In re the Welfare of: M.P.

FILED
DECEMBER 8, 2015
I n the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT'OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
I IN THE MATTER OF THE WELFARE)
OF
M.P.,
)
)
)
No. 32715-9-111
)
) ORDER WITHDRAWING
) OPINION
)
)
THE COURT on its own motion finds that the opinion filed November 3,2015,
should be withdrawn:
THEREFORE, IT IS ORDERED, the opinion filed November 3, 2015, is hereby
withdrawn and a new opinion will be filed this day.
PANEL: Judges Fearing, Korsmo, Lawrence-Berrey
FOR THE COURT:
1
J
I FILED
DECEMBER 8, 2015
I n the Office of the Clerk of Cou rt
I W A State Court of Appeals, Division III
ii
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN THE MATTER OF THE WELFARE )
OF ) No. 32715-9-111
)
M.P. )
)
)
) UNPUBLISHED OPINION
FEARING, J. We address again the sad circumstances of the State of Washington
terminating a parent's rights to a child. J.P. appeals the termination of her rights to the
care and custody of her young son. We affirm the termination.
FACTS
J.P., born in 1971, experienced an unfortunate childhood, teenhood, and young
adulthood. J.P. smoked cigarettes beginning at age nine, drank alcohol at eleven, inhaled
marijuana at fifteen, snorted cocaine at twenty-five, and consumed methamphetamine at
thirty. She engaged in theft and prostitution. She attempted suicide at age twelve. She
now receives Social Security benefits for a learning disability, posttraumatic stress, and
anxiety. J.P. has lost her parental rights to six children, and another child has been under
a guardianship since 2000.
J.P. suffers from bunions that cause chronic pain. J.P. refused to quit smoking
No. 32715-9-II1
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long enough to undergo surgery for the bunions.
J.P. bore Richard, on April 2, 2010. Richard is a fictitious name and, under the
initials M.P., is the subject of this appeal. J.P. has not identified Richard's father. Based
on J.P.'s substance abuse and mental health illness, a court found Richard dependent in
June 2010.
As part of Richard's first dependency, Psychologist Walter Mabee evaluated J.P.
in 2010. Dr. Mabee utilized the "Global Assessment of Functioning" (GAF) test, which
measures an individual's functioning ability on a range from one to one hundred, with the
higher number representing higher functioning. Mabee rated J.P. at sixty on the test.
According to Walter Mabee, a score of sixty indicates "moderate impairments and
moderate symptom severity and moderate limitations." Report of Proceedings (RP) at
45. Mabee did not disclose the types of skills measured when assessing one's
functioning and what relationship the assessment bears to parenting.
Spokane therapist Carla Paullin visited with J.P. three times per month during
2010. Paullin is a licensed mental health and chemical dependency counselor. During
the period that Paullin assisted J.P., J.P. engaged in the Family of Faith recovery
program, which Paullin concluded temporarily changed and improved J.P.'s condition.
Paullin testified at trial: "[Y]ou could see the difference in her. It brought her anxiety
down, it helped her focus." RP at 75. At Paullin's recommendation, the State returned
Richard to his mother's care, and a court dismissed the first dependency action in
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February 2012.
In late 2012, J.P. commenced periodically deserting Richard with relatives
because of her chronic pain. The Department of Social and Health Services (DSHS)
received reports that J.P. deposited Richard with inappropriate caregivers and J.P. might
be utilizing unlawful drugs again. Child Protective Services (CPS) employee Leah
Furlong-Nicks investigated. In response, J.P. complained that her brother and sister
wanted to kidnap Richard. She protested harassment by CPS and foster parents. J.P.
agreed to provide a urine sample, but then failed to show to supply the sample. Furlong-
Nicks lost contact with J.P.
On January 16, 2013, the State of Washington petitioned the trial court to again
declare Richard dependent of the State. The State alleged:
Since dismissal of [Richard's] Dependency the Department has
received reports that the mother has relapsed on drugs; has been seen
prostituting; and has been leaving [Richard] with inappropriate people and
leaving [Richard] with others for extended periods of time. On 9/2112,
[J.P.] was arrested for shoplifting.
Ex. 1 at 2. The State identified in its petition J.P.' s labile emotions, tangential speech,
mental health illness, and chronic pain.
On January 18,2013, J.P. agreed to a shelter care order by which she relinquished
care and custody of Richard to DSHS. The order provided for her son's return to J.P. in
one month if she completed a chemical dependency evaluation, provided four clean urine
samples, and initiated mental health treatment with Carla Paullin.
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In January 2013, a foster family assumed custody of Richard. Beginning January
2013, John Bain served as Richard's guardian ad litem (GAL) or court appointed special
advocate (CASA). Bain completed his CASA training the previous month.
In January 2013, J.P. reinitiated mental health counseling with Carla Paullin.
Paullin then suspected J.P. of using illegal drugs because J.P. had lost significant weight
and struggled with coherent thoughts and focused discussions. Paullin acted manic and
spoke paranoically. Paullin concluded that losing seven other children traumatized J.P.
Paullin sought to help J.P. regulate her emotions.
