Dependency Of D.l.b., Edelyn Saint-louis v. Dshs State Of Washington ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
No. 72421-5-1
D.L.B.,
D.O.B: 11/01/08, DIVISION ONE
Minor child.
PUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent,
EDELYN SAINT-LOUIS,
FILED: July 13, 2015
Appellant.
Trickey, J. — In 2013, the legislature amended the Juvenile Court Act, chapter
13.34 RCW, to ensure that the rights of incarcerated parents are protected throughout
various stages of the dependency and termination process. One of these amendments
is codified in RCW 13.34.180(1)(f), the amended language of which states that "[i]f the
parent is incarcerated," the trial court must consider several factors before terminating the
parent-child relationship. Here, the mother was not incarcerated at the time of the
termination hearing but was incarcerated for numerous months during the dependency.
She contends that the order terminating her parental rights must be reversed because
the trial court failed to consider the amended factors set forth in RCW 13.34.180(1 )(f).
We disagree and hold that the plain meaning of RCW 13.34.180(1)(f), as gleaned from
its language and surrounding statutes, supports the conclusion that the amended factors
apply only when the parent is incarcerated at the time of the termination hearing.
Accordingly, we reject the mother's contention, as well as others she raises on appeal,
No. 72421-5-1/2
and affirm the trial court's order terminating her parental rights.
FACTS1
D.L.B. was born on November 1, 2008, to Edelyn Saint-Louis. The father is not a
party to this termination proceeding.2
Since an early age, D.L.B. was exposed to domestic violence while in his mother's
care. In 2009, the father threw D.L.B. at Saint-Louis and then struck her in the head.
After this incident, Saint-Louis obtained a permanent no-contact order against the father.
Afew years later, when D.L.B. was approximately two years old, Saint-Louis and
D.L.B. moved in with the father's sister in Chicago for a few months. The father followed
them to Chicago shortly thereafter, and would visit the house often. He would frequently
harass and assault Saint-Louis. On at least one occasion, D.L.B. witnessed a physical
altercation between Saint-Louis and the father. The police arrested the father three times
during the three and a half months they resided in Chicago.
Saint-Louisand D.L.B. returned to Seattle. In early 2012, the Department of Social
and Health Services (Department) received reports concerning domestic violence
between Saint-Louis and her boyfriend at the time. The police had been called to Saint-
Louis's residence on multiple occasions to investigate. On February 8, 2012, the police
arrested Saint-Louis for leaving D.L.B. unattended for several hours. D.L.B. was taken
1Edelyn Saint-Louis assigns error to a number of the trial court's findings. However, she fails to
devote argument to several of these claimed errors in her brief. The assignments of error are
therefore waived. Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549(1992). Saint-Louis also challenges several of the court's findings of fact in footnotes in her
opening brief. We need not address arguments raised in footnotes. State v. Johnson, 69 Wn.
App. 189, 194 n.4, 847 P.2d 960 (1993). In any event, a review of the record leads to the
conclusion thatthe challenged findings are either supported by the record or were not material to
the court's decision.
2The father's parental rights were terminated on May 16, 2014, by order ofdefault. This appeal
concerns only the termination of Saint-Louis's parental rights.
No. 72421-5-1/3
into protective custody.
On March 8, 2012, the Department filed a dependency petition on D.L.B.'s behalf.
On May 11, 2012, D.L.B. was declared dependent as to both parents. The trial court
required Saint-Louis to complete the following services: (1) random urinalysis (UA) testing
two times per week; (2) a psychological evaluation with parenting component and
compliance with recommended treatment; and (3) a domestic violence support group.
