Opinion
Nos. 58575-4-I; 58871-1-I; 58576-2-I; 58870-2-I.
January 7, 2008.
Appeals from a judgment of the Superior Court for King County, No. 05-7-00901-1, Michael S. Spearman, J., entered July 20, 2006.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Grosse, J., and Coleman, J. Pro Tem.
Robert Smith and Lilieni Fuiava separately appeal the court's order terminating the parental rights to their children, T.S.S. and T.C.S. Smith and Fuiava contend that because visitation was improperly suspended, the Department of Social and Health Services (DSHS) did not establish that all services capable of correcting parental deficiencies were offered and provided, and that there is little likelihood conditions would be remedied in the near future as required by RCW 13.34.180(1). In addition, Fuiava contends DSHS did not offer additional services that were recommended by a family preservation services therapist and DSHS did not prove termination was in the best interests of the children. Smith also asserts the termination statutes are unconstitutional. In In re Dependency of T.H., 139 Wn. App. 784, 162 P.3d 1141 (2007), we considered and rejected the argument that visitation is a "service" under RCW 13.34.180(1). And in In re the Dependency of T.C.C.B., 138 Wn. App. 791, 158 P.3d 1251 (2007), we considered and rejected the same arguments Smith makes in arguing the termination statutes are unconstitutional. Because we conclude DSHS met its burden of establishing the statutory elements for termination, and substantial evidence supports the court's determination that reasonable services were offered or provided by DSHS and that termination is in the best interest of the children, we affirm.
FACTS
Robert Smith and Lilieni Fuiava are the parents of seven-year-old T.S.S., who was born on June 30, 2000, and five-year-old T.C.S., who was born on October 27, 2001. Fuiava was 15 years old when T.S.S. was born. Although paternity was never established for T.S.S., the parents do not dispute that Smith is the father of the boys.
On August 25, 2003, King County Police found three-year-old T.S.S. unattended in an apartment parking lot. When the police located Fuiava in an apartment with one-year-old, T.C.S., they noted that there was no food in the apartment. The apartment manager also told the police that the children were often unsupervised. The police placed T.S.S. and T.C.S. into protective custody and notified Child Protective Services (CPS). The two boys were dirty and itching from untreated eczema and T.S.S. had lice. The children expressed themselves frequently by using profanity.
After Fuiava agreed to sign a Voluntary Placement Agreement (VPA) and a services agreement, on September 22, 2003, DSHS returned the children to Fuiava's care. DSHS agreed to provide Fuiava with public health nurse visits, therapeutic day care at Childhaven, and counseling with a family preservation services (FPS) therapist. DSHS also suggested Fuiava attend the parenting classes at Childhaven.
According to the FPS therapist, Fuiava lacked parenting skills and was not aware of the children's needs. On December 15, Fuiava signed a second VPA and services agreement with DSHS. DSHS continued to provide Fuiava counseling services with the FPS therapist and again offered parenting classes through Childhaven. After Fuiava and Smith reconciled in January 2004, Fuiava started missing appointments and did not return phone calls from the FPS therapist.
There continued to be ongoing and significant concerns about the well-being of the children. In February 2004, Childhaven reported that when Fuiava brought the children to day care, T.S.S. and T.C.S. smelled of urine and were wearing the same diapers they left in the day before. Childhaven was also concerned about the children bringing inappropriate objects, such as cigarette lighters, to day care.
In March 2004, the FPS therapist terminated counseling services with Fuiava because of the number of cancelled and missed appointments. Fuiava had also stopped attending Childhaven parenting classes.
On March 15, when Childhaven attempted to drop off T.S.S. and T.C.S., no one of suitable age was at home. After Childhaven contacted the King County Police, T.S.S. and T.C.S. were placed in protective custody for the second time. The foster mother reported that both children had lice.
On March 18, Fuiava and Smith signed a VPA and services agreement with DSHS. DSHS agreed to provide the parents counseling with an intensive family preservation services (IFPS) therapist. According to the IFPS therapist, the parents lacked parenting skills, they both had problems dealing with anger, there was poor communication between them, they had no stable housing, and Smith was not employed.