J.P. tested clean from any unlawful drug use on January 22 and 25,2013. On
February 12,2013, John Dickey at New Horizons evaluated J.P. for chemical
dependency. J.P. reported to Dickey that she last consumed drugs in 2009. Based on a
lifetime of use, Dickey found J.P. chemically dependent on alcohol, cocaine, and
cannabis, but deemed J.P. in remission. J.P. underwent no follow-up chemical
dependency treatment with New Horizons. Dickey recommended continued therapy with
Carla Paullin.
J.P. tested clean from any drug use on February 13 and 14,2013. Nevertheless,
Richard did not return to his mother's care within the anticipated month of shelter care.
DSHS allowed J.P. to visit Richard in her home.
On April 2, 2013, J.P. visited Richard, to celebrate his birthday, at Empowering,
Inc., a family preservation services provider. J.P. brought Richard heaps of candy and
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multiple cakes. J.P. acted manic and under the influence of drugs. When Richard
showed more interest in the candy than his birthday party, J.P. grew upset and agitated.
Empowering, Inc. ended the visit early.
During spring 2013, CASA John Bain observed five of J.P. and Richard's visits,
some at J.P.'s home and some at Empowering, Inc. During trial, Bain described the visits
as chaotic. J.P. arrived late to every visit at Empowering. Once at J.P.'s home, J.P.
presented Richard a bike, but inexplicably quickly altered moods and directed Richard to
brush his teeth. At trial, Bain testified:
[WJhen I was there present at her visits, I felt like she just kept-like
she kept like getting distracted by me. She wanted to see how I was doing.
And, you know, I wasn't-I was there just to see how they interacted. I felt
like I was just kind of in the way, because she had me and she had­
someone from Empowering, Inc. would be like supervising it. And it was
for, obviously, [Richard]. And so I felt like, you know, there was too many
people in the room when I was there. She just couldn't concentrate on
[Richard].
RP at 226-27.
John Bain observed Richard with his foster family five times. Bain found Richard
happy at the foster home.
On April 4, 2013, the trial court once again declared Richard a dependent of the
State. The trial court identified J.P.'s primary parental deficiency to be her mental health.
The court found that J.P. lacked insight into her interactions with others and failed to
demonstrate the concentration and focus needed to meet Richard's needs. The
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dependency order required J.P. to submit to random drug testing, complete a
psychological evaluation with Dr. Walter Mabee, follow any recommendations of Mabee,
continue individual therapy with Carla Paullin, obey any recommendations of Paullin,
participate in family therapy and family preservation services, maintain regular visitation
with Richard, demonstrate an ability to meet Richard's physical and psychological needs,
maintain a clean, safe, and nurturing home environment, remain sober, and participate in
a group relapse prevention program. J.P. tested clean from any drug use on April 23 and
May 3,2013.
On May 6,2013, Dr. Walter Mabee reevaluated J.P. J.P. showed the psychologist
the bunions on her feet and left the evaluation early to retrieve medication. J.P. returned
the next day, at which time Mabee completed the psychological evaluation. Dr. Mabee
believed J.P. to exaggerate her complaints of physical pain. Mabee opined that J.P.
focused on her physical pain to the extent that the focus interfered in her parenting.
Dr. Walter Mabee opined that J.P. used avoidance to cope with stress. J.P. refused
to answer Mabee's questions about handling stressful situations with Richard. J.P. did
not concede any parenting weaknesses. She boasted that her devotion to God rendered
her a "good and awesome parent." RP at 45. Dr. Mabee noted that a parent who avoids
her deficiencies leads to a child who cannot adjust to his environment.
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Dr. Walter Mabee diagnosed J.P. with "Cluster B features" under the
psychologists' Diagnostic and Statistical Manual. RP at 42-43. Dr. Mabee explained
Cluster B features as:
the excessive emotionality that she has in her presentation of her
symptoms and presentation of her life situation; a tendency to go from
being calm to being kind of more activated and agitated; a tendency to feel
that others are not treating her in the way that she should be treated and an
entitlement issue. So it's those types of observations, along with her
reports that she's always had difficulty coping with anger, being able to
control her anger, that it boils down to not a specific Axis II diagnosis, like
a borderline diagnosis or an antisocial diagnosis or histrionic diagnosis or
narcissistic, but it's a flavor of those types of symptoms in combination. So
the label of "Cluster B" just kind of subsumes all of that rather than specific
diagnosis.
RP at 43-44.
In his 2013 evaluation, Walter Mabee reassessed J.P. at forty-five on the Global
Assessment of Functioning scale. Dr. Mabee testified at trial that this score confirms
significant mental health issues that interfere with social and occupational functioning.
J.P.'s urinalysis was negative on May 7, 2013.
On May 10,2013, J.P. took Richard to a physician because Richard purportedly
complained about a painful penis. J.P. asked the physician to circumcise Richard.
Richard did not report any pain to the doctor, and the physician did not diagnose any
ailment. After this incident, the trial court granted DSHS' motion to modify visitation
from unsupervised to supervised visits and to limit visitation locations to Empowering.
J.P. tested clean from drug use on May 13,2013.
