In Re The Dependency Of: S.e.l. ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Dependency of
No. 82642-5-I
S.E.L.,
DIVISION ONE
A minor child.
UNPUBLISHED OPINION
COBURN, J. — S.E.L.’s mother appeals an order terminating her parental
rights. She claims the trial court erred in finding that the Department of Children,
Youth, and Families (Department) offered or provided her necessary Family
Preservation Services. She also contends the trial court erred when it shifted the
burden to her to produce evidence that termination was not in S.E.L.’s best
interests. We disagree and affirm.
FACTS
S.E.L., born in October 2015, is a dependent child who has resided in
foster care since March 2018. The basis for S.E.L.’s dependency arose from the
mother’s cognitive and neurological issues, past trauma, mental health struggles,
substance abuse, and inability to safely parent.
The mother suffered serious trauma beginning at birth and continuing into
adulthood. She experienced hypoxia at birth or some other “early life or prenatal
conditions” that resulted in an unspecified neurodevelopmental disorder, which
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82642-5-I/2
impacted her speech processing and cognitive abilities. During childhood, she
was sexually abused by several family members and has been in multiple
“domestically violent relationships.” At age 13, the mother began using alcohol,
opiates, methamphetamine, PCP, and marijuana, and continued to use those
substances over the course of the next 16 years of her life. She has lived a
transient existence in several states and, during her history, been diagnosed with
major depression, anxiety, posttraumatic stress disorder (PTSD), and post-
partum depression.
S.E.L., who has a diagnosis of Static Encephalopathy due to in utero
exposure to substances, spent the first two months of her life in the Neonatal
Intensive Care Unit. The child then resided with a relative for the next five
months while the mother attended inpatient substance abuse treatment.
In 2017, the mother sought out mental health counseling in an attempt to
control her PTSD. She “felt as though she was reliving past trauma” and “could
not tell at that time if she was back in those previous episodes or in her current
state.” The episodes lasted for days with no break between them. The mother
“suffered from psychotic episodes or breaks where she believed demons or
ghosts were attacking her” and S.E.L., and she believed at that time, “she was
not able to meet her parental responsibilities during these episodes.”
Between the fall of 2017 and February 2018, the mother and S.E.L. lived
with a man who subjected the mother to physical, sexual, emotional, and mental
abuse, and who physically and emotionally abused the child as well.
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In March 2018, S.E.L. and the mother were living at a shelter when the
Department received a report from a staff member that S.E.L. had bruising on
her ankles and that the mother spoke about “ghosts” and “demons” harming
S.E.L. S.E.L. was taken into protective custody and underwent an evaluation at
Children’s Hospital where staff determined that “it is highly unlikely that the
injuries to the child’s ankle would have been non-accidental” and that her injuries
“could be consistent with abuse.” The Department filed a dependency petition as
to the mother later that month.
On September 14, 2018, following a contested three-day dependency
hearing, the trial court found S.E.L. had been abused or neglected, had no parent
capable of adequately caring for her, and was in circumstances constituting a
danger of substantial damage to her psychological and physical development.
Accordingly, the trial court placed S.E.L. in licensed foster care.
In the accompanying dispositional order, the trial court ordered the mother
to participate in remedial services, including: a neuropsychological evaluation
with parenting component and follow its recommendations; a mental health
intake and follow treatment recommendations; a drug/alcohol evaluation and
follow all recommendations; age-appropriate parenting classes; and random
urinalysis (UAs) once a week (with ETG testing) 1 for 45 days. The trial court also
ordered that the mother be provided visitation with S.E.L. for six hours per week,
supervised by the Department, with one weekly visit to occur in the mother’s
transitional home in Issaquah.
1 Ethyl glucuronide Testing.
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Initially, the mother actively engaged in and completed the services the
Department referred for her. After consistently providing clean results, she
completed her UA requirement in March 2019. In September 2019, Department
social worker Rachael O’Riordan was assigned to the mother’s case. O’Riordan
testified that the mother completed her drug and alcohol evaluation, then
engaged in the recommended treatment at the Matt Talbot Center. There, the
mother participated in intensive outpatient treatment, where she completed two
of the three phases of the treatment program.
