In Re The Dependency Of: J. X. K. Shana Kalberer-bobo v. Dshs ( 2013 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of No. 69558-4-I
consolidated with
J.X.K., dob 5/9/05, No. 69559-2-I
M.C.S., dob 6/15/11,
Minor Children.
WASHINGTON STATE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES,
Respondent,
v.
SHANA KALBERER-BOBO, UNPUBLISHED OPINION
Appellant. FILED: July 22, 2013
Verellen, J. — Shana Kalberer-Bobo appeals the termination of her parental
rights to her son J.K., born May 9, 2005, and her daughter M.S., born June 15, 2011.
Kalberer-Bobo asserts the trial court erred in determining that (1) there was little
likelihood that conditions will be remedied so the children could be returned to her in the
near future; (2) continuation of her parental rights diminishes the children's prospects for
integration into a permanent home; and (3) termination of her parental rights is in the
children's best interest. Because the evidence amply supports the trial court's findings
of fact and those findings support the court's conclusions of law, we affirm.
No. 69558-4-1/2
FACTS
Kalberer-Bobo experimented with drugs starting at age 14, later used cocaine
daily, and became addicted to methamphetamine. In 2001, she was arrested for
possession of drugs. In 2004, she was convicted of two controlled substance violations
and incarcerated for 60 days.
In 2005, Kalberer-Bobo's son J.K. tested positive for methamphetamine at birth.
Soon thereafter, the superior court granted a dependency petition filed by the
Department of Social and Health Services (DSHS). J.K. lived with Kalberer-Bobo's
mother for approximately five months. Kalberer-Bobo followed through with
recommended services, including inpatient substance abuse treatment, and
demonstrated continuing sobriety. The dependency was dismissed in June 2008.
In 2010, Kalberer-Bobo was arrested and charged with possession with intent to
deliver methamphetamine. J.K. was removed from her care and placed with Kalberer-
Bobo's mother, where he remains. Dependency was established for J.K. for the second
time in March 2011 based on findings that Kalberer-Bobo provided inadequate care,
had a criminal history with multiple arrests, had relapsed on methamphetamine, and
was selling drugs. DSHS had earlier received reports that Kalberer-Bobo was using
amphetamines, had repeatedly failed to pick up J.K. from the school bus stop, and had
not provided J.K.'s school with medical equipment for J.K.'s severe asthma. The
dispositional order called for J.K. to remain with his maternal grandparents and for
Kalberer-Bobo to comply with urinalysis testing, have a drug/alcohol evaluation, and
follow treatment recommendations.
No. 69558-4-1/3
On March 28, 2011, Kalberer-Bobo participated in a drug/alcohol evaluation.
The evaluator recommended that she complete intensive outpatient treatment and
urinalysis testing. Despite the recommendation, Kalberer-Bobo did not enter treatment.
Kalberer-Bobo's daughter M.S. was born in June 2011 with amphetamines in her
system. Kalberer-Bobo admitted using drugs "off and on" throughout her pregnancy.
Dependency was established as to M.S. in August 2011.1 Kalberer-Bobo agreed to
place M.S. with the paternal aunt. M.S. has never been in Kalberer-Bobo's care.
On July 17, 2011, Kalberer-Bobo was arrested for committing two drug offenses:
possession with intent to manufacture or deliver heroin and possession of
methamphetamine. Kalberer-Bobo was admitted to family treatment court, but was
discharged for forging attendance slips for Alcoholics Anonymous/Narcotics Anonymous
meetings. Kalberer-Bobo testified that she was also kicked out because the Department
of Corrections found drugs in her room.
An agreed order of dependency for M.S. was entered in August 2011 based on
Kalberer-Bobo testing positive for amphetamines while pregnant, participating in
minimal prenatal care, and failing to engage in substance abuse treatment. Kalberer-
Bobo was ordered to engage in intensive outpatient treatment, urinalysis testing, and
mental health counseling. The court later changed the order to require inpatient
substance abuse treatment. Kalberer-Bobo did not engage in these services before she
pleaded guilty to her drug charges and was sentenced to 40 months in prison.