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Ensuing visits between mother and son under the supervision of Empowering did
not go well. J.P. did not focus on Richard's needs. At one session, J.P. fell asleep while
encouraging Richard to nap with her. Richard routinely returned to his foster home
hungry. J.P.' s attendance at visitation became sporadic, with Richard crying and hitting
his foster siblings when his mother failed to show for a visit. Empowering eventually
refused to transport Richard from foster care until J.P. appeared for a visit.
J.P. missed some family therapy sessions. When a counselor addressed J.P.'s
parenting of Richard, J.P. diverted the discussion to criticism of CPS and Richard's foster
family.
On May 20, 2013, the trial court held the first review hearing for Richard's
dependency. The court found that J.P. had participated in some, but not all, court ordered
services. J.P. failed to provide urine samples on April 2, 8, and 10. J.P. failed to progress
in family preservation services, such that the service provider discontinued services. The
court also found that J.P. had not consistently attended therapy with Carla Paullin. J.P.
provided no proof of her participation in the required group relapse prevention program.
The trial court ordered a swift completion of a parenting assessment.
In July 20l3, J.P. saw Carla Paullin for the last time. In late July 2013, J.P. visited
Richard at Empowering and took Richard to a nearby restaurant. During the walk to the
restaurant, Richard ran into traffic without intervention from J.P. In the restaurant's
lobby, Richard sat in a chair while J.P. bent over and scolded him for unsuccessful visits.
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An Empowering employee intervened, separated Richard from J.P., and demanded J.P.
leave.
In September 2013, J.P. became homeless. Ostensibly, J.P.'s landlord evicted her,
although J.P. denied any eviction. DSHS could only sporadically contact J.P. thereafter.
PROCEDURE
On September 13,2013, the State of Washington petitioned the trial court to
terminate the parent-child relationship between J.P. and Richard.
On October 1,2013, the trial court reduced J.P.'s visitation with Richard to two
hours twice a week and ordered this visitation to include two hours of therapeutic
visitation. On October 15, 2013, the trial court held a permanency planning hearing for
Richard. The court found that J.P. visited Richard only sporadically. J.P. excused her
missing visits on illness and the lack of a telephone. In an October 15 order, the trial
court listed as the services unsuccessfully completed: chemical dependency screening,
recommended substance abuse evaluation and treatment, random drug testing,
psychological evaluation, following any psychological evaluation recommendations, and
family therapy. Notably absent from this list of uncompleted services was the originally
ordered group relapse prevention program. Nevertheless, J.P. still had not participated in
a relapse prevention program.
In January 2014, DSHS social worker Shana Piper assumed case worker duties for
Richard's care. J.P. then resided in jail. After J.P. left jail, Piper arranged for J.P. to visit
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Richard at a new location, Fulcrum. At Fulcrum, lP. focused on punishing Richard for
unknown reasons, while Richard ignored his mother.
On February 4,2014, the trial court held another dependency review hearing.
During the review period, J.P. submitted to no drug testing. The court found J.P.
noncompliant with her mental health treatment and relapse prevention program. Like the
October 2013 review order, the February review order lists all services as incomplete, but
omits group relapse prevention from the list.
In March or April 2014, J.P. phoned therapist Carla Paullin. Paullin attempted to
return J.P.'s call, but J.P.'s phone was disconnected. In April 2014, at J.P.'s request,
Shana Piper switched visitation from Fulcrum to the American Indian Center. At trial,
Shana Piper explained that if a parent misses three scheduled visits at a visitation center,
the DSHS referral to that center lapses. J.P. repeatedly missed visits, so Piper repeatedly
issued new referrals to additional visitation centers.
At the start of May 2014, J.P. lost her social security income because of her recent
jailing. J.P. remained homeless.
Trial on the termination petition proceeded on May 8 and 9, 2014. At the
beginning of trial, lP. 's counsel moved to continue trial to a later date, because lP. was
missing. The trial court phoned J.P., who expressed a desire to enter treatment. The trial
court gave lP. until 10:00 a.m. that morning to come to the courthouse. J.P. refused
defense counsel's offer to arrange transportation. Trial started without her.
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During trial, Carla Paullin testified that J.P. 's mental health illness prevented her
from prioritizing a child's needs. Paullin testified that medication might permit J.P. to
attend to a child's needs, but J.P. refused medication. Paullin believed that J.P. suffered
physical pain, but thought J.P. exaggerated the pain. According to Paullin, J.P. failed to
participate in mental health therapy during the second dependency.
Psychologist Walter Mabee also testified during trial. Dr. Mabee opined that,
even if J.P. fully engaged in mental health treatment, she would not improve significantly
within the first three to six months of treatment. According to Dr. Mabee, J.P. needed
nine to twelve months at least, and more likely two to four years, to improve her mental
health.
DSHS social worker Wendy Seignemartin testified. Seignemartin was the first
caseworker assigned to Richard's case. Seignemartin identified J.P.'s parental
deficiencies as her mental health illness and chemical dependency. As a result of these
deficiencies, J.P. could not consistently meet Richard's needs. Wendy Seignemartin
described Richard as integrated into his foster family, who wished to adopt him.