Smith only met with the therapist for one session. The services for Smith were terminated because of his failure to participate in any services DSHS offered. Fuiava also missed appointments and did not return the therapist's phone calls. In May 2004, the IFPS therapist terminated services for Fuiava because of the number of appointments she either missed or cancelled.
On July 21, 2004, DSHS filed a dependency petition alleging the children were "abused or neglected" and "ha[ve] no parent . . . capable of adequately caring for the [children]". The petition also states that despite repeated referrals to therapists and efforts to provide services, neither parent had completed parenting classes or was able to provide a stable and safe living environment. Fuiava and Smith each stipulated to entry of a dependency order. In the October 2004 dependency order, Fuiava and Smith each agreed to complete parenting classes, obtain a psychological evaluation with a parenting component, and follow any treatment recommendations. The parents also agreed to establish paternity for T.S.S. and participate in couples counseling. In addition, the court required the parents establish and maintain a safe, stable, living environment, cooperate with the requests of DSHS, cooperate in the children's therapeutic day care, and engage in the parenting programs at Childhaven.
The children were placed with the maternal grandparents and the parents were allowed unsupervised visitation. Fuiava moved in with her parents. While living at the grandparents' home, T.S.S. suffered second-degree burns when the hot iron Fuiava was using fell on her son's leg. Fuiava did not immediately seek medical attention and told T.S.S. to not tell anyone about how the injury occurred. At a December 2004 emergency hearing, the court ordered the children removed from the grandparents' home and ordered supervised visitation for Fuiava and Smith.
Smith apparently was in custody on criminal charges for three counts of third degree rape of a child.
Between January and October 2005, DSHS scheduled 21 visits with the children. Smith only attended three visits and Fuiava missed more than a third of the visits. During the visits, there were significant concerns about the level of inattentiveness, the low level of interaction with the children, and the negative reaction the children had to the visits.
The parents have missed a significant number of visits. . . . Since 1/31/05 there have been 21 visits offered, the father has only attended 3 visits. The mother has missed more than 1/3 of her visits.
The quality of the visits has also been poor and the level of interaction by the parents with the children has been low. [T.S.S.] also refused to attend one of the visits. The visit supervisor was unable to get him into the car because he didn't want to go.
On June 9, DSHS suspended Smith's visitation after Smith became hostile and verbally abusive toward the social worker, yelling "you are all mother fuckers and you are a bitch." Smith did not challenge the decision to suspend visitation and never tried to reinstate visitation.
In February when the visit provider called Fuiava to tell her that visitation could not continue if she kept missing the scheduled visitations, "?[s]he didn't seem to care. She said she couldn't make Thursday's visit.'" The visit supervisors also reported that during the visits, Fuiava would not pay any attention to the children and would either watch a video or television. For example, according to the notes of the scheduled visit on April 28,
"Dad no show. [T.S.S.] refused to come to the visit — [T.C.S.] stated several times he wanted to leave to be with his brother [T.S.S.]. Lilly would watch TV. Visitation providers notes reflect: that sic [Lilly] was sitting in a trance. I would have to tell Lilly `if [T.C.S.] talked to her because she ignored him.' [T.C.S.] yelled mommy I have to go poop. Lilly didn't respond. After 3 times of [T.C.S.] yelling this I told Mom that [T.C.S.] has to go potty. She then got up and went with him. The CW came out to talk with Lilly. Lilly then played again with [T.C.S.]. A couple minutes later Lilly was watching the TV and not noticing what [T.C.S.] was doing.
At the dependency review hearing on May 26, 2005, the court found that neither Fuiava nor Smith had complied with any of the court-ordered requirements, including participating in parenting classes or obtaining a psychological evaluation.
On July 16, 2005, DSHS wrote Fuiava confirming her agreement to obtain a psychological evaluation with Dr. Robin LaDue and providing information about contacting Dr. LaDue to schedule an appointment. But Fuiava did not schedule an appointment.
