In Re The Dep Of D.C-C.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Parental Rights to No. 81521-1-I
D.C.-C., ORDER CHANGING CASE
TITLE, WITHDRAWING
Minor Child. OPINION, SUBSTITUTING
OPINION, AND RECALLING
MANDATE
The Supreme Court of Washington granted discretionary review of the
opinion filed on June 14, 2021 and on October 6, 2021, remanded the case with
instructions to change the case title consistent with In re the Welfare of K.D., 198
Wn.2d 67, 491 P.3d 154 (2021). This court has considered the order and on its
own motion, that a majority of the panel has determined that the mandate should be
recalled, the names of the parents should be removed from the opinion, the opinion
should be withdrawn, and a substitute opinion filed; now, therefore, it is hereby
ORDERED that the clerk shall reinstate this appeal; and it is further
ORDERED that the opinion filed on June 14, 2021 is withdrawn; and it is
further
ORDERED that the case title shall be changed consistent with K.D.; and it is
further
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parental Rights to No. 81521-1-I
D.C.-C., DIVISION ONE
Minor Child.
UNPUBLISHED OPINION
COBURN, J. — J.C. appeals the termination of her parental rights to her
son, D.C.-C. She argues that the Department of Children, Youth and Families
(Department)1 did not carry its burden to prove it provided her with necessary
services or its additional burden under the federal and state Indian Child Welfare
Acts, ICWA2 and WICWA.3 The Mother also contends the Department failed to
prove that termination was in D.C.-C.’s best interests and the trial court violated
separation of powers when it entered an order in the related dependency
proceeding directing the Department to file a termination petition. We hold that
1 On July 1, 2018, the newly created Department of Children, Youth and
Families (DCYF) took over child welfare duties that were formerly the
responsibility of the Department of Social and Health Services (DSHS). RCW
43.216.906. Accordingly, in this opinion, “Department” means DSHS before July
1, 2018, and DCYF on and after July 1, 2018.
2 Indian Child Welfare Act, 25 U.S.C. § 1901 et seq.
3 Washington State Indian Child Welfare Act, chapter 13.38 RCW.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81521-1-I/2
the unchallenged findings and substantial evidence support termination and the
order entered in the dependency proceeding is not properly before us for review.
Accordingly, we affirm.
FACTS
D.C.-C., an Indian child, 4 was born in March 2015 and was nearly five
years old at the time of trial. D.C.-C.’s alleged Father is, a member of the
Nooksack Indian Tribe who also has lineage through the Upper Skagit Tribe.
The Mother has no known tribal affiliation.
The Mother has a lengthy history of substance abuse and repeated
criminal involvement and instability. She began using drugs and alcohol at the
age of 12 and considers herself an addict. Her “drug of choice” is opiates,
including heroin, and she began using opiates regularly in her early 20s. 5 The
Mother has two daughters who are older than D.C.-C. and who reside with her
Mother. According to the Mother, there was at one time an open dependency or
custody case involving her daughters, but that case was closed when her Mother
took custody.
On September 29, 2015, when D.C.-C. was six months old, the
Department filed a dependency petition, and D.C.-C. was placed in out-of-home
care the same day. According to the petition, the dependency arose out of a July
2015 referral reporting that the Mother was using drugs and selling them out of
4D.C.-C. qualifies as an “Indian child” under ICWA, 25 U.S.C. § 1903(4),
because he is an enrolled member of the Upper Skagit Tribe and is a member of
the Nooksack Indian Tribe.
5 The Mother was 30 years old at the time of trial.
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her apartment. In December 2015, a juvenile court adjudged D.C.-C. dependent
as to the Mother, the Father, and any and all putative fathers. The juvenile court
found that the mother’s parental deficiencies included “substance abuse, mental
health, and a lack of age appropriate parenting skills.” In its dispositional order,
the juvenile court directed the Mother to comply with the following “service
requirements”:
1. Participate in substance abuse treatment with a Department-
approved provider and follow any recommendations. If a
relapse or break from treatment occurs, complete an updated
substance abuse evaluation if determined necessary by the
substance abuse treatment provider.
2. Complete random urinalysis [(UA)] testing as arranged by the
social worker. Urinalysis testing shall be free of all non-
prescribed drugs, alcohol or illegal substances. Any missed or
diluted UAs shall be considered positive by the Department.
3. Participate in mental health assessment with a Department-
approved provider and follow any recommendations for further
services. Contact the Department to request contact
information to self-refer this service by contacting the intake
hotline.
4. Participate in an NCAST[6] assessment and follow any
recommendations for further services.
According to the dispositional order, both the Nooksack Tribe and the
Upper Skagit Tribe were contacted regarding the dependency and “reported that
the child is not eligible for enrollment and they do not consider him to be an
Indian Child for their purposes and have declined to be further involved in the
Dependency.” Nevertheless, beginning in November 2015, the Department
consulted with the Local Indian Child Welfare Advisory Committee (LICWAC)
6 Nursing Child Assessment Satellite Training.
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regarding the case. 7
The juvenile court reviewed D.C.-C.’s dependent status nine times over
the course of what was ultimately a five-year-long dependency. After its first
dependency review hearing in February 2016, the juvenile court found that the
Mother was out of compliance with her service requirements and was
incarcerated at the Whatcom County Jail. The Mother later testified that she was
incarcerated for about 13 months but later released on a DOSA 8 sentence. The
Mother achieved a period of sobriety while incarcerated, and in June 2017, after
the Mother’s release, D.C.-C. was returned to the Mother for a trial in-home
placement. The termination trial, which was initially set to begin June 2, 2017,
was continued to allow this to occur.
Meanwhile, in a February 2017 dependency review order, the juvenile
court entered a finding that “[a] termination petition should be filed” and ordered
the Department to file such a petition no later than March 6, 2017. The
Department filed a termination petition on February 27, 2017, and the trial court
appointed a guardian ad litem (GAL) for D.C.-C.
In November 2017, D.C.-C.’s trial in-home placement ended when the
Mother dropped D.C.-C. off with her parents. According to the Mother, she left
D.C.-C. with her parents because she did not think she was “necessarily mentally
7 According to later testimony from the guardian ad litem, LICWAC serves
as a “stand-in” for tribal Child Protective Teams on cases where “no particular
tribe has wanted to be identified.”