The mother completed a mental health intake at Catholic Community
Services and received a recommendation to participate in Common Elements
Treatment Approach therapy to address her trauma. She followed this
recommendation and met with Johanna Portinga for therapy sessions throughout
the entire dependency. Portinga testified that the mother made progress in
addressing her trauma and treatment goals.
She also completed a neuropsychological evaluation with Dr. Paul
Connor, who diagnosed her with unspecified neurodevelopmental disorder and
confirmed prior diagnoses. Dr. Connor testified about the mother’s troubles with
“language functioning” and difficulties with following multistep instructions, and
how she needed information broken down in lists or structures to accommodate
her concrete learning style. Based on the mother’s functioning and history, Dr.
Connor recommended that she receive therapeutic interventions to address her
PTSD, a psychiatric evaluation, speech therapy, substance abuse treatment,
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No. 82642-5-I/5
assistance in applying for disability benefits and, when ready, vocational and
rehabilitation services to pursue employment.
Following Dr. Connor’s recommendations, the Department referred the
mother for a psychiatric evaluation with Catholic Community Services, which she
completed. The Department made two referrals for speech therapy but the
mother did not engage in that service. It assisted her with applying for
Supplemental Security Income (SSI) or Developmental Disabilities Administration
(DDA) disability assistance and gave her a list of pro bono attorneys to appeal
the denial of those benefit determinations. Because the mother was already
engaged in drug and alcohol treatment at the time, it was unnecessary for the
Department to give her another referral for such treatment. And, although the
mother never indicated that she was ready to pursue employment, the
Department inquired with the Department of Vocational Rehabilitation (DVR)
about the mother’s situation and DVR recommended that “she have a more
cleared schedule so that she would have the opportunity to participate in work.”
The Department referred the mother to Working Choices for a parenting
assessment. Patricia Cunningham, who conducted this assessment in the spring
of 2019, testified that the mother was aware of struggles with mental health and
sobriety. Cunningham observed a visit between the mother and S.E.L. and did
not have any concerns about the visit. She observed a good, affectionate
relationship between the mother and S.E.L., and noted that the child “seemed
jovial and attached to her mother” and that the “bond between them is apparent.”
To support the mother’s reunification efforts, Cunningham made several
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recommendations, including: (1) further mental health support, (2) continue
working with her current therapist, (3) increase the length of supervised visits, (4)
continue working on her SSI and DDA applications, (5) work with the DVR to gain
financial support, (6) continue working with the Real Escape from Sex Trade
(REST) and/or Organization for Prostitute Survivors (OPS), and (7) in-home
parenting skills if reunification was considered. O’Riordan testified that the
Department referred the mother for all of these services except for REST and
OPS because she was already engaged with those entities.
The Department referred the mother to Project SafeCare to satisfy her
obligation to attend age-appropriate parenting classes. Upon completion of
those classes, Project SafeCare recommended Family Preservation Services
(FPS) for the mother. O’Riordan explained that FPS is “a very flexible service”
that helps parents learn everyday life skills such as budgeting, navigating
transportation, keeping a home clean, creating hygiene routines, and making
appointments. Even though the dispositional order did not require the mother to
follow recommendations made from the parenting class provider, the Department
referred her for FPS multiple times.
In 2018, the Department initially referred the mother to an FPS provider.
Although the mother met with the provider, “the provider didn’t feel like she had
time to participate in the services and his times didn’t align with hers.” O’Riordan
explained, in that instant, the mother’s “only availability was later in the evening
around the weekends. And that particular provider wasn’t working on those
hours.” The Department made another referral for FPS early in 2020 “[b]efore
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No. 82642-5-I/7
the pandemic hit in March of 2020” but “in that particular situation, the provider
could not reach” the mother. O’Riordan testified that the Department also
attempted to refer FPS between 2018 and 2020, however, “[t]here just weren’t
providers available in the area” for her.
Beyond the services that the Department was required to provide pursuant
to the dispositional order, the Department tried to help the mother with housing
resources after she left her housing in late 2019 or early 2020 “because she felt
unsafe” after seeing “an abusive” former partner “knocking on her door.” The
mother began staying at shelters and initially gave social worker O’Riordan
permission to talk to the shelter staff, “but then revoked her consent for
[O’Riordan] to talk to the shelter staff.” At that point, the Department lost its
ability to consistently verify where the mother was living and noticed “a decline in
her engagement and participation in her services.”
