In re the Termination of: K.J.B.

FILED
JUNE 11,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Welfare of: ) No. 32490-7-111
)
)
) PUBLISHED OPINION
KJ.B. )
)
)
LAWRENCE-BERREY, 1. ­ The trial court tenninated J.B.'s parental rights to his
daughter, KJ.B. J.B. appeals, contending that the trial court erred in (1) finding that the
Department of Social and Health Sciences (Department) satisfied the notice requirements
of the Indian Child Welfare Act of 1978 (lCWA), 25 U.S.C. §§ 1901-1963; (2) finding
that all necessary services were expressly and understandably offered or provided;
(3) failing to consider the amended language ofRCW 13.34. 180(1)(f) applicable to an
incarcerated parent; and (4) finding that it was in KJ.B.'s best interests to tenninate J.B.'s
parental rights. We agree with J.B.'s third contention, but detennine that the error was
harmless, and we disagree with his other contentions. We therefore affinn.
No. 32490-7-1I1
In re Welfare ofK.JB.
FACTS
The Department received a referral for KJ.B. on April 20, 2012, the day she was
born. The referral was based on the mother testing positive for methamphetamine one
month prior to her daughter's birth. Because of the mother's methamphetamine and
cigarette use, K.J.B. has asthma and reactive airway disease. She is required to use a
nebulizer almost every day. Her condition requires that her caregiver be vigilant
concerning the odors and environment to which she is exposed. Her caregiver must
immediately take action ifKJ.B. shows any signs of breathing difficulties.
The Department filed a dependency petition for KJ.B. on April 24, 2012. By
court order, the Department originally placed KJ.B. with a relative but soon after moved
her to foster care placement. On October 22, 2012, the court held a dispositional hearing
and entered an order of dependency. The order reaffirmed KJ.B.'s placement in foster
care. The order also required J.B. to complete the following services and to follow
provider recommendations: drug and alcohol evaluation and treatment, random urinalysis
(UA) testing, and parenting assessment and instruction.
Drug and alcohol evaluation and treatment. J.B. completed a drug and alcohol
evaluation on May 6, 2013. The evaluation revealed methamphetamine dependence and
nicotine dependence, and the recommendation was intensive inpatient treatment. lB. was
2
No. 32490-7-III
In re Welfare ofK.J.B.
scheduled to enter inpatient treatment on May 20, 2013, but he did not do so. In June
2013, he started intensive outpatient treatment. J.B. participated in the outpatient
treatment program in July and August 2013 but then left the program due to a relapse. On
September 12, 2013, he entered an intensive inpatient treatment program but left the
program without completing it on September 21,2013. lB. stated he left the intensive
drug treatment program because he was "uncomfortable with the fact that [he] was ...
getting sober ... and ... dealing with [his] issues ... instead of us[ing] drugs to mask
them," which he was not ready to do at that time. Report of Proceedings (RP) at 13.
On December 18,2013, J.B. went to detox and planned to begin inpatient
treatment after finishing detox. He only stayed at detox for four days and did not go to
inpatient treatment. He made no other attempts to obtain drug addiction treatment before
he was incarcerated on January 24,2014.
Random UA testing. IB. was ordered to provide random VA tests five times per
month beginning in January 2013. lB. provided six random VAs during this time: one
per month in February, March, May, and August, and two in April. Four of these tests
were negative, while two were positive.
Parenting assessment. J.B. completed a parenting assessment and participated in
parenting instruction with parent educator Esteban Cabrera in July and August 2013. In a
3
No. 32490-7-II1
In re Welfare ofK.J.B.
report dated September 9,2013, Mr. Cabrera recommended that J.B. complete inpatient
substance abuse treatment, individual and couple's counseling once he completed the
inpatient treatment, and consistent visitation with KJ.B. Because Mr. Cabrera
recommended completion of substance abuse treatment first, the Department did not
make referrals for counseling services at that time.
Social worker Sonny Laform, who was assigned to the case in October 2013,
referred J.B. to Catholic Family and Child Services for individual and family counseling
on December 18,2013. This referral coincided with J.B.'s entry into detox and plan to go
to inpatient treatment thereafter. J.B. did not complete the referral for counseling.
Parental visits. J.B. participated in visits with KJ.B. in January 2013 and
regularly from March 2013 to January 2014, missing only a few visits within that time
period.