8 Drug Offender Sentencing Alternative.
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stable” because the Father had gotten into some criminal trouble. 9 The Mother
then relapsed in December 2017, and according to the GAL’s later testimony, the
Mother “sort of disappeared for a couple of months” and remained in “relapse
mode” until about June 2018, when she was involved in a serious car accident.
The trial court continued the termination trial again due to the mother’s accident
and because around that time, the Nooksack Tribe intervened in the termination
proceeding, declaring that D.C.-C. was an Indian child. The Mother would
remain hospitalized or in a physical rehabilitation center until October 2018 and
was later charged with driving under the influence in relation to the June 2018
accident.
Meanwhile, in June 2018, D.C.-C. was removed from his grandmother’s
home after she failed a home study and was placed with the mother’s family
friends. However, that placement ended in early 2019, after the family friend
reported that she was unable to manage D.C.-C.’s behaviors and that they were
beginning to interrupt her work schedule because D.C.-C.’s daycare also was
unable to manage his behaviors. D.C.-C. was then placed with a cousin of the
Father. That placement lasted only a month because of D.C.-C.’s behavioral
expressions. Specifically, the cousin later testified that D.C.-C. “would have fits
that would last an hour or even more” and “in some cases he’d kick my walls and
punch and hit.” She testified that she came to the decision to request a different
placement for D.C.-C. because she had a baby who required a lot of attention,
9The Father would later be incarcerated and would remain incarcerated
through the time of the termination trial. The Father voluntarily relinquished his
parental rights at trial, and he is not a party to this appeal.
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and she thought a placement that could give D.C.-C. more attention would be
better for him.
D.C.-C. was then placed in licensed foster care, but that placement ended
in July 2019 because the foster, according to a social worker’s later testimony,
“also reported that [D.C.-C.] had significant behavioral expressions that they
could not manage.” D.C.-C. was then placed with relatives identified by the
Nooksack Tribe, with whom the Department was exploring a potential
guardianship. But that placement ended in September 2019, when the relatives
asked that D.C.-C. be removed from their care due to his significant behavioral
expressions. D.C.-C. then returned to cousin’s home where he remained
through the time of the termination trial.
In all, D.C.-C. was in 10 different placements during the dependency, and
had behavior problems in every placement change since being removed from the
mother’s home following the failed trial in-home placement. But having been in a
stable placement with the cousin since September 2019, D.C.-C.’s behavior
problems were stabilizing, and his tantrums had decreased in duration from 30
minutes or more to a few minutes.
In the meantime, the Mother maintained a period of sobriety while
hospitalized and in rehabilitation after her June 2018 car accident. The GAL later
testified that after the Mother’s release from physical rehabilitation, the Mother
completed a chemical dependency evaluation and began intensive outpatient
(IOP) treatment toward the end of 2018. And according to a dependency review
order from January 8, 2019, the Mother submitted a clean UA in November and
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was “compliant with IOP.” But the GAL also testified that “by February [the
Mother] was missing more and more appointments” and the treatment facility
was “calling her noncompliant.” The Mother later testified that she relapsed on
heroin in February or March of 2019. According to a May 2019 dependency
review order, the substance abuse treatment facility submitted non-compliance
reports for January, February, and March, and the Mother was a no-show for a
number of UAs in January through April.
Meanwhile, in October 2018, Department social worker Thrisa Phillips
Jimmy was assigned to D.C.-C.’s case. Phillips Jimmy works for the
Department’s ICWA unit, and she testified she had received specialized training
in working with Native American children. Additionally, Phillips Jimmy is an
enrolled member of the Nooksack Tribe. She testified she was familiar with the
Nooksack Tribe’s prevailing social and cultural standards, and she used that
knowledge in working on D.C.-C.’s case. According to Phillips Jimmy’s
testimony, though the Mother had been attending visitation with D.C.-C. on a
regular basis since October 2018, the Mother began showing up late or not
showing up at all to visitations in March of 2019. Phillips Jimmy testified further
that in her opinion, D.C.-C.’s behavioral expressions were tied to his visitations
with the Mother “being either sporadic or nonexistent.” She pointed out that
D.C.-C. would sometimes be picked up in advance of visitation, “so he, in his
mind he is thinking he’s going to be completing a visit and when it doesn’t take
place, it’s very difficult for a child to process.” In July 2019, the juvenile court
ordered the Mother to call to confirm visits in advance and to show up one hour
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No. 81521-1-I/8
beforehand. Phillips Jimmy explained that this was so that “instead of having
[D.C.-C.] come to the office or to another location and not have mom there, . . .
she would have to show up first so we know for sure she is going to be there for
the visit.” Later, in September 2019, the juvenile court suspended visitation
altogether until D.C.-C. could engage in services with a mental health provider
with the provider’s recommendations to be followed before visitation would be
allowed to resume.
In late October 2019, just a few months before the termination trial was set
to begin, the Mother went to Catholic Community Services (CCS) for a chemical
dependency assessment. Linda Heeringa, the substance use disorder
professional who completed the assessment, later testified that the Mother stated
she wanted long-term inpatient treatment. According to Heeringa, the Mother
reported that she was using heroin and methamphetamine daily. Heeringa
diagnosed the Mother with “a severe op[i]oid substance use disorder, a severe
stimulant dependence, other stimulant dependence, and a mild other
psychoactive substance abuse.” Heeringa recommended long-term inpatient
treatment, and she sent the Mother’s assessment to an inpatient treatment
facility. Although the reasons are not clear from the record, the Mother ultimately
did not attend long-term inpatient treatment. The Mother later testified that she
was waiting for a bed date but had not received any phone calls or messages.
The termination trial began on February 4, 2020. A few days before trial,
the Nooksack Tribe notified the trial court that, pursuant to a 2011 tribal
resolution in which the Nooksack Tribal Council resolved not to support
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No. 81521-1-I/9
involuntary terminations of parental rights in dependencies, it did not support
involuntary termination in D.C.-C.’s case. The Nooksack Tribe indicated that it
would not be actively participating in the termination trial but that it supported the
cousin’s home as a long-term placement for D.C.-C. The Upper Skagit Tribe,
which had intervened in September 2019 and declared that D.C.-C. was an
enrolled tribal member, appeared at trial and supported termination. D.C.-C.’s
placement with the cousin, who later testified she was a member of the Upper
Skagit Tribe, met ICWA placement preferences, and the cousin was willing to be
a permanent placement for D.C.-C.