The Department provided her with transportation assistance, as O’Riordan
noted: “She had ORCA cards, bus tickets. I’ve transported her [to] her visits
myself as well.” And, in recognition of the mother’s learning disabilities and
circumstances, the Department provided the mother notice of referrals and
service providers through service letters, emails, phone calls, text messages, and
in-person conversations.
While the mother was found to be in compliance with services for most of
the review hearings throughout the dependency, she was found to be making full
progress at only one of the six review hearings over three years. Based on this
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No. 82642-5-I/8
history, the Department filed a petition to terminate the parental rights of S.E.L.’s
parents in April 2020. 2
In September 2020, the mother reported that “some man unknown to her
had injected her with fentanyl and some other drug and then had kidnapped her,”
requiring her “to go into detox.” After leaving the detox facility, the mother
dropped out of contact with the Department, S.E.L., and her service providers.
The Department and many of the service providers were “all in communication”
but did not “have a reliable way of reaching her.” Portinga testified that the last
interaction she had with the mother “with any therapeutic value was” on
September 25, 2020.
Although the mother participated in most of her visits with S.E.L. until
September 2020, she missed S.E.L.’s birthday in October 2020, and had only
four visits with the child between January and February 22 of 2021, then dropped
out of contact again. As of late 2020, the mother still refused to tell the
Department where she was living and would only say that “she was staying with
friends.”
The trial court held a five-day termination trial in March 2021. 3 The mother
failed to appear for the trial but was represented by counsel during the
proceedings. Kaya Wynn, a CHERISH social worker, 4 testified about working
2 The father later relinquished his parental rights to S.E.L. He is not a
party to this appeal.
3 The trial was conducted remotely via Zoom due to COVID-19 protocols,
after the trial court denied the mother’s counsel’s motion to continue trial until in-
person trial resumed in the courtroom.
4 CHERISH is an organization that supports children in out-of-home
placement or who have experienced such placement.
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No. 82642-5-I/9
with S.E.L. and the mother since the fall of 2019. According to Wynn, S.E.L.
suffers from indiscriminate attachment, emotional and physical regulation, self-
harming, and needs an attentive primary caregiver to help protect her.
O’Riordan spoke about being assigned to the mother’s case from
September 2019 to December 2020, the Department’s delivery of services during
that time, her interactions with the mother, and filing the termination petition. She
testified mental health and substance abuse issues were the mother’s primary
parental deficiencies and that FPS would not be capable, alone, of remedying the
mother’s deficiencies in the near future.
Department social worker Danielle Benedict testified to being the
caseworker of this dependency since December 2020. Benedict discussed her
difficulty in being able to reach the mother and how she suggested meeting the
mother where she was staying at the time in an effort to reduce a transportation
barrier, but the mother declined. They did meet once in January 2021 but,
afterwards, Benedict had no information about where the mother was living.
Benedict testified that, at the time of trial, the mother’s existing deficiencies
included (1) “a tremendous difficulty in being able to tend to her own basic
needs,” (2) “unmet mental health needs,” and (3) “unmet substance use needs”
and “lack of sobriety.”
Janette Ambauen, the court appointed special advocate (CASA), testified
about advocating for S.E.L.’s behalf since June 2018, how the child had been
dependent for 36 months, and why she felt the parental rights should be
terminated. Ambauen testified termination was appropriate because the mother
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No. 82642-5-I/10
was never “able to really establish mental stability,” “struggled with her own
personal safety and stability,” and the unimaginable “implications of [those
deficiencies] for parenting.”
The trial court found that the mother had not “progressed enough in her
mental health treatment to safely parent” S.E.L. Regarding the Department’s
provision of services and FPS, the trial court found that
The Department referred the mother to Project Safecare at
Washington National Counseling for age appropriate parenting
classes. The mother completed those classes, and the provider
recommended she participate in Family Preservation Services
(FPS), an in-home parenting support/skill building program, to work
on organization of her services, assist her engagement, and
communicate her needs/barriers. The mother was referred to FPS
services in 2018, and was re-referred in 2019, but each time the
provider reported an inability to align with mother’s availability and
schedule.