In July 2012, the Department referred Saint-Louis to Dr. Steve Tutty for a
psychological and parenting evaluation. Saint-Louis completed the evaluation in October
2012. Dr. Tutty observed a positive bond between Saint-Louis and D.L.B. However, he
found that Saint-Louis presented with "a myriad of risk factors that threaten the safety and
well-being of [D.L.B.]"3 He opined that Saint-Louis's "presentation, testing outcomes, and
clinical/CPS history support psychological challenges best characterized by bipolar
illness, polysubstance abuse, panic disorder, executive functioning deficits, learning
disabilities, and histrionic traits."4
Dr. Tutty recommended against reunification of Saint-Louis with D.L.B. He
determined that Saint-Louis's prognosis for maintaining the safety and welfare of D.L.B.
was poor atthe time of the evaluation and in the foreseeable future. Dr. Tutty concluded
that it was highly unlikely that Saint-Louis would be able to remediate her parental deficits
within the timeframe allowed for the Department to establish permanency. He
nevertheless recommended she complete the following services within six months ofthe
November 2012 evaluation: (1) drug and alcohol evaluation and follow-up with all
recommendations; (2) medical consultation to explore additional psychotropic
3 Exhibit (Ex.) 16 at 13.
4 Ex. 16 at 13.
No. 72421-5-1/4
medications to target her mental health issues of bipolar illness, panic disorder, and
executive functioning deficits; (3) participation in the Incredible Years parent education
program; (4) monitored visitations about once a week; (5) participation in a domestic
violence support group; and (6) work with her social worker in obtaining suitable housing
and employment options.
D.L.B. was referred to the Foster Care Assessment Program (FCAP) for a
reunification assessment. In the FCAP evaluator's written report, dated December 12,
2012, the evaluator recommended against reunification. She recommended Saint-Louis
enroll in the Incredible Years parent education program "sooner rather than later."5
On November 5, 2012, Saint-Louis enrolled in a 30-day in-patient chemical
dependency treatment program to address her dependence on alcohol, cannabis, and
cocaine. She successfully completed that program and subsequently enrolled in an out
patient program in December 18,2012. She completed that program in April 2013. Saint-
Louis's UAs remained clean until May 2013, when she tested positive for alcohol during
a random UAtest. Her case worker recommended she participate in a relapse prevention
program. Saint-Louis was unable to begin classes until a week before the termination
trial in July 2014.
Following a dependency review hearing on May 30, 2013, the trial court found that
Saint-Louis was in compliance with all court-ordered services exceptthat she had missed
five random UA tests since March 2013 and had not attended parent education classes.
The trial court added another service to be completed by Saint-Louis: participation in
mental health counseling.
5 Ex. 17 at 10.
No. 72421-5-1/5
In July 2013, Saint-Louis was arrested for a hit and run charge. She was
incarcerated for approximately one month. In August 2013, she was released. On
October 24, 2013, Saint-Louis failed to appear at a court hearing on the matter and, as a
result, a warrant was issued for her arrest.
In November 2013, Saint-Louis was arrested. She pleaded guilty to one count of
hit and run, one countofvehicular assault, and one countoftaking a motor vehicle without
permission in the second degree. She also pleaded guilty to two counts of attempted
forgery arising from a separate incident.
Saint-Louis was incarcerated from November 2013 to June 2014. On January 31,
2014, while she was incarcerated, the Department filed a petition for termination of Saint-
Louis's parental rights.
For two brief periods, Saint-Louis was on work release. The first time was for
approximately one week in March 2014; the second was for approximately two weeks in
April 2014. While on her second work release in April, Saint-Louis's social worker, Alyssa
Livingston, met with her to review services, which had not been started but had been
referred. They spoke about setting up visits and discussed Saint-Louis's participation in
the Incredible Years parent education program.
Saint-Louis had the option of going on work release again, but she opted against
it. Nevertheless, she participated in domestic violence services while incarcerated. She
also saw someone from Sound Mental Health twice each week.
In June 2014, Saint-Louis called Livingston after she was released from jail. At
that point, Livingston made referrals for Saint-Louis to begin UA testing. She also made
referrals to the Incredible Years parent education program and scheduled visits between
No. 72421-5-1/6
Saint-Louis and D.L.B. Saint-Louis began the program in late 2013, but she missed
several classes and was discharged. She began the program again on July 29, 2014.