1 Report of Proceedings (RP) (Oct. 9, 2012) at 42.
No. 69558-4-1/4
In February 2012, the trial court found that Kalberer-Bobo had not participated in
treatment or urinalysis prior to incarceration, and had not engaged in services while
incarcerated. The court ordered a permanent plan of adoption for both children.
DSHS filed the termination petition for both children on April 18, 2012. Following
trial, the trial court entered orders terminating Kalberer-Bobo's parental rights as to both
children on October 25, 2012.2
Kalberer-Bobo appeals.
DISCUSSION
Standard of Review
An appellate court reviews a trial court's termination order to determine whether
the findings of fact are supported by substantial evidence in the record and whether the
findings support the conclusions of law.3 Unchallenged findings offact are treated as
verities on appeal.4
To prevail in a petition to terminate parental rights, the State must prove:
(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;
2The children's fathers' parental rights were previously terminated.
3In re Dependency of C.B.. 79 Wn. App. 686, 692, 904 P.2d 1171 (1995).
4 Fuller v. Emplov't Sec. Dep't of State of Wash.. 52 Wn. App. 603, 605, 762 P.2d
367 (1988) (review is limited to determining whether the findings support the
conclusions of law).
No. 69558-4-1/5
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future....
(f) That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.151
Each of the above elements must be proven by clear, cogent, and convincing
evidence.6 The State must also demonstrate that termination of parental rights is in the
best interests of the child.7
Here, it is undisputed that the elements of RCW 13.34.180(1)(a) through (d) are
met. Kalberer-Bobo contends the State failed to prove RCW 13.34.180(1)(e) and (f),
and argues that termination is not in the best interests of the children.
Little Likelihood Conditions Can Be Remedied
In determining whether there is little likelihood conditions will be changed such
that the child can be returned to the parent in the near future, the court may examine
the entire parenting history.8
5RCW 13.34.180(1).
6RCW 13.34.190(1)(a)(i); In re Welfare of S.V.B.. 75 Wn. App. 762, 768, 880
P.2d 80 (1994); In re Dependency of A.V.D.. 62 Wn. App. 562, 568, 815 P.2d 277(1991). The clear, cogent, and convincing evidence standard is satisfied when a court
determines that the ultimate fact at issue is shown to be "highly probable." In re Welfare
of Seqo. 82 Wn.2d 736, 739, 513 P.2d 831 (1973); In re Dependency of P.A.D.. 58 Wn.
App. 18, 25, 792 P.2d 159 (1990).
7RCW13.34.190(1)(b).
No. 69558-4-1/6
Kalberer-Bobo contends she made substantial progress by remaining sober and
complying with regulations while in prison. She also argues that she may qualify for
early release from prison through the Family Offender Sentencing alternative (FOSA).
In this regard, she asserts the facts of her case are analogous to those in In re Welfare
ofC.B.9 There, DSHS contended the mother needed to engage in services, continue
her sobriety, and maintain a clean and safe home, but failed to prove that these
requirements could not be accomplished within one year.10 The appellate court
reversed the termination order, determining that DSHS failed to prove there was little
likelihood her conditions could not be remedied in the near future.11
But the record here is substantially different than that in C.B., where the court
found the parent's "drug use was [not] so extensive as to make it unlikely that she could
not remedy it in the near future," "the State admitted that she was doing well in her
recovery," and the trial court found that the parent"would likely improve."12 None of
these factors are present here. Kalberer-Bobo, unlike the parent in C.B., admitted at
trial that she did not complete the services required in the dependency action. She
failed to complete chemical dependency treatment or individual mental health
counseling. Kalberer-Bobo's drug addiction has not been successfully treated since
J.K. was removed from her care in 2010. Cassie Short, the court appointed special
advocate (CASA) for the children, testified she did not believe Kalberer-Bobo was
8 In re Welfare of Ross. 45 Wn.2d 654, 657, 277 P.2d 335 (1954).
9 134Wn. App. 942, 143 P.3d 846 (2006).
