Dep Of Sls, Calvin Turner v. Dshs ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of No. 79722-1-I
S.L.S., DOB: 05/31/2017
DIVISION ONE
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, UNPUBLISHED OPINION
Respondents,
V.
CALVIN TURNER,
Appellant. FILED: January 21, 2020
CHUN, J. — The trial court terminated Calvin Turner’s parental rights as to
his daughter, S.L.S. In its termination order, the trial court incorporated by
reference the findings of fact and conclusions of law from the underlying
dependency order. Turner appeals the termination order, claiming the State
failed to meet its evidentiary burden under RCW 13.34.180(1)(d)—(f) and
RCW 13.34.190(1)(b), and claiming that the incorporation of the dependency
order’s findings of fact and conclusions of law violated due process. Substantial
evidence supports the trial court’s findings of fact. Further, any error resulting
from the incorporation of the findings and conclusions from the dependency order
is harmless beyond a reasonable doubt. Accordingly, we affirm.
No. 79722-1 -1/2
I. BACKGROUND
Turner is the father of S.L.S., who was born drug-affected. S.L.S. suffers
from a number of medical and developmental needs, including an abnormality in
her pituitary gland causing precocious puberty. S.L.S. has eye disorders and
respiratory needs that require swallowing studies and thickeners added to any
liquids she drinks.
Turner is a Vietnam War veteran and claims to suffer from Post-Traumatic
Stress Disorder (PTSD) as a result of his service. He approximates he last
received treatment for PTSD five years before the termination trial. At trial,
Turner testified that he does not use heroin, but also said that he used heroin as
recently as two weeks before the trial so that he could test positive for opiates
and enter treatment. The trial court found Turner had a longstanding history of
substance abuse that inhibited his ability to safely care for S.L.S.’
The Department of Social and Health Services (Department) removed
S.L.S. from her parents’ care shortly after her birth and placed her in foster care.
The dependency trial court entered a dispositional order as to Turner on
August 14, 2017.2 Turner received notice of the dependency proceedings but did
not appear. The dependency trial court entered the order by default. The
dispositional order required Turner to (1) complete a drug and alcohol evaluation
within 30 days of the date of referral, (2) schedule a parenting assessment within
1 Turner does not challenge this finding, which renders it a verity on appeal. See
State v. O’Neill, 148 Wash. 2d 564, 571, 62 P.3d 489 (2003).
2 A dependency court will enter a dispositional order if, after a fact-finding
hearing, a preponderance of the evidence shows the child is dependent.
RCW 13.34.130.
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No. 79722-1 -1/3
30 days of the date of referral and complete it within 90 days of referral, (3)
immediately begin 90 days of random urinalysis testing, and (4) establish
paternity as soon as possible.
After a brief period in foster care, S.L.S.’s maternal grandmother assumed
care of her. Shortly thereafter, the grandmother was murdered in her home. The
perpetrators left S.L.S. alone in her crib. She remained there alone for three
days before being discovered. As a result, S.L.S. suffers from PTSD in addition
to her other medical and developmental needs. S.L.S. experiences PTSD
symptoms such as night terrors and panic attacks and receives mental health
therapy.
S.L.S. re-entered foster care after her grandmother’s murder. Turner did
not visit S.L.S. regularly throughout the dependency and believes his inconsistent
visitations did not harm her. Social workers made multiple attempts to help
Turner access services during the dependency period. Despite this assistance,
Turner made little, if any, demonstrable effort towards accessing services.
The State filed a petition to terminate Turner’s parental rights.
Termination trial proceedings began November 27, 2018. The trial court
terminated Turner’s parental rights. In its termination order, the trial court
adopted and incorporated by reference the findings and conclusions from the
dependency order. Turner appeals.
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No. 79722-1-114
II. ANALYSIS
A. Termination
Turner argues the State failed to present clear, cogent, and convincing
evidence supporting the six elements of RCW 13.34.180(1) and did not prove by
a preponderance of the evidence that termination serves his daughter’s best
interests. The State argues it met this burden. We agree with the State.