The termination hearing took place at the end of July 2014. The trial court
terminated Saint-Louis's parental rights.
Saint-Louis appeals.
ANALYSIS
Parents have a fundamental liberty interest in the care and welfare of their children.
In re Dependencv of Schermer, 161 Wn.2d 927, 941-42, 169 P.3d 452 (2007). To
terminate parental rights, the Department must satisfy a two-pronged test. In re
Dependencv of K.N.J.. 171 Wn.2d 568, 576, 257 P.3d 522 (2011). The Department must
first prove the statutory elements set forth in RCW 13.34.180(1 )(a) through (f)6 by clear,
cogent, and convincing evidence. K.N.J., 171 Wn.2d at 576-77.
RCW 13.34.180(1) states, in pertinent part:
A petition seeking termination of a parent and child relationship may be
filed in juvenile court by any party, including the supervising agency, to the
dependency proceedings concerning that child. Such petition shall conform to the
requirements of RCW 13.34.040, shall be served upon the parties as provided in
RCW 13.34.070(8), and shall allege all of the following unless subsection (3) or(4)
of this section applies:
(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) Thatthe child has been removed or will, at the time ofthe 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. If the
parent is incarcerated, the court shall consider whether a parent maintains a
No. 72421-5-1/7
Evidence is clear, cogent, and convincing if it established the ultimate fact in issue
as '"highly probable.'" In re Dependencv of K.R.. 128 Wn.2d 129, 141, 904 P.2d 1132(1995) (internal quotation marks omitted) (quoting In re Seqo, 82 Wn.2d 736, 739, 513
P.2d 831 (1973)). If the trial court finds that the Department has met its burden under
RCW 13.34.180, it may terminate parental rights if it also finds by a preponderance ofthe
evidence that termination is in the "best interest" of the child. K.N.J., 171 Wn.2d at 577.
Where the trial court has weighed the evidence, our review is limited to determining
whether the court's findings of fact are supported by substantial evidence and whether
those findings support the court's conclusions of law. In re Dependencv of P.P.. 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 premise." In re
Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009) (quoting World Wide Video,
Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of
whether the findings of fact are supported by substantial evidence "must be made in light
of the degree of proof required." PJL, 58 Wn. App. at 25. In determining whether
substantial evidence supports the trial court's findings, this court does not weigh the
evidence or the credibility of witnesses. In re Dependencv of E.L.F., 117 Wn. App. 241,
245, 70 P.3d 163 (2003).
meaningful role in his or her child's life based on factors identified in RCW
13.34.145(5)(b); whether the department orsupervising agency made reasonable
efforts as defined in this chapter; and whether particular barriers existed as
described in RCW 13.34.145(5)(b) including, but not limited to, delays or barriers
experienced in keeping the agency apprised of his orher location and in accessing
visitation or other meaningful contact with the child.
No. 72421-5-1/8
Application of RCW 13.34.180(1 )(f)
Saint-Louis first contends that the termination order must be reversed because the
Department failed to prove, and the trial court failed to consider, the recent statutory
amendments pertaining to incarcerated parents. We disagree.