Incarceration. On January 24,2014, J.B. was found guilty of first degree unlawful
possession of a firearm and possession of a stolen firearm. He was sentenced to 74
months of incarceration. He was incarcerated at the time of the March 2014 termination
trial. While incarcerated, J.B. never sought contact with KJ.B. nor contacted Mr. Laform
to ask about KJ.B.
4
No. 32490-7-111
In re Welfare ofKJB.
ICWA notices. KJ.B. 's mother indicated she is Native American and identified
herself as having Cherokee, Hopi, and Cree ancestry. J.B. submitted a declaration stating
he has Blackfoot ancestry through his father, and he gave his father's name and date of
birth. His declaration also stated that his great, great grandmother was full-blooded Cree,
but he did not know her name or date of birth. The Department prepared a Family
Ancestry Chart. The chart failed to identify J.B. or his father as having Blackfoot
ancestry. The Department submitted notice of the pendency of parental termination
proceedings to various Cherokee, Cree, and Hopi tribes. No notice was sent to the
Blackfoot tribe. Accompanying each notice was the before-described Family Ancestry
Chart. For each notice sent to an individual tribe, the Department provided a copy to the
Bureau ofIndian Affairs (BIA). The Department did not receive any response from the
various tribes or the BIA.
The Department filed a termination petition on May 8, 2013. The case proceeded
to a termination trial on March 17-18, 2014. One month prior to trial, KJ.B.' smother
consented to an order terminating her parental rights to her daughter. At the time of trial,
KJ.B. had been in a safe and stable foster care home for 22 months, and had an
opportunity for adoption into a permanent family with her foster parents.
5
No. 32490-7-II1
In re Welfare ofKJB.
J.B. testified at trial that he was not going to be available to KJ.B. in the near
future due to his incarceration. He estimated his early release date from prison was just
under four years from the time of trial. J.B. acknowledged that he still needs drug
treatment and stated that he is now ready to get treatment. He stated that no parent should
be under the influence of drugs while raising a child and that using drugs has an impact
on the ability of a parent to provide a stable and permanent home for a child. He also
testified that he tried to keep in contact with the Department as much as possible
throughout the dependency, while working two jobs and battling his drug addiction.
Cristy Benge, who conducted 1.8. 's original drug and alcohol evaluation, testified
that J.B. is still in need of substance abuse treatment.
Social worker Marcinna Heine-Rath, assigned to the case from February 2013 to
October 2013, testified that prior to leaving intensive inpatient treatment in September
2013, J.B. "seemed motivated to do what was in the best interest for his daughter" and
"[h]ad been making [the] most of his visits." RP at 75. She testified that after leaving
treatment, J.B. reported that he had been going to Alcoholics Anonymous meetings and
connecting with his sponsor.
Ms. Heine-Rath observed several visits between J.B., KJ.B, and KJ.B.'s mother,
and one visit between J.B. and KJ.B. only. She testified the visits went well, with the
6
No. 32490-7-III
In re Welfare ofK.JB.
parents playing with K.J.B. and interacting with her. Ms. Heine-Rath testified she felt
K.lB.'s mother was a trigger for J.B. and his sobriety. At the time of trial, J.B. was still
in a relationship with K.J.B.'s mother.
When asked why she did not make a referral for J.B. to do individual counseling
after receiving Mr. Cabrera's report, Ms. Heine-Rath testified, "The recommendation was
for [J.B.] to complete [counseling] after he successfully completed his inpatient
treatment." RP at 103. She stated that if lB. had completed inpatient treatment, she
would have made a recommendation for individual or couple's counseling.
Finally, Ms. Heine-Rath testified she believes continuation of the parent-child
relationship diminishes K.J.B. 's prospects for early integration into a stable and
permanent home because K.J.B. needs the security of a permanent home. She also stated
that termination of lB.'s parental rights is in K.J.B.'s best interest so that K.J.B. can
move on and be a legal part of her foster family.
Mr. Cabrera also testified at trial, stating J.B.'s parenting questionnaire showed he
"has some common sense as far as what parenting is and what you should do." RP at
124. Mr. Cabrera observed one visit between both parents and K.J.B. and testified lB.
was nurturing and loving toward KJ.B., showing compassion and sensitivity toward her.
However, he described the bond between them as "[d]istant." RP at 138. J.B.'s
7
No. 32490-7-III
In re Welfare ofK.J.B.
interaction with KJ.B. was minimal, standing back and allowing the mother to parent
KJ.B., because he did not want to "further stress" the child. RP at 137.
