In Re The Dependency Of: R.s.h. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 82382-5-I
R.S.H. DIVISION ONE
A minor child. UNPUBLISHED OPINION
SMITH, J. — The father, M.A.H., appeals the termination of his parental
rights with respect to his son, R.S.H. The father contends that because the
Department of Children, Youth, and Families (Department) failed to provide him a
necessary and court-ordered psychological evaluation with a parenting
component, the court order terminating his parental rights must be reversed. We
conclude that the Department met its obligation by offering the father the
psychological evaluation and affirm the termination of parental rights.
FACTS
In April 2017, while the father was incarcerated, the court placed his
children, R.S.H. and two daughters, with relatives after an initial shelter care
hearing. However, R.S.H. was moved from his grandmother’s home to a non-
relative foster care home.
In August 2017, while still incarcerated, the father entered into an agreed
order of dependency with respect to R.S.H. The court ordered the father to
participate in remedial services such as a drug and alcohol evaluation, a
Citations and pin cites are based on the Westlaw online version of the cited material.
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psychological evaluation with a parenting component due to his PTSD, 1 and
domestic violence batterer’s treatment. After the dependency was established,
a social worker, Denise Huynh, met with the father to discuss the services he
needed to complete. Huynh referred the father to Dr. Sierra Swing for the
psychological evaluation. The father was released from prison later that month.
However, Dr. Swing was not immediately available for an appointment. When
Dr. Swing did become available, Huynh had lost contact with the father.
Huynh later learned that the father was incarcerated again, and Dr. Swing
was unwilling to go to jail to complete the evaluation. In November 2017, Xiao
Yu Jackson, a Department supervisor, visited the father while he was in jail and
encouraged him to seek services while in jail. In December 2017, the father
was released from jail, but shortly after was hospitalized for a gunshot wound
and then incarcerated again. It took about a month for Huynh to determine that
the father was incarcerated again.
While incarcerated, the father attended permanency planning and
dependency review hearings. In February 2018, the father attended his
children’s permanency planning hearing. However, at the review hearings, the
dependency court repeatedly found that the father was not making progress in
his remedial service plan. In March 2018, the father was out of custody and
participating in a work release program. The father contacted Jackson in June
2018 and asked about visitation with his children. The father’s last visit with his
1 The father has been diagnosed with post-traumatic disorder (PTSD) based
on his childhood experiences during Somalia’s civil war.
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children was in June 2018.
Towards the end of 2018, the father was incarcerated again. The father
remained incarcerated from the end of 2018 until he was released in September
2019. The father was out of custody for three weeks until he was arrested and
incarcerated again in October 2019. From October 2019 until the termination
trial in January 2021, the father remained incarcerated. In August 2019 Huynh
referred the father to different providers for the substance abuse evaluation,
urinalysis testing, and domestic violence treatment. The father told the social
worker that he was familiar with these providers.
In February 2020, Jackson met with the father at the Maleng Regional
Justice Center and encouraged him again to participate in services. Jackson
also instructed the father to contact his attorney and select a new agreed upon
provider for the psychological evaluation. In March 2020, the Department
referred the father for a psychological evaluation with Dr. Steve Tutty. However,
Dr. Tutty was not able to go to the prison to perform the evaluation because of
COVID-19 restrictions.
In March 2020, the Department filed a petition to terminate the father’s
parental rights. From June through August 2020, Department social worker
Kate Kersey sent three service letters to the father regarding his remedial court-
ordered services. The letters also acknowledged that while the father was
incarcerated at the Washington State Penitentiary there were “no known
resources” for pursuing his court-ordered services. During normal times,
treatment program meetings are available, but these meetings were not
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available to the father while he was incarcerated due to the pandemic.
In January 2021, at the termination trial, the father acknowledged that he
never started any of the services required of him, which included a substance
abuse evaluation followed by compliance with any treatment recommendations,
urinalysis testing, participation in a domestic violence treatment program, and a
psychological evaluation with a parenting component. When asked whether he
had made any progress in the services, the father testified, “[a]bsolutely not.”
During the trial, the father voluntarily relinquished his parental rights to his two
daughters, S.H. and A.H. After hearing three days of testimony and considering
multiple exhibits, the trial court terminated the father’s parental rights to his
remaining child, R.S.H. The father appeals.
ANALYSIS
The father asserts that we must reverse the court order terminating his
parental rights because the Department failed to provide the necessary and
court-ordered service of a psychological evaluation. We disagree.
Parents have a fundamental liberty interest in the “care, custody, and
management” of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.
Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Welfare of D.E., 196 Wn.2d 92, 102, 469
P.3d 1163, 1168 (2020). In a trial for termination of parental rights, the
Department is required to prove that the court-ordered services “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.”
