In re the Parental Rights to: T.T.

FILED
NOVEMBER 9, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re Parental Rights to ) No. 34748-6-III
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T.T.t )
) UNPUBLISHED OPINION
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LAWRENCE-BERREY, J. - Mr. T. appeals the termination of his parental rights to
his young son, T.T. He argues (1) the Department of Social and Health Services (DSHS)
failed to follow the notice procedures of the state and federal Indian Child Welfare Acts,
(2) DSHS failed to offer or provide all necessary services, (3) the trial court erred in
finding that there was little likelihood that his parental deficiencies would be remedied in
the near future so that T. T. could be returned to him, and (4) his due process rights were
violated by his trial counsel's failure to object to persistent leading questions by DSHS's
t To protect the privacy interests ofT.T., a minor, we use his and his parents'
initials throughout this opinion. General Order of Division Three, In Re the Use of
Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18,
2012),
http://www.courts.wa.gov/appellate_ trial_courts/?fa=atc.genorders_ orddisp&ordnumber=
2012_001&div=III General Order of Division III, In Re Changes to Case Title (Wash. Ct.
App. May 25, 2017),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_ orddisp&ordnumber=
2017 002&div=III.
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attorney. We reject all of Mr. T's claims and affirm.
FACTS
Background
T.T. was born on February 6, 2015. His mother is Ms. K. She voluntarily
terminated her parental rights to T.T. on June 17, 2016.
T.T.'s father is Mr. T. In 2012, Mr. T. was convicted of fourth degree assault-
domestic violence. Ms. K. had two children prior to T.T., and Mr. T. was involved in
parenting Ms. K.'s second child, A.K. Mr. T.'s and Ms. K.'s parental rights were
terminated to A.K. after both parents failed to correct their parental deficiencies.
In March 2015, T.T. was removed from Mr. T.'s care and found to be dependent as
to both parents. The court entered dispositional orders for the purpose of remedying the
parental deficiencies. Mr. T.'s dispositional order required him to successfully complete
a drug/alcohol evaluation and follow recommendations, random drug testing, follow the
recommendations of a follow-up psychological evaluation performed by Dr. Paul Wert,
complete a mental health assessment and follow recommendations, and complete a
domestic violence assessment and follow recommendations.
Dr. Wert's follow-up evaluation for Mr. T. occurred in March 2015. The
evaluation noted anger management problems, a history of cannabis dependence, and a
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lack of parenting experience. The evaluation recommended a chemical dependency
evaluation, anger management counseling through Social Treatment Opportunity
Programs (STOP), and a parenting assessment.
Chemical dependency assessment and drug testing
Mr. T. completed a chemical dependency assessment with NEW Alliance in March
2015. NEW Alliance is a mental health counseling service provider. Mr. T's answers
during his chemical dependency assessment did not indicate a substance abuse disorder.
NEW Alliance made no treatment recommendations as a result of the assessment.
After a review hearing, the trial court ordered Mr. T. to complete an additional
chemical dependency assessment. Mr. T. completed that assessment on September 28,
2015. In that assessment, Mr. T. again denied drug dependency, and NEW Alliance
declined to provide treatment.
Between February 2015 and December 2015, Mr. T. tested positive for drugs three
times: February 19, 2015 (hydrocodone), February 26, 2015 (hydrocodone), and June 29,
2015 (oxycodone). During that same time, Mr. T. failed to submit to scheduled drug tests
on the following dates: March 2, April 30, June 2, July 7, July 13, August 10, September
8, October 15, October 20, October 26, November 11, and November 16.
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Anger management through STOP
STOP is a certified domestic violence provider. Although the testimony was
conflicting on this point, DSHS social worker Jacqueline Bircher confirmed that STOP
provides anger management training. According to DSHS social worker Mindy Higbee,
STOP "address[es] anger management or it's better said, emotional regulation, being
better able to identify your emotions and how you choose to respond to those emotions
and what you're trying to accomplish and your consequences." Report of Proceedings
(RP) at 139. A requisite for the STOP program was that participants abstain from the use
of nonprescription drugs, and self-report instances of such use. The STOP report from
July 2015 noted that Mr. T. was in minimal compliance.
Parenting assessment
Mr. T. completed a parenting assessment with T.T. on March 20, 2015. The
recommendations from that assessment were for Mr. T. to have contact with T.T. in a
therapeutic setting, for Mr. T. to complete a parenting instruction class, and for Mr. T. to
engage in individual therapy to address his accountability, truthfulness, and anger issues.
Mr. T. began individual therapy with NEW Alliance in March 2015. Within a
couple months, he stopped attending appointments.