Mr. Cabrera also testified that "in talking with [J.B.] and identifYing stresses in his
life, it turned more [into] an individual counseling session than it did into a parenting
instruction." RP at 122. He stated J.B.'s health questionnaire indicated some stress in his
life, including substance abuse and his relationship with KJ.B.'s mother. Mr. Cabrera
also stated J.B. 's relationship with KJ.B. 's mother was one of the triggers in his life. He
described J.R' s family history as "[v]ery harsh, very physical, had a lot of abuse, parents
weren't very instructive, wasn't raised in a structured home, parents didn't provide him
with any boundaries or limits." RP at 123.
As to his recommendation for couple's counseling, Mr. Cabrera testified he did not
specifY an exact time for J.B. to start but that he "encouraged him to start as soon as
possible." RP at 139. He stated there may be some benefit for a person starting couple's
counseling while actively using methamphetamine, but that it would not be as effective.
Finally, Mr. Cabrera testified that generally speaking, it is normal for substance
abuse and mental health issues to occur simultaneously, and that a mental health issue can
sometimes be a precipitating event to substance abuse. Additionally, he stated it is not
uncommon for people with mental health issues to self-medicate by using street drugs.
8
No. 32490-7-II1
In re Welfare ofK.J.B.
Mr. Lafonn testified that he made the referral for individual and family counseling
so that those services would be available to lB. after he completed his inpatient substance
abuse treatment. He also testified that his referral for counseling services asked the
service provider to do a mental health intake or assessment so "the practitioner could
properly diagnose if he had any sort of mental health diagnosis that might be affecting his
behaviors or leading him to using drugs and alcohol." RP at 199. He testified this
request was made because he believed "it was important that if in fact there was a co­
occurring issue that we could address it." RP at 199. However, he believed J.B. should
take substantial steps in his substance abuse treatment prior to the mental health intake
being conducted. A mental health assessment was never court ordered, and Mr. Lafonn
had no reason to believe the father had a mental health issue or co-occurring disorder.
Mr. Lafonn testified that overall lB. had a "semi-engagement" in his court-
ordered services because he had not followed through with his chemical dependency
treatment. RP at 184. He also stated lB. was "wonderful" in maintaining contact with
the Department, but that lB. has not contacted him since his incarceration in January
2014. RP at 184-85. However, Mr. Lafonn admitted he does not accept collect calls, he
did not provide J.B. with preaddressed stamped envelopes so he could communicate with
him, and he assumed J.B. had his address available to him while incarcerated.
9
No. 32490-7-111
In re Welfare ojK.JB.
Mr. Lafonn testified that he believed continuation of the parent-child relationship
diminishes K.1.B.'s prospects for early integration into a stable and pennanent home
because it would be a disruption to K.1.B.'s integration into her current foster family.
Additionally, he stated that tennination of J.B. 's parental rights is in K.1.R 's best
interests so that she can stay in her current home, be adopted by her current foster family,
and move forward in her life.
Guardian ad litem Mischa Theall testified that tennination of J.B.'s parental rights
was in K.J.B.'s best interests based on her need for pennanency. Ms. Theall did not
observe J.B. and K.J.B. together.
At the close of trial, the trial court entered an oral ruling and also written findings
of fact and conclusions of law tenninating J .B.' s parental rights. In ordering tennination,
the court found that the Department offered J .B. all necessary services. The court also
found that all elements ofRCW 13.34.180 had been established by clear, cogent, and
convincing evidence. Finally, the court found that lB. was unfit to parent and that
tennination was in K.1.B.'s best interests. In making these findings, the court noted that
there was no evidence of J.B. having a mental health issue requiring a mental health
assessment or counseling, and even if there was a potential mental health issue, experts
agreed lB.'s drug addiction needed to be addressed first. The court also noted that lB.'s
10
No. 32490-7-III
In re Welfare ofKJB.
incarceration will make him unavailable for an extended period of time to engage in
services or to parent KJ.B.
lB. appeals.
