In Re The Dependency Of: S.c.p., Lorraine R. Payton, App. v. State, Dshs, Res. ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
S.C.P., No. 68672-1-1
D.O.B. 8/21/01
DIVISION ONE
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND UNPUBLISHED OPINION
HEALTH SERVICES, ro
•p-orr-
Respondent,
v. CO
on
LORRAINE REYES PAYTON,
FILED: May 20, 2013
Appellant.
Grosse, J. — In a proceeding to terminate parental rights, the Department
of Social and Health Services (the Department) must, inter alia, offer all court-
ordered and necessary services to the parent and tailor the services to the
parent's needs. The Department need not, however, offer services from which a
parent is unable to benefit. And, even where the Department inexcusably fails to
offer a service to a willing parent, termination is appropriate if the service would
not have remedied the parent's deficiencies within the foreseeable future.
Here, the Department did not fail to timely offer Lorraine Reyes Payton
(Reyes) mental health services. The Department offered the services once it
perceived a need for them. Further, in an unchallenged finding, the trial court
found that even if mental health services had been provided immediately
following the evaluation, they would not have borne any fruit for months, if not
years, and that for S.C.P., that time frame does not constitute "the foreseeable
future." Additionally, we reject Reyes' argument that visitation is a "service" that
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must be provided. The trial court's finding as to the provision of services is
supported by substantial evidence. The remainder of the trial court's findings
Reyes challenges are likewise supported by substantial evidence. Accordingly,
we affirm the trial court's order terminating Reyes' parental rights to S.C.P.
FACTS
S.C.P., born August 21, 2001, is the youngest of Lorraine Reyes' five
children.1 S.C.P. and her siblings were placed in protective custody in June 2009
because of Reyes' arrest for possession of a controlled substance with intent to
deliver. S.C.P. was found dependent by order filed on August 18, 2009.
Dispositional orders were entered on the same date.
Reyes pleaded guilty to three drug felonies in December 2009 and was
sentenced to prison in February 2010. In November 2010, a petition for the
termination of both of S.C.P.'s parents' parental rights was filed. The father was
found in default, and an order terminating his parental rights was entered May
19,2011.
A fact-finding hearing was held on the petition to terminate Reyes'
parental rights. After the hearing, the court entered findings, conclusions, and an
order granting the petition to terminate the parent-child relationship as to Reyes.
Reyes appeals.
1 The trial court's unchallenged findings of fact are verities on appeal. In re
Interest of J.F.. 109 Wn. App. 718, 722, 37 P.3d 1227 (2001). We rely on the
court's findings of fact, conclusions of law, and order terminating the parent-child
relationship that was filed in the trial court on April 11, 2012. We do not consider
the document entitled "Mother's Proposed Findings of Fact and Conclusions of
Law," even though Reyes assigns error to some of the findings contained therein
and included this document with her notice of appeal. This document is signed
only by Reyes' counsel, not the trial court, and does not appear to have been
filed in the court.
No. 68672-1-1/3
ANALYSIS
In order to terminate the parent-child relationship, the Department must
satisfy two prongs.2 The first prong focuses on the adequacy of the parents and
requires proof by clear, cogent, and convincing evidence of the six elements set
out in RCW 13.34.180.3 The second prong focuses on the child's best interests
and need be proved by only a preponderance of the evidence.4 If the first prong
is not satisfied, the court does not reach the second.5
The six elements involved in the first prong are
(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. A
parent's failure to substantially improve parental deficiencies within
twelve months following entry of the dispositional order shall give
rise to a rebuttable presumption that there is little likelihood that
conditions will be remedied so that the child can be returned to the
parent in the near future. The presumption shall not arise unless
the petitioner makes a showing that all necessary services
reasonably capable of correcting the parental deficiencies within
the foreseeable future have been clearly offered or provided. .. .
