Dependency Of U.d.w., 9/15/15, Felton Warner, App v. Dshs, Resp ( 2018 )

r:ILEC
tOURT OF APPEALS DIV
'STATE OF -WASHINGTON
2018 NOV 13 AM 11: 34
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
U.D.W., No. 77991-5-1
D.O.B. 09/15/2015,
DIVISION ONE
Minor child.
UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent,
V.
F.W., FILED: November 13, 2018
Appellant.
BECKER, J. — The trial court terminated the father's parental rights to his
two-year-old son. As a basis for the termination, the court relied, in part, on the
father's failure to address his anger. But the father was not notified during the
dependency that inability to control his anger was itself a parental deficiency that
he would be required to defend against during the termination proceeding.
Accordingly, we remand for the trial court to reconsider whether termination is
appropriate based on the other parental deficiencies of which the father had
notice.
FACTS
U.D.W. was born on September 15, 2015. When he was an infant, Child
Protective Services became involved with the family after receiving a report
about an alleged domestic violence incident. Investigation into the matter
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uncovered concerns about the parents' drug use, safety issues, and prior
violence between the parents) In early January 2016, a fight broke out among
the father's family members at the maternal grandmother's home when U.D.W.
was present in the home. The father was arrested and eventually pleaded guilty
to domestic violence assault of his mother. Shortly after this incident, the
Department of Social and Health Services (Department) removed four-month-old
U.D.W.from the care of his parents.2 He has not lived with either parent since
that time.3
In April 2016, when U.D.W. was seven months old, the court entered an
order of dependency. The father stipulated that the child was dependent under
RCW 13.34.030(c)for two reasons: because he was unavailable to parent due to
his incarceration in jail, and because he needed to resume drug and alcohol
treatment, services that he agreed were "necessary and appropriate." The court
ordered the father to engage in drug and alcohol treatment, random urinalysis
testing, parenting classes, and a domestic violence assessment.
In the year that followed, the father participated in a drug evaluation,
intermittent drug treatment, and urinalysis testing, but he did not complete any
drug and alcohol treatment program, did not participate in consistent urinalysis
testing, and he did not remain consistently drug free. The father enrolled in
parenting classes on two occasions, but was unable to complete either of the
11 Child protective services investigated and determined the allegation of negligent
treatment of U.D.W. to be unfounded.
2 As of July 1, 2018, the new Department of Children, Youth, and Families has assumed
the functions and duties of the Department of Social and Health Services related to child
welfare services. See RCW 43.216.906.
3 The court terminated the parental rights of U.D.W.'s mother and she is not a party to
this appeal.
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No. 77991-5-1/3
sessions. The father was unable to maintain stable housing. Although he was
scheduled to complete a domestic violence assessment on several dates, he
never completed an assessment. He maintained a generally positive relationship
with U.D.W. through visitation, but was unable to exercise regular and consistent
visitation throughout the dependency because of frequent arrests and periods of
incarceration. The father's frequent short-term periods of incarceration in jail also
impeded his ability to complete court-ordered services.
In April 2017, the child had been dependent for a year. The Department
filed a petition to terminate the father's parental rights. The Department alleged
that the father's parental deficiencies included a "substance abuse issues, mental
health issues, domestic violence, ongoing criminal activity, lack of parenting
skills, and lack of safe and stable housing."
At trial on the Department's petition, the court considered substantial
evidence about the issues that led to the dependency and the father's progress
toward correcting his identified parental deficiencies. The court also considered
evidence about several aggressive and hostile interactions that occurred
between the father and Department employees and others during the
dependency. For instance, a Department supervisor testified about a time when
the father went to the Department's office unannounced and became frustrated
because the assigned social worker was not available to meet with him. He
ultimately threatened a supervisor who tried to explain that he needed to make
appointments. Security officers called the police and the Department moved the
father's visitation to a different Department office. Visitation supervisors testified
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about some instances during visits when the father became angry and verbally
abusive. One Department social worker testified about an occasion when the
father's visit was cancelled, and the following day, the father called the social
worker 12 times. He threatened the social worker, who filed a police report.
From then on, the Department did not permit the father to have direct contact
with the social worker. The court also heard evidence indicating that the father's
inability to control his anger was one of the issues that contributed to his frequent
arrests and incarceration. For example, the father was convicted of criminal
mischief after he broke the window of a bus out of frustration and was then
prohibited from traveling on the bus.
The social worker assigned to the case testified that, in her opinion, the
father was unfit to parent, in part because of his uncontrolled anger. In addition
to unresolved substance abuse and domestic violence issues and recurrent
criminal activity and incarceration, the social worker said that the father's "hostile
attitudes" could impact his ability to parent. The Court Appointed Special
Advocate, Ginny Jenkins, also testified that the father's "threatening" and
"argumentative" behavior supported her position that termination of his parental
rights was in the best interest of the child. Jenkins testified that the father's
response to "frustrating circumstances" indicated he would be unable to cope
with challenges he would face as a parent, and he would be unable to teach his
child how to be resilient.