Effective July 2013, the legislature amended several statutes in the Juvenile Court
Act in a law entitled, "An Act Relating to the rights of parents who are incarcerated." Laws
of 2013, ch. 173 (amending RCW 13.34.067, .136, .145, .180). One of the amended
provisions was to RCW 13.34.180(1)(f), the sixth element of the parental rights
termination statute. Laws of 2013, ch. 173 § 4. The legislature added three specific
factors that the trial court must consider before terminating the parental rights of a parent
who "is incarcerated." Laws of 2013, ch. 173 § 4; see In re Dependencv of A.M.M.. 182
Wn. App. 776, 786, 332 P.3d 500 (2014). Amended subsection .180(1)(f) states, in part:
Ifthe parent is incarcerated, the court shall consider [(1)] whether a parent
maintains a meaningful role in his or her child's life based on factors
identified in RCW 13.34.145(5)(b)[t?]]; [(2)] whether the department or
7 RCW 13.34.145(5)(b) (as amended by Laws OF 2013, ch. 173 § 3), provides:
The court's assessment of whether a parent who is incarcerated maintains a
meaningful role in the child's life may include consideration of the following:
(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
8
No. 72421-5-1/9
supervising agency made reasonable efforts as defined in this chapter; and
[(3)] whether particular barriers existed as described in RCW
13.34.145(5)(b) including, but not limited to, delays or barriers experienced
in keeping the agency apprised of his or her location and in accessing
visitation or other meaningful contact with the child.
(Emphasis added.)
The parties dispute the application of RCW 13.34.180(1 )(f) to this case. Saint-
Louis asserts that the plain meaning of subsection .180(1)(f), when viewed in context of
the surrounding statutes, unambiguously conveys the legislature's intent to apply the
amended factors to a parent who was incarcerated at some point during the dependency,
even if the parent was not incarcerated at the time of the termination hearing. The
Department, on the other hand, contends that the factors apply only if the parent is
incarcerated at the time of the termination trial.8 We agree with the Department. Upon
an examination of the plain language of RCW 13.34.180(1 )(f) and other related
amendments enacted in the same session law, we conclude that the factors contained
within subsection .180(1)(f) must be proven only if the parent is incarcerated at the time
of the termination hearing.
The issue before us is one of statutory interpretation, which we review de novo.
State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). The purpose of statutory
interpretation is to carry out the legislature's intent. State v. Eaton, 168 Wn.2d 476, 480,
229 P.3d 704 (2010). Construction of a statute must be consistent with the statute's
(vi) Whether the continued involvement of the parent in the child's life is in
the child's best interest.
8The Department initially asserts that Saint-Louis waived this claimed error by failing to raise the
issue concerning RCW 13.34.180(1 )(f) at the termination hearing. However, this court has
discretion to review a claim raised for the first time on appeal, and we exercise that discretion
here. See State v. Blazina. 182 Wn.2d 827, 344 P.3d 680, 683 (2015) ("RAP 2.5(a) grants
appellate courts discretion to accept review of claimed errors not appealed as a matter of right.").
No. 72421-5-1/10
underlying purposes and must avoid constitutional deficiencies. Eaton, 168 Wn.2d at
480. Reviewing courts presume the legislature did not intend absurd results. Eaton. 168
Wn.2d at 480.
Statutory interpretation starts with the statute's plain meaning. State v. Slattum.
173 Wn. App. 640, 649, 295 P.3d 788 (2013). "If the meaning of the statute is plain, the
court discerns legislative intent from the ordinary meaning of the words." Tesoro Ref. &
Mkta. Co. v. State. Dep't of Revenue. 164 Wn.2d 310, 317, 190 P.3d 28 (2008). '"In
determining the plain meaning ofa provision, we look to the text ofthe statutory provision
in question, as well as the context of the statute in which that provision is found, related
provisions, and the statutory scheme as a whole.'" State v. Garcia. 179 Wn.2d 828, 836-
37, 318 P.3d 266 (2014) (internal quotation marks omitted) (quoting State v. Ervin. 169
Wn.2d 815, 820, 239 P.3d 354 (2010)). We give effect to the plain meaning of the statute
if it is plain on its face. Slattum. 173 Wn. App. at 649.
Saint-Louis's interpretation conflicts with the verb tense used in the text of
subsection .180(1)(f). The statutory text, "if the parent is incarcerated," uses the present
tense form of the verb "to be." (Emphasis added.) Applying ordinary English grammar,
the present tense does not refer to parents who have already been incarcerated; rather,
it indicates that the subsection's application is limited to those currently incarcerated.