Seignemartin testified that continuing J.P. and Richard's parent-child relationship
diminished Richard's ability to integrate into a permanent home. According to
Seignemartin, termination of his natural mother's parental rights served Richard's best
interest.
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Wendy Seignemartin testified at trial that someone referred J.P. to Alcohol
Anonymous and Narcotics Anonymous, and Carla Paullin referred J.P. to New Horizons
Relapse Prevention Program. The trial court asked Seignemartin: "How does she know
where to goT' RP at 136. Seignemartin responded inartfully:
Well, and that was something that was-she-her therapist had
recommended. So I-I would say I-I did not provide that one
specifically.
RP at 136. Seignemartin added that J.P. needed to access such a program "through her
medical." RP at 136. One might deduce from this comment that DSHS expected J.P. to
arrange and pay for services through medical insurance. Seignemartin, however,
declared that J.P. reported attending a relapse prevention program named Celebrate
Recovery.
CASA John Bain testified at trial that termination of the mother's rights furthered
Richard's best interests. Bain maintained that J.P. garnered a weak relationship with
Richard and J.P. had no ability to calm Richard. In contrast, Bain described the foster
parents as providing a loving home with good structure. Bain noted that the foster
parents sought adoption of Richard.
One year had passed between John Bain's last observations of J.P. with Richard
by the time ofBain's trial testimony. During trial, Bain admitted to ceasing observation
of J.P.' s visit because he was uncomfortable during the visits. Bain did not know that
DSHS shifted visitation from Empowering to Fulcrum. John Bain testified: "I must
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have-I must have missed that e[-]mail, I guess." RP at 228. Bain also testified he was
unaware that visitation transferred from Fulcrum to American Indian Center. Bain stated
he also missed that e-mail.
The trial court ordered the termination of J.P. 's parental rights to Richard. On July
25,2014, the trial court entered findings of facts, conclusions of law, and the order of
termination. On August 21, a superior court commissioner amended the findings,
conclusions, and order to clearly terminate any parental interest. The amended findings
include:
Services court-ordered under RCW 13.34.130 have been expressly
and understandably offered or provided and all necessary services,
reasonably available, capable of correcting parental deficiencies within the
foreseeable future have been offered or provided.
There is little likelihood that conditions will be remedied so that the
child can be returned to the parent(s) in the near future.
[J.P.] is currently unfit to parent [Richard]. [J.P.'s] mental health is
not stable, she is homeless, likely using drugs and unable to physically or
emotionally protect her son. She has been largely unengaged in services
and visitation since the summer of2013.
It is in the child's best interests to terminate the parent-child
relationship.
Clerk's Papers at 85-89.
LA W AND ANALYSIS
The State must prove many elements before terminating a parent's constitutional
rights to the care and custody ofa child. J.P. contends insufficient evidence supported
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some of those elements and the trial court's findings that the State proved the elements.
J.P. contends that the trial court erred when finding that: (1) the State provided her all
necessary and reasonably available services, (2) her parental deficiencies were unlikely to
be remedied in Richard's near future, and (3) termination was in Richard's best interests.
J.P. also contends that John Bain, the CASA, so failed to conduct a thorough and
independent investigation that the failure violated her and Richard's right to due process.
We disagree with each contention.
Termination of parental rights is a two-step process. In re Welfare ofCB., 134
Wn. App. 942,952, 143 PJd 846 (2006). First, the State must show that six statutory
requirements under RCW 13 .34.180( 1) are established by clear, cogent, and convincing
evidence. RCW 13.34. 190(1)(a)(i). This means the State must show that the relevant
ultimate facts in issue are "highly probable." In re Dependency ofK.R., 128 Wn.2d 129,
141,904 P.2d 1132 (1995); In re Welfare ofSego, 82 Wn.2d 736, 739, 513 P.2d 831(1973). Second, the State must show a termination order serves the best interests of the
child. RCW 13.34.190(1)(b). The trial court must find by a preponderance of the
evidence that termination is in the best interests of the child. In re Welfare ofMR. H.,
145 Wn. App. 10,24, 188 PJd 510 (2008).
J.P. challenges some the trial court's factual findings that underlay its termination
of her parental rights. The trial court's factual findings under the first step, for RCW
13 J4 .180( 1), must be upheld if supported by substantial evidence from which a rational
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trier of fact could find the necessary facts by clear, cogent and convincing evidence. In
re Dependency ofCB., 61 Wn. App. 280, 286,810 P.2d 518 (1991). Likewise, the trial
court's factual findings under the second step, RCW 13.34.l90(1)(b), must be upheld if
supported by substantial evidence from which a rational trier of fact could find the
necessary facts by a preponderance. In re Dependency ofH. W, 92 Wn. App. 420,425,
961 P.2d 963,969 P.2d 1082 (1998). Because only the trial court has the opportunity to
hear the testimony and observe the witnesses, its decision is entitled to deference and this
court will not judge the credibility of the witnesses or reweigh the evidence. In re
Welfare ofMR.H., 145 Wn. App. at 24.
Provision of Services
Under one of the six statutory requirements, the State must establish that it
provided services to J.P. to correct deficient parenting skills. When DSHS seeks to
terminate a parent's rights, it must show by clear, cogent, and convincing evidence:
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.
