Opinion
Nos. 64601-0-I; 64602-8-I; 64603-6-I; 64701-6-I; 64702-4-I; 64703-2-I.
September 13, 2010. UNPUBLISHED OPINION.
Appeals from a judgment of the Superior Court for King County, No. 09-7-01303-7, Monica J. Benton, J., entered December 8, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Ellington and Spearman, JJ.
Donna and Fortress Smith appeal from the order terminating their parental rights to their three children, F.S., S.S., and D.S. They contend that insufficient evidence supports the statutory factors of RCW 13.34.180(1) and 13.34.190. Both parents challenge the trial court's findings that (1) they were currently unfit to parent at the time of trial, (2) the State offered or provided all necessary services, (3) there was little likelihood conditions could be remedied in the near future, and (4) termination was in the children's best interests. Fortress also challenges the trial court's finding that continuation of the parent-child relationship diminished the children's prospects for early integration into a stable and permanent home. Because substantial evidence supports the trial court's findings, we affirm.
For clarity, we use the parties' first names.
FACTS
Donna and Fortress had three children together, F.S. (born January 23, 2006), S.S. (born July 4, 2002), and D.S. (born December 14, 1998). The children were removed from the parents' care in April 2008, after law enforcement officers determined the family's house was dangerous and unlivable. On April 17, 2008, Child Protective Services (CPS) caseworker Norka Davis went to the family's house, and found all three children filthy, with dirty clothes and uncombed, dirty hair. On April 18, 2008, a King County Detective photographed the house, which had black mold contamination throughout, including inside the kitchen refrigerator and freezer, and covering a large portion of a bedroom window and blinds. Other bedrooms were inaccessible due to accumulated trash and clutter. There was no room to walk through the house except in a narrow pathway through the clutter.
Department of Social and Health Services (DSHS) social worker Sharol Donoso met the children immediately after they were removed from their parents' home and was concerned about their well-being. F.S., who was two years old at the time of removal, had a congenital heart condition and significant delays in speech and gross motor skills. He had difficulty walking upright and did not speak. S.S., who was five years old, arrived at the foster home covered in grime and suffering from significant dental neglect. D.S., who was nine years old, had behavioral problems and significant developmental delays, and was being treated for ADHD (attention deficit hyperactivity disorder). She had difficulty sitting still, growled at people, ate leaves off a bush outside the DSHS office, and repeatedly bumped into people and objects.
The Department was also concerned that the parents neglected the children's medical and educational needs. Donna acknowledged that her children's medical needs placed significant demands on her, especially since she was their primary caregiver. Although Donna claimed she was home schooling the children after the parents removed them from school that year, she acknowledged she had difficulty reading.
The parents signed voluntary placement agreements, allowing DSHS to place the children in foster care, where they remained until the termination trial. On September 3, 2008, both parents agreed to a dependency finding and to the entry of dispositional orders.
The parents agreed to complete 30 days of random urinalysis tests, parenting classes, and psychological evaluations. Their urinalysis results tested negative for drug use. Both parents also completed a parenting class. Donna completed the psychological evaluation; Fortress did not.
Psychologist Dr. Gary Wieder evaluated Donna in January 2009. The evaluation revealed that she had significant cognitive challenges, symptoms of depression, and a personality disorder. Dr. Wieder concluded that she was incapable of providing responsible and adequate care for the children. He also concluded that in his 25 years of professional experience, "[s]he presented as one of the worst people, in terms of her capabilities and history, that I've seen." Report of Proceedings (RP) (Oct.14, 2009) at 133-34. He stated further that a cognitive disorder like Donna's would compromise her ability to make good decisions and protect her children from danger. He also stated that a personality disorder like Donna's would compromise her ability to meet her children's needs. While he recommended that Donna try antidepressant medication, he concluded her conditions would be difficult, if not impossible, to improve. Donna twice refused to consider antidepressant medication when suggested by her therapist, Cindy Bock.
Fortress was referred for a psychological evaluation in September 2008 but refused to participate and was not assessed before the termination trial. His DSHS social worker regularly discussed with him the requirement that he obtain this evaluation. Fortress claimed that he had been evaluated once in the past and could not be required to do so again. But he failed to provide verification to support this claim.