“Parents have a fundamental liberty interest in the care and welfare of
their minor children.” In re Dependency of Schermer, 161 Wash. 2d 927, 941, 169
P.3d 452 (2007). To terminate the parent-child relationship, the State must
satisfy two statutory prongs. In re Dependency of K.N.J., 171 Wash. 2d 568, 576,
257 P.3d 522 (2011). First, the State must establish the six elements of
RCW 13.34.180(1) by clear, cogent, and convincing evidence.3
RCW 13.34.190(1)(a)(i). Second, the State must show by a preponderance of
~ The six elements are, in pertinent part:
(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 . . ; and
.
(f) That continuation of the parent and child relationship clearly
diminishes the child’s prospects for early integration into a stable and
permanent home. . .
ROW 13.34.180(1)(a)—(f).
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No. 79722-1-115
the evidence that termination serves the best interests of the child. In re Welfare
ofA.B., 168 Wash. 2d 908, 911, 232 P.3d 1104 (2010); ROW 13.34.190(1)(b).
“Whether a termination is in the best interests of a child must be determined
based upon the facts of each case.” In re Derendency of A.M., 106 Wash. App.
123, 131, 22 P.3d 838 (2001). We place very strong reliance on a trial court’s
determination of what serves the child’s best interests. In re Welfare of L.N.B.-L.,
157 Wash. App. 215, 255, 237 P.3d 944 (2010).
We will uphold a trial court’s termination findings of fact if they are
“supported by substantial evidence from which a rational trier of fact could find
the necessary facts by clear, cogent, and convincing evidence.” In re
De~endencyofK.S.C., 137 Wash. 2d 918, 925, 976 P.2d 113 (1999). “Substantial
evidence is evidence sufficient to persuade a fair-minded, rational person of the
truth of the declared premise.” In reWelfare of C.B., 134Wn. App. 942, 953, 143
P.3d 846 (2006). “Clear, cogent and convincing evidence exists when the
ultimate fact in issue is shown by the evidence to be highly probable.” In re
De~endencyofK.R., 128 Wash. App. 129, 141, 904 P.2d 1132 (1995) (internal
quotation marks and citation omitted).
Turner argues the State failed to present clear, cogent, and convincing
evidence sufficient to meet its burden under RCW 13.34.180(1)(d). Turner also
argues that the State failed to satisfy RCW 13.34.180(1)(e) and (f), but he bases
this argument wholly on his contention regarding subsection (d). Turner
additionally argues the trial court erred in concluding that termination serves the
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No. 79722-1 -116
best interests of S.L.S., again primarily basing his argument on the claimed
failure to meet subsection (d). We address each challenge in turn.
1. RCW 13.34.180(1)(d)
a. Provision of Services
Turner argues that the State did not meet its evidentiary burden under
subsection (d) because the Department failed to offer him mental health services.
Parents must be offered all reasonably available and necessary services
capable of correcting parental deficiencies within the near future.
RCW 13.34.180(1)(d). Such services must be individually tailored to the needs
of the parent. In re Derjendency of D.L.B., 188 Wash. App. 905, 920, 355 P.3d 345
(2015).
But the Department need not provide additional services where the record
establishes that such provision would be futile. In re Parental Rights to K.M.M.,
186 Wash. 2d 466, 483, 379 P.3d 75 (2016). Where a parent is unwilling or unable
to make use of the services already provided, offering additional services would
be futile. K.M.M., 186 Wash. 2d at 483. Further, “[w]here the record establishes
that the offer of services would be futile,” we may affirm a trial court’s conclusion
that the Department offered all reasonable services. In re Welfare of M.R.H., 145
Wash. App. 10, 25, 188 P.3d 510 (2008); see also In re Derendency of M.-A.F.-S.,
4 Wash. App. 2d 425, 461—62, 421 P.3d 482 (2018) (affirming satisfaction of
RCW 13.34.180(1)(d) because substantial evidence showed additional offers of
services would be futile).