RCW 13.34. 180(1)(d). RCW 13.34.136 further addresses services to the parent and
reads, in pertinent part:
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(2) The agency supervising the dependency shall submit a written
permanency plan to all parties and the court not less than fourteen days
prior to the scheduled hearing ....
(b)(i) The ... supervising agency's plan shall specify what services
the parents will be offered to enable them to resume custody, what
requirements the parents must meet to resume custody, and a time limit for
each service plan and parental requirement.
(b )(vii) The supervising agency or department shall provide all
reasonable services that are available within the department or supervising
agency, or within the community, or those services which the department
has existing contracts to purchase. It shall report to the court if it is unable
to provide such services.
To meet its statutory burden, the State must tailor the services it offers to meet
each individual parent's needs. In re Dependency ofT.R., 108 Wn. App. 149, 161,29
P.3d 1275 (2001). The State must provide all court-ordered and necessary services to the
parent. In re Dependency ofD.A., 124 Wn. App. 644, 651, 102 P.3d 847 (2004).
Nevertheless, the court may consider any service received, from whatever source, bearing
on the potential correction of parental deficiencies regardless of whether the State
provides or arranges for the service. In re Dependency ofD.A., 124 Wn. App. at 651-52.
The State need not offer services when a parent is unable to benefit from the services. In
re Welfare of5.J., 162 Wn. App. 873, 881,256 P.3d 470 (2011). Even when the State
inexcusably fails to offer a service to a willing parent, termination is appropriate if the
service would not have remedied the parent's deficiencies in the foreseeable future. In re
Welfare of5.J., 162 Wn. App. at 881.
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J.P. contends insufficient evidence supports the trial court's findings that the State
supplied all necessary and reasonably available services. J.P. identifies five services the
State failed to deliver: a relapse prevention program, a parenting evaluation, a medication
consultation, medical care for her bunions, and housing assistance. We agree that the
State failed to provide the five categories of services, but note that the evidence showed
that J.P. received one service elsewhere, the State could not provide some of the services
because of J.P.'s failure to cooperate, and the services would not have remedied J.P.'s
parental deficiencies.
The undisputed evidence established that the State failed to offer a group relapse
prevention program to J.P. DSHS caseworker Wendy Seignemartin testified she did not
refer J.P. to a relapse prevention program because ofthe absence of a contract for such a
service. Nevertheless, Seignemartin never informed the court of the unavailability of this
program as RCW 13.34.136 requires. Furthermore, Seignemartin indicated J.P. needed
to access such a program "through her medical." RP at 136. Seignemartin delivered no
testimony that she informed J.P. that J.P. needed to arrange this service for herself.
Nevertheless, despite DSHS' failure to offer the program, J.P. reported that she attended
a relapse prevention program named Celebrate Recovery. The provision of the service by
another entity supports the trial court's finding that J.P. received needed services.
As part of the dependency action, the trial court ordered a parenting evaluation,
but the State failed to offer J.P. such an evaluation. The State argues that the court's
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ordering of this service was a scrivener's error. An early order listed the service but no
later order repeated the need for an evaluation. We disagree with the State's argument,
but do not reverse on this ground. The trial court ordered the evaluation in May 2013.
Thereafter J.P. disengaged from services. An evaluation would not have corrected the
parental deficiencies.
The trial court never ordered a medication consultation and one might question the
reasonableness and necessity for a consultation. Carla Paullin testified that J.P. refused to
take medication for her mental health issues, suggesting that a medication consultation
would have been pointless. J.P. reported chronic pain from bunions to most providers.
Each believed J.P. exaggerated her pain, a symptom of her poor mental health. J.P.
refused to quit smoking long enough to get surgery for the bunions.
The trial court never ordered housing assistance. Nevertheless, J.P. halfheartedly
and inconsistently participated in services when she had adequate housing. By the time
J.P. needed housing assistance in September 2013, J.P. had stopped attending mental
health therapy.
Timely Remedy of Parental Deficiencies
J.P. next contends insufficient evidence supports the trial court's findings that
J.P.'s parental deficiencies were unlikely to be remedied in Richard's near future. Under
RCW 13.34.l80(1)(e), DSHS must show:
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That there is little likelihood that conditions will be remedied so that
the child can be returned to the parent in the near future. A parent's failure
to substantially improve parental deficiencies within twelve months
following entry of the dispositional order shall give rise to a rebuttable
presumption that there is little likelihood that conditions will be remedied
so that the child can be returned to the parent in the near future. The
presumption shall not arise unless the petitioner makes a showing that all
necessary services reasonably capable of correcting the parental
deficiencies within the foreseeable future have been clearly offered or
provided. In determining whether the conditions will be remedied the court
may consider, but is not limited to, the following factors:
(i) Use of intoxicating or controlled substances so as to render the
parent incapable of providing proper care for the child for extended periods
of time or for periods of time that present a risk of imminent harm to the
child, and documented unwillingness of the parent to receive and complete
treatment or documented multiple failed treatment attempts;
(ii) Psychological incapacity or mental deficiency of the parent that
is so severe and chronic as to render the parent incapable of providing
proper care for the child for extended periods of time or for periods of time
that present a risk of imminent harm to the child, and documented
unwillingness of the parent to receive and complete treatment or
documentation that there is no treatment that can render the parent capable
of providing proper care for the child in the near future; or
(iii) Failure of the parent to have contact with the child for an
extended period of time after the filing of the dependency petition if the
parent was provided an opportunity to have a relationship with the child by
the department or the court and received documented notice of the potential
consequences of this failure, except that the actual inability of a parent to
have visitation with the child including, but not limited to, mitigating
circumstances such as a parent's current or prior incarceration or service in
the military does not in and of itself constitute failure to have contact with
the child.