The dependency orders allowed the parents to visit their children twice weekly for two hours during the 18-month dependency. Donna missed only one scheduled visit, but Fortress rarely attended. When he did attend, he frequently left the visit early. He claimed that his work schedule conflicted with the visit times and that he was frequently too tired from work to visit. Yet he admitted he worked only sporadically during the dependency. Even after the visit times were changed to accommodate his schedule, his attendance did not improve.
The State petitioned for termination of the parents' parental rights on April 21, 2009. The termination trial occurred between October 14 and November 6, 2009.
The parents disputed the condition of the house at the time of the termination trial. Fortress claimed he remedied the "black mold" problem by painting the affected areas using mold-resistant paint. The DSHS social worker testified that the house and yard remained too cluttered for the children to safely live there and explained that the condition of the house was a "symptom" of the parents' underlying problems. RP (Oct. 21, 2009) at 461. Throughout the dependency, Fortress refused to allow DSHS social workers into his house to determine whether the unhygienic conditions had been remedied. He also claimed the caseworkers harassed him and he attempted to get a restraining order barring DSHS from his property.
The trial court ordered termination of both parents' parental rights as to all three children on December 8, 2009.
ANALYSIS
Standard of Review for Termination of Parent-Child Relationship
Parental rights are a fundamental liberty interest protected by the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). In order to terminate a parent's rights, the State must show by clear, cogent, and convincing evidence
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. 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. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors:
(i) Use of intoxicating or controlled substances so as to render the parent incapable of providing proper care for the child for extended periods of time 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 documented multiple failed treatment attempts; or
(ii) 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 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; and
(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)(a-f); RCW 13.34.190(1)(a). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown to be "highly probable." In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995); In re Welfare of H.S., 94 Wn. App. 511, 519, 973 P.2d 474 (1999).
If there is substantial evidence which the lower court could reasonably have found to be clear, cogent and convincing, an appellate court should not disturb the trial court's findings. Deference paid to the trial judge's advantage in having the witnesses before him is particularly important in deprivation proceedings. . . .
In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980); In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). The Court of Appeals will not weigh the evidence or the credibility of the witnesses.In re Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). If the court finds that the State has met its burden under RCW 13.34.180, it can order termination if it then also finds, by a preponderance of the evidence, that termination is in the best interests of the child. RCW 13.34.190(2); In re Welfare of A.J.R., 78 Wn. App. 222, 228, 896 P.2d 1298 (1995).
Although parental rights enjoy constitutional protection, a parent does not have an absolute right to the custody and care of a child; the paramount consideration in a termination proceeding is the welfare of the child. In re Welfare of Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979). Where the rights of a child conflict with the legal rights of a parent, the rights of the child should prevail. RCW 13.34.020. A child's right to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of dependency proceedings. RCW 13.34.020; H.S., 94 Wn. App. at 530;In re Dependency of C.R.B., 62 Wn. App. 608, 615, 814 P.2d 1197 (1991).
Current Parental Deficiencies
The parents contend there is insufficient evidence that they each were incapable of parenting at the time of the termination trial. We disagree.
A parent has a due process right not to have the State terminate his or her parental rights absent an express or implied finding that he or she, at the time of trial, is currently unfit to parent the child. In re Welfare of A.B., 168 Wn.2d 908, 918-19, 232 P.3d 1104 (2010) (citing Santosky, 455 U.S. at 760). Contrary to the parents' arguments, proof of the statutory elements required for a termination necessarily and implicitly establishes current parental unfitness. K.R., 128 Wn.2d at 142. Further, past conduct is a factor to be considered in determining current parental unfitness. In re Dependency of J.C., 130 Wn.2d 418, 427-28, 924 P.2d 21 (1996). Substantial evidence demonstrates the parents' inability to meet their children's needs.