2 In re Dependency of K.N.J.. 171 Wn.2d 568, 576, 257 P.3d 522 (2011).
3 In re K.N.J.. 171 Wn.2d at 576-77.
4 In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
5 InreA.B.. 168 Wn.2d at 911.
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(f) That continuation of the parent and child relationship clearly
diminished the child's prospects for early integration into a stable
and permanent home.™
Reyes challenges the trial court's findings regarding elements (d) and (e)
as well as the trial court's finding that termination of her parental rights was in
S.C.P.'s best interests. Our review of these findings is limited to determining
whether they are supported by substantial evidence.7 Evidence is substantial if it
is sufficient to persuade a fair-minded person of the truth of the declared
premise.8 Because the trial court has the opportunity to hear the testimony and
observe the witnesses, the trial court's decision is entitled to deference, and we
do not weigh the evidence or judge the credibility of the witnesses.9
RCW13.34.180(1)(d)
Reyes argues that the trial court erred in finding that the Department
offered her all necessary services because the Department did not provide her
with visitation and a timely psychological evaluation.
Visitation
This court has held that visitation is not a "service" for purposes of RCW
13.34.136 and 13.34.180(1)(d).10 Reyes argues that our holding is no longer
valid in light of a recent amendment to the federal Adoption and Safe Families
Act of 1977, which is incorporated into Washington law. Specifically, for
purposes of chapter 13.34 RCW, remedial services geared to correcting parental
deficiencies are those services defined as "time-limited family reunification
6 RCW 13.34.180(1).
7 In re Welfare of C.B., 134 Wn. App. 942, 952-53, 143 P.3d 846 (2006).
8 InreC.B., 134 Wn. App. at 953.
9 InreC.B.. 134 Wn. App. at 952.
10 In re Dependency of T.H., 139 Wn. App. 784, 792, 162 P.3d 1141 (2007).
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services" in the federal statute.11 Included in the list of time-limited family
reunification services in the federal statute is "[sjervices and activities designed
to facilitate access to and visitation of children by parents and siblings."12 Based
on this, Reyes argues that the Department was required to offer her visitation
with S.C.P.
The Department argues that Reyes waived this argument by failing to
raise it below. Reyes does not dispute that she did not raise this argument
below. We agree with the Department that Reyes waived this argument on
appeal.13 Further, the amendment to the federal statute does not, as Reyes
argues, change our holding in In re Dependency of T.H. that visitation is not a
"service" for purposes of RCW 13.34.136 and 13.34.180(1 )(d).14 The federal
statute refers to services and activities designed to "facilitate . . . visitation of
children by parents and siblings."15 Under Reyes' argument, visitation would be
a service designed to facilitate visitation. This argument makes no logical sense.
Mental Health Services
Reyes argues that the trial court erred in finding that the Department
offered her all necessary services because the Department did not timely offer
her mental health services. Again, we disagree with Reyes.
11 RCW13.34.025(2)(a).
12 49 U.S.C. § 629a(a)(7)(B)(vii).
13 See RAP 2.5(a). We reject Reyes' argument that she is entitled to raise the
argument regarding visitation because her argument is a sufficiency of the
evidence argument that may be raised for the first time on appeal under RAP
2.5(a)(2). Her argument is not a sufficiency of the evidence argument.
14 139 Wn. App. 784, 792, 162 P.3d 1141 (2007).
15 49 U.S.C. § 629(a)(7)(B)(vii).
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The Department is required to offer all court-ordered and necessary
services and must tailor the services to the parent's needs.16 To meet this
burden, the Department must show either that it offered the parent remedial
services but the parent did not avail herself of them, or that the parent waived her
right to such services.17
Relying on In re the Termination of S.J..18 Reyes argues that she was
entitled to mental health services at the same time she was provided drug
treatment services. The circumstances in SJ^. are, however, quite different from
the circumstances in this case. In SJ^, the mother's mental health issues were
identified within months of when her children were removed from her care. Here,
neither the Department nor any of the social workers involved in Reyes' case had
any indication of a need for a mental health evaluation until September 2011,
while Reyes was in prison on the drug offenses.