(Emphasis added.)
The "near future" is a key term in RCW 13 .34.180( 1)(e). The parental
deficiencies must be remedied such that the child may be returned to the parent in the
19
No. 32715-9-II1
In re the Welfare ofMP.
"near future." "Near future" is determined from the child's point of view. In re
Dependency ofA.C., 123 Wn. App. 244,249,98 P.3d 89 (2004). What constitutes "near
future" depends on the age of the child and the circumstances of the child's placement.
In re Dependency ofTL-G., 126 Wn. App. 181,205, 108 P.3d 156 (2005).
Washington cases support the proposition that the younger the child the shorter is
the "near future." A matter of months for young children is not within the foreseeable
future to determine if there is sufficient time for a parent to remedy his or her parental
deficiency. In re Welfare ofMR.H, 145 Wn. App. at 28 (2008). Eight months was not
in the foreseeable future of a four-year-old. In re Welfare ofHall, 99 Wn.2d 842, 844,
664 P .2d 1245 (1983). One year was not in the foreseeable future of a three year-old. In
re A. W, 53 Wn. App. 22, 31-32, 765 P.2d 307 (1988). Six months was not foreseeable in
the near future ofa 15 month-old. In re Dependency ofP.D., 58 Wn. App. 18,27,792
P.2d 159 (1990).
The focus ofRCW 13.34.l80(1)(e) is "whether the identified deficiencies have
been corrected." MR.H, 145 Wn. App. at 27. Even when there is evidence that the
parent may eventually be capable of correcting parental deficiencies, termination is still
appropriate when deficiencies will not be corrected within the foreseeable future. In re
Dependency ofA. W, 53 Wn. App. at 32. The State need not give a parent an unlimited
time to become a fit parent. In re Dependency ofTR., 108 Wn. App. at 167 (2001).
When it is eventually possible, but not imminent, for a parent to be reunited with a child,
20
No. 32715-9-III
In re the Welfare ofUP.
the child's present need for stability and permanence is more important and can justify
termination. T.R., lOS Wn. App. at 166.
The State argues that the one year rebuttable presumption in RCW 13.34.lS0(1)(e)
applies to J.P.'s proceedings. The presumption only arises if the State showed it offered
all necessary services reasonably capable of correcting J.P.' s parental deficiencies.
Because the State did not offer all services even ordered by the trial court, we decline to
employ the presumption.
We need not apply the presumption ofRCW 13.34.lS0(1)(e) to affirm the trial
court since clear, cogent, and convincing evidence supports the trial court's finding that
J.P. would not cure her parental deficiencies in Richard's near future. J.P. challenges the
trial court's finding by highlighting contradictory evidence, not undisputed evidence. J.P.
underscores that Wendy Seignemartin estimated Richard's near future at six to twelve
months, while Dr. Walter Mabee testified that J.P. 's mental health could improve within
nine months, if J.P. complied with necessary services. Nevertheless, Dr. Mabee also
testified that J.P. would need two to four years for fuller stabilization. This court does
not reweigh the evidence, and the trial court could have accepted the longer period as the
time needed for J.P. to cure her deficiencies.
J.P.'s argument predominantly fails because the contention assumes she would
comply with services in the near or immediate future. The weight of evidence indicates
that J.P. would not cooperate with service providers and suffer needed services for the
21
No. 32715-9-III
In re the Welfare ofMP.
ensuing nine to twelve months. By the date of trial, J.P. had refused to visit Carla
Paullin, her mental health therapist, for one year. Unlike the first dependency, J.P. failed
to consistently participate in mental health therapy. J.P. repeatedly failed to show for
visits with Richard. DSHS caseworkers encountered increasing difficulty in contacting
J.P.
A parent's unwillingness to avail herself of remedial services within a reasonable
period bears relevance to a trial court's determination as to whether the State has satisfied
RCW l3.34.180(1)(e). In re Welfare ofT.B., 150 Wn. App. 599, 608,209 P.3d 497(2009). Substantial evidence supports our trial court's finding.
Richard's Best Interests
The second step in the State's burden in a parental termination case involves
proving by a preponderance of evidence that termination is in the child's best interest.
RCW 13.34.190(l)(b). As noted in In re Welfare ofA.B.:
By virtue ofRCW l3.34.180(1) and RCW l3.34.190, a Washington
court uses a two-step process when deciding whether to terminate the right
of a parent to relate to his or her natural child. The first step focuses on the
adequacy of the parents and must be proved by clear, cogent, and
convincing evidence. The second step focuses on the child's best interests
and need be proved by only a preponderance of the evidence. Only if the
first step is satisfied may the court reach the second.