The court found Donna's cognitive and psychological issues and their impact on her ability to parent as her primary deficiencies. The court's findings are supported by overwhelming evidence. Donna testified that she would not be able to care for the children on her own if they were returned to her. Her concession was entirely consistent with Dr. Wieder's assessment of her cognitive limitations and personality disorder and his opinion that she could not adequately care for her children. Visit supervisor Julia Durham testified that Donna was unable to focus on more than one child at a time, posing a risk to the children's safety. Counselor Bock testified that Donna was depressed but resisted discussing proactive steps to combat the depression. Social worker Donoso and the CASA (court-appointed special advocate) testified that Donna lacked insight into the extent of her problems, including her ability to care for herself and her children. All of this evidence strongly supports the trial court's finding that Donna was currently incapable of parenting.
Fortress argues that the State never proved he had incapacitating psychological or emotional problems, citingIn re Interest of S.G., 140 Wn. App. 461, 469, 166 P.3d 802 (2007). But S.G. is readily distinguishable. In S.G., the trial court expressly concluded that the father had no parental deficiencies and that services were ordered only to determine if any problems existed.S.G., 140 Wn.2d at 468-69. On appeal, theS.G. court held that a parent cannot be denied the right to parent his child "on the off chance that he may have a problem unknown to the State." S.G., 140 Wn. App. at 469. This is not the case here. The court identified Fortress's deficiencies.
The father's refusal to engage in the central service of his psychological evaluation has made it impossible to identify his deficiency in diagnostic terms. It also made it impossible to provide additional services to him that might help him correct his deficiencies. That he suffers from mental deficiency or psychological incapacity is nonetheless obvious from the record.
. . . .
The father consistently refused to let the assigned social worker into his home. . . . The social worker testified that when she finally saw the home on [September 15, 2009], it had changed little over the preceding year. The hoarded clutter filling every room and the patio and yard as well, was a symptom of the father's defiant attitude toward the Department. The record shows the father failed to maintain regular contact with his children while in foster care which showed that for whatever reason he did not make his children, and their return to his care, his highest priority.
Findings of fact 1.22, 1.26.
The evidence amply supports the finding that Fortress was not currently capable of parenting his children due to his own emotional or psychological problems and lack of involvement with his children. Donoso testified that Fortress's mental health was a parental deficiency that remained at the time of trial. The CASA also stated that the parents were not capable of taking care of the children because they did not perceive any problems with their parenting and had "very little insight into the problems." RP (Nov. 2, 2009) at 833.
Fortress's own remarks and actions also strongly corroborated these witnesses' observations. The only parental deficiency he perceived was a need for more income. He claimed he was satisfied with Donna's ability to care for the children in his absence, the home schooling Donna provided, and the condition of the house. When asked whether he regretted missing the overwhelming majority of scheduled visits, Fortress testified, "[T]hey know that I'm there spiritually" and that such "spiritual contact" was adequate. RP (Oct. 20, 2009) at 345. Fortress did not challenge the dependency court's requirement that he participate in the psychological evaluation or seek to have the requirement removed.
The evidence demonstrates that Fortress lacked insight into his and Donna's deficiencies, the problematic condition of the house, and the negative effect of his absence from visitation. It also reveals that he failed to consider the negative effect that his antagonistic relationship with DSHS workers and his avoidance of a required service would have on his prospects for reunification. This evidence amply supports the trial court's findings regarding Fortress's current unfitness to parent.
The home's cluttered condition and the parents' reluctance or inability to substantially improve those conditions also demonstrate parental deficiencies. DSHS social worker Donoso and the CASA both testified that conditions in the house were little changed by the time of trial. The parents' inexplicable failure to remedy this problem revealed a lack of insight and an unwillingness to act in their children's interests, regardless of their own preferences. This evidence strongly corroborates the other witnesses' opinions that the parents lacked insight, had low motivation to change, and were incapable of responsibly and adequately parenting.
Substantial evidence supports the trial court's findings regarding both parents' deficiencies.
Adequacy of Services Offered or Provided
The parents next argue there is insufficient evidence that all necessary services were offered or provided. We disagree.
