In re the Welfare of: A.K.J.M.W.

FILED
April 23, 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
) No. 32084-7-111
!
l. In re the Welfare of: ) Consolidated with
) No. 32089-8-111
1'I AK.J.M.W., )
)
I DOB: 01/03/10 )
) UNPUBLISHED OPINION
I
i
j
A person under the age of eighteen
years.
)
)
I
!
BROWN, AC.J. - EA (mother) and LW. (father) appeal the juvenile court's
i~
order terminating their parental rights over AK.J.M.W. (AW.). E.A. first contends
I substantial evidence does not support the court's findings that (A) under RCW
1 13.34.180(1) all necessary services were expressly and understandably offered or
provided; and next she contends little likelihood exists conditions would be remedied so
1
i
AW. could be returned to EA in the near future; and (B) under RCW 13.34.190(2) it
j was in AW.'s best interest to terminate her mother's parental rights. Additionally, EA
I
I contends (C) there was ineffective assistance of counsel and (D) a public trial right
I violation. LW. joins in Band C, and separately contends (E) he was denied
I constitutional due process by deficient notice of the rescheduled termination trial.
I,
!
i
Because the record supports each challenged finding, and we find no reversible
constitutional error, we a'ffirm.
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of A.K.J.M. W
FACTS
In July 2011, the Department of Social and Health Services (DSHS) removed
AW. from L.W. and E.A's home and filed a dependency petition based on the parents'
domestic violence in the presence of AW. and AW.'s exposure to drugs and
prostitution. On October 13, 2011, the parents agreed to a dependency order and
agreed to participate in drug and alcohol evaluations, random urinalysis (UAs),
parenting education, and a domestic violence assessment. The mother agreed to
complete a mental health evaluation. DSHS social worker Tara Camp made referrals
for necessary services. From the time of dependency to termination, DSHS offered the
following services to help the parents:
1. Substance abuse services provided to E.A. On October 7, 2011, chemical
dependency counselor Susan Tempel evaluated E.A for substance abuse. During the
evaluation, EA reported daily use of marijuana over the past year, but stated she
stopped using it in May 2011. When Ms. Tempel informed E.A of her intent to
recommend intensive outpatient treatment, EA became upset, agitated, verbally
abusive, and failed to complete the evaluation.
In November 2011, chemical dependency counselor Linda Gonzalez conducted
a second substance abuse evaluation. EA reported her drug and alcohol use began at
age 14, but she did not feel she had a chemical dependency problem. During her first
appointment, EA was very defensive and did not return again until January 2012.
2
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of A.K.J.M.W.
Based upon her interview with E.A., testing, and her collateral contacts, Ms. Gonzalez
diagnosed E.A. as alcohol and cannabis dependent and recommended she participate
in intensive outpatient treatment, followed by a relapse prevention program. Ms.
Gonzalez estimated this treatment program would take one year. E.A. never attended
treatment sessions, and Ms. Gonzalez closed her file in February 2012. In May 2012,
E.A. participated in intensive outpatient treatment with chemical dependency counselor
John Winston. While she initially did fine, she later became hostile and angry during a
group session, yelling and swearing at Mr. Winston in an uncontrollable manner. E.A.
was discharged from the program after three weeks due to her behavior. E.A. 's social
worker encouraged E.A. to seek treatment with another provider and on July 13, 2012,
E.A. participated in a substance abuse evaluation with chemical dependency counselor
Michelle Roberts. E.A. reported she had used marijuana and alcohol, indicating her last
use of marijuana was December 31,2010. Ms. Roberts did not feel E.A. was honest.
Ms. Roberts was unable to form a diagnosis or treatment recommendation because
E.A.'s defensiveness score was too high.
Later in July 2012, E.A. participated in a substance abuse evaluation at Sundown
M. Ranch. E.A. reported primary use of marijuana, a prior attempt at outpatient
treatment, a prior mental health diagnosis, and a current pregnancy. Sundown staff
diagnosed her as chemically dependent, but reported to be in remission. However,
E.A.'s defensiveness score on testing indicated she might not be candidly reporting
information. Following the assessment, E.A. was admitted to outpatient treatment.