ANALYSIS
Where the trial court has weighed the evidence, appellate review is limited to
determining whether the court's findings of fact are supported by substantial evidence and
whether those findings support the court's conclusions oflaw. In re Dependency ofP.D.,
58 Wn. App. 18,25, 792 P.2d 159 (1990). "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 P.3d 470 (2011). When deciding whether substantial
evidence supports the findings of fact, the appellate court must consider'" the degree of
proof required.'" In re Dependency ofA.MM, 182 Wn. App. 776, 785-86, 332 P.3d 500(2014) (quoting P.D., 58 Wn. App. at 25). For termination proceedings, the burden is
"clear, cogent, and convincing evidence." A.MM, 182 Wn. App. at 784-85. Thus, "the
question on appeal is whether there is substantial evidence to support the findings in light
ofthe highly probable test." P.D., 58 Wn. App. at 25. Unchallenged findings are verities
on appeal. In re Mahaney, 146 Wn.2d 878, 895,51 P.3d 776 (2002). Finally, the trial
11
No. 32490-7-II1
In re Welfare 0/ K.JB.
court's credibility determinations receive deference on appeal from an order terminating
parental rights. A.MM, 182 Wn. App. at 786.
1. Whether the Department satisfied the ICWA notice requirements
lB. contends that the trial court erred in finding that the Department complied
with the notice requirements of the ICWA. He argues the Department should have
notified the Blackfoot tribe of the termination proceedings. He also argues that the
Department's failure to comply with ICWA's notice requirements resulted in the trial
court lacking jurisdiction to hear the termination proceeding.
The ICWA grants tribes the right to intervene in state court custody proceedings
involving an "Indian child." 25 U.S.C. § 1911(c); see also RCW 13.38.090. The statute
defines "Indian child" as "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 ofa member of an Indian tribe." 25 U.S.C. § 1903(4); see also
RCW 13.38.040(7). The Department must notifY "the Indian child's tribe" or the BIAI of
1 The BIA must be notified if a tribe's identity or location cannot be determined.
25 U.S.C. § 1912(a). "Under the interpretive regulations, notice of the termination
proceeding shall be sent to the appropriate BIA Area Director under the Secretary of the
Interior." In re Welfare o/MS.S., 86 Wn. App. 127, 136,936 P.2d 36 (1997) (citing 25
C.F.R. § 23.11(b)). More specifically, for proceedings in Washington State, "the
regulations require that notice be sent to the Portland, Oregon BIA office." Id. (citing 25
C.F.R. § 23.11(c)(11)).
12
No. 32490-7-111
In re Welfare ofK.J.B.
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 13.38.070(1). However, only federally recognized
tribes 2 are entitled to § 1912(a) notice. In re Welfare ofL.N.B.-L., 157 Wn. App. 215,
239,237 P.3d 944 (2010). "The State has the burden of proving that the notices sent
complied with the ICWA." In re Dependency ofE.s., 92 Wn. App. 762, 771, 964 P.2d
404 (1998).
Here, the parties agree that there was reason to know KJ.B. could be an Indian
child. On February 12,2014, lB. submitted a declaration stating he has Blackfoot and
Cree ancestry. KJ.B.'s mother also indicated she is Native American. The Department
submitted notice of termination proceedings to several Cherokee, Cree, and Hopi Indian
tribes, and provided copies of these notices to the BIA as well. The Department did not
receIve any responses.
2 The ICWA defines "Indian tribe" as "any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible for services provided to
Indians by the Secretary because of their status as Indians." 25 U.S.C. § 1903(8)
(emphasis added). A list of "Indian Entities Recognized and Eligible To Receive
Services From the United States Bureau ofIndian Affairs" is published yearly in the
Federal Register. See Indian Entities Recognized and Eligible To Receive Services From
the United States Bureau ofIndian Affairs, 80 Fed. Reg. 1942-48 (Jan. 14,2015).
13
No. 32490-7-III
In re Welfare ofK.JB.
The parties disagree as to whether the Department was required to notify the
Blackfoot tribe of the proceedings. The Department contends it did not notify the
Blackfoot tribe because the Blackfoot tribe is not federally recognized3 and is "different
and distinguishable" from the Blackfeet tribe, which is federally recognized. Response to
Motion for Accelerated Review at 19.
This court's other two divisions have decided cases with similar issues where a
party claimed Blackfoot ancestry and the Department did not notify the Blackfoot tribe.
In Division Two's decision, Welfare ofL.N.B.-L., the court determined the record
contained insufficient evidence "to demonstrate that the 'Black Foot out of the Algonquin
Nation' refers to the federally-recognized Blackfeet Tribe of the Blackfeet Indian
Reservation of Montana." 157 Wn. App. at 238 n.20. Because the Department failed to
notify the Cherokee and "Black Foot" tribes, the court remanded for proper notice to
both. Id. at 238. However, because the identity of the "Black Foot" tribe was not clear
from the record, the court stated the Department "should, on remand, notify the Portland
area director of the [BIA] of the termination orders." Id. at 238 n.20.