At trial, the court admitted 16 exhibits and considered the testimony of
multiple witnesses, including the Mother, the cousin, Richard England (a qualified
ICWA expert), the GAL, Heeringa, and Phillips Jimmy.
On February 13, 2020, the trial court made an oral ruling terminating the
Mother’s parental rights. It later entered a written termination order that included
numerous factual findings. The Mother appeals. We discuss additional facts in
the relevant sections below.
DISCUSSION
Termination Order
To terminate parental rights, the Department must satisfy a two-pronged
test. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011).
First, the Department must prove the six prerequisites to termination enumerated
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in RCW 13.34.180(1) by clear, cogent, and convincing evidence. 10 Id. at 576-77.
Once the Department establishes these statutory prerequisites, the trial court
must then make a finding of current unfitness before parental rights can be
terminated. In re Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75(2016). This finding need not be explicit; “[s]atisfying all six of the statutory
elements raises an implied finding of parental unfitness.” Id. If the foregoing
burden is satisfied, termination may be ordered if the Department establishes by
a preponderance of the evidence that termination is in the best interests of the
child. RCW 13.34.190(1)(b); K.N.J., 171 Wn.2d at 577.
Where, as here, the termination proceedings involve an Indian child,
ICWA and WICWA require the trial court to make two additional determinations.
First, the court must find by clear, cogent, and convincing evidence that the
Department made “active efforts” to help the parent remedy his or her parental
deficiencies. 25 U.S.C. § 1912(d); RCW 13.38.130(1); In re Dependency of
A.M., 106 Wn. App. 123, 130-31, 135, 22 P.3d 828 (2001). Second, the court
must find that the Department proved beyond a reasonable doubt that the
parent’s continued custody of the child is likely to result in “serious emotional or
physical damage to the child.” 25 U.S.C. § 1912(f); RCW 13.38.130(3).
On review, we will uphold the trial court’s factual findings if they are
supported by substantial evidence. In re Dependency of P.D., 58 Wn. App. 18,
10 “Clear, cogent, and convincing evidence exists when the ultimate fact in
issue is shown by the evidence to be ‘highly probable.’ ” In re Dependency of
K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (internal quotation marks
omitted) (quoting In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)).
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No. 81521-1-I/11
25, 792 P.2d 159 (1990). “Substantial evidence” means “evidence in sufficient
quantity to persuade a fair-minded, rational person of the truth of the declared
premise.” In re Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009).
We defer to the trial court on issues of conflicting testimony, credibility of the
witnesses, and the weight or persuasiveness of the evidence. In re Welfare of
A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).
Here, the Mother argues the trial court erred in determining that the
Department (1) met its burden to prove it offered and provided necessary
services as required under RCW 13.34.180(1)(d); (2) satisfied ICWA and
WICWA’s active efforts requirement; (3) proved that the Mother’s continued
custody of D.C.-C. was likely to result in serious emotional or physical damage to
D.C.-C.; and (4) proved that termination was in D.C.-C.’s best interests. We
discuss each of these determinations in turn.
A. Necessary Services
As discussed, to terminate parental rights, the Department must prove six
statutory prerequisites to termination. K.N.J., 171 Wn.2d at 576-77. At issue
here is RCW 13.34.180(1)(d), which requires the Department to show, in relevant
part, that “all necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future have been expressly and
understandably offered or provided.” The Mother contends the trial court erred in
determining this requirement was satisfied because the Department (1) did not
help the Mother obtain stable housing and (2) did not provide her with long-term
inpatient substance abuse treatment. We disagree.
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No. 81521-1-I/12
First, with regard to housing: A lack of stable housing was not identified by
the juvenile court as a parental deficiency. Instead, the only parental deficiencies
identified by the court were substance abuse, mental health, and a lack of age
appropriate parenting skills. The Mother attempts to draw a causal connection
between her alleged housing instability and her substance abuse by pointing out
that the dependency petition noted she “was losing her apartment due to drug
activity.” But the dependency petition notes only that the apartment manager
would not be offering the Mother a new lease at the end of the then current lease
term; it does not state that the Mother would be without stable housing. Also, the
Mother fails to acknowledge that the drug activity referenced in the petition was
her drug activity. In other words, the Mother’s substance abuse precipitated the
loss of her apartment, not the other way around.
Furthermore, the Mother misstates the record by asserting the
dependency dispositional order required the Mother to “obtain ‘safe, stable and
sober housing.’ ” (Emphasis added.) Instead, the juvenile court’s dependency
dispositional order directed the Mother to “maintain safe, stable and sober
housing.” (Emphasis added.) This implies that such housing was available to
her. Indeed, the Mother testified at trial that she was living in “a mobility suite
behind my momma’s house,” and argued that the fact that she “has a place to
live” weighed against termination. Additionally, Phillips Jimmy testified that she
mailed and personally delivered documents to the mother’s home. Phillips
Jimmy also testified that she and an Upper Skagit tribal social worker had gone
to the Mother’s home to conduct welfare checks.
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No. 81521-1-I/13
In short, the record does not support the mother’s assertion that housing
assistance was a service needed to address a parental deficiency for purposes
of reunification. Accordingly, the trial court did not err inasmuch as it did not
consider housing assistance a “necessary service” the Department was required
to provide under RCW 13.34.180(1)(d). Cf. In re Dependency of A.M.M., 182
Wn. App. 776, 793, 332 P.3d 500 (2014) (“A service is necessary within the
meaning of the statute if it is needed to address a condition that precludes
reunification of the parent and child.” (emphasis added)).
The record also does not support the Mother’s assertion that the
Department failed to satisfy its obligation under RCW 13.34.180(1)(d) by not
providing the Mother with long-term inpatient substance abuse treatment.
Specifically, “a parent’s unwillingness or inability to make use of the
services provided excuses the state from offering extra services that might have
been helpful.” In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d
30 (1988). Here, the Department provided the Mother with intensive outpatient
treatment beginning in late 2018, but according to the GAL’s testimony, the
Mother “had pretty much dropped out of treatment” by February 2019.