3
No. 32084-7-111 cons. wi 32089-8-111
In re Welfare of A.K.J.M.W.
Beginning on August 3, 2012, E.A. participated in an intensive outpatient
treatment group at Sundown with treatment provider by Jari Hickman. E.A. was
required to attend group four times per week, three hours per session, and was aware
she risked discharge for noncompliance. During group sessions, E.A. was
argumentative and defensive. She was discharged from the program on August 28,
2012 for failure to regularly attend the program. Sundown treatment directors
determined E.A. should participate in inpatient treatment. The outpatient treatment
director attempted to reach E.A. to discuss inpatient treatment, but E.A. did not return
the call and never returned to the treatment facility. On October 25, 2012, E.A.
submitted to a random UA, which tested positive for marijuana and amphetamines. She
tested positive again for marijuana in March 2013.
2. Domestic violence and anger management services provided to EA and
L. W. Domestic violence treatment provider, Reynaldo Chavez, received a referral to
assess E.A.'s anger management in October 2011. E.A. suffered a dysfunctional
childhood, growing up in an extremely violent home. She experienced instability in her
relationships including violence, domestic violence, and physical and emotional abuse.
She described her relationship with LW. as unstable, characterized by conflict and
turmoil.
E.A. disclosed the couple was verbally and physically aggressive toward each
other. Mr. Chavez'S testing showed E.A. expressed anger explosively. He explained
such an individual has poor skills to cope with stress, frustration, depression, anxiety,
4
I
r
f
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AKJ.M.W.
and parenting. When such a person blows up, the resulting anger can be physical,
verbal, and very violent. He recommended EA participate in a minimum one-year
program to help her understand the impact of violence on her life and on her child, and
to identify ways to break the cycle and provide a positive nurturing environment.
Shortly after he completed EA's assessment, Mr. Chavez started providing her
domestic violence education. E.A attended inconsistently, frequently canceling
appointments. Mr. Chavez closed her case in March 2012. From November 2011
through March 2012, EA made no progress towards the program goals. At closure,
she still needed at least another year of domestic violence treatment. EA. and LW.'s
relationship remained volatile during this time period. In March 2012, therapist Tawnya
Wright noted visible bruising on EA's neck. Ms. Wright attempted to talk with EA
about the impact of domestic violence on AW" without progress.
DSHS then referred EA to domestic violence treatment provider Rose Roberson
who met with EA for 10 sessions from April 25,2012 to July 12, 2012. She was
regularly rescheduling EA.'s sessions to try to accommodate EA.'s consistent
cancellations. Ms. Roberson noted E.A appeared guarded, minimizing the seriousness
of her relationship with LW. She identified E.A.'s problem as pervasive. Ms. Roberson
suspected EA had an underlying bipolar disorder and believed a therapist could not be
effective until EA was medically stabilized. Ms. Roberson terminated E.A from
services, but assessed EA still had anger management problems.
5
j
I
l
I
1 No. 32084-7-111 cons. wI 32089-8-111
In re Welfare of A. K.J. M. W.
DSHS referred L.W. to Ms. Roberson. She noted L.W. tended to minimize the
seriousness of his behavior. Ms. Roberson recommended L.W. participate in a six-
month anger management program and participate in random UAs. In March 2012, Ms.
Roberson suspended L.W. from her program due to missed appointments. Police
arrested L.W. on domestic violence charges later that month and Ms. Roberson was
asked to reinstate him in her program. Ultimately, he stopped attending; services were
terminated in September 2012. At the time of the termination hearing, L.W. was
incarcerated in a Texas jail for pending domestic violence charges.
3. Mental health services provided to E.A. Following entry of the dependency
disposition order on AW., E.A participated in a mental health exam at Central
Washington Comprehensive Mental Health, and the evaluator recommended mental
health treatment. On March 3, 2012, therapist Patricia Byers assessed E.A and
determined she was moderately depressed and suffered from post-traumatic stress
disorder (PTSD). For treatment to be successful, Ms. Byers noted E.A would need to
be clean and sober. Ms. Byers developed a treatment plan with E.A and estimated
treatment would span one to two years, assuming E.A was fully engaged. At the end of
their 16 sessions, Ms. Byers did not feel E.A met their treatment goals. During their
last session on September 15, 2012, E.A became very angry and verbally abusive
toward Ms. Byers and was unable to deescalate; Ms. Byers had to ask her to leave the
office. E.A did not return for any more sessions.