In Division One's decision, In re Dependency ofJA.F, the court determined the
record was sufficient where the Department provided general notice to the BIA that the
3 The Federal Register only lists the Blackfeet Tribe of the Blackfeet Indian
14
No. 32490-7-111
In re Welfare ofK.J.B.
action possibly involved "Indian children" without listing any affiliation with a particular
tribe, and the BIA responded, '" The child was determined to be non-Indian by Superior
Court: therefore the Indian Child Welfare Act of 1978 does not apply. Do not send future
notices.'" 168 Wn. App. 653, 664-65, 278 P.3d 673 (2012) (emphasis in original). The
Department received this response from the BIA prior to trial. Then, on the first day of
trial, the children's mother testified that she possibly had "Barefoot" tribe ancestry but
later stated it could have been Blackfoot instead. Id. at 665. The Department investigated
the matter by contacting the party's father but did not send any further notices to tribes or
to the BIA based on the mother's testimony. Id. Nonetheless, the court found the
Department's general notice to the BIA sufficient to fulfill its obligation under ICWA.
Id. at 666.
In this case, J.B. concedes that the Department was required to notifY only
federally recognized tribes. The Department cites Indian Entities Recognized and
Eligible To Receive Services From the United States Bureau of Indian Affairs, 79 Fed.
Reg. 4748-53 (Jan. 29, 2014) to support its assertion that the Blackfeet tribe is federally
recognized but the Blackfoot tribe is not and that the two are distinct tribes. J.B. does not
contest this assertion. Nor do we find any evidence in the record to contest the
Reservation of Montana. Indian Entities Recognized and Eligible, 80 Fed. Reg. at 1943.
15
No. 32490-7-III
In re Welfare ofK.JB.
Department's assertion. Because the record is clear that the Blackfoot tribe is not a
federally recognized tribe and because there is no evidence that J.B. was confused
concerning the two tribes, the Department was not required to notifY either the
unrecognized Blackfoot tribe or the recognized Blackfeet tribe of this proceeding. The
Department therefore complied with the ICWA notice requirements.
2. Whether all necessary services were expressly and understandably offered or
provided
When deciding whether to terminate the parental rights of a parent, Washington
courts apply a two-step process. In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d
1104 (2010). "The first step focuses on the adequacy of the parents" and requires the
Department to prove, by clear, cogent, and convincing evidence, the six termination
factors set forth in RCW 13.34.180(1).4 Id. '''Clear, cogent and convincing' means
4 The six termination factors that the Department must prove in a termination
hearing are:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to
RCW 13.34.130;
(c) That the child has been removed or will, at the time ofthe
hearing, have been removed from the custody ofthe parent for a period of
at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
16
No. 32490-7-III
In re Welfare ofK.JB.
highly probable.~' In re Welfare ofMR.H.~ 145 Wn. App. 10,24,188 P.3d 510 (2008). If
the Department meets its burden as to the six termination factors, "the trial court must
find by a preponderance of the evidence that termination is in the best interests of the
child." Id. (citing RCW 13.34.190(2)). Only if the first step is satisfied may the court
reach the second step. A.B., 168 Wn.2d at 911.
J.B. asserts that the Department did not timely offer or provide him with individual
counseling, couple's counseling, and a mental health assessment. To satisfy its statutory
burden under RCW 13.34. 180(l)(d), the Department must offer or provide "all necessary
services, reasonably available, capable of correcting the parental deficiencies within the
foreseeable future." A service is "necessary" if it is needed to address a condition that
understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future.
(0 That continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home. If the parent is incarcerated, the court shall consider
whether a parent maintains a meaningful role in his or her child's life based
on factors identified in RCW 13.34.145(5)(b); whether the department or
supervising agency made reasonable efforts as defined in this chapter; and
whether particular barriers existed as described in RCW 13.34.l45(5)(b)
including, but not limited to~ delays or barriers experienced in keeping the
agency apprised of his or her location and in accessing visitation or other
meaningful contact with the child.
RCW 13.34.180(1).
