In Re The Welfare Of: Q.t., Corrie Rosier v. Dshs

J.U i i w'1 L • 11: I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Welfare of No. 74348-1-
Q.T., DOB01//22/06;
J.B., DOB 112/17/13,
Minor Children under the age of 18.
WASHINGTON STATE DEPARTMENT
OF SOCIAL & HEALTH SERVICES,
Respondent,
v.
UNPUBLISHED OPINION
CORRIE ROSIER,
FILED: January 23, 2017
Appellant.
Verellen, C.J. — Corrie Rosier appeals the trial court's order terminating her
parental rights to hertwo children. Rosier challenges the trial court's finding that she
was currently unfit to parent the children. She also challenges the trial court's denial
of her motion to reconsider or vacate the termination order based on new evidence.
We affirm.
No. 74348-1-1/2
FACTS
Rosier is the mother of daughter Q.T., born January 22, 2006, and son J.B.,
born November 17, 2013.1 The Department first became involved with Rosier when
Q.T. was born prematurely and Rosier tested positive for cocaine at the hospital.
QT. was placed for several weeks at Pediatric Interim Care Center, a facility for
babies prenatally exposed to drugs. Rosier agreed to participate in a substance
abuse evaluation and random urinalysis testing, and Q.T. was returned to her care.
In November 2011, Rosier's 11-month-old daughter S.R. drowned in a bathtub
while in Rosier's care. Officers investigating the incident reported that Rosier
"appeared slow and lethargic and did not appear to know her address."2 The
Department filed a dependency petition and Q.T. was placed in foster care. The
court ordered Rosier to participate in a substance abuse evaluation and any
recommended treatment, random urinalysis testing twice a week, mental health
counseling and a parenting assessment.
In May 2012, based on the recommendations of her substance abuse
evaluation, Rosier entered inpatient substance abuse treatment at Recovery Centers
of King County. However, a couple of months after graduating from the program,
Rosier tested positive for oxycodone. Rosier was referred to several different
outpatient substance abuse treatment programs but did not comply or complete any
of them.
1 Rule also has four other children: a son, M.R., who was over the age of 18 at
the time of the termination trial, twins O.R-T. and D.R-T., who live with their father in
California, and a daughter, NT., who lived with her father in Washington. These
children are not at issue in this appeal.
2 Clerk's Papers (CP) at 7.
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In March 2013, Rosier moved into Passage Point, a supportive housing
program for parents and children that offers services and case management. During
this time, Rosier continued to use alcohol, opiates and methamphetamine, despite
knowing she was pregnant with J.B. Department social worker Kristie Archie and
court-appointed special advocate (CASA) David Wilma both observed Rosier attend
at least one meeting with the Department while under the influence of drugs.
In November 2013, Rosier gave birth to J.B. At the hospital. Rosier denied
ever having used drugs in the past. However, hospital staff noted concern that
Rosier continually requested high doses of painkillers despite having a relatively
uncomplicated delivery. The Department filed a dependency petition and J.B. was
placed in foster care. Urinalysis testing showed that Rosier continued to use opiates
and methamphetamine. Rosier also sometimes fell asleep at visits with Q.T. and J.B.
In June 2014, Rosier entered Family Treatment Court, a specialized
dependency court in King County that provides extra support and services for parents
with substance abuse issues. Rosier continued to test positive for alcohol and
methamphetamine use. Rosier was also caught forging signatures that she used as
proof of her attendance at AA/NA meetings. In August 2014, Rosier was referred to
Prosperity Counseling and Treatment Services, an inpatient facility for women with
mental health and substance abuse issues. The facility discharged Rosier in a little
over two weeks for noncompliance with program rules and disruptive behavior.
Rosier was discharged from Family Treatment Court in part for her continued
substance use and failure to comply with treatment.
No. 74348-1-1/4
In November 2014, Sue D'Williss, who had previously been a visit supervisor
for Rosier's visits, offered to care for the children. The Department began the
process of transitioning Q.T. to D'Williss's home. D'Williss allowed Rosier to live in a
mother-in-law apartment on the property and to have liberal contact with the children,
on the condition that Rosier refrain from using drugs and alcohol. A few days later,
D'Williss took Rosier grocery shopping and Rosier bought alcohol. D'Williss
reminded Rosier that she could not stay on the property if she drank it. Rosier
consumed so much alcohol that D'Williss could not awaken her the following
morning. D'Williss told Rosier she could no longer live there.