...
All necessary services, reasonably available, capable of correcting
the parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided to the mother.
During the course of the dependency no party has indicated the
need for remedial services other than those addressed above.
Despite these findings and its ultimate determination, the trial court
acknowledged and wanted the record to reflect that
[The mother] is the victim of unspeakable trauma from which
she was not protected. The abuse came from all sides: boyfriends,
family members, and strangers. [S.E.L.] witnessed this abuse and
was sometimes the victim of it as well. [The mother] lives with the
mental health effects of this past trauma every day, and this
posttraumatic stress leads to psychotic episodes that must be
terrifying for her. And she has difficulty functioning with everyday life
as a result.
Someday when [S.E.L.] looks back at these records, which
I’m sure she will, I hope she sees what the Court does, which is that
her mother loves her and wants to be a parent to her, but she is
currently unable to safely do it.
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The trial court terminated the mother’s parental rights to S.E.L. on April 15,
2021. The mother appeals.
DISCUSSION
The mother assigns error to the trial court’s finding that the Department
provided her with “all necessary services” as required by RCW 13.34.180(1)(d).
The service that was not provided, she claims, was FPS. She also contends that
the trial court improperly shifted the burden to her to produce evidence that
termination was not in S.E.L.’s best interest. We discern no reversible error.
Parental rights are a fundamental liberty interest protected by the United
States Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982). Termination of the parent-child relationship involves a two-
step process. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
To terminate parental rights, the Department must first establish the six elements
of RCW 13.34.180(1) by clear, cogent, and convincing evidence. Id. at 911-12.
Once the trial court finds that the Department has proven the elements of RCW
13.34.180(1), the court may terminate parental rights if the Department also
proves by a preponderance of the evidence that doing so is in the best interest of
the child. In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75(2016).
In reviewing a trial court’s decision to terminate parental rights, we assess
whether the trial court’s findings are supported by substantial evidence. In re
Parental Rights to D.H., 195 Wn.2d 710, 718, 464 P.3d 215 (2020). “The trial
court’s findings will not be disturbed unless there is an absence of clear, cogent,
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No. 82642-5-I/12
and convincing evidence in the record.” Id. Clear, cogent, and convincing
evidence exists when the evidence shows the ultimate fact at issue to be highly
probable. In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132(1995). “Because of the highly fact-specific nature of termination proceedings,
deference to the trial court is ‘particularly important.’ ” K.M.M., 186 Wn.2d at 477(quoting In re Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983)).
RCW 13.34.180(1)(d) requires the Department to prove that it has
expressly and understandably offered or provided “all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future.” “Necessary services” are those services “ ‘needed to
address a condition that precludes reunification of the parent and child.’ ”
K.M.M., 186 Wn.2d at 480 (quoting In re Dependency of A.M.M., 182 Wn. App.
776, 793, 332 P.3d 500 (2014)). To meet its statutory duties, the Department
must at least provide the parent with a referral list of agencies or organizations
that provide necessary services. Hall, 99 Wn.2d at 850.
The mother’s first challenge depends on the premise that FPS was a
necessary service. Though the skills the mother could learn by engaging in FPS
would be beneficial to any parent, they were not needed to address the two
conditions that precluded her reunification with S.E.L. Said differently,
completing FPS alone would not have remedied the mother’s mental health and
substance abuse parental deficiencies. “[T]ermination is appropriate if the
service would not have remedied the parental deficiency in the foreseeable
future.” D.H., 195 Wn.2d at 719. FPS was not a necessary service.
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No. 82642-5-I/13
She acknowledges that the Department referred her “to an FPS provider
twice,” however, the mother maintains that the Department made no efforts to
better coordinate her services to allow for FPS to be provided and failed to
provide FPS at a time when she was engaged and progressing. These
contentions incorporate her challenge to the trial court’s findings that she “was
referred to FPS services in 2018, and was re-referred in 2019, but each time the
provider reported an inability to align with mother’s availability and schedule.”