6
No. 32084-7-111 cons. w/32089-8-III
In re Welfare of A.K.J.M. W
E.A. then self-referred to Doug Cheatham, another mental health counselor.
E.A. wanted Mr. Cheatham to provide her domestic violence counseling, but Mr.
Cheatham was not a state-certified domestic violence provider. The dependency court
determined E.A. could see Mr. Cheatham for counseling, but not for domestic violence
counseling. E.A. did not accept her social worker's offer to make a referral to a Yakima
domestic violence counseling provider. E.A. stopped seeing Mr. Cheatham when she
moved to Texas in March 2013.
4. Psychological and psychiatric evaluations for E.A. On May 3, 2012,
psychologist Naughne Boyd assessed E.A. E.A. 's test profile was consistent with a
person who initially had positive interactions with a service provider but if challenged,
could turn hostile, angry, or explosive. E.A.'s three problem areas included domestic
violence, marital problems, and her assaultive history. Dr. Boyd explained to benefit
from treatment, E.A. would need to feel liked, trusted, and believed by her therapist. Dr.
Boyd said it would be reasonable to expect E.A. would have periods where she would
maintain and comply with a service provider, followed by periods of noncompliance.
E.A.'s repression of her shortcomings made diagnosis somewhat difficult. Dr. Boyd
diagnosed marijuana dependency, in remission, PTSD symptoms (but not necessary
the disorder), possible bipolar disorder, strong indications of histrionic personality traits
and narcissistic. As a result of her assessment, Dr. Boyd concluded E.A. had significant
issues with anger management as reflected in her domestic violence issues. While E.A.
was friendly and outgoing, she could quickly become irrational and angry. Dr. Boyd
7
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of AK.J.M. W.
noted evidence of E.A's willingness to distort the truth to get what she wanted. Dr.
Boyd opined when E.A was involved in a fight or caught up in emotion, she could not
pay attention to her child's needs. Dr. Boyd recommended E.A participate in and
complete all recommended services including anger management, individual therapy,
parenting education, and random UAs. Dr. Boyd recommended referral to a psychiatrist
to fine tune E.A's diagnosis and make appropriate medication recommendations.
In August 2012, E.A contacted psychiatrist Dr. Philip Rodenberger. She
requested a psychiatric evaluation and notified him of the DSHS's involvement in her
services. Dr. Rodenberger requested additional background information from DSHS,
which the parties' current social worker, Angela Gonzalez,1 provided. Dr. Rodenberger
requested E.A complete a drug and alcohol evaluation before completing the
psychiatric evaluation with him. E.A did not participate in the requested drug and
alcohol evaluation and did not return to Dr. Rodenberger to complete the psychiatric
evaluation.
5. Parenting assessments provided to E.A. and L. W. DSHS asked therapist,
Tawnya Wright, to assess E.A and L.W. for parenting needs. Ms. Wright was unable to
complete L.W.'s assessment due to multiple incarcerations and work conflicts. She
evaluated E.A in February 2012. The tests showed E.A' experienced a significant
amount of stress in her life to a point it might interfere with parenting. Ms. Wright
observed E.A often expressed anger and disdain for DSHS and most professionals
1Angela Gonzalez's full name is used to distinguish from Linda Gonzalez, E.A.'s
chemical dependency counselor.
8
No. 32084-7-111 cons. wI 32.089-8-111
In re Welfare of A.K.J.M.W
involved with the case. In her parenting assessment recommendations, Ms. Wright
recommended E.A comply with service requirements, including domestic violence or
anger management treatment and parenting education services. Although E.A had
periods of positive interaction with AW. during visits, her mental health and behaviors
worsened. Ms. Wright noted E.A's anger prevented her from recognizing when
professionals were trying to help her.