The Department filed a termination petition as to both children, alleging that
Rosier's continued substance use made her unfit to parent the children. Even after
the petition was filed, Rosier continued to use methamphetamine and cocaine.
Trial on the petition took place between August 3 and September 2, 2015. At
the time of trial, Q.T. was nine years old and J.B. was almost two years old. Q.T. had
been out of Rosier's care for nearly four years and J.B. had never lived with Rosier.
The trial court heard testimony from 28 witnesses and reviewed 109 exhibits. On
October 28, 2015, the trial court entered findings of fact and conclusions of law and
an order terminating Rosier's parental rights.
On November 2, 2015, Rosier filed a motion for reconsideration under CR
59(a) and for relief from judgment under CR 60(b), arguing that she had continued to
make progress in her services during the two months between the close of evidence
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and the entry of the termination order. The trial court denied the motion. Rosier
appeals.3
ANALYSIS
Parental rights are a fundamental liberty interest protected by the United
States Constitution.4 To terminate parental rights, the State must satisfy a two-step
test. First, it must prove each of six statutory elements of RCW 13.34.180(1) by clear,
cogent, and convincing evidence:
(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 of the hearing,
have been removed from the custody of the parent for a period of at
least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided and all necessary
services, reasonably available, capable of correcting the parental
deficiencies within the foreseeable future have been expressly and
understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so that
the child can be returned to the parent in the near future . . . ; [and]
(f) That the continuation of the parent and child relationship clearly
diminishes the child's prospects for early integration into a stable and
permanent home.[5]
If the trial court finds that the State has met its burden under RCW 13.34.180, it may
terminate parental rights if it also finds by a preponderance of the evidence that
3 The fathers of Q.T. and J.B. are unknown. Their parental rights were
terminated in December 2014 and June 2015, respectively, and they are not parties
to this appeal.
4 Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982).
5 RCW 13.34.180(1).
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termination is in the "best interests" of the child.6
In addition to the statutory prerequisites, the State must also prove that the
parent is "currently unfit to parent."7 In order to prove unfitness, the State must show
that the parent's deficiencies make him or her incapable of providing "'basic nurture,
health, or safety.'"8 "Where a trial court finds that the six statutory prerequisites have
been met, this constitutes an implicit finding of unfitness."9
Findings of fact must be supported by substantial evidence.10 Unchallenged
findings of fact are verities on appeal.11 In determining whether substantial evidence
supports the trial court's findings, we will not weigh the evidence or the credibility of
witnesses.12
Parental Unfitness and Likelihood of Reunification
Rosier contends the trial court erred in finding she was unfit to parent because
the Department failed to demonstrate a nexus between her substance abuse and her
parenting abilities. She contends that without a finding of unfitness, the Department
cannot establish the "little likelihood" element in RCW 13.34.180(1)(e). We disagree.
The trial court's findings that Rosier was currently unfit and that there was little
6 RCW 13.34.190(1).
7 Matter of B.P. v. H.O.. 186 Wn.2d 292, 312-13, 376 P.3d 350 (2016).
8jd, at 313 (quoting In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062(2004)).
10 In re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011).
11 In re Interest of J.F., 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).
12 In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003).
No. 74348-1-1/7
likelihood the children could be returned to her in the near future were supported by
substantial evidence.
Here, Rosier's primary parental deficiency was her substance abuse. Rosier
stipulated in J.B.'s dependency order that she "has a history of drug and excessive
alcohol use" and that this was a basis for removal because "[t]he child has no parent,
guardian or custodian capable of adequately caring for the child, such that the child is
in circumstances which constitute a danger of substantial damage to the children's
psychological or physical development."13 When a parent agrees to facts in a
dependency order, the Department is not required to reprove these facts in a
termination proceeding.14
A finding of unfitness, however, requires more than the determination that a
parental deficiency exists.15 Here, the record supports the finding that Rosier's drug
use and her refusal to acknowledge its impact rendered her unfit to parent the
children. Both Q.T. and J.B. were removed from Rosier's care at birth because of
Rosier's drug use. At a Department meeting in March 2013, Rosier wanted Q.T.
placed with her, but Rosier showed up to the meeting while under the influence.
Rosier lost several valuable opportunities to reunify with her children, such as Family
Treatment Court and living with the D'Williss family, because of her substance use.