Moreover, the Department is not required to offer services from which a
parent is unable to benefit.19 And, only services capable of correcting parental
deficiencies within the foreseeable future need be offered or provided. In an
unchallenged finding, the trial court found:
The mother's particular mental health problems, to the extent
they've been identified, appear to be long term and would likely
require some very long-term treatment. Even with long-term
treatment it is unknown if the mental health problems could be
resolved. Even if mental health services had been provided
immediately following the evaluation, they would not have borne
any fruit for months, if not years. Forthis child that time frame does
not constitute "the foreseeable future." More importantly, mental
health problems are not the major factor in this case. Unless the
16 In re Dependency of DA. 124 Wn. App. 644, 651, 102 P.3d 847 (2004).
17 In re Welfare of S.V.B., 75 Wn. App. 762, 770, 880 P.2d 80 (1994).
18 162 Wn. App. 873, 256 P.3d 470 (2011).
19 In re Dependency of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001).
No. 68672-1-1/7
drug problem has been dealt with reliably, the child will not be able
to be placed with mother in the foreseeable future.
The trial court's finding 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 is supported by substantial evidence.
RCW 13.34.180(1 Me)
Reyes purports to challenge the trial court's finding that there is little
likelihood that conditions will be remedied so that S.C.P. could be returned to her
in the near future.20 But, she did not assign error to this finding of the trial court.
It is, accordingly, a verity on appeal. Nor did Reyes assign error to the trial
court's finding that her substantial number of criminal convictions and her
infractions committed while in prison also demonstrate little likelihood that
conditions will be remedies in the near future.21 This finding, too, is a verity on
appeal.
20 Finding of Fact 2.28 provides:
There is little likelihood that conditions will be remedied so that the
child can be returned to the mother in the near future. The mother
has a significant criminal history, and has been involved in the
criminal system for over two decades. She has been incarcerated
numerous times making her unavailable to care for her child. She
has a significant substance abuse history and had several attempts
at treatment without demonstrated success.
21 Finding of Fact 2.29 provides:
The mother had been convicted of over 30 misdemeanors and five
drug related felonies. The mother testified that the theft convictions
were all drug related. During the course of her incarceration, she
had two major infractions in prison which are significant. One of the
infractions involved giving an over-the-counter medication from one
prisoner to another. This is similar to drug dealing criminal
behavior that resulted in the mother's incarceration and is
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Reyes does, however, challenge the trial court's finding regarding the
rebuttable presumption:
The mother failed to substantially improve her parenting
deficiencies within twelve months following entry of the dispositional
order. [The Department] offered the mother all necessary services
within twelve months of entry of the dispositional order. This gives
rise to the rebuttable presumption that there is little likelihood that
conditions will be remedied so that the child can be returned to the
mother in the near future[,] which the mother has not overcome.[22]
Reyes argues that the trial court improperly relied on the rebuttable presumption
because, under the statute, the presumption does not arise unless the
Department shows that all necessary services reasonably capable of correcting
the parental deficiencies within the foreseeable future have been clearly offered
or provided.23 Relying on her argument regarding visitation and mental health
services, Reyes argues that the Department failed to make the required showing
as to necessary services to allow the presumption to arise. Because, however,
we find that all necessary services reasonably capable of correcting Reyes'
problematic in that she acknowledged that her IOP [(intensive
outpatient)] treatment in prison addressed her criminal behavior,
and yet she committed this infraction after completing IOP. The
other violation, tattooing her roommate, the mother committed
simply because somebody "bugged her" a lot. Not only does it
appear that the mother did not receive any benefit from committing
these actions, these infractions, which occurred within months of
transitioning to work release, exposed her to the possibility of
prolonged incarceration which meant that she risked being
unavailable to care for [S.C.P.] for an even longer period of time.
The substantial number of convictions and the progression in
number and length of incarcerations, her continuing to engage in
criminal activity knowing she would be unavailable to parent in any
meaningful way, along with the current infractions demonstrates
little likelihood that conditions will be remedied in the near future.
22 The rebuttable presumption is found in RCW 13.34.180(1 )(e).
23 RCW 13.34.180(1 )(e).
8
No. 68672-1-1/9
parental deficiencies within the foreseeable future have been clearly offered or
provided, we reject Reyes' argument.