17
No. 32490-7-III
In re Welfare ofK.JB.
precludes reunification of the parent and child. In re Welfare ofes., 168 Wn.2d 51, 56
nJ, 225 P.3d 953 (2010). The Department must tailor the services offered to the
individual's needs. In re Dependency ofTR., 108 Wn. App. 149, 161,29 P.3d 1275(2001). However, because RCW 13 .34.180(1)(d) limits the services required to those
capable of remedying parental deficiencies in the "foreseeable future," the trial court can
find that the Department offered all reasonable services "[w]here the record establishes
that the offer of [other] services would be futile." MR.H, 145 Wn. App. at 25.
J.B. contends that the Department's three-month delay in referring him to
individual counseling, couple's counseling, and a mental health assessment made the
referrals untimely. He also argues that the delay in providing these services was
inconsistent with parent educator Esteban Cabrera's recommendation. He points to Mr.
Cabrera's testimony that he encouraged lB. to start counseling as soon as possible and
also Mr. Cabrera's recommendation that lB. "continues [sic] to participate in ongoing
individual and couple's therapy to address unresolved issues of trauma related symptoms
(i.e. rejection, guilt, etc.), after his successful completion of inpatient treatment." Ex. 6
(Parenting Assessment Summary for J.B. dated Sept. 9, 2013) (emphasis added).
lB. 's arguments are not supported by substantial evidence. Social worker
Marcinna Heine-Rath testified that she did not make a referral for counseling services
18
No. 32490-7-II1
In re Welfare ofKJB.
after receiving Mr. Cabrera's report because she believed Mr. Cabrera's recommendation
was for 1.B. to complete counseling after he successfully completed his inpatient drug
treatment. Mr. Cabrera testified he did not specifY a time for 1.B. to start counseling
services in his written recommendations. And while 1.B. focuses on the "continues"
verbiage of the recommendation, he ignores the clause "after his successful completion of
inpatient treatment" at the end of that same sentence. Thus, the evidence presented at
trial confirms that the Department acted consistent with Mr. Cabrera's recommendations
to wait to make the referrals for counseling.
After hearing this evidence, the trial court found "[t]he assessment recommended
that the father complete drug/alcohol in-patient treatment, participate in individual and
couples counseling once he completed in-patient treatment." CP at 20 (emphasis added).
"Because the trial court has the opportunity to hear the testimony and observe the
witnesses, its decision is entitled to deference." SJ, 162 Wn. App. at 881.
Consequently, the trial court's credibility determinations receive deference on appeal
from an order terminating parental rights. A.MM, 182 Wn. App. at 786. Substantial
evidence supports the trial court's finding as to the timing of the referral for counseling
services.
19
No. 32490-7-II1
In re Welfare ofKJ.B.
J.B. also contends that the counseling and mental health assessment were
necessary services for correcting his identified parenting deficiency of substance abuse
and thus should have been offered concurrently with his substance abuse treatment. J.B.
argues the evidence demonstrated he has trauma-related health issues that are co­
occurring with his substance abuse.
For his assertion that he has mental health issues co-occurring with his substance
abuse, lB. references testimony by Mr. Cabrera and social worker Sonny Laform that
mental health issues can lead to substance abuse and that they can be co-occurring issues.
He also cites Mr. Cabrera's testimony that it is not uncommon for people with mental
health issues to self-medicate by using street drugs. However, the record indicates both
witnesses were testifYing generally about co-occurring mental health issues and drug use,
rather than specifically as to lB.
lB. also relies on S.1., 162 Wn. App. 873. There, the trial court's dispositional
order required the mother to complete, among other services, substance abuse evaluation
and treatment and mental health services. Id. at 876. The Department knew that the
mother suffered from mental illness and substance abuse issues but failed to adequately
provide integrated mental health and·drug treatment services. Id. at 881-82. The S.J.
court noted the legislative finding that co-occurring mental health and drug dependency
20
No. 32490-7-II1
In re Welfare ofKJ.B.
issues are best resolved when treatment of both issues is integrated. Id. at 882. Based on
this finding, the s.J. court held that the Department failed to tailor the services to the
parent's needs. Id.s.J. is distinguishable from this case. J.B.'s court-ordered services were drug and
alcohol evaluation and treatment, random UA testing, and parenting assessment and
instruction. A mental health assessment and mental health counseling were never
ordered. Additionally, none of the social workers involved in the case testified that J.B.
had a mental health issue that required evaluation or services.