Thus, the plain language ofsubsection .180(1)(f) shows that the legislature contemplated
that RCW 13.34.180(1 )(f) be applied to parents who are incarcerated at the time of the
termination hearing, and not to parents incarcerated before the hearing.
The legislature's use of specific temporal language in other provisions of the 2013
law confirms that the legislature intended to limit the application of subsection .180(1)(f)
10
No. 72421-5-1/11
to parents who are incarcerated at the time of the termination hearing. For example,
RCW 13.34.145(4)(a)(iv)9 states that one "good cause exception" to filing a termination
petition is where "[t]he parent is incarcerated, or the parent's prior incarceration is a
significant factor in why the child has been in foster care . . . ." Laws of 2013, ch. 173 §
3 (emphasis added). RCW 13.34.145(4)(c) similarly provides specific temporal language:
"The constraints of a parent's current orprior incarceration . . . may be considered
Laws of 2013, ch. 173 § 3 (emphasis added). Under RCW 13.34.180(1 )(e)(iii), the court
may consider "mitigating circumstances, such as a parent's current orprior incarceration."
Laws of 2013, ch. 173 § 4 (emphasis added). And under RCW 13.34.180(2), "[a]s
evidence of rebuttal to any presumption established pursuant to subsection (1)(e) ofthis
section, the court may consider the particular constraints of a parent's current orprior
incarceration." Laws of 2013, ch. 173 § 4 (emphasis added). Thus, the legislature's
deliberate use of temporal language in other provisions amended in the same session
law strongly suggests that its use of the present tense in "is incarcerated" was not
inadvertent. If the legislature intended to encompass prior incarceration in RCW
13.34.180(1 )(f), it would have done so.
Saint-Louis contends that the legislature's overarching changes in 2013 illustrate
its intent that a parent's incarceration be considered at all stages of the dependency
process, no matter when in thedependency the parent was incarcerated. While we agree
that the overall purpose of the changes was to protect the rights of incarcerated parents,
we do not read the amendments as broadly as Saint-Louis suggests. Rather, an
9RCW 13.34.145(4) was renumbered as RCW 13.34.145(5) when the code reviser incorporated
all 2013 amendments to this section. See Laws of 2013, ch. 173 § 3, ch. 206 § 1, ch. 332 § 3
(effective July 28, 2013).
11
No. 72421-5-1/12
examination of the amendments enacted in the 2013 law demonstrates the legislature's
intent to give incarcerated parents the opportunity to participate and have their rights
considered during discrete stages of the dependency and termination process, such as
during the case conference, when developing a permanency plan and at the permanency
planning hearing, and at the termination hearing. See Laws of 2013, ch. 173 § 1
(amending RCW 13.34.067(3) to require that an incarcerated parent be provided the
option to participate in the case conference through teleconference or videoconference);
Laws of 2013, ch. 173§ 2 (amending former RCW 13.34.136(2)(b)(i), recodified as RCW
13.34.136(2)(b)(i)(A) by Laws of2014, ch. 163 § 2, to require that the permanency plan
of care address how the incarcerated parent will participate in the case conference and
permanency plan meetings, include available resources at the facility where parent is
confined, and provide for visitation unless it is not in the child's best interests); Laws of
2013, ch. 173§ 3 (amending former RCW 13.34.145(4) to provide that at the permanency
planning hearing, the parent's prior or current incarceration may constitute a "good cause"
exception to ordering the Department to file a termination petition); Laws of 2013, ch. 173
§ 4 (amending RCW 13.34.180(2) to provide that as evidence of rebuttal to any
established presumption pursuant to RCW 13.34.180(1 )(e), the trial court at the
termination hearing may consider the constraints of the parent's current or prior
incarceration); Laws of 2013, ch. 173 § 4 (amending RCW 13.34.180(5) to state that
when a parent is sentenced to a long-term incarceration and has maintained a meaningful
role in the child's life, the Department must consider placements that allow the parent to
maintain the relationship). Thus, according to the structure and language ofthe amended
provisions ofthe Juvenile Court Act, by the time of the termination hearing, if the parent
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No. 72421-5-1/13
was incarcerated during one of those prior stages of the dependency, the trial court has
already considered the parent's incarceration.