At the end of July 2012, during a scheduled parenting session with Ms. Wright
and AW., E.A left the building with AW. When confronted by a social worker outside
the building, E.A began screaming at the social worker while AW. slumped, put her
head down, and did not say anything. As a result of this incident, Ms. Wright
discontinued sessions with E.A until she received mental health intervention, could
stabilize her behavior, and was not so explosive and potentially dangerous.
In 2013, E.A and L.W. moved to Texas, leaving AW. in foster care in
Washington. Soon after arriving, E.A gave birth to a son. Texas social service
investigator Jennifer Leal met with the parents in Texas on March 11, 2013, to
investigate a referral concerning E.A and L.W.'s neglectful supervision of their newborn
son. The referral alleged the family arrived in Texas from Colorado, and the mother and
child tested positive for marijuana at the child's birth.
On March 12, 2013, L.W. called to speak with Angela Gonzalez, the parties'
social worker back in Washington. During the conversation, L.W. denied knowledge J?f
the birth of his son and said he had no contact with E.A, again indicating he was in
9
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of A. K.J. M. W
California. On March 14,2013, after E.A. was allowed to return home from the hospital
with her newborn son, another referral was made to Texas authorities, and the
investigators assigned to the case removed the infant from E.A and L.W.'s care.
Based on the negative course of the above services, DSHS petitioned to
terminate E.A and L.W.'s parental rights over AW; both parents were personally
served with the petition and requested counsel. Both parties' attorneys unsuccessfully
requested continuances, arguing "[m]ultiple relatives have emerged and are willing to be
a placement for the child." Clerks' Papers (CP) at 144, 148. The termination trial was
set for June 3,2013, but due to a conflict arising on the second day of trial, the trial
judge recused herself, declaring a mistrial. A new judge was assigned and proceeded
under the same cause number. On June 5, 2013, the court rescheduled trial to
September 16,2013. The status conference order was approved by L.W.'s attorney.
Our record shows no evidence of any relative requesting guardianship between June
and September.
At trial in September 2013, neither parent appeared. Ms. Leal testified that while
investigating allegations of negligence relating to the parties' newborn son in Texas,
E.A admitted using marijuana again, but claimed it was for nausea. L.W. admitted
using marijuana approximately two weeks before. Another Texas social worker,
Melloney Arnett, testified her last communication with L.W. was two weeks prior to the
. termination trial. She met with him at the county jail where he was incarcerated for
domestic violence against E.A She spoke with him about the termination of parental
10
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of A K.J. M. W
rights trial in Washington. While Ms. Arnett did not provide written notice, she verbally
informed him of the rescheduled September trial date.
AW.'s guardian ad litem (GAL), Mimi Fuzi, testified she noted E.A had not seen
AW. for over a year. In March 2013, L.W. told AW. he was going to California for a
month but never returned. Ms. Fuzi testified AW.'s foster home was "loving, nurturing,
appropriate. They adore her." Report of Proceedings (RP) at 498. Ms. Fuzi
recommended termination of E.A and L.W.'s parental rights because their domestic
violence, drug use, homeless ness and instability was no good for AW.
Angela Gonzalez described the parents' participation in services as sporadic and
not fully engaged. She testified the parents were currently unfit to parent AW. based
on untreated, ongoing domestic violence issues, ongoing mental health issues, drug
and alcohol issues, the unstable living environment, the explosive relationship between
E.A and L.W., and sporadic participation in services. She opined it was unlikely AW.
could be returned to their care.
After a five-day trial, the court terminated E.A. and L.W.'s parental rights, finding
substantial evidence supported the RCW 13.34.180(1) factors, termination was in
AW.'s best interests, and the parents were unfit. Both parents appealed.
ANALYSIS
A Statutory Elements of RCW 13.34.180(1)
The issue is whether substantial evidence supports the trial court's findings under
RCW 13.34.180(1).
11
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AK.J.M.W.