Reyes also challenges the court's finding that "the foreseeable future was
the present," meaning that S.C.P. needs immediate placement in a permanent
home. The court did not specifically find that "the foreseeable future was the
present," but rather found:
Dr. Jason Prinster undertook an evaluation of the child. In Dr.
Prinster's opinion, the child needs stability and consistency and
prolonging the dependency presents a risk that the child will
develop more severe problems. Dr. Prinster's opinion based on the
history of this child, the long duration of this dependency, as well as
the factors involving the child's behavior, is highly credible.
[S.C.P.'s] current placement provider does not want to keep
[S.C.P.] due in part to her behaviors. Permanency and stability are
paramount to [S.C.P.'s] best interests. [S.C.P.] has been in limbo
for too long and to continue the parent-child relationship for a
significant period of time which, at a minimum[,] would take months
is interfering with her ability to integrate into a permanent and
stable home. This child needs stability now for healthy growth and
development which cannot be achieved except through termination
of parental rights.
The trial court's finding is supported by substantial evidence. Dr. Prinster,
who evaluated S.C.P. in December 2011, testified that S.C.P. needed
consistency, predictability, and stability as soon as possible, otherwise S.C.P.'s
emotional distress would worsen and her ability to function would lessen.
S.C.P.'s volunteer guardian ad litem likewise felt that S.C.P. needed stability,
predictability, and permanency. Dr. Prinster testified that S.C.P. needed an
attentive and consistent caregiver who was part of her treatment and part of her
life. Dr. Prinster recommended "an interactive parent who has a lot of time and
energy to help [S.C.P.] out." The evidence shows that Reyes would not be able
to fulfill that role in the foreseeable future. For example, in an unchallenged
No. 68672-1-1/10
finding, the court found that a determination of whether Reyes could remain
clean and sober for any length of time once released from prison would take a
significant period of time and that her sobriety while incarcerated cannot be
viewed as an indicator of long-term sobriety. Further, according to social worker
Karen Kelsey, Reyes would have to aggressively pursue all of the services
provided her for a period of six months before the reunification process could
even begin. A return home would not happen until even later. In the meantime,
Reyes would have to find stable housing, but at the time of trial, she had no idea
where she would be living once released from prison. Because the evidence
clearly shows that S.C.P. needs stability and a permanent home as soon as
possible, and because the evidence also shows that Reyes cannot provide this,
the trial court did not err in its finding as to S.C.P.'s immediate need for stability.
RCW 13.34.190(1 )(b)
Reyes challenges the trial court's finding that termination of her parental
rights is in S.C.P.'s best interests.
If the Department establishes the six elements of RCW 13.34.180(1), the
court must then consider whether termination of the parent-child relationship is in
the best interests of the child.24 Reyes argues that the trial court's finding as to
S.C.P.'s best interests is premature because the Department failed to establish
the six elements RCW 13.34.180(1). We reject this argument for the reasons set
forth above.
Reyes also argues that termination is not in S.C.P.'s best interests
because she and S.C.P. have a "history of a loving mother-daughter bond."
24 RCW 13.34.190(1 )(b).
10
No. 68672-1-1/11
Whether termination is in the best interests of the child must be proved by a
preponderance of the evidence and determined based on the facts of each
case.25 Here, the trial court found, in an unchallenged finding, that S.C.P. has
been out of Reyes' care for almost half of her life due to the mother's inability to
care for S.C.P. We find no evidence of a history of a loving mother-daughter
bond. In fact, Dr. Prinster testified that S.C.P.'s bond with Reyes appeared to be
weak. Further, the uncontradicted opinion of the witnesses is that S.C.P. needs
stability, consistency, and permanancy, and needs these things as soon as
possible. The evidence shows that, at least for the foreseeable future, Reyes will
be unable to provide this to S.C.P. We will not disturb the trial court's finding that
termination of Reyes' parental rights is in S.C.P.'s best interests.
Affirmed.
"SVwv-^ J
WE CONCUR:
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25 In re Welfare of Aschauer. 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
11