On June 23, 3005, DSHS suspended Fuiava's visits because of the number of visits she cancelled or missed, her noncompliance with court-ordered services and the poor quality of the parent's interaction with the children. Fuiava did not challenge the decision and never asked to reinstate visitation.
On August 23, 2005, DSHS filed a petition to terminate the parental rights of Fuiava and Smith. At the review hearing in October, the court again ordered the parents to participate in parenting classes and obtain a psychological evaluation with a parenting component, follow through with any treatment recommendations, and participate in Childhaven's parenting program. The court authorized DSHS to "liberalize supervised visits" if either parent could demonstrate consistent attendance, appropriate interaction with the children, and participation in services to address parenting deficiencies.
In spring 2006, because Fuiava had not pursued obtaining a psychological evaluation with Dr. LaDue, DSHS scheduled an appointment for her with Dr. LaDue on May 1, 2006. But Fuiava cancelled the appointment. DSHS then scheduled a second appointment for May 8, and told Fuiava that any cancellation must occur no later than May 5. Fuiava cancelled the appointment on May 8. Fuiava never obtained a psychological evaluation. Fuiava only attended a few parenting classes at Childhaven. And while she later participated in a Samoan-based parenting program at her church, there was no evidence Fuiava completed the program. Smith did not make any effort to comply with court-ordered services.
After a three-day trial, the court terminated the parental rights of Smith and Fuiava to T.S.S. and T.C.S. The parents each filed separate appeals.
ANALYSIS
Standard of Review for Termination of Parent-Child Relationship
In order to terminate the parent-child relationship, DSHS must establish the statutory elements set forth in RCW 13.34.180(1) by clear, cogent, and convincing evidence. The court must also find termination is in the best interests of the child. RCW 13.34.190(1)(a). The statutory elements of RCW 13.34.180(1) are, in pertinent part:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future . . .; and
(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
Evidence is clear, cogent, and convincing "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). Only after DSHS proves the six statutory elements, does the court consider whether termination is in the best interests of the child under RCW 13.34.190(1)(a). In re Dependency of A.M., 106 Wn. App. 123, 130, 22 P.3d 828 (2001). Whether a termination is in the best interests of the child must be shown by a preponderance of the evidence. RCW 13.34.190(1);
In re A.M., 106 Wn. App. at 131. Where the needs of the child and the rights of the parent conflict, the needs of the child must prevail. In re Dependency of J.W., 90 Wn. App. 417, 427, 953 P.2d 104 (1998). This court will not disturb the court's findings if substantial evidence supports the finding that the State has met the requisite burden of proof. In re Welfare of S.V.B., 75 Wn. App. 762, 768, 880 P.2d 80 (1994). Because the trial court has the advantage of observing witnesses, deference is particularly important in appellate review of termination decisions. In re Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
Smith does not assign error to the court's findings and Fuiava only assigns error to a few of the findings, finding of fact 1.5(9), 1.11, 1.12, and 1.14. Unchallenged findings are verities on appeal. In re the Interest of J.F., 109 Wn. App. 718, 37 P.3d 1227 (2001).
Finding 1.5(9) provides:
Visitation supervisor, Barbara Lewis, reports her main concern is that the parents engage more with each other rather than being involved with their children during visitation. Ms. Lewis also notes a lack of parenting skills and no initiative for discipline. Previous visitation supervisors have also noted a lack of interaction by the parents with the children during the visitations. The m other denies this allegation. (Emphasis in original)
Finding 1.11 provides:
Services ordered under RCW 13.34.130 have been expressly and understandably offered or provided and all necessary services reasonably available, capable of correcting the parental efficiencies within the foreseeable future have been expressly and understandably offered to both parents, including: parenting classes; a psychological evaluation with a parenting component; establishment of paternity for [T.S.S.]; establishment of safe, stable home; couples counseling if the parents were together; and visitation opportunities. The Department has been available and willing to offer appropriate services to the parents. Neither parent has been able to comply with the relatively small list of initial services offered and provided, despite heaving nearly two years under the dependency to complete them. This is after extensive services were offered for over one year prior to establishment of dependency, with a similar lack of compliance. Finding 1.12 provides: There is little likelihood that conditions will be remedied so that the child can be returned to the father or the mother within the near future. Neither parent has satisfactorily complied with services in the 20 months since dependency, invoking the rebuttable presumption set forth in RCW 13.34.180(c) that a parent's failure to substantially improve parental deficiencies within 12 months of disposition makes it unlikely that conditions can be remedied in the near future. Neither parent has rebutted the presumption.