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No. 79722-1-117
Except for acknowledging paternity, which he did at trial, Turner failed to
demonstrate participation in any services. He claimed to participate in chemical
dependency services, but never provided documentation or allowed release of
information showing participation in such services. Social workers attempted to
assist Turner in accessing services, but he declined help. Turner claims to have
made an effort to participate in a parenting assessment, but missed two
appointments for assessments and never rescheduled. Additionally, while
Turner now expresses a desire for the State to provide him with mental health
services to treat PTSD, he stated at trial that he had previously attended
treatment but quit because he knows how to handle his PTSD on his own.
In light of the foregoing, we conclude that substantial evidence supports
the trial court’s finding by clear, cogent, and convincing evidence that additional
offers of services would have been futile.4 Accordingly, substantial evidence
establishes that the State proved that the Department offered or provided all
reasonably available services capable of correcting Turner’s parental
deficiencies.5
~‘Turner cites In re Parental Rights to l.M.-M. to argue that a finding of futility is
unsupportable where services are not appropriately tailored to the parent’s needs. 196
Wash. App. 914, 925—26, 385 P.3d 268 (2016). But unlike the parent in l.M.-M., Turner
has not made “notable efforts to engage in services and work with [his] providers.” 196
Wash. App. at 925.
~ Turner additionally argues the State improperly required he submit to chemical
dependency services as a precondition to the State offering access to mental health
services. Such a condition would violate the principle of In re Welfare of S.J., 162 Wn.
App. 873, 881—82, 256 P.3d 470 (2011), where the court rejected a sequential approach
to chemical dependency and mental health services in favor of an integrated approach.
He points to the State’s direct examination of social worker Holly Battersby:
[State:] Is it typical for the Department to recommend parents comply
with the substance abuse treatment and services before
moving on to other court ordered services?
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No. 79722-1 -1/8
b. Express and Understandable Offer of Services
Turner argues the State did not ‘understandably” offer him services within
the meaning of RCW 13.34.180(1)(d), because the Department did not provide
him with time limits for his completion of services.
The Department must expressly and understandably offer services.
RCW 13.34.180(1)(d). The Department must also specify time limits for each
service plan. RCW 13.34.136(2)(b)(i). But Turner provides no authority to
support his argument that the Department must repeatedly remind a parent of the
time limits for the completion of services.
Here, the dependency order provided Turner with clear time limits for
completion of services.6 RCW 13.34.136(2)(b)(i) does not oblige the Department
to remind Turner of the time limits. Nevertheless, the Department and social
[Battersby:] I’ve seen that so that that [sic] way the parent can then really
focus on their—developing their parenting skills while they’re
sober.
[State]: If, hypothetically, the mother was under the influence or-or
lacked sobriety, was continuing to use, would you expect the
mother to make much progress in parent coaching, parent
classes, a neuropsychological evaluation?
[Battersby:] She may make kme progress but her substance use could
also continue to impact her ability to make enough progress
to be a safe parent.
Instead of saying that the State had made use of chemical dependency services a
precondition to it offering Turner mental health services, Battersby merely opined as to
her impression of what effect continued substance use can have on a parent’s ability to
remedy their deficiencies. Turner points to no other source for his claim that the State
required a sequential approach or mandated chemical dependency services before
mental health services.
6 Turner claims the Department provided no time limit for engaging in services,
but also concedes that the original dependency order provided Turner with time limits for
all services except urinalysis testing.
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No. 79722-1 -119
workers, through letters and conversations, continually reminded Turner of the
importance of completing services as soon as possible.7 Social workers
additionally explained how Turner could access such services, but he declined
any help offered. Substantial evidence supports the trial court’s conclusion that
the State presented clear, cogent, and convincing evidence that the Department
expressly and understandably offered services, with time limits as required by
RCW 13.34.136(2)(b)(i).
2. RCW 13.34.180(1)(e) and (f)
Turner’s argument that the State failed to satisfy RCW 13.34.180(1)(e)
and (f) rests entirely on his assertion that the State failed to satisfy
RCW 13.34.180(1)(d). But as discussed above, the trial court properly
concluded that the State satisfied RCW 13.34.180(1)(d). Turner offers no
additional argument as to why the State did not satisfy subsections (e) and (f).