168 Wn.2d 908,911,232 P.3d 1104 (2010) (footnotes omitted). No specific factors are
involved in a best interest determination, and each case must be decided on its own facts
and circumstances. In re Welfare ofMR.H, 145 Wn. App. at 28 (2008). When a parent
22
No. 3271S-9-III
In re the Welfare ofMP.
has failed to remedy her parental deficiencies over a lengthy dependency, a court is
justified in finding termination is in the child's best interest rather than leaving the child
in the limbo of foster care for an indefinite period while the parent seeks to rehabilitate
herself. In re Dependency ofTR., 108 Wn. App. at 167 (2001).
J.P. contends insufficient evidence supports the trial court's findings that
termination was in Richard's best interests. She highlights the love and bond she and
Richard shared. The trial court recognized that J.P. loves her child. Despite that love,
substantial evidence supports the trial court's finding that termination was in Richard's
best interests. Dr. Walter Mabee diagnosed J.P. with serious, significant mental health
impediments that interfere with social and occupational functioning. J.P. presented as
suspicious and unstable. J.P. took Richard to a physician and requested an unnecessary
circumcision. Carla Paullin testified that lP.'s various mental health issues prevent her
from prioritizing a child's needs. Wendy Seignemartin believed termination to be in
Richard's best interest, so he could achieve permanence with adopting parents. Richard
lived happily and integrated with his foster home.
CASA Investigation
J.P. contends that John Bain, Richard's guardian ad litem or CASA, neglected to
conduct a thorough and independent investigation and his failure violated her and
Richard's right to due process. The terms CASA and guardian ad litem are synonymous
in this context, and we will employ the term CASA.
23
No. 32715-9-III
In re the Welfare ofMP.
Both the United States and Washington Constitutions recognize a parent's
fundamental liberty interest in the care and custody of her child. U.S. CONST. amends. V,
XIV; WASH. CONST. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982); In re Custody ofSmith, 137 Wn.2d 1, 13-14,969 P.2d 21(1998). That right cannot be abridged without due process oflaw. U.S. CONST. amend.
XIV; In re Dependency ofA.MM, 182 Wn. App. 776, 790-91,332 P.3d 500 (2014).
Accordingly, parental termination proceedings are afforded strict due process protections.
In re Darrow, 32 Wn. App. 803, 806,649 P.2d 858 (1982).
Due process requires that parents have notice, an opportunity to be heard, and the
right to be represented by counsel. In re Welfare ofKey, 119 Wn.2d 600, 611, 836 P.2d
200 (1992); In re Welfare ofMyricks, 85 Wn.2d 252,254,533 P.2d 841 (1975). More
specifically, the due process protections afforded parents in a termination hearing include
notice, open testimony, time to prepare and respond to charges, and a meaningful hearing
before a competent tribunal in an orderly proceeding. In re Dependency ofH. w., 70 Wn.
App. 552, 555 n.1, 854 P.2d 1100 (1993); In re Moseley, 34 Wn. App. 179, 184,660 P.2d
315 (1983). The trial court must ensure that the parent is afforded a full and fair
opportunity to present evidence or rebut evidence presented against her. A.MM, 182
Wn. App. at 791. No decision imposes a requirement of a CASA in order to satisfy the
due process clause, let alone any minimum standard for a CASA's investigation.
24
No. 3271 S-9-III
In re the Welfare ofMP.
Under RCW 13.34.l00(1): "The court shall appoint a guardian ad litem for a child
who is the subject of an action under this chapter, unless a court for good cause finds the
appointment unnecessary." "If a party reasonably believes that the appointed guardian ad
litem lacks the necessary expertise for the proceeding," within three days of the
appointment, the party may move for substitution of the appointed CASA. RCW
13.34.102(2)(c). J.P. did not seek to remove John Bain.
A CASA assumes an important role in a parental termination case.
Judges are forced to make incredibly difficult and important
determinations. The judge must rely upon the information provided by
others. GALs and volunteer CASAs are invaluable to courts. They are
often the eyes and ears of the court and provide critical information about
the child and the child's circumstances.
In re DependencyofM8.R., 174 Wn.2d 1,20-21,271 P.3d 234 (2012). Unless a court
directs otherwise, a CASA holds the duties:
(a) To investigate, collect relevant information about the child's
situation, and report to the court factual information regarding the best
interests of the child;
(b) To meet with, interview, or observe the child, depending on the
child's age and developmental status, and report to the court any views or
positions expressed by the child on issues pending before the court;
(c) To monitor all court orders for compliance and to bring to the
court's attention any change in circumstances that may require a
modification of the court's order;
(d) To report to the court information on the legal status ofa child's
membership in any Indian tribe or band;
(e) Court-appointed special advocates and guardians ad litem may
make recommendations based upon an independent investigation regarding
the best interests of the child, which the court may consider and weigh in
conjunction with the recommendations of all of the parties;
2S
No. 32715-9-III
In re the Welfare ofMP.