In closing argument, the Department's attorney argued that while there
was no evidence that the father committed further acts of domestic violence
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during the dependency, he had engaged in "continuing aggressive behavior."
The Department asserted that the father's attempts to explain or excuse his
behavior showed a lack of insight and immaturity. Because the father was
unable to negotiate or interact with people in a civil manner, the Department
claimed that he lacked the skills necessary to effectively parent.
At the conclusion of the trial, the court entered an order and written
findings. The court's findings identify the father's problems controlling his anger
as one of the parental deficiencies that he failed to correct during the
dependency that rendered him currently unfit to parent.
Specifically, the court found that lbJecause of his issues with anger and
violence and his untreated drug/alcohol issues, the father is currently unfit to
parent the child." The court further found little likelihood that conditions would be
remedied so that the child could be returned to the father in the near future, in
part because the father's "untreated domestic violence and anger management
problems and his interactions with others present a risk of arrest. There have
been other negative impacts due to his anger issues: He cannot ride the bus and
he could not have direct contact with his social worker. His anger can put the
child at risk of physical and emotional harm." The court also found that although
the father loves his son and wants to be a part of his life, because of his inability
to stay "clean and sober and resolve his anger issues," he is "unfit to be the
child's primary caregiver."
The father appeals.
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ANALYSIS
Parents have a fundamental liberty interest in the care and welfare of their
children. In re Dependency of Schermer, 161 Wn.2d 927, 941-42, 169 P.3d 452(2007). Parental rights cannot be abridged without due process of law. In re
Dependency of A.M.M., 182 Wn. App. 776, 790-91, 332 P.3d 500(2014). In
particular, due process requires "'that parents receive notice of the specific
issues to be considered" at a termination hearing. A.M.M., 182 Wn. App. at 791,
quoting In re Welfare of Martin, 3 Wn. App. 405, 410, 476 P .2d 134 (1970).
Such notice is necessary "'to prevent surprise, helplessness and disadvantage."
A.M.M., 182 Wn. App. at 791, quoting Martin, 3 Wn. App. at 410.
The father alleges a due process violation because he was not notified
during the dependency that his inability to control anger would be considered as
a basis for terminating his parental rights. He relies on In re Dependency of
A.M.M., 182 Wn. App. 776, 790-91, 332 P.3d 500(2014) and In re Parental
Rights of F.M.O., 194 Wn. App. 226, 231-32, 374 P.3d 273(2016).
In A.M.M., the trial court terminated the mother's rights based, in part, on a
parental deficiency not identified in the dependency or termination petition.
A.M.M., 182 Wn. App. at 791-92. During the dependency, the Department
focused on the mother's substance abuse issues. But during the termination
hearing, the mother became aware of another parental deficiency that could
support termination when a social worker testified that the mother lacked an
understanding of her children's needs. A.M.M., 182 Wn. App. at 784. This court
reversed the termination order and remanded for the trial court to strike the
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No. 77991-5-1/7
finding that the mother's parental deficiencies included a lack of knowledge about
her children's developmental needs. A.M.M., 182 Wn. App. at 792. While there
were extensive findings about the mother's substance abuse, the trial court did
not indicate that the mother's substance abuse alone was sufficient to warrant
termination. On remand, we instructed the trial court to consider whether
"termination is appropriate on the basis of the parental deficiencies of which [the
mother] was given adequate notice." A.M.M., 182 Wn. App. at 793.
In F.M.O., the Department took custody of an infant who tested positive for
drugs at birth and initiated dependency proceedings, alleging parental
deficiencies of substance abuse, mental health, and a domestic violence history.
194 Wn. App. at 227. In terminating the mother's parental rights, the court also
cited the mother's recurring incarceration, which inhibited her ability to parent, as
an additional basis supporting the termination. F.M.O., 194 Wn. App. at 229.
While rejecting the mother's position that parental deficiencies are limited to
those expressly identified in the termination or dependency petition, Division
Three of this court concluded there was nothing in the record to indicate that the
mother was notified that her frequent incarceration was a deficiency that could be
the basis for terminating her rights. F.M.O., 194 Wn. App. at 232. As in A.M.M.,
the court reversed the termination order and instructed the trial court on remand
to consider whether termination was appropriate based on the identified
deficiencies. F.M.O., 194 Wn. App. at 233.
The relevant circumstances here are indistinguishable from those in
A.M.M. and F.M.O. According to the Department, notice to the father was
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No. 77991-5-1/8
sufficient because it is "evident" that his anger played a role in other parental
deficiencies, including domestic violence, recurrent arrests and multiple
convictions, drug use, and inability to care for his child. But while the connection
between anger and other identified parental deficiencies may have been obvious
to the Department, there is nothing in the record to suggest that the father was
aware of an inextricable connection that would allow notice of one issue to suffice
for the other. Due process requires more. As the court stated in F.M.O., both
sides "need to know what deficiencies are at issue since the State has to prove
the deficiencies to make its case while the parent has to know what allegations to
defend against." 194 Wn. App. at 232. Notifying the father of other issues he
needed to address did not apprise him that the court could terminate his parental
rights based on his failure to resolve anger issues.