Finding 1.14 provides:
The best interests of the children require termination of the parental rights of Robert Charles Smith and Lilieni Fuiava. Neither parent can provide them with the stable and permanent home that they need, and, despite the bond that has been seen between parents and children, the children are better off facing the pain of separation now rather than future pain if the parents continue to play a peripheral and ineffectual role in their lives.
Servic es Capable of Correcting Parental Deficiency in Foreseeable Future
Relying on the premise that visitation is a service under RCW 13.34.180(1), the parents contend the court erred in terminating their parental rights, because DSHS suspended visitation. The parents assert the State did not prove that all services capable of correcting parental deficiencies were provided under RCW 13.34.180(1)(d). But in In re T.H., this court rejected the same argument and held that visitation is not a "service" that must be provided under RCW 13.34.180(1)(d).
Fuiava also argues that DSHS did not meet its burden of proving all necessary services were provided to her. Fuiava contends that despite the FPS therapist's recommendation for domestic violence counseling, parent-child interactive therapy, and counseling for depression and self-esteem, DSHS did not offer or provide any of these services.
Under RCW 13.34.180(1)(d) and RCW 13.34.231(4) DSHS must offer or provide services capable of correcting parental deficiencies within the near future. It is well settled that additional services that might have been helpful need not be offered when a parent is unwilling or unable to make use of the services offered and provided. In re the Dependency of S.M.H. J.C.H., 128 Wn. App. 45, 54, 115 P.3d 990, rev. denied, 156 Wn.2d 1001 (2005); In re Dependency of T.R., 108 Wn. App. 149, 29 P.3d 1275 (2001).
Here, because Fuiava did not engage in the services that were offered and provided, Fuiava's argument that DSHS had to provide additional services fails. The parental deficiency that necessitated removal of the children was chronic neglect of the children that jeopardized their health, safety, and welfare. DSHS offered and provided Fuiava numerous services over a three-year period, including parenting classes, therapeutic day care at Childhaven, and counseling with two different family preservation service therapists to assist Fuiava in correcting her parental deficiencies. And in the October 2004 dependency order, Fuiava agreed to complete parenting classes and obtain a psychological evaluation to identify any other parenting deficiencies that DSHS could address. But Fuiava did not follow through with any of the services DSHS offered or provided and both therapists eventually terminated services because Fuiava cancelled and missed so many appointments. On this record, substantial evidence supports the court's finding that it would have been futile to offer the additional services recommended by the FPS therapist.
Relying on In re Dependency of H.W., 92 Wn. App. 420, 961 P.2d 963 (1998), Fuiava also contends that DSHS should have referred her to the Division of Developmental Disabilities (DDD) because of a reported reference to attending special education classes. In In re H .W., the State failed to offer all reasonably available services to a developmentally disabled mother when it did not refer her to the Division of Developmental Disabilities or to services "to assist her in understanding and identifying signs of sexual abuse." In re H.W., 92 Wn. App. at 429.
But here, there was no identified learning deficiency that contributed to Fuiava's noncompliance with services or any evidence that Fuiava had developmental disabilities necessitating a referral to DDD. Fuiava testified that because of her pregnancy, she was part of an alternative high school program. Fuiava denied that she was in special education classes. The DSHS social worker also testified that she never had any reason to believe Fuiava was developmentally delayed. And the FPS therapist also specifically noted in her report that Fuiava seems to understand what is expected of her.