10 CJL 134 Wn. App. at 956-57.
11 ]d at 959-60.
12 Id. at 958-59.
No. 69558-4-1/7
capable of adequately caring for J.K. and M.S. in the near future because she failed to
comply with services despite numerous referrals, and had not made any progress. The
trial court was not required to believe Kalberer-Bobo's stated intention to pursue needed
services in the future, and the reviewing court will not weigh the evidence or credibility
of witnesses.13
Kalberer-Bobo argues that her "limited ability to obtain needed services during
her incarceration should not justify" the finding that there is little likelihood she could be
reunited with her children in the near future.14 But there was ample evidence that
Kalberer-Bobo did not improve even when all services were available to her. She
conceded as much at trial by admitting that all necessary services, reasonably available
and capable of remedying her parenting deficiencies, were expressly and
understandably offered or provided to her.
Kalberer-Bobo argues, as she did at trial, that she was a good candidate for early
release through FOSA, and would be eligible for inpatient chemical dependency
treatment, and would work toward having her children returned to her care. But
Kalberer-Bobo's ability to participate in FOSA is unknown and was the subject of
competing testimony at trial. DSHS social worker Jesse Choinski testified that Kalberer-
Bobo was unlikely to qualify for FOSA, in part because of the long separation from J.K.,
the fact that M.S. was never in her care, and the fact that the children's caregivers were
unlikely to allow her to parent the children again. Because there was conflicting
evidence, the trial court was not required to accept Kalberer-Bobo's optimism that she
13 Seqo. 82Wn.2dat740.
14 Appellant's Br. at 11.
No. 69558-4-1/8
would qualify, much less that she would succeed to the point that she could have the
children returned to her care.
The evidence overwhelmingly supports the trial court's finding that there is little
likelihood that Kalberer-Bobo will remedy her parental deficiencies in the near future.15
Kalberer-Bobo fails to demonstrate any error warranting appellate relief.
Integration Into Stable and Permanent Home
When determining whether substantial evidence supports RCW 13.34.180(1)(f),
the main focus is the parent-child relationship and whether it impedes the child's
prospects for integration.16
The record supports the trial court's finding that the State proved this element.
Social worker Choinski and CASA Short stated that J.K. and M.S. are adoptable and
that both have prospects for adoption. The record demonstrates that each of the
children remained in the same placement since the dependency actions began. J.K.
remained in placement with his maternal grandmother since 2010, and M.S. remained
with her paternal aunt since her birth. Choinski testified that M.S. had no parent-child
bond with her mother. Choinski testified that J.K. was "distressed by the possibility of
going back or leaving his grandma,"17 that his visits with Kalberer-Bobo were "pretty
inconsistent," interrupted his routine and schedule, and "there was a lot oftension."18
15 "A determination of what constitutes the near future depends on the age of the
child." In re Dependency of T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005).
18CJL, 134 Wn. App. at 345.
17RP(Oct. 9, 2012) at 106.
18 Id. at 111.
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No. 69558-4-1/9
There was evidence that the placements are prospective adoptive homes, and
that these homes cannot become permanent if the mother's parental rights remained
intact. She further stated that there was tension between M.C.'s caregiver and
Kalberer-Bobo because the caregiver suspected Kalberer-Bobo was intoxicated during
visits. The situation became so stressful for the caregiver that visits at her home were
discontinued. Short testified that there was conflict between Kalberer-Bobo and her
mother, and that Kalberer-Bobo's mother felt the visits were too disruptive for J.K. Short
also testified that visits with both children were disrupted by Kalberer-Bobo's
"inconsistent, erratic behavior, and sometimes aggressive and volatile behavior."19
Given this evidence, the trial court did not court err by finding this factor proven.