Thus we reject his challenges under subsections (e) and (f).
3. RCW 13.34.190(1)(b)
Turner’s challenge to the trial court’s conclusion that the State satisfied
RCW 13.34.190(1)(b) also rests primarily on his assertion that the State failed to
satisfy ROW 13.34.180(1)(d). He additionally contends that termination does not
‘ For example, at least five letters sent to Turner from the Department included
the following admonition:
Your failure to follow through with these services can delay and/or prevent
reunification with [S.L.S.]. If you wish to parent [S.L.S.] it is imperative you
participate in your services immediately, as your parental rights to [S.L.S.]
could be terminated if you do not address the concerns that brought her
into care.
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No. 79722-1-I/ID
serve S.L.S.’s best interests because it would permanently deprive her of the
care and companionship of a sincerely loving father.
The fact that Turner genuinely loves S.L.S. does not compel the
conclusion that reversing termination serves the child’s best interests. Turner
suffers from longstanding substance abuse issues and continues to use heroin.
Besides establishing paternity, Turner has made little, if any, demonstrable
progress towards completing court-ordered services. Turner is either unwilling or
unable to acknowledge his child’s special needs. Turner lives in the home where
S.L.S.’s grandmother was murdered, and plans to have S.L.S. move into that
home if we reversed termination. But it would not serve S.L.S.’s best interests to
live in that home. At trial, the Court Appointed Special Advocate shared S.L.S.’s
infant mental health specialist’s opinion that returning to the home in which her
grandmother was murdered could traumatize S.L.S. The Court Appointed
Special Advocate observed that Turner lacks insight both into S.L.S.’s special
needs and her general needs as an infant. From these facts, we conclude that
substantial evidence supports the trial court’s finding that termination of Turner’s
parental rights serves his daughter’s best interests.
B. Incorporation of Dependency Order Findings of Fact and Conclusions of
Law
Turner argues the trial court wrongfully incorporated the findings of fact
and conclusions of law from the default dependency hearing in violation of due
process.8 The State argues the trial court did not rely on the dependency order
8 Turner raises this issue for the first time on appeal. He contends incorporation
of the dependency order was a manifest constitutional error raising due process
concerns, see RAP 2.5(a)(3), or in alternative, that because of his lawyer’s failure to
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No. 79722-1-I/li
in entering its decision to terminate Turner’s parental rights, so the trial court did
not enter the termination order in violation of due process. We conclude the trial
court committed no error warranting reversal.
It remains unclear whether the trial court relied upon the dependency
order as a means of concluding the State proved RCW 13.34.180(1 )(d)—(f) and
RCW 13.34.190(1)(b) by clear, cogent and convincing evidence, or as a means
of concluding the State proved RCW 13.34.180(i)(a) and (b), which require a
finding by clear and cogent evidence that the child has been found dependent
and that the court entered a dispositional order under RCW 13.34.130.
If the trial court relied on the dependency order only as a means of
concluding the State proved ROW 13.34.180(1)(a) and (b), then it committed no
error. A termination court must conclude by clear, cogent, and convincing
evidence only that the child was found dependent and that a dispositional order
was entered to satisfy subsections (a) and (b); the underlying facts of the
dependency order need not be re-proven at the termination trial. See ~ 128
Wash. 2d at 141—42. Thus, if the trial court incorporated the order to prove
subsections (a) and (b), it would serve to prove only the fact of the dependency
and dispositional order, and not to re-prove the allegations underlying
dependency in a way that might otherwise implicate concerns about due process.
It is also possible that the trial court relied on the dependency order as a
means of concluding the State proved ROW 13.34.180(1)(d)—(f) and
object, he received ineffective assistance of counsel. The State did not brief these
issues. We proceed to the merits of Turner’s claim of error.