Furthermore, RCW 13.34.180(1)(d) “requires the State to prove only that it
provided the services that were necessary, available, and capable of correcting
parental deficiencies within the foreseeable future.” In re Dependency of T.R.,
108 Wn. App. 149, 164, 29 P.3d 1275 (2001) (emphasis added). To this end, it
is undisputed that despite earlier chemical dependency evaluations, the Mother
had never been recommended by a chemical dependency counselor to attend
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No. 81521-1-I/14
long-term inpatient treatment before Heeringa’s recommendation in late October
2019. Also, Phillips Jimmy testified that after she learned the Mother had
completed an evaluation at CCS, she attempted to obtain a release of
information to obtain a copy of the evaluation. However, after leaving releases at
the Department’s front desk, calling and texting the Mother, sending the Mother
Facebook messages, mailing the releases to the Mother, and going to her home
with the releases, Phillips Jimmy did not obtain a signed release until January 3,
2020—just a month before trial. Additionally, when asked whether she believed
the Mother would be capable of correcting her parental deficiencies if given
another three to four months, Phillips Jimmy responded no, explaining,
If she were to be able to maintain sobriety within the next
three to four months, we would still need to be able to observe
more extensive amount of time, probably six to nine months, before
we could even talk about progression and visits.
Right now we’re not even in a place of visits, so it would be
six to nine months before we would even start to talk about
progression.
In other words, the record reflects that even if the Mother had begun long-
term inpatient treatment as soon as the Department was able to get a release
from her in January 2020, that treatment was not capable of correcting the
Mother’s parental deficiencies within the foreseeable future. Indeed, the trial
court made unchallenged findings that “[t]he mother would need to demonstrate
continued sobriety and stability for several months before even supervised
visitation . . . would be in the child’s best interests” and “there is little likelihood,
even with perfect compliance and sobriety beginning today, that the mother could
correct her parental deficiencies in the child’s near future,” which the trial court
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determined was approximately six months.
For the foregoing reasons, the trial court did not err inasmuch as it found
the Department satisfied its obligation to provide necessary services to the
Mother despite not providing long-term inpatient treatment.
B. Active Efforts
Under both ICWA and WICWA, before a parent’s rights to an Indian child
can be terminated, the Department must “satisfy the court that active efforts have
been made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.” 25 U.S.C. § 1912(d); RCW 13.38.130(1).
WICWA defines “active efforts” as follows:
In any . . . termination of parental rights proceeding of an Indian
child . . . where the department . . . has a statutory or contractual
duty to provide services to, or procure services for, the parent . . . ,
or is providing services to a parent . . . pursuant to a disposition
order . . . , the department . . . shall make timely and diligent efforts
to provide or procure such services, including engaging the parent
or parents or Indian custodian in reasonably available and culturally
appropriate preventive, remedial, or rehabilitative services. This
shall include those services offered by tribes and Indian
organizations whenever possible.
RCW 13.38.040(1)(a).
ICWA does not define “active efforts,” but its implementing regulations
define “active efforts” as follows:
Active efforts means affirmative, active, thorough, and timely efforts
intended primarily to maintain or reunite an Indian child with his or
her family. Where an agency is involved in the child-custody
proceeding, active efforts must involve assisting the parent or
parents or Indian custodian through the steps of a case plan and
with accessing or developing the resources necessary to satisfy the
case plan. To the maximum extent possible, active efforts should
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be provided in a manner consistent with the prevailing social and
cultural conditions and way of life of the Indian child's Tribe and
should be conducted in partnership with the Indian child and the
Indian child's parents, extended family members, Indian custodians,
and Tribe. Active efforts are to be tailored to the facts and
circumstances of the case.
25 C.F.R. § 23.2.
“Whether the Department has satisfied the ‘active efforts’ requirement is a
mixed question of law and fact.” In re Dependency of A.L.K., 196 Wn.2d 686,
697, 478 P.3d 63 (2020). “ ‘We review the underlying findings for substantial
evidence, but review de novo whether those findings satisfy the requirements of
ICWA.’ ” Id. (quoting In re Parental Rights to D.J.S., 12 Wn. App. 2d 1, 37, 456
P.3d 820 (2020)).
Here, the trial court found, beyond a reasonable doubt, 11 that “[a]ctive
efforts have been made to prevent the break-up of the Indian family and those
efforts have proved unsuccessful.” The Mother argues this was error. We
disagree.
The trial court’s findings relevant to active efforts support its conclusion
that the Department satisfied ICWA and WICWA’s requirements. First, the trial
court made an unchallenged finding that both the Upper Skagit Tribe and the
11 We have held that active efforts need be shown only by clear, cogent,
and convincing evidence and not beyond a reasonable doubt. In re Dependency
of A.M., 106 Wn. App. 123, 135, 22 P.3d 828 (2001). Nevertheless, the Mother
asserts that the higher standard of proof applies. We need not consider this
argument because the trial court, which weighed the evidence, actually made its
finding beyond a reasonable doubt, and “whether we are dealing with the
preponderance of the evidence, the clear, cogent, and convincing evidence, or
the beyond a reasonable doubt test, the appropriate standard of appellate review
is the substantial evidence test.” San Juan County v. Ayer, 24 Wn. App. 852,
860, 604 P.2d 1304 (1979).
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No. 81521-1-I/17
Nooksack Tribe were included in staffings and case planning, and LICWAC was
utilized prior to formal tribal involvement. The trial court also made an
unchallenged finding that the placement with the cousin, who was undisputedly a
member of the Upper Skagit Tribe, was the preferred placement of both tribes.
Additionally, Phillips Jimmy, D.C.-C.’s assigned social worker, was herself a
member of the Nooksack Tribe and testified she used her knowledge of tribal
social and cultural standards in working on D.C.-C.’s case. And, the record
reflects that the Department involved the tribes in case planning meetings and
identifying possible relative placements. See 25 C.F.R. § 23.2(3) (providing, as
an example of active efforts, “Identifying, notifying, and inviting representatives of
the Indian child’s Tribe to participate in providing support and services to the
Indian child’s family and in family team meetings, permanency planning, and
resolution of placement issues.”).