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Mr. T. began family therapy with T.T. and a certified therapist, Sue Elg, M.A., in
March 2015. After several months of family therapy, it was Ms. Elg's opinion that Mr. T.
had not developed the skills to care for T. T. safely, and that Mr. T. showed little to no
likelihood of developing those skills in the future. She noted that Mr. T often deflected
during family therapy, and wanted to discuss his anger at others and blame them rather
· than learn basic matters such as following his child's cues. She concluded that Mr. T. did
not appear amenable to progress in family therapy.
By December 2015, Mr. T.'s participation with required services was so minimal
and unsuccessful that DSHS commenced this termination proceeding. The termination
trial occurred in June 2016. DSHS presented witnesses who testified about Mr. T.'s
parental deficiencies, the necessary services that were reasonably offered to remedy those
deficiencies, Mr. T.'s minimal engagement with most of the services, and Mr. T.'s
inability to remedy his parental deficiencies. DSHS argued that termination of Mr. T.'s
parental rights to T.T. was in the best interests of T.T. Mr. T. also testified. He generally
testified that he loved T. T. and wanted to be a father to him, and that he wanted to
provide a safe environment for T.T. The trial court granted DSHS 's petition to terminate
Mr. T.'s parental rights.
Mr. T.'s appeal followed.
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ANALYSIS
A. NOTICE REQUIREMENTS OF ICWA AND WICWA WERE NOT IMPLICATED
Mr. T. argues that DSHS failed to satisfy the notice requirements of the Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and the Washington State
Indian Child Welfare Act (WICWA), chapter 13.38 RCW. Whether the federal and state
Indian Child Welfare Acts apply to this case is a question of law reviewed de novo. See
In re Interest of Mahaney, 146 Wn.2d 878, 886, 51 P.3d 776 (2002).
The federal and state Indian Child Welfare Acts grant tribes the right to intervene
in state court termination proceedings involving an "Indian child." 25 U.S.C. § 191 l(c);
see also RCW 13.38.090, .040(3)(b). An "Indian child" is "any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe."
25 U.S.C. § 1903(4); see also RCW 13.38.040(7). DSHS must notify the Indian child's
tribe or the Bureau of Indian Affairs (BIA) of such pending proceedings and the tribe's
right to intervene "where the court knows or has reason to know that an Indian child is
involved." 25 U.S.C. § 1912(a); see also RCW 13.38.080(1). DSHS responds that there
is no evidence that T. T. could be an Indian child and, for this reason, the notice
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requirements of the federal and state Indian Child Welfare Acts were not implicated. We
agree.
As noted above, an Indian child must either be a member of an Indian tribe or have
a parent who is a member of an Indian tribe. Here, there is no evidence that T.T. is a
member of an Indian tribe, nor is there any evidence that either Ms. K. or Mr. T. is a
member of any Indian tribe. For these reasons, T.T. cannot be an Indian child as defined
by ICWA or WICWA. We conclude that the notice requirements for those statutes were
not implicated.
B. ALL NECESSARY SERVICES WERE REASONABLY OFFERED OR PROVIDED
Mr. T. claims that DSHS failed to offer or provide him with all necessary services
as required by RCW 13.34.180(l)(d). Specifically, he argues that he was not offered
anger management treatment and chemical dependency treatment. We hold that the trial
court's findings that he was offered all necessary services are supported by substantial
evidence. Furthermore, due to Mr. T.'s unwillingness to cooperate and comply with
service providers, any services offered would have been futile.
Where the trial court has weighed the evidence, appellate review is limited to
determining whether the factual findings are supported by substantial evidence and
whether those findings support the court's conclusions oflaw. In re Parental Rights to
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K.JB., 188 Wn. App. 263, 273, 354 PJd 879 (2015), rev'd on other grounds, 187 Wn.2d
592, 387 P.3d 1072 (2017). "Evidence is substantial if it is sufficient to persuade a fair-
minded person of the truth of the declared premise." In re Welfare ofSJ., 162 Wn. App.
873, 881, 256 PJd 470 (2011). The trial court's decision is entitled to deference because
it has the ability to hear the testimony and observe the witnesses. Id. The appellate court
will not judge the credibility of the witnesses or weigh evidence. Id. The party claiming
error has the burden to show that substantial evidence does not support the challenged
finding. Fisher Properties, Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d
799 (1990). Unchallenged findings of fact are verities on appeal. In re Welfare of C.B.,
134 Wn: App. 336, 349, 139 P.3d 1119 (2006).
In proceedings to terminate parental rights, DSHS has the burden of showing 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); see also SJ., 162 Wn. App. at 880. To meet its
burden, DSHS must tailor the services to meet the individual parent's needs. SJ., 162
Wn. App. at 881. However, DSHS is not required to offer services if those services
would be futile. Id. "' [E]ven where [DSHS] inexcusably fails to offer a service to a
willing parent, ... termination is appropriate if the service would not have remedied the
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parent's deficiencies in the foreseeable future."' Id. (some alterations in original)
(quoting In re Dependency ofT.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001)).