Parents have a fundamental liberty interest in the care, custody, and
companionship of their children. Santo sky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388,71 L. Ed. 2d 599 (1982). As such, the State may interfere with parents' rights
"only for the most powerful of reasons." S.J., 162 Wash. App. 873, 880,256 P.3d 470
(2011) (quoting In re Welfare of AJ.R., 78 Wash. App. 222, 229,896 P.2d 1298 (1995)).
When the parental actions may cause harm or a risk of harm to the child, the State has
a right and responsibility to protect the child. AJ.R., 78 Wash. App. at 229; In re Custody
of Smith, 137 Wash. 2d 1, 18,969 P.2d 21 (1998). Therefore, "reunification must be
balanced against the child's right to basic nurture, physical and mental health, and
safety; ultimately, the child's rights and safety should prevail." In re Welfare of AG.,
155 Wash. App. 578, 588,229 P.3d 935 (2010).
Washington courts use a two-step process to determine whether to terminate
parental rights. RCW 13.34.180(1); In re Welfare of AB., 168 Wash. 2d 908, 911,232
P .3d 1104 (2010). The first step focuses on the adequacy of the parents and requires
the State to prove the six statutory elements of RCW 13.34.180(1) by clear, cogent and
convincing evidence. RCW 13.34.190(1)(a); AB., 168 Wash. 2d at 911. The six statutory
elements required by the first step are as follows:
(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
12
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of AKJ.M. W.
reasonable 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. 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.
(f) That continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent home.
RCW 13.34.180(1). Elements (d) and (e) are disputed here.
We must affirm findings of fact under RCW 13.34.180(1) if supported by
substantial evidence from which a rational trier of fact could find the necessary facts by
clear, cogent and convincing evidence. In re Dependency of KS.C., 137 Wash. 2d 918,
925,976 P.2d 113 (1999). Evidence is substantial if it is sufficient to persuade a fair-
minded person of the truth of the matter asserted. S.J., 162 Wash. App. at 881. Clear,
cogent and convincing evidence exists when the ultimate fact at issue is "highly
probable." KS.C., 137 Wash. 2d at 925. Because the trial court hears the testimony and
observes the witnesses, it is entitled to deference. In re Welfare of L.N.B.-L., 157 Wn.
App. 215, 243, 237 P.3d 944 (2010). As such, we will not judge the credibility of
witnesses or weigh the evidence. Id. The party claiming error has the burden of
showing that a finding of fact is not supported by substantial evidence. Fisher
Properties v. Arden-Mayfair, 115 Wash. 2d 364, 369, 798 P.2d 799 (1990).
First, E.A. contends DSHS failed to meet its burden to understandably necessary
offer or provide services according to RCW 13.34.180(1 )(d). Specifically, she argues
DSHS failed to offer psychiatric services and medication management. To meet its
13
1
1
tI
I No. 32084-7-111 cons. wI 32089-8-111
In re Welfare of AK.J.M.W.
I burden under RCW 13.34.180(1)(d), DSHS must show it offered or provided E.A. the
I required services and that EA. either failed to engage or waived her right to such
I
I services. In re Welfare of S. V.B., 75 Wash. App. 762, 770, 880 P.2d 80 (1994). The
I services offered or provided must be tailored to the individual parent's needs. In re
I Dependency of T.R., 108 Wash. App. 149, 161,29 P.3d 1275 (2001). The court may
consider any service received, from whatever source, if it relates to the potential
I, correction of a parental deficiency. In re Dependency of D.A, 124 Wash. App. 644, 651­
I
I 52, 102 P.3d 847 (2004). A parent's unwillingness or inability to avail herself of
remedial services within a reasonable period is highly relevant to a court's determination
of whether the elements of RCW 13.34.180 are established. In re Dependency of C. T.,
59 Wash. App. 490, 499,798 P.2d 1170 (1990).
Here, DSHS provided a mental health evaluation, mental health counseling, and
a psychological evaluation. E.A. argues she needed psychiatric services versus
psychological services. Psychiatrist Dr. Rodenberger started an evaluation and then
requested background information from DSHS, which DSHS readily provided. Dr.