Rosier even continued to use drugs after the Department filed a termination petition
and she was aware that her parental rights could be terminated.
13 Ex. 22 (Findings 2 & 2.3).
14 In re Dependency of K.R.. 128Wn.2d129, 141-42, 904 P.2d 1132 (1995).
15 In re Matter of K.M.M.. 186 Wn.2d 466, 493, 379 P.3d 75 (2016).
No. 74348-1-1/8
Several witnesses testified regarding the nexus between substance use and
parenting ability. When asked why Rosier's sobriety was critical, the court appointed
special advocate (CASA) David Wilma testified, "Because the mother had been
documented as using drugs and alcohol and they were impacting her ability to
perform as a parent and to sustain employment."16 According to Tara Wetmore,
Rosier's chemical dependency treatment provider, the fact that Rosier "wasn't staying
sober and . . . wasn't showing up for UAs" even though she wanted to regain custody
of her children indicated that "despite consequences[,] she cannot control her use."17
Pauline Duke, the children's guardian ad litem, testified that a parent using drugs
could not meet Q.T. and J.B.'s particularized needs for structure and stability. And
Chad Baker, a Department social worker, testified that substance abuse was a risk to
children because "it alters a parent's ability to be able to make sound judgment, it
alters the parent's ability to be able to maneuver their environment in a safe and
stable way. It increases the likelihood that a parent will have or engage in risky
behaviors in which they normally may not, it—there's a . . . likelihood that a parent
using substances may place their children in dangerous situations or around people
who may."18
Relying on In re Welfare of C.B.,19 Rosier argues that the court could not rely
solely on her past history of drug use in making the "little likelihood" finding. But C.B.
is not analogous. In C.B., the Department originally removed the children from the
16 Report of Proceedings (RP) (Aug. 4, 2015) at 267.
17RP(Aug. 11, 2015) at 759.
18RP(Aug. 10, 2015) at 497.
19 134 Wn. App. 942, 143 P.3d 846 (2006)
8
No. 74348-1-1/9
mother due to her lengthy history of drug use. By the time of trial, the mother had
nearly completed a substance abuse treatment program and the evidence was
undisputed that "she was doing well in her recovery" and her prognosis for sustained
sobriety was good.20 The court held that, once a parent shows that "she has been
improving" the State may not rely "solely on past performance to prove that it is highly
probable that there is little likelihood that the parent will be reunited with her children
in the near future."21
Here, however, the trial court's finding that reunification would not occur in the
near future was not premised merely on the mother's past failed treatment attempts.
Instead, several witnesses testified that it would take between six months and a year
to transition J.B. and Q.T. to Rosier's care. And this timeline assumed that Rosier
was fully participating in substance abuse treatment, something she had never done
during the lengthy dependency proceedings. The trial court did not err in finding that
Rosier's failure to adequately address her substance use rendered her currently unfit
to parent, nor in finding that there was little likelihood that the children could have
been returned to Rosier in the near future.
CR 59 and CR 60
After the trial court entered its written findings of fact and conclusions of law
terminating Rosier's parental rights, Rosier sought reconsideration based on CR
59(a)(4), "newly discovered evidence . . . which the party could not with reasonable
diligence have discovered and produced at the trial" and CR 59(a)(9), where
20 CJL 134 Wn. App. at 959.
21 Id. at 953
No. 74348-1-1/10
"substantial justice has not been done." Rosier also moved for relief under
CR 60(b)(11), which allows for a judgment to be vacated for "[a]ny other reason
justifying relief from the operation of the judgment." In support of her motion, Rosier
provided (1) a letter from her mental health therapist stating that Rosier attended her
appointments in June, July, August and October, (2) reports from her chemical
dependency treatment group from July, August and September stating that Rosier
was in partial compliance with treatment, and (3) negative urinalysis test results for
the months of April, July, August, September and October.
The trial court denied the motion. The order reads, in relevant part, as follows:
2) The mother's motion for reconsideration under CR 59 is DENIED;
3) The mother's motion to set aside the judgment under CR 60 is
DENIED because she failed to seek an order to show cause under
CR and LCR 60(e) and she has not shown that substantial justice was
not done under CR 60(b)(11).[22]
This court reviews the denial of a motion under CR 59 or CR 60 for abuse of
discretion.23 A trial court abuses its discretion only if its decision is manifestly
unreasonable or based on untenable grounds or reasons.24
Rosier contends that the trial court abused its discretion in denying her request
for relief under CR 59 because it summarily denied the motion without giving a basis
22 CP at 742-43.
23 Isla Verde Int'l Holdings. Inc. v. City of Camas. 99 Wn. App. 127, 142, 990
P.2d 429 (1999).