The plain meaning of the phrase, "is incarcerated," is unambiguous. A reading of
the plain language, along with the statutory scheme as a whole and related provisions
within RCW 13.34.180, makes clear that the trial court is not required to consider the
amended factors set forth in RCW 13.34.180(1)(f) if the parent is not incarcerated at the
time of the termination hearing, even if the parent was previously incarcerated during the
dependency. The trial court did not err.
Reasonable Efforts to Offer Services
Saint-Louis next contends that the Department failed to meet its burden under
RCW 13.34.180(1 )(d) of proving that it made reasonable efforts to offer or provide her
with all available services during her incarceration. She asserts the Department failed to
offer her UA tests, an adequate parenting education program, and referral to a chemical
dependency program. We disagree.
The Department may not terminate parental rights unless it proves that "all
necessary services, reasonably available, capable of correcting the parental deficiencies
within the foreseeable future have been expressly and understandably offered or
provided." RCW 13.34.180(1 )(d).
A service is necessary within the meaning of the statute if it is needed to address
a condition that precludes reunification ofthe parent and child. In re Welfare ofC.S.. 168
Wn.2d 51, 56 n.3, 225 P.3d 953 (2010). The services offered must be individually tailored
to a parent's specific needs. In re Dependencv of DA. 124 Wn. App. 644, 651,102 P.3d
847 (2004). The Department is not required to offer or provide services that would be
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No. 72421-5-1/14
futile. In re Dependencv of T.R.. 108 Wn. App. 149,163, 29 P.3d 1275 (2001). Services
that might have been helpful need not be offered when a parent is unwilling or unable to
make use of the service provided. In re Dependencv of S.M.H.. 128 Wn. App. 45, 54,
115 P.3d 990 (2005).
Saint-Louiswas referred to Intensive Family Preservation Services, UA testing, the
Incredible Years parent education program, a psychological evaluation, an FCAP
evaluation, and mental health counseling. She was provided bus fare tickets to enable
to her obtain those services.
Livingston testified she met with Saint-Louis several times to discuss services.
She reviewed the service plan with Saint-Louis in late December 2012. Livingston first
referred Saint-Louis to the Incredible Years parent education program in January 2013,
after Dr. Tutty had made the recommendation. Livingston spoke with Saint-Louis on the
phone and communicated with her via e-mail.
The Incredible Years parent education program and random UA tests were
available to Saint-Louis when she was on work release and before and after her
incarceration. Before she was incarcerated, Saint-Louis had numerous opportunities to
engage in these services. She never followed through with them. She missed several
UA tests and was referred to the Incredible Years parent education program on several
occasions before and after she was in custody.
Despite her receipt of referrals to services and encouragement by the Department
to engage in the services, Saint-Louis was unable or unwilling to complete many of the
services. The trial court's finding is supported by substantial evidence.10
10 Saint-Louis nevertheless contends that the Department failed to comply with RCW
13.34.136(2)(b)(i)(A). Under that provision, "If the parent is incarcerated," the permanency plan
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No. 72421-5-1/15
Current Unfitness and Little Likelihood that Conditions Would be Remedied
Saint-Louis next challenges the trial court's findings that she was currently unfit to
parent D.L.B. and there was little likelihood that conditions would be remedied so that
D.L.B. could be returned to her in the near future. Each finding is supported by substantial
evidence.
The Department must prove that the parent is currently unfit and "[tjhat there is
little likelihood that conditions will be remedied so that the child can be returned to the
parent in the near future." RCW 13.34.180(1 )(e); In re Welfare of A.B.. 168 Wn.2d 908,
921.232P.3d 1104(2010).