Rodenberger agreed to meet with EA. again, but asked she participate in a substance
abuse evaluation first. EA. did not participate in the substance abuse evaluation, did
not return to the psychiatrist,2 and moved out of state to live in Texas, where her
location was unknown at trial. If a parent is unwilling or unable to make use of the
services offered or provided like E.A., DSHS is not required to offer other services that
2 Testimony that EA. returned two months later for a medical marijuana card
was stricken.
14
No. 32084-7-111 cons. wI 32089-8-111
In re Welfare of AK.J.M.W
might have been helpful. In re Dependency of S.M.H., 128 Wash. App. 45, 54,115 P.3d
990 (2005).
Thus, substantial evidence supports the trial court's finding that DSHS offered all
reasonably available, necessary services in an attempt to correct the mother's parental
deficiencies. The mother participated in, but did not finish, a psychiatric evaluation and
was unable to make necessary change in a timely manner.
Second, E.A contends DSHS failed to prove by substantial evidence that little
likelihood existed her parental deficiencies would be remedied so AW. could be
returned to her in the near future under RCW 13.34.180(1 }(e). E.A argues proper
services were not offered. DSHS must prove "that 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(1 }(e). The focus of this element is whether the identified
deficiencies have been corrected. In re Welfare of M.R.H., 145 Wn. App. 10,27, 188
P.3d 510 (2008).
If E.A is unable to resolve her deficiencies within 12 months after the child has
been declared dependent, the statute's rebuttable presumption applies and the burden
of production shifts to the parent. In re Welfare of T.B., 150 Wash. App. 599, 608. 209
P.3d 497 (2009). DSHS must still prove it is highly probable the parent would not
improve in the near future. Id. One factors the court may consider is, "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
15
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare ofA. K.J. M. W
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." RCW 13.34.180(1 )(e)(ii). "A parent's unwillingness to avail
herself of remedial services within a reasonable period is highly relevant to a trial court's
determination as to whether [DSHS] has satisfied RCW 13.34.180(1)(e)." T.B., 150 Wn.
App. at 608. Even if some evidence suggests E.A. may eventually be capable of
correcting her deficiencies, termination is still appropriate where the deficiencies will not
be corrected within the foreseeable future. In re Welfare of A.G., 155 Wash. App. 578,
590,229 P.3d 935 (2010).
As discussed above, DSHS offered necessary services to E.A. but she was
unwilling to make use of them in the almost two years A W. was in out-of-home care.
E.A. unpersuasively argues her parental deficiencies were corrected. Our record belies
that argumentative assertion. She continued to struggle with anger management and
drug use, left Washington State, and her whereabouts were unknown at trial. Instead,
the overwhelming evidence shows all necessary services were offered without sufficient
progress to suggest E.A.'s parental deficiencies would likely be remedied in the
foreseeable future. When progress has not been made in 12 months following
dependency, a rebuttable presumption rises that little likelihood exists conditions will be
remedied so that the child can be returned to the parent in the near future. T.B., 150
16
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AK.J.M.W
Wn. App. at 608. Because E.A failed to produce evidence rebutting the presumption,
substantial evidence supports the court's RCW 13.34.180(1 )(e) finding.
B. Best Interest Finding Under RCW 13.34.190(2)
The issue is whether substantial evidence supports the court's finding it was in
AW.'s best interest to terminate the parent's parental rights under RCW 13.34.190(2).
In addition to a finding the six statutory elements of RCW 13.34.180(1) by clear,
cogent and convincing evidence, the second step requires the trial court to find by a
preponderance of the evidence that termination is in the child's best interest. RCW
13.34.190(2). "Only if the first step is satisfied may the court reach the second." AB.,
168 Wash. 2d at 911. We afford a trial court broad discretion in making the "best interests"
determination, and its decision receives great deference on review. In re Welfare of
Young, 24 Wash. App. 392, 395, 600 P.2d 1312 (1979). Whether termination is in a
child's best interests is based on the particular facts and circumstances of each case.
In re Dependency of A V.D., 62 Wash. App. 562, 572, 815 P.2d 277 (1991). When a
parent has failed to rehabilitate over a lengthy dependency period, a court is fully
justified in finding termination to be in a child's best interests rather than leaving the
child "'in the limbo of foster care for an indefinite period'" while the parent seeks further
rehabilitation. T.R., 108 Wash. App. at 167 (quoting In re Dependency of AW, 53 Wn.