We agree that this finding is not supported by the record in terms of the referral
dates and basis for the mother’s failure to engage in FPS.
Despite this error, the evidence in the record establishes that the
Department expressly and understandably offered FPS to the mother first in
2018, again in 2020 before the pandemic began, and at least once more
between 2018 and 2020. In the first instance, the mother met with the FPS
provider but was available only “in the evening around the weekends” while the
FPS provider was not. The Department then continued to seek an FPS provider
to meet with the mother on the weekends but could not find any “available in the
area.” Finally, when the Department located an FPS provider in early 2020, the
provider reported not being able to reach the mother. The record shows that the
Department made multiple attempts to provide the mother FPS but that service
was not “reasonably available.” Accordingly, we conclude that FPS did not
constitute a “necessary service” within the meaning of RCW 13.34.180(1)(d).
Alternatively, the mother argues that the Department was statutorily
required to report to the court its inability to provide FPS to her pursuant to RCW
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13.34.025. Without deciding whether the Department has an obligation, we
reject the mother’s argument because it hinges on FPS being either a court-
ordered service or a necessary service. It was neither. 5
Substantial evidence supports the trial court’s conclusion that the
Department proved by clear, cogent, and convincing evidence it offered the
mother services as required by RCW 13.34.180(1)(d).
Next, the mother asserts that in making its finding as to the child’s best
interests, the trial court considered her failure to appear at the termination trial
and present evidence. This, she avers, constituted improper burden-shifting and
relieved the Department of its burden to procure a finding based solely on the
evidence it produced and not based on a parent’s failure to produce evidence.
We disagree.
“Where a parent has been unable to rehabilitate over a lengthy
dependency period, a court is ‘fully justified’ in finding termination in the child’s
best interests rather than ‘leaving [the child] in the limbo of foster care for an
indefinite period while [the parent] sought to rehabilitate himself.’ ” In re
Dependency of T.R., 108 Wn. App. 149, 167, 29 P.3d 1275 (2001) (alternations
in original) (quoting In re Dependency of A.W., 54 Wn. App. 22, 33, 765 P.2d 307(1988)). Here, after considering all of the evidence presented, the trial court
found termination to be in S.E.L.’s best interest:
5 Similarly, although the mother assigns error to several of the trial court’s
other factual findings, we need not address them because her basis for doing so
turns on the Department’s purported failure to provide FPS. Again, there was no
such failure here.
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The Department and CASA testified in support of termination
of the mother’s parental rights as being in the child’s best interest
and the court agrees. The mother did not appear or present
evidence. The mother will not be able to remedy her parental
deficiencies within the near future. The child has a right to a safe,
stable, and permanent home and to a speedy resolutions of this
termination proceeding. The Court also finds that it is in [S.E.L.’s]
best interest to have permanency as soon as possible. She is at
the age where she can verbalize her desire to have a permanent
home, where she can feel safe. The Court finds that given the
length of time [S.E.L.] has been in dependency—more than twice
that of the national guidelines—is too long and it is to the point that
it threatens her long-term well-being and sense of security. She
cannot wait any longer.
(Emphasis added.)
The mother points to the underlined portion of the above finding, and
nothing else in the record, to support her notion that “the trial court did indeed
consider [her] failure to present evidence as a basis for its determination.” While
“ ‘the burden of proof in a termination trial is on the Department and should never
be shifted to the parent’ ” to “protect the vital interests at stake,” In In re
Termination of M.A.S.C., 197 Wn.2d 685, 698, 486 P.3d 886 (2021) (quoting
Santosky, 455 U.S. at 760), there was no burden-shifting to the mother here.
Rather, our independent review of the entire record and the oral ruling do not
suggest that the trial court relied on anything but admitted evidence to make its
best interest determination.
We defer to the trial court’s advantage in having witnesses before it, which
is important in proceedings affecting the parent and child relationship. In re
Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). We will
uphold a trial court’s determination as to a child’s best interest so long as such a
finding is supported by substantial evidence. Id. Based on this record, we
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conclude substantial evidence supports the trial court’s finding that termination
was in the best interest of S.E.L.
We affirm.
WE CONCUR:
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