Present Unfitness
Kalberer-Bobo contends that because she sought out voluntary treatment,
education, and leadership roles while in prison, she has demonstrated present fitness to
parent. She argues that the trial court impermissibly relied only on her past fitness
when it found her unfit to parent.
However, the record provides ample support for the trial court's finding that
Kalberer-Bobo was unfit to parent the children due to her serious methamphetamine
addiction and criminal behavior. The court may consider the long-standing involvement
of DSHS and the court, as well as past history ofthe parent's behavior and deficiencies.20
Between the time J.K. was removed in December 2010 and Kalberer-Bobo's
incarceration in December 2011, she failed to complete court-ordered chemical
19 Id, at 225.
20 In re Dependency of J.C.. 130 Wn.2d418, 427-28, 924 P.2d 21 (1996).
No. 69558-4-1/10
dependency treatment, urinalysis testing, mental health services, and had several
relapses into drug use.
The trial court did not err by finding the mother presently unable to adequately
care for the children.
Best Interests of the Children
Kalberer-Bobo contends the juvenile court erred in finding it was in the children's
best interests to terminate her parental rights. We disagree.
The dominant consideration in a termination of parental rights proceeding is the
moral, intellectual and material welfare ofthe child.21 Appellate courts are constrained
to place very strong reliance on a trial court's determination of what course of action will
be in the best interests of the child.22
There was substantial evidence in the record from which the trial court could
determine that termination was in J.K.'s best interests. Although Kalberer-Bobo
describes a strong bond, the evidence demonstrates that the only time she was
consistent in attending visitation with J.K. was during a few months of inpatient
treatment when the children were transported to her treatment facility. The last visit she
had with J.K. was in September or October 2011.
There was substantial evidence that J.K.'s physical and behavioral health
improved after he was no longer in his mother's care. Kalberer-Bobo testified that J.K.
had severe eczema and asthma, and had been repeatedly hospitalized for his asthma
while in her care. Choinski testified that J.K.'s asthma and eczema had to be monitored
21 In re Dependency of A.A.. 105 Wn. App. 604, 610, 20 P.3d 492 (2001).
22 In re Interest of Pawling. 101 Wn.2d 392, 401, 679 P.2d 916 (1984).
10
No. 69558-4-1/11
and medicated. Short testified that J.K.'s eczema and asthma improved after he was
placed in his grandmother's care, choinski testified that J.K. also had developed
behavioral issues while in his mother's care, including anger and aggression, but these
issues diminished since J.K. was removed from Kalberer-Bobo's care. Choinski opined
that J.K. needs permanency now and needs to know who will meet his needs on a
regular basis.
According to Choinski, M.S. does not have any parent-child bond with Kalberer-
Bobo and does not know who she is. M.S. has never been in her mother's care and
does not see her mother as her primary caregiver or as the person who fulfills her
needs. Although Kalberer-Bobo initially participated in supervised visitation with M.S.
under the supervision of the paternal aunt, the aunt was concerned that the mother was
attending visits while under the influence. M.S. last visited with her mother when she
was four months old. At the time of trial, M.S. was 16 months old.
The CASA testified that M.S. and J.K. need "stability and permanence and to live
in a forever family now" and recommended termination of Kalberer-Bobo's parental
rights.23 She stated it would not be safe to return the children to Kalberer-Bobo in the
near future.
Because the record amply supports the trial court's finding as to the children's
best interests, Kalberer-Bobo fails to demonstrate that the finding was erroneous.
23
RP(Oct. 10, 2012) at 226-27.
11
No. 69558-4-1/12
CONCLUSION
Substantial evidence supports the trial court's findings of fact. Those findings
support the conclusions of law. The elements of RCW 13.34.180(1) and
RCW 13.34.190 have been met. We affirm the order terminating Kalberer-Bobo's
parental rights as to J.K. and M.S.
WE CONCUR:
A^/ e j &x ,T.
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