The Department also points out that the father knew about the problematic
incidents themselves, and because of actions taken by the Department in
response to some of the incidents, he knew that the Department was concerned
about his behavior. But knowledge of evidentiary facts does not equate to
knowledge of the parental deficiencies the Department will rely on. If that were
the case, then the mother's awareness of her own recurring incarceration in
F.M.O. would have excused the Department's failure to notify her of its reliance
on her recurring incarceration as a basis for termination. Nor does the fact that
the father participated in a Department of Corrections program focused on
problem-solving, that may have incorporated anger management skills, indicate
the father's awareness that the Department had identified his anger as a parental
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No. 77991-5-1/9
deficiency. And finally, the Department appears to contend that the father would
have had notice of uncontrolled anger as a deficiency if he had participated in a
domestic violence assessment, because there was testimony such an
assessment would have likely led to a recommendation that the father engage in
treatment to address his need for anger management. However, it is unknown
what the results of such an assessment would have been. And no authority
supports the Department's position that it is incumbent upon parents to discover
by themselves what parental deficiencies they must defend against in termination
proceedings.
Reliance on the father's anger issues as a basis for termination was error.
And as was the case in A.M.M., despite thorough findings with regard to other
identified deficiencies, in the absence of evidence that the other deficiencies
established at trial justified termination, we must remand. The trial court must
consider whether termination is appropriate on the basis of the parental
deficiencies of which the father was properly notified. The court must also strike
finding 2.40 and amend findings 2.41 and 2.44 to the extent they indicate that
termination is based upon the father's failure to remedy his problems with anger.
The father also argues that because he was incarcerated in jail when the
termination hearing began and released two days later while the hearing was still
in progress, the trial court erred by failing to expressly consider the incarcerated
parent factors set forth in RCW 13.34.145 (5)(b).4
was transported from jail and attended the termination trial on the
4 The father
days he was incarcerated.
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No. 77991-5-1/10
RCW 13.34.180(1)(f) requires a court to consider whether continuation of
the parent-child relationship clearly diminishes the child's prospects for early
integration into a stable and permanent home. If a parent "is incarcerated," that
subsection also requires the trial court to consider whether the incarcerated
parent maintains a meaningful role in his child's life based on factors listed in
RCW 13.34.145(5)(b).5 In re Parental Rights to K.J.B., 187 Wn.2d 592,606, 387
P.3d 1072(2017).
The father's claim is resolved by the Washington Supreme Court's
decision In re Dependency of D.L.B., 186 Wn.2d 103, 122, 376 P.3d 10995 The factors set forth in former RCW 13.34.145(5)(b)(2015) are
(i) The parent's expressions or acts of manifesting concern for the
child, such as letters, telephone calls, visits, and other forms of
communication with the child;
(ii) The parent's efforts to communicate and work with the
department or 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.
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(2016), where the mother was incarcerated until a little over a month before the
termination trial began and the trial court failed to consider the incarcerated
parent factors. The court held that the statutory factors did not apply to the
mother, who was not incarcerated at the time of the termination hearing. D.L.B.,
186 Wn.2d at 106, 122. The court held that the trial court must consider those
factors "only when a parent 'is incarcerated' at the time of the termination ruling."
D.L.B., 186 Wn.2d at 122. In this case, the father was arrested about a week
before the termination trial began, on November 28, 2017. Trial began on
Wednesday, December 6, 2017, and the father was released from jail on
Saturday, December 9, 2017. The trial continued for another five days after the
father's release.
The father argues that the holding of D.L.B. does not apply because unlike
the mother in that case, he was incarcerated when the termination hearing
began. But this is not a material factual distinction. In D.L.B., the court analyzed
the plain language of the statute, which uses the present tense and requires the
court to analyze the incarcerated parent factors if the parent "is incarcerated"
when the court determines whether RCW 13.34.180(1)(f) has been proved.
D.L.B., 186 Wn.2d at 116-17. The court also pointed out that other provisions of
the amended statute already require the court to consider whether the
Department did enough to provide all necessary and reasonably available
services during the dependency, whether or not the parent was incarcerated
during that period. D.L.B., 186 Wn.2d at 106. And perhaps most importantly
here, the court concluded that the provision at issue, RCW 13.34.180(1)(f), is
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forward-looking and "looks to the incarcerated parent's ability to parent in the
future." D.L.B., 186 Wn.2d at 106.
The rationale of D.L.B. applies in these circumstances. The trial court did
not err by failing to consider on the record the incarcerated parent factors.
We reverse and remand to the trial court for further proceedings.
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WE CONCUR:
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