1. Anger management services were offered and provided
Substantial evidence supports the trial court's findings that Mr. T. was offered or
provided anger management services pursuant to RCW 13.34.180(l)(d). Throughout the
dependency of T.T., Mr. T. failed to make progress in anger management treatment. He
failed to attend services, failed to follow program requirements, denied he had problems,
and exhibited dishonesty to service providers.
Contrary to Mr. T.'s contention, STOP offered anger management services. By
July 2015, STOP noted that Mr. T. was in minimal compliance with its program. Shortly
before the termination proceedings, STOP discovered that Mr. T. was out of compliance
with its drug abstinence policy and his obligation to self-report. Program management
restarted him in the program, and he had more than one year of treatment to complete.
DSHS also referred Mr. T. to NEW Alliance where anger management could be a
focus. But Mr. T. twice discontinued that program soon after enrolling.
Contrary to Mr. T. 's contentions on appeal, the evidence would lead a fair-minded
person to conclude that Mr. T. was offered or provided anger management treatment, and
this finding is supported by substantial evidence.
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2. Chemical dependency treatment was offered and provided
Substantial evidence supports that Mr. T. was offered or provided services for
chemical dependency. Despite being offered this treatment, Mr. T. never took advantage
of it. Mr. T.'s theory is that he was somehow denied drug treatment despite his failure to
cooperate with at least two chemical dependency assessments, his refusal to engage in
urinalyses, and his denial-even at the time of the termination proceeding-that he had a
drug problem.
The following portion of finding of fact IX has not been challenged by Mr. T. and
we, therefore, accept it as true:
[Mr. T.] was clearly and expressly offered and provided multiple
drug-alcohol assessments. He was not truthful [regarding] his use. He did
admit to others outside the chemical dependency process that he used
marijuana daily during much of the dependency. Ultimately, he was
noncompliant with successful completion of this service, and he refused to
complete a court-ordered updated evaluation. [Mr. T.] was also
noncompliant with expressly and understandably offered and provided UAs
[urinalyses], having periodic positives for [hydrocodone] without
prescription, no shows to most testing dates and admission of ongoing
manJuana use.
Clerk's Papers (CP) at 275.
Mr. T. argues that substantial evidence does not support the portion of finding of
fact IX that states he refused to quit marijuana via drug treatment or otherwise. To the
contrary, Mr. T. was directed to complete assessments for drug dependency and to follow
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the recommendations of treatment providers. Mr. T. repeatedly lied to NEW Alliance
about his historical and current drug problems to avoid treatment, and he attempted to
hide his drug dependency by not being tested throughout most of 2015. His
noncooperation and noncompliance with court-ordered evaluations and drug testing is
tantamount to a refusal to quit marijuana.
3. Any services offered would have been/utile due to Mr. T's dishonesty
and failure to cooperate
Finally, even had Mr. T. not been provided with anger management or drug related
services, Mr. T. has demonstrated that such services would have been futile. Due to Mr.
T. 's failure to cooperate with service providers, remain drug free, and be honest about his
current and past drug use, the provision of anger and drug related services would have
been futile and, therefore, were not required. "The provision of services is futile where a
parent is unwilling or unable to participate in a reasonably available service that has been
offered or provided." In re Parental Rights to K.MM, 186 Wn.2d 466, 483, 379 P.3d 75(2016). Such was the case here as the trial court found in unchallenged findings of fact
that "[Mr. T.] aborted significant services (such as mental health treatment, updated
drug/alcohol and urinalyses) and failed to cooperate with other services (such as parenting
services and anger management/DY [domestic violence] services)." CP at 271.
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Accordingly, the trial court's findings that Mr. T. was offered or provided services
for anger management and chemical dependency treatment, and that any additional
services would have been futile, are supported by substantial evidence.
C. LITTLE LIKELIHOOD THAT CONDITIONS WOULD BE REMEDIED
Mr. T. asserts that the services were inadequate in this case, so a finding that there
was little likelihood of conditions being remedied in the near future was premature and
not supported by substantial evidence at trial.