App. 22,33,765 P.2d 307 (1988»).
Here, the evidence overwhelmingly shows termination is in AW.'s best interest.
The GAL recommended termination of the parents' parental rights. The social worker
17
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of A.K.J.M.W
similarly concluded termination of parental rights was in the child's best interests.
Treatment providers voiced concerns about E.A. and LW.'s anger management and
drug use, and E.A.'s mental health challenges. And lastly, little progress was shown by
either parent during the two-year dependency period. The court's finding was
supported by substantial evidence. We acknowledge E.A. and LW. argue alternative
placement options were available that might preclude a best interests finding. But, no
relatives stepped forward as potential guardianship resources. There was no testimony
regarding potential guardianship, no evidence of the availability of a guardianship
placement. Thus, this argument lacks merit.
C. Ineffective Assistance of Counsel
The issue is whether E.A. and LW. were denied effective assistance of counsel.
They contend their attorneys were deficient in failing to request a continuance. They
argue, if a continuance had been granted, other placement options for A.W. could have
been explored.
Washington law guarantees the right to counsel in termination proceedings.
RCW 13.34.090(2); InreDependencyofV.R.R., 134 Wash. App. 573, 581, 141 P.3d 85
(2006). This right includes the right to effective legal representation. V.R.R., 134 Wn.
App. at 580. No definitive Washington case has expressly held we apply the same test
for ineffective assistance of counsel in civil parental termination cases that we apply in
criminal cases. Division One of this court in S.M.H. applied the Stricklancf3 standard to
3 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 LEd. 2d 674
(1984).
18
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of A.K.J.M. W.
determine ineffective assistance of counsel in a termination case and we adhere to that
approach. S.M.H., 128 Wash. App. at 61. To prevail on their ineffective assistance claim,
E.A. and L.W. must show (1) deficient performance by counsel and (2) resulting
prejudice. S.M.H., 128 Wash. App. at 61; Strickland, 466 U.S. at 687. We strongly
presume effective assistance. State v. McNeal, 145 Wash. 2d 352, 362, 37 P .3d 280
(2002). Generally, performance is deficient when it falls below an objective standard of
reasonableness, but not when undertaken for legitimate reasons of trial strategy or
tactics. State v. Horton, 116 Wash. App. 909, 912, 68 P.3d 1145 (2003).
Here, both E.A. and L.W.'s attorneys requested a continuance in May 2013
because "[m]ultiple relatives have emerged and are willing to be a placement for the
child." CP at 144, 148. The court denied the request due to the "length of time child
has been out of the home, length of trial, lack of likelihood there will be a significant
change in circumstances of the parents [sic] situation, and best interests of the child."
CP at 140. The following month the court declared a mistrial due to a conflict of
interest. Trial was rescheduled before another judge for September 16, 2013. Our
record shows no alternative placement option was established during this three month
delay, suggesting infeasibility. Given the apparent lack of options and the court's prior
denial of the parents' request for a continuance, a legitimate reason existed for
counsel's decision not to request another continuance. Without deficient performance,
E.A. and L.W.'s ineffective assistance of counsel claim fails.
19
I
I ~
ii
No. 32084-7-111 cons. w/32089-8-111
J
I In re Welfare of A.K.J.M.W.
I
I
E.A and L.W. unpersuasively argue the absence of information regarding
I possible placement defeats a finding under RCW 13.34.180(1 )(f) U[t]hat continuation of
i the parent and child relationship clearly diminishes the child's prospects for early
I
~
integration into a stable and permanent home." RCW 3.34.180(1 )(f) emphasizes a
I
limited trme frame for establishing permanency for a child by use of the phrase "early
integration" into a stable and permanent home. The focus is "the parent-child
I relationship and whether it impedes the child's prospects for integration, not what
Ii constitutes a stable and permanent home." In re Dependency of K.S.C., 137 Wash. 2d
918,927,976 P.2d 113 (1999).
I As noted, our record shows no alternative placement option was established.