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RCW 13.34.180(1)(d). If a parent is incarcerated, the Department must, where
possible, specify “treatment that reflects the resources available at the facility
where the parent is confined.” RCW 13.34.136(2)(b)(i)(A). “When the State
suggests remedial services to a parent, it has an obligation under [former] RCW
13.34.180(4) [(1979)] to at least provide him or her with a referral list of agencies
or organizations which provide the services.” 2 In re Welfare of Hall, 99 Wn.2d
842, 850, 664 P.2d 1245 (1983). The Department fails its obligation when it
delays in providing a service that results “in the Department ultimately never
providing the service.” In re Parental Rights to D.H., 195 Wn.2d 710, 726, 464
P.3d 215 (2020). However, “a parent’s unwillingness or inability to make use of
the services provided excuses” the Department from offering additional services.
In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988).
“[E]ven where the Department ‘inexcusably fails’ to offer services to a willing
parent, termination will still be deemed appropriate if the services ‘would not have
remedied the parent’s deficiencies in the foreseeable future.’” In re Welfare of
M.R.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008); In re Dependency of T.R.,
108 Wn. App. 149, 164, 29 P.3d 1275 (2001).
We will uphold the trial court’s factual findings if they are supported by
substantial evidence, and if so, we determine whether the findings support the
court’s conclusions of law and judgment. In re Dependency of P.D., 58 Wn. App.
18, 25, 792 P.2d 159 (1990). “Substantial evidence is evidence in sufficient
quantity to persuade a fair-minded, rational person of the truth of the declared
2 Former RCW 13.34.180(4) is now codified at RCW 13.34.180(1)(d).
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premise.” In re Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009).
We evaluate whether there is substantial evidence in light of the standard of
proof required, which in a termination proceeding is “clear, cogent, and
convincing evidence.” P.D., 58 Wn. App. at 25, RCW 13.34.190. 3
Here, the Department offered the services as required by
RCW 13.34.180(1)(d). The Department referred the father to providers for
substance abuse evaluation and treatment, urinalysis testing, and a domestic
violence treatment program. The trial court found that he failed to present any
evidence or verification of his participation in any of the services. As for the
psychological evaluation, the Department fulfilled its obligation. The Department
referred the father to Dr. Swing and Dr. Tutty. However, Dr. Swing was not able
to conduct the evaluation because the father was incarcerated, and Dr. Tutty was
not allowed in the jail to conduct the evaluation due to the jail’s pandemic
restrictions. Additionally, Jackson continuously encouraged the father to
participate in services. We conclude that there is clear, cogent, and convincing
evidence to support the court’s finding that the Department has fulfilled its
obligation to offer necessary services. Hall, 99 Wn.2d at 850 (Department has
an obligation to “at least provide him . . . with a referral list of agencies or
organizations which provide the services.”).
3On appeal, the father assigned error to some of the trial court’s findings
about these issues. However, in his brief, he abandons all of these challenges
and focuses only on whether the necessary and court-ordered psychological
evaluation with the parenting component was expressly and understandably
offered or provided. “A party that offers no argument in its opening brief on a
claimed assignment of error waives the assignment.” Brown v. Vail, 169 Wn.2d
318, 336 n.11, 237 P.3d 263 (2010).
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Furthermore, the father failed to complete the services while he was not
incarcerated or take advantage of the services available during the several
months he was incarcerated before the pandemic. The father did not
communicate or inform the Department of his location when he was released
from incarceration and indicated that he felt it was not his responsibility to do so.
Department social workers testified that there were time periods that they did not
know where the father was located and at times had no way of reaching him.
The father’s unwillingness to participate in the services offered and his lack of
communication excuses the Department from providing additional services that
might have been helpful. Ramquist, 52 Wn. App. at 861.
Lastly, even if we were to determine that the Department’s efforts to
arrange for a psychological evaluation were inadequate, it does not appear that
the psychological evaluation would have remedied the father’s deficiencies in the
foreseeable future because the evaluation was not a remedial service, but was
rather an assessment of his psychological status and his parenting capabilities.
The trial court found that there was little likelihood that the father’s conditions
would be remedied so that R.S.H. could return to him, and due to the child’s
young age and developmental needs, the “near future” for the five-year-old boy
to establish permanency is imminent. The father admitted that he never even
started any of the services required by him that were meant to remedy his
parental deficiencies. M.R.H., 145 Wn. App. at 25 (“Where the record
establishes that the offer of services would be futile, the trial court can make a
finding that the Department has offered all reasonable services.”).
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Therefore, under the totality of the circumstances, we conclude that the
Department’s efforts were sufficient. The Department’s attempts at referrals, the
father’s unwillingness to maintain contact with the Department, his failure to
engage in the services while not in custody, and the unavailability of services due
to COVID-19 support the trial court’s finding that the Department understandably
offered or provided all necessary and reasonably available services capable of
correcting the father’s parental deficiencies within the foreseeable future. We
affirm.
WE CONCUR:
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