Additionally, the trial court made a finding that “[t]he Department identified,
offered and provided appropriate services to the parents to reunify the family,
including a substance abuse assessment, substance abuse treatment, both
inpatient and outpatient, random urinalysis testing to monitor sobriety, an NCAST
assessment and parenting instruction and mental health services.” The Mother
challenges this finding, but it is supported by substantial evidence: The GAL
testified that the Mother was “offered referrals for substance abuse treatment and
for parenting classes, which she completed.” The GAL also testified that the
Mother began intensive outpatient substance abuse treatment in late 2018
though she dropped out in early 2019. The GAL testified that the Mother was
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No. 81521-1-I/18
offered random UAs. A juvenile court dependency review order from February
2017 confirms that the Mother completed a mental health assessment but no
further treatment was recommended, and another order from July 2017 indicates
that the Mother was compliant with the NCAST assessment service requirement.
Phillips Jimmy testified that the Mother completed parenting instruction in
January 2017, before D.C.-C.’s trial in-home placement. In short, and given that
the mother’s identified parental deficiencies were substance abuse, mental
health, and a lack of age appropriate parenting skills, the record supports the trial
court’s finding that the Department identified, offered, and provided appropriate
services to the Mother. 12 See 25 C.F.R. § 23.2(2) (listing, as an example of
active efforts, “[i]dentifying appropriate services.”).
The record also supports the trial court’s challenged finding that “[t]he
Department . . . assisted the mother overcoming barriers by assisting with
transportation needs including gas and bus vouchers, and driving to the mother’s
home when necessary to deliver paperwork.” Phillips Jimmy testified that she
offered the Mother gas cards and bus passes, as well as rides to services and
meetings, and the Mother confirmed she was offered gas cards. Phillips Jimmy
also testified not only that she would bring releases of information directly to the
Mother’s home, she also testified she sat down with the Mother several times to
go through paperwork and to make sure she understood what the paperwork
12We agree with the Mother that the trial court’s finding that she was
provided inpatient treatment during the course of D.C.-C.’s dependency is not
supported by substantial evidence. But given that the Mother points to no
evidence that inpatient treatment was ever recommended before late October
2019, that defect in the trial court’s findings does not affect our analysis.
18
No. 81521-1-I/19
meant and what the next step was. The record supports the trial court’s
challenged finding that the Department assisted the Mother in overcoming
barriers. See 25 C.F.R. § 23.2(2) (providing, as an example of active efforts,
“[H]elping the parents to overcome barriers, including actively assisting the
parents in obtaining . . . services.”).
Next, the trial court found that Phillips Jimmy “made repeated affirmative,
proactive, and thorough efforts to engage the mother via phone, text messages,
Facebook messages, written correspondence, frequent meetings involving the
tribes and all parties, and in person visits seeking the mother at her last known
address.” This finding, though challenged, is supported by substantial evidence:
Phillips Jimmy testified that she would not only mail out regular service letters,
but she would also send the Mother text messages with pictures of referral letters
and reminders for meetings, court dates, and visitation. She testified that she
would call the Mother on a regular basis, and she also communicated with the
Mother on Facebook where she could see an indicator that the Mother had read
her messages. Phillips Jimmy also testified that when she was struggling to get
in contact with the Mother, she would go to the Mother’s home with a social
worker from the Upper Skagit Tribe to complete a welfare check. Phillips Jimmy
estimated that in all, she had met with the Mother “at least 40, 50 times” since
she was assigned to the case in October 2018.
Phillips Jimmy also testified that she had held “shared planning meetings,
Family Team Decision Making meetings, as well as several one-on-one
meetings” with the Mother and with the tribes. The GAL, too, testified that the
19
No. 81521-1-I/20
Department had been working with both the Nooksack Tribe and Upper Skagit
Tribe’s respective Child Protective Teams. And as discussed above, Phillips
Jimmy testified that she offered the Mother rides to services and meetings. The
trial court’s finding that Phillips Jimmy made affirmative, proactive, and thorough
efforts to engage the Mother is supported by substantial evidence. See RCW
13.38.040(1)(a)(iii) (requiring a showing that social workers “actively worked with
the parent . . . to engage them in remedial services and rehabilitation programs
ordered by the court or identified . . . in the service and safety plan beyond simply
providing referrals).
Finally, the trial court made the following findings with regard to Phillips
Jimmy’s response to the mother’s attempt to enter long-term inpatient treatment
in late 2019:
Ms. Phillips Jimmy worked to obtain releases from the mother for
services the mother had accessed on her own, including a
substance abuse evaluation in October 2019 . . . . It took until
January 2020 for the mother to be located to sign a release to allow
the substance abuse evaluator to share information with the
Department. . . . The Department made active efforts to
communicate with CCS and Evergreen Manor regarding the
mother’s ability to comply with treatment. . . . The mother was
instructed to remain in contact with CCS and Evergreen Manor
regarding an inpat[i]ent bed date, but did not do so.
The Mother challenges these findings. Although she is correct that
substantial evidence does not support the specific finding that Phillips Jimmy
communicated directly with Evergreen Manor, the inpatient treatment facility, the
remaining findings are supported by substantial evidence. Specifically, Phillips
Jimmy testified that during her involvement with the mother’s case, her contact
with the Mother would have “periods of in and out,” and the Mother would
20
No. 81521-1-I/21
sometimes report she was either about to start or had already started services
but would not sign a release of information when asked. Phillips Jimmy explained
that a release was important because without it she was “not able to
communicate with the provider to verify that [the Mother] has engaged in that
service and that she is making progress in that service.”
Phillips Jimmy also testified that when she learned about the Mother’s
October 2019 substance abuse evaluation, she was not able to promptly get a
signed release from the Mother to enable her to communicate with the provider.
Phillips Jimmy testified that she “had left releases . . . up at the front desk, . . .
called, texted, sent her Facebook messages, . . . mailed her the [releases], and
with the Upper Skagit worker . . . went to her home and brought the [releases]
with us.” But ultimately, Phillips Jimmy did not get a signed release until January
3, 2020. When she did, she called CCS the same day and confirmed the Mother
had been recommended for long-term inpatient treatment. Phillips Jimmy
testified she then had a conversation with the Mother about next steps:
So we talked about what facilities she wanted to go to because
Evergreen supported a certain prescription that she wanted to have
with her so that was her preference. So we discussed following up
with CCS and also with Evergreen as well and she indicated to me
that they had said that they would be reaching out to her.
