the child, visitation should not be forced
upon the child. In this case, the special needs of the children required that visitation be
limited below the level needed to maintain the parent-child relationship. The 2013
amendments did not create a one-size-fits-all policy concerning visitation.
For both reasons-DSHS lived up to its statutory duty to consider visitation and
the record established the statutory exception that visitation was not in the children's best
interests-the trial court did not err in its evaluation of A.E. 's visitation argument.
Remanded.
A majority of the panel having determined that only the forgoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder shall
be filed for public record pursuant to RCW 2.06.040, it is so ordered.
A.E. presents three additional arguments that we address-one quite briefly-in
this section of our opinion. She argues that DSHS did not pursue placement with
and did not establish she was currently unfit. She also argues that it was not in the best
16
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ.
interests of the children to terminate the parental relationship. We address those
challenges in the noted order.
Placement with E.E.
A.E. next argues that DSHS did not live up to its statutory obligations when it
failed to conduct a home study and consider E.E. as a guardian during A.E.' s
incarceration. Once again, A.E. reads more into the statute than she should.
The provision primarily at issue here is RCW 13.34.180(5). This provision was
added by the 2013 amendments. It states:
When a parent has been sentenced to a long-term incarceration and has
maintained a meaningful role in the child's life considering the factors
provided in RCW 13.34.145(5)(b), and it is in the best interest of the child,
the department should consider a permanent placement that allows the
parent to maintain a relationship with his or her child, such as, but not
limited to, a guardianship pursuant to chapter 13.36 RCW.
RCW 13.34.180(5).
As we noted previously, this statute requires DSHS to consider a long-term
placement that maintains the family unit. To its credit, DSHS was following that policy
in this case prior to the enactment of the 2013 amendments. It was only after the family
options were found not viable that it explored the possibility of adoption. DSHS
explained at trial which families it considered as well as the reasons for not further
pursuing family placements. The trial court accepted that testimony and entered identical
17
No. 32321-8-III; No. 32322-6-II1
In Re the Termination ofMJ. and MJ.
findings in each case that identified the efforts made and explained why the placements
were not pursued.
With respect to the grandmother, E.E., each finding states in part:
The maternal grandmother has also, at various times, expressed that she
cannot provide a home for [Mak]; up until shortly before the termination
trial, she demanded the social worker stop contacting her about possible
placement. The grandmother is not appropriate as she has not consistently
expressed an understanding of [Mak's] special needs nor a willingness to
comply with department recommendations for her care. Her home is not
suitable for a small child. The department cannot recommend the child be
moved again and the court finds that moving the child again is not in the
child's best interest and will be detrimental to her mental health and
development.
Clerk's Papers at 92.
A.E. argues that her mother changed her mind about caring for the children. Even
if that is the case, it does not detract from the fact that DSHS considered her for
permanent placement, just as it considered other family members who stepped up to help
out during the incarceration. DSHS also explained why, in its opinion, E.E. was not an
appropriate placement. It fulfilled its duties under the statute. Having considered the
option, we do not believe DSHS had a continuing obligation to reopen the matter simply
because E.E. was now expressing an interest. There also were other reasons beyond her
initial unwillingness to serve that led to the decision not to pursue the guardianship.
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No. 32321-8-III; No. 32322-6-II1
In Re the Termination ofMJ. and MJ.
There were other options for the family. A.E. could have filed a guardianship
petition naming E.E. as guardian if she desired that option. See RCW l3 .36.030(1), (2).
A.E. did not. Similarly, E.E. was able to file a third party nonparental custody petition if
she so desired. RCW 26.l0.030(1). She did not.1 Accordingly, we need not decide if
DSHS had any obligation to reconsider its decision upon the filing of an appropriate
petition.
The record reflects that DSHS considered E.E. for potential permanent
guardianship. It also explained why they did not pursue that option-E.E.' s lack of
desire and unfitness for the position. No more was needed.
The trial court correctly concluded that DSHS met its obligations under RCW
l3.34.180(5). There was no error.
Current Unfitness
The next issue presented is the one that we address summarily. A.E. correctly
points out that the trial court did not make an explicit finding that she currently was unfit
to parent the children. A.B., 168 Wash. 2d at 920. Where an express finding is missing, a
7At the beginning of trial, A.E.' s counsel advised the court that E.E. had prepared
such a petition and would file it then if the court desired. The trial court, after hearing
opposing argument from counsel for DSHS, decided that the termination trial would
proceed. Our record does not reflect if the petition was ever filed.
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No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ and MJ
reviewing court may infer the finding if the trial court intended to make such a finding.
Id. at 921.
Because we are remanding the case for explicit consideration of the mother's
meaningful role in the children's lives and its effect on the court's analysis of the RCW
13.34.180(1 )(f) factor, we need not decide what the trial court intended in this instance.
The trial court must necessarily make a new fitness/unfitness ruling once it has completed
its reconsideration of the (1)( f) factor. 8
Best Interests ofthe Children
The final issue presented by this appeal is a contention that the evidence did not
support the trial court's conclusion that termination of the parent-child relationship was in
the best interests of the children. The evidence amply supported that determination.
Once the trial court finds that the six factors ofRCW 13.34. 180(1)(a)-(f) have
been established by clear, cogent, and convincing evidence, the court must then
determine whether termination of the relationship is in the best interests of the child.
RCW 13 .34.190(1 )(b). This determination is subject to proof by a preponderance of the
evidence. A.B., 168 Wash. 2d at 911-12.
8 Citing to her own view of her "meaningful role" in the children's lives, A.E. also
argues the evidence is insufficient to support an unfitness finding. Since the trial court
has not necessarily undertaken an analysis of this aspect of the case, we leave review of
this issue for later, should it be necessary after the trial court conducts its reweighing.
20
No. 32321-8-III; No. 32322-6-II1
In Re the Termination ofMJ. and MJ.
The evidence established that one child did not know A.E. and the other barely
knew who she was. While she was making strong efforts to playa meaningful role, she
was not parenting the children. She did not direct their care or their caregivers. Both
children had special needs that she was unable to supply. She was going to be out of
their young lives for a lengthy period of their development.
By the time of trial, both children had found stable foster homes actively
addressing their special needs. Each home was willing to adopt the child. Each child had
a permanent home in the offing instead of the uncertainty of a long term of foster care
while awaiting a mother who might one day be able to return to their lives. The trial
court, understandably, concluded that the evidence favored termination of the
relationship.
This is a sad case. A.E. was making efforts to remain a mother to her children, but
she dug herself a deep hole that she could not get out of, if at all, for a long time. The
fact that most children, in general, benefit from maintaining a parent-child relationship
does not mean that every child will benefit. The general rule probably works most often
in a situation where the parent has a strong relationship with the child that can survive a
period of time with limited contact. For very young children with little to no relationship
with a parent, the general rule will often not play out favorably. For children with special
needs that a parent can not satisfY, there is even less likelihood of a successful outcome.
In this case, the evidence showed that the children would benefit from a new home rather
21
No. 32321-8-III; No. 32322-6-III
In Re the Termination ofMJ. and MJ.
than spend their entire youth in uncertainty. The trial court's decision is supported by the
evidence.
Remanded for further proceedings consistent with this opinion.
WE CONCUR:
Lawrence­
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