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No. 79722-1 -1/12
RCW 13.34.190(1)(b) by clear, cogent, and convincing evidence. Turner asserts
this would be constitutional error in violation of his due process rights, because
his attorney had no opportunity to object to disputed information contained in the
dependency findings and conclusions. Incorporation of dependency orders for
such purposes could create due process concerns, as parents in termination
hearings have statutory and constitutional rights to “receive a decision based
solely on the evidence adduced at the hearing,” and to “notice, open testimony,
time to prepare and respond to charges . . .“ ~ RCW 13.34.090(1); In re
De~endencyofA.M.M., 182 Wash. App. 776, 791, 332 P.3d 500 (2014) (internal
quotation marks and citation omitted). Assuming, without deciding, that
consideration of the dependency order for its facts was constitutional error, it was
harm less.9
Constitutional error is harmless when it is harmless beyond a reasonable
doubt. Chaiman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967); State v. Guloy, 104 Wash. 2d 412, 425, 705 P.2d 1182 (1985).
~ Turner argues this error would require remand for new termination proceedings,
citing A.M.M. In A.M.M., the trial court terminated parental rights on the basis of the
parent’s “significant substance abuse, her unavailability and lack of follow through, and
lack of knowledge regarding her children’s developmental needs.” 182 Wash. App. at 792
(emphasis omitted). But the parent never received notice “that her lack of knowledge
regarding her children’s developmental needs constituted a parental deficiency on which
termination could be based.” A.M.M., 182Wn. App. at 791. We considered the lack of
notice a violation of due process and remanded to the trial court with instructions to
“consider whether termination is appropriate on the basis of the parental deficiencies of
which [the parent] was given adequate notice.” A.M.M., 182 Wn. App at 792—93. But
here, the termination trial court did not explicitly base the termination order on facts of
which Turner had no notice. Further, unlike the parent in A.M.M., Turner does not allege
a failure to notify him of his parental deficiencies. Accordingly, application of harmless
error analysis is an appropriate remedy for the claimed error.
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No. 79722-1-1113
As discussed above in Section A and below, even when disregarding the
facts and conclusions of the dependency order, substantial evidence supports
the termination order. Turner’s daughter was found dependent and the trial court
entered a dispositional order. ~ RCW 13.34.180(1)(a), (b). By the termination
hearing, S.L.S. had been removed from her father’s care for over six months.
~ RCW 13.34.180(1)(c). Besides establishing paternity, Turner failed to show
any demonstrable progress in court-ordered services. See
RCW 13.34.180(1)(d). Given Turner’s lack of progress with services and lack of
understanding as to his daughter’s needs, it is unlikely that he will remedy his
parental deficiencies in the near future. ~ RCW 13.34.180(1)(e). Given his
parental deficiencies and lack of progress in remedying those deficiencies,
continuation of the parent-child relationship diminishes his daughter’s prospects
for early integration into a permanent home. See RCW 13.34.180(1)(f). Finally,
because Turner lacks insight into his daughter’s needs, continues to use heroin,
and has made little to no progress in court-ordered services, termination serves
his daughter’s best interests. ~ ROW 13.34.190(1)(b). Any claimed error from
incorporation of the dependency order is therefore harmless beyond a
reasonable doubt.1°
10 By implication of this conclusion, Turner’s arguments against waiver—
alternatively, manifest constitutional error and ineffective assistance of counsel—would
fail if addressed. Manifest constitutional error requires a showing of actual prejudice.
State v. Fenwick, 164 Wash. App. 392, 400, 264 P.3d 284 (2011). Ineffective assistance
of counsel requires a showing of prejudice. In re Deiendency of S.M.H., 128 Wash. App.
45, 61, 115 P.3d 990 (2005). Because incorporation of the dependency order was
harmless beyond a reasonable doubt, incorporation caused no prejudice sufficient for an
argument of manifest constitutional error or ineffective assistance of counsel.
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No. 79722-1-1/14
Under either interpretation of the trial court’s incorporation of the
dependency order into its Findings of Fact and Conclusions of Law, we conclude
that the trial court committed no error warranting reversal.
Affirmed.
WE CONCUR:
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