Phillips Jimmy testified that she also spoke with CCS, which indicated that
Evergreen had been trying to contact the Mother to complete the intake process
but had not been able to make contact. Phillips Jimmy testified that she then
attempted to reach out to the Mother to relay that information by calling her,
texting her, and sending her Facebook messages that Facebook indicated the
21
No. 81521-1-I/22
Mother had seen. In short, and even though Phillips Jimmy may not have
reached out to Evergreen directly, the record is clear that she made active efforts
to facilitate the Mother’s entry into long-term inpatient treatment based on the
October 2019 recommendation.
Taken together, the trial court’s foregoing findings and the evidence
supporting them demonstrate that the Department did much more than take a
passive role with regard to preventing the breakup of D.C.-C.’s Indian family.
The Department involved the tribes in case planning and placement issues,
identified appropriate services, helped the Mother overcome barriers in
accessing those services, made proactive efforts to assist the Mother with
paperwork, regularly engaged with her throughout the dependency including
meeting with her in person and reminding her of upcoming services, meetings,
and visitations, and, when the Mother was recommended for long-term inpatient
treatment shortly before trial, promptly followed through to get a release from the
Mother, discussed facility options with her, reached out to CCS, and attempted to
contact the Mother again when the Department learned that the treatment facility
had been attempting to reach her. The trial court did not err in concluding that
requirements of ICWA and WICWA were met.
The Mother disagrees and contends, as she did with regard to the
Department’s duty under RCW 13.34.180(1)(d) to provide necessary services,
that the trial court erred by determining the Department satisfied the active efforts
requirement because the Department did not help the Mother obtain stable
housing. But this contention fails for the reasons already discussed. And
22
No. 81521-1-I/23
although the Mother points out in her reply that the dependency court
occasionally noted the Mother’s non-compliance with the requirement to maintain
“safe, stable and sober housing,” she points to nothing in the record that
suggests housing was ultimately a basis for termination.
The Mother also argues that “when it became clear outpatient treatment
was insufficient for [the Mother] to maintain her sobriety, the Department had a
duty to identify alternative services to meet [her] needs.” But the Mother points to
no evidence that it was “clear” that outpatient treatment was insufficient. The
Mother stopped going to outpatient treatment and, according to the GAL’s
testimony, “pretty much dropped out.” In other words, the fact that the Mother did
not become sober with outpatient treatment says less about its efficacy than the
Mother’s willingness to complete it. This is particularly so because the Mother
points to no evidence the Department knew of any barriers to her completing
outpatient treatment that the Department failed to address.
Furthermore, the Mother seems to suggest that had Phillips Jimmy done
more exploration earlier, the need for long-term inpatient treatment would have
become apparent. But this suggestion fails because it is entirely speculative. 13
Indeed, Phillips Jimmy testified that she was not a certified drug and alcohol
counselor and was not able to determine the appropriate course of treatment for
a person with a drug or alcohol issue. And even though the record reflects that
13The Mother relies on research studies as evidence of “the efficacy of
long-term inpatient treatment for addictions not responding to less supportive
modalities, particularly where mental health difficulties exist.” But this evidence
was not presented to the trial court, and as discussed above, appellate courts do
not take evidence.
23
No. 81521-1-I/24
the Mother had completed a prior substance abuse assessment as recently as
November 2018, the Mother testified that the October 2019 evaluation was the
first time a chemical dependency counselor had ever recommended long-term
inpatient treatment.
The Mother next contends that because Phillips Jimmy did not try to meet
with the Mother in person after learning of the recommendation for long-term
inpatient treatment, or follow up directly with Evergreen Manor, the Department
failed to satisfy the active efforts requirement. But “[w]hen determining whether
the State made active but unsuccessful efforts, courts may look to the State’s
involvement in its entirety.” D.J.S., 12 Wn. App. 2d at 32 (citing Bob S. v. State,
400 P.3d at 99, 107 (Alaska 2017)). Additionally, “active efforts” is not the same
as “all efforts,” or “perfect efforts.” See id. (“The State need not exert ideal
efforts, but the court should decide if the State crossed the threshold between
passive and active efforts.”).
Here, as already discussed, Phillips Jimmy acted timely and proactively to
obtain releases from the Mother, including trying to meet with her in person after
she learned of the October 2019 recommendation, followed up with CCS, and
attempted to contact the Mother when she learned Evergreen Manor had been
trying to contact her. We are not persuaded that, under the circumstances of this
case, Phillips Jimmy was also required to try to meet with the Mother in person or
reach out to Evergreen directly—much less that her not doing so means the
Department failed to engage in active efforts over the course of its involvement
as a whole. Cf. In re Doe, 342 P.3d 632, 639 (Idaho 2015) (“[O]ne or two failures
24
No. 81521-1-I/25
on the part of [the State] do not entail wholesale failure with respect to the active
efforts requirement. This Court must consider whether the State made active
efforts to provide remedial services over the course of the proceeding as a
whole, despite one or more alleged failings during particular periods.”). 14
Finally, the Mother relies on A.L.K., D.J.S., and In re Welfare of A.L.C., 8
Wn. App. 2d 864, 439 P.3d 694 (2019), in support of her contention that the
active efforts requirement was not satisfied. But those cases are readily
distinguishable. In A.L.K., “there [was] no indication in the record that the social
worker actively made attempts to help [the mother] access any services other
than helping with one phone call and a case plan.” 196 Wn.2d at 701. Similarly,
in A.L.C., the Department “had done little more than provide [the father] with a
referral for [a] D[omestic] V[iolence] assessment” despite weeks having passed
since the entry of the dispositional order, and “the Department had little, if any,
14 The Mother asserts that additional Department assistance was “critical
given her traumatic brain injury.” But the trial court did not admit any evidence
establishing whether the Mother had a traumatic brain injury. England testified
that a traumatic brain injury is “a pretty significant thing” and “can impact a
person, how they think.” He also testified as to the basis for this opinion, i.e., that
the Mother experienced a traumatic brain injury in 2018. But the trial court earlier
sustained the parents’ objection to the admission of the bases of England’s
opinions, stating that it would consider them only as such and not as substantive
evidence. Cf. Group Health Coop. of Puget Sound, Inc. v. Dep’t of Revenue, 106
Wn.2d 391, 722 P.2d 787 (1986) (“ ‘[I]f an expert states the ground upon which
his opinion is based, his explanation is not proof of the facts which he says he
took into consideration . . . . His explanation merely discloses the basis of his
opinion in substantially the same manner as if he had answered a hypothetical
question.’ ” (first alteration in original) (quoting State v. Wineberg, 74 Wn.2d 372,
384, 444 P.2d 787 (1968))). Accordingly, and because England’s testimony is
the only reference in the record to a traumatic brain injury, the record does not
establish the Mother had a traumatic brain injury, much less that the Department
was or should have been aware of it.