In order to terminate parental rights, DSHS must prove "[t]hat 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(l)(e). The emphasis of this element is whether
parental deficiencies have been corrected. In re Welfare of MR.H, 145 Wn. App. 10, 27,
188 P.3d 510 (2008). RCW 13.34.180(l)(e) provides the following rebuttable
presumption:
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 ....
If the parent is unable to resolve his deficiencies, then the presumption applies and the
burden of production shifts to the parent, but DSHS must still convince the court that it is
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highly probable that the parent would not improve in the near future. In re Welfare of
TB., 150 Wn. App. 599, 608, 209 P.3d 497 (2009).
In the present case, there is substantial evidence to support the finding that there is
little likelihood that the parental deficiencies would have been remedied in the near
future. From the testimony of Mr. T. and from several ofDSHS's witnesses, the father's
deficiencies had not improved from the time of the order of dependency. Brain Culler,
T.T.'s court-appointed special advocate stated, "there's no likelihood of [Mr. T.]'s
situation improving in any foreseeable future and at least another year in some services
and T.T. cannot wait that long." RP at 311. Mr. T. 's therapist, Sue Elg, opined that
"there's no way that this parent is capable on any level to take care of this child and
provide for his needs ongoing." RP at 104. Because Mr. T. failed to substantially
improve his deficiencies within 12 months after the order of dependency, the rebuttable
presumption arises that there is little likelihood that conditions would improve so that the
child could be returned to the parent. Also, because we rejected Mr. T.'s contention that
all necessary services were not reasonably offered or provided, we reject his associated
argument that additional services were required that would have likely corrected his
parental deficiencies. We conclude that substantial evidence supports the trial court's
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finding that there was little likelihood that Mr. T. 's parental deficiencies would be
remedied so that T.T. could be returned to him in the near future.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. T. claims that his due process rights were violated because his trial counsel
repeatedly failed to object to leading questions. Because Mr. T. has not met his high
burden of showing that choosing not to object was not a product of legitimate trial
strategy, his claim fails.
Washington law guarantees the right to counsel in termination of parental rights
proceedings. RCW 13.34.090(2). Whether a proceeding satisfies constitutional due
process is a question reviewed de novo. In re Welfare ofJM, 130 Wn. App. 912, 920,
125 P.3d 245 (2005). In criminal proceedings, the test for effective assistance of counsel
is that outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). However, the right to counsel in parental termination proceedings is left to
the states. JM, 130 Wn. App. at 921 (citing Lassiter v. Dep 't ofSoc. Servs., 452 U.S. 18,
33-34, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981)). "No published Washington case has
expressly held that Strickland applies to the performance of counsel representing parents
in proceedings to terminate their parental rights." JM, 130 Wn. App. at 920.
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Here, DSHS argues that Strickland should apply, noting that the alternative
standard outlined in In re Moseley, 34 Wn. App. 179, 184, 660 P .2d 315 ( 1983) is less
favorable to the parent. Without determining which standard must apply, we hold that
Mr. T.'s claim fails under even the heightened Strickland standard.
To prevail on an ineffective assistance of counsel claim, the party claiming
ineffective assistance must prove (1) that the performance was deficient, and (2) that the
petitioner was prejudiced by the deficient performance. State v. McFarland, 127 Wn.2d
322, 334-35, 899 P.2d 1251 (1995) (citing Strickland, 466 U.S. at 687). As to the first
requirement, the petitioner must show counsel's performance fell below "an objective
standard of reasonableness." Strickland, 466 U.S. at 688. Judicial scrutiny of the trial
counsel's performance will be "highly deferential," and the appellate court will make
"every effort ... to eliminate the distorting effects of hindsight." Id. at 689.
This court will presume that a failure to object to leading questions is a legitimate
trial tactic and the party claiming ineffective assistance carries the burden to show how
such failure is not the product of legitimate strategy or tactics. State v. Johnston, 143 Wn.
App. 1, 20-21, 177 P.3d 1127 (2007). Here, Mr. T. appends extensive portions of the trial
transcript without identifying why any particular absence of an objection would not be
proper strategy. In addition, the trial court commented on the record that Mr. T. was
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represented ably by his trial counsel. We note that a parent's counsel is provided reports
from DSHS's professional witnesses well before trial. For this reason, they know what
these witnesses will say. An objection of leading will, therefore, usually cause a
professional witness to elaborate on his or her damaging conclusions, thus strengthening
DSHS's case. We conclude that Mr. T. has not met his burden to show that his counsel's
performance was objectively deficient, and we need not reach the second prong of the
Strickland analysis.
Affirmed.
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:
:3a 1
:I·
Feari~
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