To meet its burden of proving that it offered or provided all necessary, reasonably available services, the State must show that it offered the required services and the parent failed to engage in them or that the parent waived his or her right to such services. In re S.V.B., 75 Wn. App. 762, 770, 880 P.2d 80 (1994). Services must be tailored to the individual parent's need. In re Dependency of H.W., 92 Wn. App. 420, 428-29, 961 P.2d 963, 969 P.2d 1082 (1998);A.J.R., 78 Wn. App. at 228; In re Dependency of P.A.D., 58 Wn. App. 18, 29, 792 P.2d 159 (1990). When a parent is unwilling or unable to take advantage of the services provided, the State is relieved of any obligation to provide additional services. In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988). If the State fails to offer a service to a willing parent, termination is still appropriate if the service would not have remedied the parent's deficiencies in the foreseeable future. In re Dependency of T.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001).
Substantial evidence supports the trial court's finding that the State offered or provided all necessary services capable of remedying the parents' deficiencies within the foreseeable future. Both parents participated in urinalysis testing and parenting classes. Donna participated in a psychological evaluation and received ongoing counseling. Both parents actively hindered additional efforts by the Department and care providers to address their deficiencies. Although Dr. Wieder suggested that Donna might benefit from antidepressant medication and counselor Bock offered to assist her with this, she resisted even being evaluated for medications. Fortress refused a psychological evaluation, which precluded any recommendation for additional services.
Yet both parents now allege additional services were needed. Donna contends the Department failed to offer (1) a parenting course for individuals with cognitive limitations, (2) training for managing stress, exercising good judgment, or becoming self-reliant, (3) a referral to the Division of Developmental Disabilities for a determination of her eligibility for additional services, (4) an appointment with a medical doctor to assess whether she should take antidepressant medication, and (5) help or funding to clean the house. Fortress claims the Department failed to offer additional parenting classes, assistance cleaning the home, and "wrap-around" services for the family's poverty-based needs.
The evidence amply demonstrates that Donna was not amenable to recommended assistance and additional services would not have remedied her incapacities. Dr. Wieder explained that she lacked awareness of her deficiencies.
[W]hen she talked about her view that the children had no problems and she didn't understand the concerns that DSHS had, I would say that supported the belief that there was limited reasoning [ability] there. I mean, how can a parent who's, you know, at this stage of [a dependency] with these kind of concerns not believe that there are any problems? It's — it's hard to imagine. . . . So, you know, either she doesn't see it, which is possible, or something else is going on that — you know, that's compromising her ability to grasp the gravity of the situation.
RP (Oct. 19, 2009) at 163. Dr. Wieder explained that this lack of awareness made change particularly unlikely. "If you don't see any problem, how can you be motivated to change? So, no, I don't see any motivation. I don't even see any identification of any problem." RP (Oct. 19, 2009) at 169. Asked about her level of motivation, Dr. Wieder answered, "Compared to other parents that I've seen it's — it's about the lowest I've seen. It's much worse." RP (Oct. 19, 2009) at 169. Dr. Wieder testified that Donna would likely resist further efforts to assist her, such as in-home help. "[E]verything she said suggested to me that she wouldn't be very cooperative" based on her "statements like they should just get out of our lives and leave us alone." RP (Oct. 19, 2009) at 164.
Other evidence supports Dr. Wieder's assessment. Social worker Donoso testified that no services were capable of adequately improving Donna's capacity to care for the children. RP (Oct. 21, 2009) at 446. Donoso referred Donna to her community service office and to the Social Security Administration for assistance accessing additional services, but Donna failed to follow through. Counselor Bock testified Donna "has been resistant to taking medications" and "quite resistant" to discussing things she could do to improve her depression. RP (Oct. 20, 2009) at 326, 329.
The evidence also demonstrates that Fortress would resist additional offers of service. He refused to participate in a psychological evaluation — a primary service ordered by the dependency court. He resisted offers of assistance, showed hostility towards DSHS employees, and refused to allow DSHS into his home. Donoso testified that it is impossible to offer family preservation services if a parent prohibits social workers from entering the home. Fortress's lack of involvement in visitation, despite his sporadic work schedule, also reveals his underlying lack of ability or desire to engage in activities that would potentially benefit his family. This evidence supports a reasonable inference that he would be unwilling to engage in additional services.
That additional services would not remedy the parents' deficiencies is further supported by the CASA's testimony that the parents were not receptive to suggestion and progressed minimally because they lacked insight into their problems. The parents also failed to communicate, even after she gave them a cell phone, and it was difficult to schedule appointments with them.