"To meet its burden to prove current unfitness in a termination proceeding, [the
Department] is required to prove that the parent's parenting deficiencies prevent the
parent from providing the child with 'basic nurture, health, or safety' by clear, cogent, and
convincing evidence." In re Welfare of A.B.. 181 Wn. App. 45, 61, 323 P.3d 1062 (2014).
By the time of the termination hearing, Saint-Louis had completed in-patient and
out-patient chemical dependency programs. But she had relapsed over one year earlier
and was just beginning a relapse prevention program. She had not been able to
successfully complete the 90 days of UA tests without missed or diluted UAs. She
participated in three domestic violence support groups, including one while in jail.
However, at the time of the termination hearing, Saint-Louis was living with a man who
had at least three domestic violence assault incidents, had a protection order issued
against him as to his former spouse, and violated that order in 2012.
must "include treatment that reflects the resources available at the facility where the parent is
confined." RCW 13.34.136(2)(b)(i)(A). However, Saint-Louis does not appeal the permanency
plan order. We reject this argument.
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No. 72421-5-1/16
Moreover, Saint-Louis was referred to the Incredible Years parent education
program on several occasions (December 27, 2012, January 2, 2013, May 16, 2013, and
after her June 2014 release from incarceration). This program was recommended by
both Dr. Tutty and the FCAP evaluator. Saint-Louis began the program in late 2013, but
she missed several classes and was discharged. She began the program again on July
29, 2014.
Although Saint-Louis had recently engaged in services, Livingston testified, Saint-
Louis had no history that would suggest that she would continue to engage in those
services and make progress. She testified that D.L.B. would be at risk because none of
the original issues that brought him into protective custody had been remedied.
In all, by thetime of the termination trial, Saint-Louis continued to have unresolved
domestic violence issues, lack of parenting skills, and potential chemical dependency
issues. As the evidence reflected, these uncorrected parenting deficiencies made Saint-
Louis a serious risk to D.L.B. and prevented her from being able to provide D.L.B. with
his basic needs. The trial court did not err in finding that Saint-Louis was currently unfit
to parent D.L.B.
Nor did the court err in finding thatthere was little likelihood that Saint-Louis would
correct her deficiencies within the foreseeable future. The focus of RCW 13.34.180(1 )(e)
is whether the identified deficiencies have been corrected. In re Welfare of M.R.H.. 145
Wn. App. 10, 27, 188 P.3d 510 (2008). "Even where there is evidence that the parent
may eventually be capable of correcting parental deficiencies, termination is still
appropriate where deficiencies will not be corrected within the foreseeable future." In re
Welfare ofA.G.. 155Wn. App. 589, 590, 229 P.3d 935 (2010). Although the law provides
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No. 72421-5-1/17
no numerical standard to measure the foreseeable future, this determination is a factual
inquiry evaluated from "the child's point of view," which varies with the child's age. In re
Dependencv of A.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004) (citing In re Welfare of
Hall. 99 Wn.2d 842, 851, 664 P.2d 1245 (1983)); see, e.g.. LR,, 108 Wn. App. at 165-66
(one year is not foreseeable or near future for six-year-old child); Hall, 99 Wn.2d at 850-
51 (eight months is not within the foreseeable future of a four-year-old child); In re
Dependencv of A.W.. 53 Wn. App. 22, 32, 765 P.2d 307 (1988) (one year not in the near
future of three-year-old child); PJL, 58 Wn. App. at 27 (six months not in near future of
15-month-old child).
Livingston testified that she believed there was little likelihood that conditions
would be remedied so that D.L.B. could be returned to his mother in the near future.
Livingston also said that Saint-Louis would have to consistently engage in services, such
as the Incredible Years parent education program, relapse prevention, individual mental
health counseling, for a minimum of six months before the Department would consider a
transition plan. But the Court Appointed Special Advocate testified that waiting that long
would be harmful to D.L.B. Substantial evidence supports the trial court's finding.
Affirmed.
IrioUe^ s) 4
WE CONCUR:
17