Instead, our record shows no petition for guardianship was filed and no evidence exists
I! of the availability of a guardianship placement. Instead, the record shows AW.'s
I! potential for adoption into the foster families home where she has bonded, providing
I AW. needed permanency. Accordingly, substantial evidence supports the court's
finding that continuation of the parent-child relationship diminished AW.'s prospects for
I integration into a stable and permanent home.
I
!
D. Public Trial
The issue is whether E.A was denied her right to a public trial. For the first time
I on appeal, she contends the courthouse was locked and not open to the public during a
I
!I portion of the termination trial.
!
!
20
No. 32084-7-111 cons. w/32089-8-1I1
In re Welfare of AK.J.M. W.
"Generally, a party asserting a constitutional error for the first time on appeal
must show that the alleged error actually affected that party's rights at trial." In re
OependencyofJ.AF., 168 Wn. App. 653,659,278 P.3d 673 (2012) (citing RAP
2.5(a}(3». In J.AF., Division One of this court declined to reach a similar challenge as
E.A.'s because the parents did not object to the alleged closure at trial. Id. Because
E.A. does not make a showing of how the alleged error affected her rights at trial, we
decline to reach this issue.
Nevertheless we note no closure occurred. E.A.'s sole argument is based on a
discussion between DSHS's counsel and the court. DSHS's counsel stated, "Your
Honor that's my last witness that I had scheduled for the day and I might-I'm going to
have to -- probably a bit of a challenge because I know the security closes at 4:00." RP
at 112. The judge responded, "That's fine. As long as I have you out the door by 4:30."
RP at 113. E.A. argues this colloquy shows the courtroom was closed to the public
from 4:00 to 4:30. Her argument is a speculative assertion. The court was concerned
the parties needed to exit the building by 4:30. Without showing a closure, E.A. cannot
meet the threshold element of a public trial right violation argument. See State v. Smith,
181 Wash. 2d 508, 513, 334 P.3d 1049 (2014) (courts mustfirst look to whether '''there is
in fact a closure of the courtroom"') (quoting State v. Sublett, 176 Wash. 2d 58, 92, 292
P.3d 715 (2012) (Madsen, C.J." concurring».
21
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of AK.J.M. W.
E. Due Process Challenge
The issue is whether L.W.'s constitutional due process rights were violated. L.W.
contends he was denied due notice when the trial was rescheduled following the
mistrial. We review de novo whether a proceeding violated constitutional due process.
In re Welfare of J.M., 130 Wash. App. 912, 920, 125 P.3d 245 (2005).
Courts balance three factors when examining process sufficiency: (1) the private
interest at stake, (2) the risk that the procedure used will result in error, and (3) the
State's interest in retaining the procedure used and the fiscal or administrative burden if
additional safeguards were provided. In re Dependency of AG., 93 Wn. App. 268,278­
79,968 P.2d 424 (1998). Due process protections in a termination hearing include a
strict burden of proof, the right to notice, and an opportunity to be heard and defend. In
re Interest of Infant Child Skinner, 97 Wash. App. 108, 114, 982 P.2d 670 (1999).
Our record does not reflect a notice violation. A summons was filed on July 19,
2012, advising L.W. of his legal rights, including his right to counsel. On July 20,2012,
L.W. was personally served with the notice and summons and termination petition as
required by RCW 13.34.180(1). He was then appointed counsel. In June 2013, the
court declared a mistrial due to a conflict of interest. The termination petition was not
. dismissed but was assigned to a new judge with trial rescheduled for September 16,
2013. L.W.'s counsel approved the trial date. L.W. claims he did not receive notice, but
in addition to his counsel, L.W. received notice from a Texas social worker of the
rescheduled trial date. L.W. presents no authority supporting his claim that DSHS was
22
No. 32084-7-111 cons. w/32089-8-111
In re Welfare of A. K.J. M. W.
required to send him notice of a status conference order approved by his attorney. Due
process is satisfied when a party is properly served with a notice and summons and
petition. Given all, we conclude due process concerning notice was satisfied under the
circumstances of this case.
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:
Lawrence-Berrey, J.
23