24 Clark v. Teng, 195 Wn. App. 482, 492, 380 P.3d 73 (2016).
10
No. 74348-1-1/11
for its ruling. But we may affirm a trial court's decision on any basis supported by the
record.25
Here, Rosier failed to establish that she had newly discovered evidence
justifying reconsideration of the termination order. To support a motion for
reconsideration, "newly discovered evidence" must (1) probably change the result of
the trial; (2) be discovered after the trial; (3) not have been discoverable before trial
by the exercise of due diligence; (4) be material; and (5) be more than merely
cumulative or impeaching.26 The absence of any one of these five factors justifies
the denial of a motion for reconsideration.27 Much of the evidence Rosier sought to
introduce was already before the trial court. And the remaining evidence regarding
her participation in September and October would not have changed the result
because it was insufficient to overcome the evidence of years of noncompliance.
Nor does Rosier establish that substantial justice was not done. The basic
question posed by this ground "is whether the losing party received a fair trial."28
"Courts rarely grant reconsideration under CR 59(a)(9) for lack of substantial justice
because of the other broad grounds afforded under CR 59(a)."29 Here, the trial court
heard testimony from 28 witnesses and reviewed 109 exhibits over the course of 13
days of trial. Rosier does not establish that she received anything less than a fair
trial.
25 Backlund v. Univ. of Washington. 137 Wn.2d 651, 670, 975 P.2d 950 (1999)
(citing LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989)).
26 Holadav v. Merceri, 49 Wn. App. 321, 329, 742 P.2d 127 (1987).
27 \± at 330.
28 Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964).
29 Sligarv.Odell, 156 Wn. App. 720, 734, 233 P.3d 914 (2010)
11
No. 74348-1-1/12
Rosier argues that trial court denied her CR 60 motion based on the wrong
legal standard because "substantial justice" is the standard for a CR 59(a)(9) motion.
Again, however, we may affirm on any basis supported by the record. Rosier did not
demonstrate she was entitled to relief under CR 60(b)(11). Despite its broad
language, the use of CR 60(b)(11) is "not a blanket provision authorizing
reconsideration for all conceivable reasons."30 Instead, the use of CR 60(b)(11) is
confined to situations involving "'extraordinary circumstances, which constitute
irregularities extraneous to the proceeding.'"31 Rosier's participation in services for a
two-month period is not an extraordinary circumstance in light of the length of the
dependency proceedings.
In the alternative, Rosier contends that because nearly two months elapsed
between the close of evidence and the entry of the termination order, due process
required the trial court to reopen the termination proceedings and consider her new
evidence. But "the statute does not require that termination orders be entered within
a specified period after the fact-finding hearing, and the trial evidence does not
evaporate with the passage of time. Whether delay requires reopening the evidence
on the issue of current unfitness is an inquiry into what (if anything) has meaningfully
changed."32
As discussed above, Rosier failed to demonstrate that anything had
meaningfully changed after the close of evidence. Rosier offered evidence that she
30 State v. Keller, 32 Wn. App. 135, 141, 647 P.2d 35 (1982).
31 Union Bank, N.A. v. Vanderhoek Assocs., LLC, 191 Wn. App. 836, 845, 365
P.3d 223 (2015) (quoting State v. Ward, 125 Wn. App. 374, 379, 104 P.3d 751(2005)) (internal quotation marks omitted).
32 In re Dependency of T.R., 108 Wn. App. 149, 158, 29 P.3d 1275(2001).
12
No. 74348-1-1/13
was participating in most of her sessions with her substance abuse treatment
provider. But her treatment provider testified at trial that he had to put Rosier on a
reduced frequency schedule because otherwise, Rosier missed too many sessions.
And while Rosier submitted evidence of some clean urinalysis tests, the dates on the
tests indicate that there was at least one week during which Rosier did not submit
any urinalysis samples. Due process did not warrant reopening the termination
proceedings.
We affirm the trial court's order terminating Rosier's parental rights.
WE CONCUR:
^u,.y
13