Mr. Cabrera testified that during his sessions with J.B., J.B. indicated he had a
difficult childhood and also identified several stressors in his life, including his substance
abuse and his relationship with K.1.B.'s mother. However, Mr. Cabrera did not
recommend a mental health evaluation or mental health services. He only recommended
counseling. Mr. Laform was the only person to recommend a mental health assessment.
He testified that his December 18, 2013 referral for counseling services asked the service
provider to do a mental health intake or assessment so "the practitioner could properly
diagnose if he had any sort of mental health diagnosis that might be affecting his
behaviors or leading him to using drugs and alcohol." RP at 199. But Mr. Laform also
stated he had no reason to believe that J.B. had a mental health issue or co-occurring
21
No. 32490· 7·III
In re Welfare ofK.JB.
disorder. Thus, the trial court's finding that there was no evidence of J.B. having a mental
health issue requiring a mental health assessment or treatment was supported by
substantial evidence.
J.B. next argues that had the Department made referrals for counseling services
earlier, the services would not have been futile. The record contradicts this argument.
Mr. Laform testified he believed J.B. should take substantial steps in his substance abuse
treatment prior to the mental health intake being conducted. He also testified that overall
lB. had a "semi·engagement" in his court· ordered services because he had not followed
through with his chemical dependency treatment. RP at 184.
Relatedly, the trial court entered findings that:
1.20 The father has not been able to demonstrate sobriety for any
significant period of time, despite being provide [sic] ample time and
opportunity to do so. He has engaged in criminal activity due to his
addiction. He described how his drug addiction impacted ... him and his
family and made him unavailable to parent. . .. He has attempted treatment
multiple times and has failed.
1.21 ... The father has a substance abuse addiction and continues
to struggle with sobriety. He has not been able to complete treatment and
continues to relapse. Although he indicates he is ready for treatment at this
time, he will be incarcerated for up to 74 months and will not be able to
complete services in the near future. He still needs to complete treatment
and demonstrate his ability to maintain sobriety once he is released from
incarceration. The near future for the child is a few months, not years. The
father's needs far exceed the near future timeframe for the child.
22
No. 32490-7-II1
In re Welfare ofK.J.B.
CP at 21. The trial court ultimately found that all necessary services reasonably available
had been offered, and that ``[t]here is little likelihood that conditions will be remedied so
that the child can be returned to her father in the near future." CP at 21.
J.B. does not challenge these findings of fact, and the court's unchallenged
findings are verities on appeal. Mahaney, 146 Wn.2d at 895. Additionally, these findings
are supported by substantial evidence, and they support the conclusion that this
termination factor was satisfied. J.B. admitted at trial that he was not going to be
available to KJ.B. in the near future due to his incarceration. He estimated his early
release date from prison was just under four years from the time of trial. He
acknowledged that he still needs drug treatment and stated that he is now ready to get
treatment.
Thus, the record establishes that the offer of counseling services or a mental health
assessment any earlier in the dependency would have been futile because of his continued
drug use. The trial court's finding that the services ordered under RCW 13.34.136 had
been expressly and understandably offered or provided and all necessary services,
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future had been expressly and understandably offered or provided is
supported by substantial evidence.
23
No. 32490-7-II1
In re Welfare ofK.J.B.
3. Whether continuation ofthe parent-child relationship diminished K.J.B. 's
prospects for early integration into a stable and permanent home
lB. contends that the Department failed to prove all the necessary elements to
show that continuation of his relationship with KJ.B. clearly diminishes her prospects for
early integration into a stable and permanent home. Specifically, he argues that the trial
court failed to consider the 2013 amendment to RCW 13 .34.180( 1)( t) regarding
incarcerated parents.
The 2013 amendment at issue in this case is emphasized here:
That continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent home. If
the parent is incarcerated, the court shall consider whether a parent
maintains a meaningful role in his or her child's life based on factors
identified in RCW 13.34. 145(5) (b); whether the department or supervising
agency made reasonable efforts as defined in this chapter,' and whether
particular barriers existed as described in RCW 13.34. 145(5) (b) including,
but not limited to, delays or barriers experienced in keeping the agency
apprised ofhis or her location and in accessing visitation or other
meaningful contact with the child.
RCW 13.34.180(1)(t) (emphasis added). This new language references
RCW 13 .34.145( 5)(b), which provides a nonexhaustive list of six factors the court may
also consider as part of its "meaningful role" assessment. These factors include:
(i) The parent's expressions or acts of manifesting concern for the
child, such as letters, telephone calls, visits, and other forms of
communication with the child;
24
No. 32490-7-III
In re Welfare ofK.J.B.