(1) To represent and be an advocate for the best interests of the
child[.]
RCW 13.34.105(1); see also GALR 3.
A CASA is not the child's lawyer. MSR, 174 Wn.2d at 21. For purposes of
fulfilling his or her duties, the CASA shall be deemed an officer of the court and thus
immune from civil liability. RCW 13.34.105(2); Kelley v. Pierce County., 179 Wn. App.
566,576,319 P.3d 74, review denied, 180 Wn.2d 1019,327 P.3d 55 (2014).
lP. forwards a procedural due process claim. A familiar test of procedural due
process arises from Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,47 L. Ed. 2d 18(1976), in which the Supreme Court directed lower courts to weigh the private interests at
stake, the government's interest, and the risk that the procedures used will lead to
erroneous decisions, when assessing infringement of a party's procedural due process.
Lassiter v. Dep't ofSoc. Servs., 452 U.S. 18,27,101 S. Ct. 2153, 68 L. Ed. 2d 640(1981).
J.P. does not contend that RCW 13.34.100 and .105 are constitutionally deficient.
Rather, J.P. contends that John Bain denied Richard and her the process that chapter
13.34 RCW affords. More specifically, J.P. argues that Bain failed in his statutory duties
by focusing on Richard's relationship with his foster family. Bain had not seen Richard
with J.P. for one year when he testified at trial. Thus, J.P. maintains Bain could not
gauge Richard's best interests. J.P. asks this court to apply the Mathews factors and hold
26
No. 32715-9-111
In re the Welfare ofMP.
that the procedure Richard and she received did not pass constitutional muster.
The State observes that J.P. did not complain about John Bain's performance at
the trial court level. The State argues that J.P. cannot raise this argument for the first time
on appeal. We agree.
RAP 2.5(a) provides, in relevant part: "The appellate court may refuse to review
any claim of error which was not raised in the trial court. However, a party may raise the
following claimed errors for the first time in the appellate court ... (3) manifest error
affecting a constitutional right." Washington courts have announced differing
formulations for "manifest error." One articulation is that the error is one "truly of
constitutional magnitude." State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988).
Another test is whether the alleged error actually affected the defendant's rights. A
showing of actual prejudice makes the error "manifest," allowing appellate review. State
v. O'Hara, 167 Wn.2d 91,99,217 P.3d 756 (2009). The focus of the actual prejudice
must be on whether the error is so obvious on the record that the error warrants appellate
review. State v. O'Hara, 167 Wn.2d at 99-100.
We decline to address J.P.'s assignment of error of a neglectful investigation by
the CASA. J.P. did not object to John Bain's initial appointment under RCW
13.34.102(2)(c). J.P. did challenge the foundation ofBain's testimony or his conclusions.
J.P. had a full opportunity to cross-examine Bain in open court and, in doing so, defense
counsel thoroughly exposed the potential weaknesses in his testimony. Even ignoring
27
No. 32715-9-III
In re the Welfare ofMP.
Bain's testimony, substantial evidence supports the trial court's finding that termination
was in Richard's best interests. J.P. does not enlighten the court as to what helpful
information the CASA may have unearthed if he engaged in a thorougher investigation.
lP. forwards no decision that holds a neglected investigation by a CASA constitutes a
due process violation.
A case of some relevance is In re Welfare ofTB., 150 Wn. App. 599,209 PJd
497 (2009). In TB., the CASA met with one child twice, the second child once, relative
placements six to eleven times, and the mother whose rights were at issue once. TB.,
150 Wn. App. at 615. The CASA did not communicate with the children during the year
preceding the termination trial. The CASA explained that he had not observed the
children recently because they appeared stable in their placements. Over objection, the
trial court allowed the CASA to testify to the children's best interests, but indicated it
would later decide the weight to afford the CASA's recommendations.
The mother in TB. argued on appeal that the CASA's investigation breached the
statutory requirements imposed on an advocate. We held:
The trial court indicated that under former RCW 13 J4.1 OS, it would
take into account the extent of the GAL's investigation in deciding what
weight to give the GAL's recommendation. We hold that the trial court
appropriately considered the GAL's recommendation. Even if we
determined that the trial court erred, such error would be harmless because
there is no reason to believe that the trial court's decision would have
differed without the GAL's recommendation....
Certain cases establish the standard that a GAL must satisfy to
justify a finding. This is a case that sets the minimal standards for a GAL
28
No. 3271S-9-III
In re the Welfare ofMP.
investigation under the version of former RCW l3.34.10S in effect at the
time of this termination hearing. As we have noted, it would not be
adequate under the new requirements, but we have examined the record and
are satisfied that an investigation took place. We agree with the State that it
was "not the most thorough investigation possible." Br. of Resp't at 26.
We hold that the court did not err in considering the GAL's
recommendation and giving it the appropriate weight considering the lack
of current personal contact with the children.
T.E., ISO Wn. App. at 61S-16.
CONCLUSION
We affirm the trial court's termination of lP.'s parental rights to Richard.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Kors~
In.,,,,'-"' ~v.r-<"I'
'!. <.. -
Lawrence-Berrey, J.
29