Substantial evidence supports the trial court's finding that all necessary services were offered or provided. The parents' challenges to the adequacy of those services fail.
Likelihood of Remedying Conditions in the Near Future
Both parents allege there was insufficient evidence that their deficiencies could not be remedied in the near future as required by RCW 13.34.180(1)(e). We disagree.
This statutory factor concerns "whether parental deficiencies have been corrected." K.R., 128 Wn.2d at 144. If the State offers or provides all services capable of correcting parental deficiencies and the parents do not substantially improve within 12 months of the dependency order, a rebuttable presumption arises that this factor is established. RCW 13.34.180(1)(e); T.R., 108 Wn. App. at 149. RCW 13.34.180(1)(e)(ii) provides that in determining whether the conditions will be remedied, the court may consider the following factors:
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 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.
The evidence demonstrates Donna's incapacity to parent and the remote likelihood she would remedy her deficiencies. Dr. Wieder testified her capabilities were so diminished that no services could adequately improve her parenting in the near future. Social worker Donoso also testified that Donna could not capably parent in the near future under the circumstances that existed at trial and that the same was true for the father.
The evidence supports the trial court's finding that Fortress was not likely to improve his parenting abilities within the near future. The evidence demonstrated that he lacked insight into his and Donna's parenting deficiencies and the harmful impact of delegating primary responsibility for the children's care to her. The evidence also revealed that he resisted treatment by refusing to undergo a psychological evaluation.
Fortress argues that mere hostility towards service providers is not a sufficient basis for finding a parent unfit, citingIn re Dependency of T.L.G., 126 Wn. App. 181, 204-05, 108 P.3d 156 (2005). But in T.L.G., there was no testimony connecting the parents' mental health issues to their parental deficiencies and no mental health services were offered.T.L.G., 126 Wn. App. at 205. Here, by contrast, Donoso and the CASA testified that Fortress's hostility toward service providers and lack of engagement with services exemplified his overall lack of insight into his problems and his resistance to constructive help.
The record supports the trial court's finding that there is little likelihood that conditions will be remedied so that the children can be returned to either parent in the near future.
Prospects for Early Integration into a Stable and Permanent Home
Fortress contends that insufficient evidence supports the trial court's finding that continuation of the parent-child relationships diminished the children's prospects of integration into stable, permanent homes. We disagree.
The trial court's finding that this element is satisfied logically follows from a finding that there is little likelihood conditions will be remedied in the near future. In re Dependency of J.C., 130 Wn.2d at 427; T.R., 108 Wn. App. at 166. Moreover, the evidence amply demonstrates that termination was necessary to allow the children to integrate into stable, permanent homes. Social worker Donoso testified that continuation of the parental relationship would prevent the children from being adopted and that the lack of permanency negatively affected them. Donoso also testified that the children were "at an age where if this [dependency] goes on, it makes it much more difficult to find homes for them, permanent homes." RP (Oct. 21, 2009) at 451. Here, as in T.R., reunification was by no means imminent. T.R., 108 Wn. App at 166.
Substantial evidence supports the court's finding that continuation of the parent-child relationship clearly diminished the children's prospects for early integration into stable, permanent homes. The trial court did not err in making this finding.
Children's Best Interests
Finally, both parents dispute the trial court's finding that termination was in the children's best interests. We conclude that the evidence supports the court's finding.
Whether termination of parental rights is in the best interests of the child must be determined based upon the facts of each case. Aschauer, 93 Wn.2d at 695. When 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 the limbo of foster care for an indefinite period" while the parent seeks further rehabilitation. T.R., 108 Wn. App. at 167.
The evidence establishes that the parents were unfit and their deficiencies were not likely to be remedied in the near future. The parents' minimal improvement during the dependency diminished any prospect that the children could be safely returned to them. Neither parent proposed any parenting arrangement other than a return of the children to their care, with Donna as the primary caregiver. But Donna acknowledged she could not care for the children on her own if they were returned. For these reasons, social worker Donoso testified that termination was in each child's best interests.
The trial court weighed the evidence and concluded that the children's needs were best served by termination of the parent-child relationship under these circumstances. The record overwhelmingly supports this determination.
We affirm.