(ii) The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the purpose of
complying with the service plan and repairing, maintaining, or building the
parent-child relationship;
(iii) A positive response by the parent to the reasonable efforts of
the department or the supervising agency;
(iv) Information provided by individuals or agencies in a reasonable
position to assist the court in making this assessment, including but not
limited to the parent's attorney, correctional and mental health personnel, or
other individuals providing services to the parent;
(v) Limitations in the parent's access to family support programs,
therapeutic services, and visiting opportunities, restrictions to telephone and
mail services, inability to participate in foster care planning meetings, and
difficulty accessing lawyers and participating meaningfully in court
proceedings; and
(vi) Whether the continued involvement of the parent in the child's
life is in the child's best interest.
RCW 13.34.l45(5)(b).
The statute's legislative history suggests the purposes of the 2013 amendment are
to assure that a parent's incarceration should no longer tip the balance toward termination,
and to require courts to make individualized determinations when deciding whether an
incarcerated person's parental rights should be terminated. SUBSTITUTE H.B. 1284, 63d
Leg., Reg. Sess. (Wash. 2013).
In support of his argument that the trial court erred, J.B. relies on A.MM In
A.MM, Division One of this court reversed a termination order because there was no
evidence in the record that the trial court considered the 2013 amendment to
25
No. 32490-7-II1
In re Welfare ofK.J.B.
RCW 13.34.180(1)(f). A.MM, 182 Wn. App. at 786-87. There, the father was
incarcerated for all but a month and one-half of the dependency. Id. at 780.
The Department attempts to distinguish A.MM by arguing that here the
incarcerated parent was incarcerated for only 51 days at the end of the entire dependency.
The Department's argument would be persuasive but for the mandatory language
contairied in the amended statute. RCW 13.34.180( 1)(f) provides that "[ i]fthe parent is
incarcerated, the court shall consider" three factors. (Emphasis added.) The first is
whether the parent "maintains a meaningful role in his or her child's life," the second is
whether the Department made reasonable efforts to remedy the parental deficiencies, and
the third is whether barriers of incarceration interfered with the parent's efforts to
maintain meaningful contact with the child and participate in required assessments,
services, and court proceedings. The amended statute does not contain an exception to
the mandatory language. We therefore will not imply one.
Nevertheless, a failure to weigh the required considerations will not require
reversal if the State's case is strong or if the factors are not contested. In re
Termination ofMJ. & MJ., Nos. 3232l-8-III, 32322-6-III; 2015 WL 1945057, at
*5 (Wash. Ct. App. Apr. 28, 2015). Here, once incarcerated, J.B. made no effort
to playa meaningful role in his daughter's life. The record also establishes that the
26
No. 32490-7-II1
In re Welfare ofK.J.B.
Department made reasonable attempts to remedy lBo's parental deficiencies.
Finally, there is no evidence that barriers of incarceration impacted lBo's ability to
maintain meaningful contact with his daughter nor is there evidence that barriers of
incarceration impacted J.B. 's required assessments, services, or his ability to
participate in court proceedings. Therefore, unlike A.MM, we conclude that the
trial court's failure to weigh the required considerations was harmless error, which
does not require reversal.
4. Whether it was in K.J.B. 's best interests to terminate J.B. 's parental rights
lB. argues that the trial court erred when determining it was in his daughter's best
interests to terminate his parental rights. He argues that the trial court erred in
determining this second step without first requiring the Department to establish the six
elements of the first step.
The best interests analysis is the second step in a two-step process for termination
proceedings. In re Welfare ofA.B., 168 Wn.2d 908, 911, 232 P 3d 1104 (2010). The
court may only reach this second step if the first step-review of the six termination
factors listed above-is satisfied. Id. The court must find by a preponderance of the
evidence that termination is in the child's best interests. MR.R, 145 Wn. App. at 24
27
No. 32490-7-1II
In re Welfare ofK.JB.
(citing RCW 13.34.190(2)). "[1]t is 'premature' for the trial court to address the second
step before it has resolved the first." A.B., 168 Wn.2d at 925.
Because we resolved the first step in favor of the Department, and because the
factual record firmly establishes the second step, we affirm the trial court's determination
that it was in the best interests ofKJ.B. to terminate J.B.'s parental rights.
Lawrence-Berrey, J.
WE CONCUR:
Brown, A.CJ:
Fearing, J. ~(
28