25
No. 81521-1-I/26
involvement in the services that [the father] was able to successfully access and
complete.” 8 Wn. App. 2d at 874-75. Additionally, in A.L.C., the Department was
aware the Father was homeless but “the record [was] devoid of any efforts made
by the Department to assist [the father] in identifying housing resources.” Id. at
875. In D.J.S., the social worker merely met with the Father to discuss services,
provided instruction as to how to procure a phone, and referred the Father to a
community housing network and mental health provider. 12 Wn. App. 2d at 36.
Here, the Department’s efforts, discussed above, went well beyond those
described in A.L.K., A.L.C., and D.J.S. Accordingly, those cases do not
persuade us that the Department failed, in the instant case, to “cross[ ] the
threshold between passive and active efforts.” D.J.S., 12 Wn. App. 2d at 32.
C. Serious Emotional or Physical Damage
Under ICWA, the Department has the burden to prove “beyond a
reasonable doubt, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent . . . is likely to result in serious
emotional or physical damage to the child.” 25 U.S.C. § 1912(f). WICWA
imposes an identical requirement. See RCW 13.38.130(3). Additionally, under
ICWA’s implementing regulations, “the evidence must show a causal relationship
between the particular conditions in the home and the likelihood that continued
custody of the child will result in serious emotional or physical damage to the
particular child who is the subject of the child-custody proceeding.” 25 C.F.R.
§ 23.121(c). “Without a causal relationship . . . , evidence that shows only the
existence of community or family poverty, isolation, single parenthood, custodian
26
No. 81521-1-I/27
age, crowded or inadequate housing, substance abuse, or nonconforming social
behavior does not by itself constitute . . . evidence beyond a reasonable doubt
that continued custody is likely to result in serious emotional or physical damage
to the child.” 25 C.F.R. § 23.121(d).
Here, the trial court found the Department satisfied its burden, stating,
“Continued custody of the child by the parents is likely to result in serious
emotional damage to the child. The court makes this finding beyond a
reasonable doubt.” The Mother challenges this finding on two grounds: First, she
contends reversal is required because the court did not make a specific finding
as to the causal relationship between the Mother’s home and the risk of harm.
Second, she contends that “the Department presented no evidence
demonstrating a causal relationship between the particular condition in the
mother’s home and the likelihood that her continued custody would cause
serious emotional or physical damage to her son.”
But as to the first contention, the Mother points to no authority for the
proposition that the trial court was required to make an express finding as to a
causal relationship. Rather, the regulations require only that the “evidence must
show a causal relationship.” 25 C.F.R. § 23.121(c).
To this end, and as to the mother’s second contention, the evidence does
show a causal relationship between the particular conditions in the mother’s
home and the likelihood that her continued custody would result in serious
emotional or physical damage to D.C.-C. Contrary to the Mother’s assertions,
the trial court did not base its determination “on bald assertions” that the mother’s
27
No. 81521-1-I/28
substance abuse would cause serious damage to D.C-C. Rather, the trial court
expressly recognized when it made its oral ruling that the Mother’s substance
abuse “alone does not establish her inability as a parent.” And as the trial court
observed, the record reveals not only that the Mother was unable to maintain
sobriety but that “when she relapsed the pattern has included her not being
available, not being findable, and often missing visitation.”
Specifically, the trial court made an unchallenged finding, which is a verity
on appeal, that “despite the mother’s good intentions, she has not been able to
maintain sobriety for any lengthy period of time.” Additionally, the GAL testified
that when the Mother relapsed in December 2017, she “sort of disappeared for a
couple of months” and was not completing regular visitations during that period of
time. After maintaining a period of sobriety following her 2018 car accident and
release from physical rehabilitation, the Mother, by her own testimony, relapsed
again in February or March 2019. The GAL testified that around that time, the
Mother became “less compliant with services” and on February 22, 2019, failed
to attend a Family Team Decision Making meeting. Similarly, Phillips Jimmy
testified that although the Mother had been visiting on a regular basis since
October 2018, the Mother began showing up late or not showing up at all to
visitations on March 12, 2019. In short, and as the trial court observed, the
evidence shows not only that the Mother was prone to relapse but that there was
a causal connection between the mother’s relapses and her being unavailable to
D.C.-C.
The evidence also shows a causal connection between the Mother’s
28
No. 81521-1-I/29
unavailability and substantial emotional harm to D.C.-C. Specifically, and
although the Mother challenges the trial court’s finding that D.C.-C. had a
“heightened need for stability, security and permanence,” that finding is
supported by substantial evidence. England testified that “with early childhood
development and attachment and bonding in particular zero to three and
generally zero to five are the most important years for attachment, bonding and
development.” Accordingly, “[w]hen you have a child who is moved around this
many times it is very, very concerning and can be extremely detrimental.”
England testified that given D.C.-C. was nearing five years old at the time of trial,
“I’m, you know, very concerned that he has stability and permanency. . . . As he’s
getting closer to timing out of that key age group, it’s essential that he has the
ability to be safe, protected and well cared for at all times. He can not be moved
again. I just think that would be absolutely devastating.”
Phillips Jimmy testified that D.C.-C. had spent 90 percent of his life in
dependency, and had had “multiple disruptions during that timeframe, and
experienc[ed] trauma and loss due to that.” She testified that the Mother’s
continued custody would result in emotional damage to D.C.-C. because “when
somebody is continuously hurt in the same way . . . it creates a trauma for them
that can impede their progress in development as well as any future relationships
that they would have, whether that’s romantic relationships, professional
relationships, or regular friendships.”
Similarly, the GAL testified that D.C.-C. had special needs in the form of
emotional trauma: “[H]e has behavior that seems out of the norm for a four year
29
No. 81521-1-I/30
old, tantrums to the extent it has disrupted several placements of him.” The GAL
testified that D.C.-C. would act out violently when he felt insecure and that
consistency was of particular importance for D.C.-C. because it meant “not
having surprises that seem to allow him to start to not have the extreme
behaviors.” To this end, the GAL observed that D.C.-C.’s tantrums got
significantly worse after the failure of his trial reunification with the Mother, but his
behavior had improved as a result of his consistent, stable placement with the
cousin. This causal link between stability and D.C.-C.’s behavior was
corroborated by Phillips Jimmy, who testified that based on the case timeline, “I
can see that [D.C.-C.’s] behavioral expressions did not start until after the trial
return home and then thereafter it’s really tied in with [the mother’s] visits being
either sporadic or nonexistent.” It also is corroborated by the cousin, who
testified that when D.C.-C. returned to her home in September 2019, he would
have tantrums lasting about an hour and consisting of “pull[ing] your hair[,] . . .
kicking the walls, punching the walls, throwing anything in his bedroom, pretty
much anything he’d just freak out over,” but by the time of trial, “his tantrums
[were] about five minutes” and “he tells me he’s sorry and we kind of talk about
it.”
In short, and contrary to the mother’s contentions, the evidence shows a
causal connection between the conditions in the Mother’s home—namely, her
pattern of relapsing and becoming unavailable—and the likelihood of serious
emotional or physical harm to D.C.-C. in the form of a resultant loss in much
needed stability. For these reasons, the Mother’s challenge to the trial court’s
30
No. 81521-1-I/31
finding that continued custody was likely to result in serious emotional damage to
D.C.-C. fails.
D. Best Interests of the Child
The Mother next contends that substantial evidence does not support the
trial court’s finding that termination of her parental rights was in D.C.-C.’s best
interests. We disagree.
“Once the court determines that the [State] satisfied its requirements in
accordance with RCW 13.34.180(1), parental rights may be terminated if doing
so is in the best interests of the child.” K.M.M., 186 Wn.2d at 479 (citing RCW
13.34.190(1)(b)). “Where a parent has been unable to rehabilitate over a lengthy
dependency period, a court is ‘fully justified’ in finding termination in the child’s
best interests rather than ‘leaving [the child] in limbo of foster care for an
indefinite period while [the parent] s[eeks] to rehabilitate.’ ” T.R., 108 Wn. App. at
167 (most alterations in original) (quoting In re Dependency of A.W., 53 Wn. App.
22, 33, 765 P.2d 307 (1988)).
Here, the trial court found that “[t]ermination of the parent-child
relationship is in the best interests of the child.” Substantial evidence supports
this finding. Specifically, the trial court made the following unchallenged findings:
(1) “Given the nearly five (5) years of services offered or provided during this
dependency, there is little likelihood that the conditions will be remedied”;
(2) “The history of this case has demonstrated that despite the mother’s good
intentions, she has not been able to maintain sobriety for any lengthy period of
time”; (3) “At the time of the termination trial, the mother had not yet successfully
31
No. 81521-1-I/32
maintained sobriety or stability, and was facing additional felony charges and
additional prison time”; and (4) “While the mother loves her child very much,
there is no reliable indication based upon the history in this case and in the
mother’s history of parenting that would indicate she is going to be able to make
the changes and progress necessary to be able to provide a safe and stable
home for the child that will meet his needs.”
Additionally, the trial court found that “[t]he mother would need to
demonstrate continued sobriety and stability for several months before even
supervised visitation between the child and the mother would be in the child’s
best interests,” and “there is little likelihood, even with perfect compliance and
sobriety beginning today, that the mother could correct her parental deficiencies
in the child’s near future.”
The foregoing unchallenged findings, which are verities on appeal,
demonstrate that the Mother was unable to rehabilitate over a lengthy
dependency period. Accordingly, they provide substantial evidence to support
the trial court’s finding that termination was in D.C.-C.’s best interests.
Separation of Powers
The Mother contends the juvenile court violated separation of powers by
entering an order in the dependency proceeding directing the Department to file
a termination petition. The Department counters that the order, which was
entered in a separate legal proceeding than the termination proceeding from
which the Mother appeals, is not before us for review. We agree with the
Department.
32
No. 81521-1-I/33
“[A]n action to permanently terminate parental rights is a new proceeding
and not an extension of the dependency action.” In re Welfare of S.I., 194 Wn.
App. 531, 540, 337 P.3d 1114 (2014). “This is because the purpose of a
dependency proceeding and a termination proceeding are diametric: A
dependency proceeding seeks to provide services to a parent to correct parental
deficiencies so as to reunify the parent-child relationship; whereas a termination
proceeding seeks to permanently terminate the parent-child relationship.” Id.Here, the Mother appeals from an order entered in the termination
proceeding, and in so doing attempts to collaterally challenge an order entered in
the related but distinct dependency proceeding. She contends her collateral
challenge is properly before this court because the dependency order is void,
and void orders may be attacked at any time. But an order is void only if the
court issuing it lacked personal jurisdiction over the party or subject matter
jurisdiction over the claim. Rabbage v. Lorella, 5 Wn. App. 2d 289, 298, 426
P.3d 768 (2018). And the Mother does not argue that the juvenile court lacked
jurisdiction to enter the challenged order. Cf. K.N.J., 171 Wn.2d at 578
(invalidating dependency order in appeal from termination order where
dependency order was void for lack of subject matter jurisdiction). Therefore, the
mother’s contention fails, and we conclude the challenged order is not properly
before us for review. 15
15 This does not mean the challenged order was not reviewable. Rather,
the trial court’s order directing the Department to file a termination petition would
be reviewable under the discretionary review standards of RAP 2.3. Cf. RAP
2.2(a)(5) (allowing an appeal as of right only from a dispositional decision
following a finding of dependency). In any event, even if the Mother’s challenge
33
No. 81521-1-I/34
Affirmed.
WE CONCUR:
to the order were properly before us for review, we would reject that challenge on
the merits for the reasons set forth in In re Dependency of K.W.D.D., No. 80209-
7-I, 2020 WL 3047253, at *4-6 (Wash. Ct. App. June 8, 2020).
34
No. 81521-1-I/2
ORDERED that the names of the parents be removed from the opinion; and
it is further
ORDERED that a substitute unpublished opinion shall be filed.
2