Likelihood that Conditions will be Remedied in the Near Future
RCW 13.34.180(1)(e) requires DSHS to prove "there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future." The focus of this factor is "whether parental deficiencies have been corrected." In re K.R., 128 Wn.2d at 144. A determination of what constitutes "?near future'" depends on the age of the child and the circumstances of the placement. In re T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005) (one year not "foreseeable" or "near" future for six-year-old child who had never lived with mother and mother had been receiving services for six years.). If all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future are offered or provided and the deficiencies are not substantially improved within twelve months of the dependency order, there is a rebuttable presumption that this factor is established. RCW 13.34.180(1)(e).
In an appeal of a termination order, a parent is entitled to argue that the improper denial or limitation of visitation relates to one or more of the statutory elements. In re T.H., 139 Wn. App. at 793. Here, Smith and Fuiava contend that the improper suspension of visitation relates to the State's burden to prove there is little likelihood conditions will be remedied in the near future. Smith and Fuiava also challenge the court's finding that because neither parent complied with services in the 20 months since entry of the dependency order, neither parent successfully rebutted the presumption. The parents assert that the finding is not supported by substantial evidence because the court suspended visitation in violation of RCW 13.34.136. DSHS contends that the parents did not provide an adequate record for review of this issue. RAP 9.2(b)
RAP 9.2(b) provides in pertinent part:
A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review. . . . If the party seeking review intends to urge that a verdict or finding of fact is not supported by the evidence, the party should include in the record all evidence relevant to the disputed verdict or finding.
While the record contains the court orders following the dependency review hearings, we agree with DSHS that the parents have not provided the record of the hearings where the court addressed the need to suspend visitation. But even assuming the court erred in suspending visitation, on the limited record before us, substantial evidence supports the court's conclusion that there is little likelihood conditions will be remedied so the children could return to either parent in the near future.
Smith contends visitation would have motivated him to participate in other services. However, when visitation was offered, there is no dispute that Smith rarely took advantage of visitation with the children. There is also no dispute that Smith did not engage in any of the court-ordered services. In the face of Smith's failure to follow through on any of the services offered, visitation alone is not capable of correction parent deficiencies.
And because of Fuiava's history of noncompliance, and her failure to follow through with the services offered, visitation alone could not correct her parental deficiencies. Although Fuiava apparently participated in a church-sponsored parenting program, there was no evidence she completed the program. Nor did Fuiava ever ask to resume visitation on the basis of her participation in the church parenting program.
The only other evidence offered by the mother to rebut the statutory presumption that there was little likelihood conditions will be remedied in the near future, was a new relationship. But the court rejected the mother's position that despite her failure to address her deficiencies, she was able care for the children because she was in a new relationship.
The only evidence offered by the mother to rebut this presumption [of RCW 13.34.180(1)(f)] is she now found a new relationship with a man who works and will provide for her and the children. However, this is not evidence that the mother's parental deficiencies have been addressed, but only evidence that another person, unrelated to the children, may offer to provide them with shelter and other material needs.
At the time of the termination trial, DSHS had offered and provided services to Fuiava for nearly three years. Because Fuiava made no progress in addressing her parental deficiencies, substantial evidence supports the court's finding that there is little likelihood Fuiava's parental deficiencies will be remedied so T.S.S. and T.C.S. could be returned to her in the near future.
Best Interest of the Children
Fuiava also challenges the trial court's finding that termination is in the best interests of the children. In addition to arguing that the State did not prove the factors under RCW 13.34.180(1), Fuiava contends that it is not in the children's best interest to sever the bond they have with her.
A child has "the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter." RCW 13.34.020. The dominant consideration in determining the best interests of the child is the child's welfare. The parental relationship is subordinate to this consideration. In re Dependency of J.W., 90 Wn. App. at 427.
The court concluded Fuiava cannot provide the children with a safe, stable and permanent home. Fuiava has been unable to function as a parent to the children for the majority of their lives and despite the services that were provided or over a three-year period, she did not address her parenting deficiencies. While recognizing that severing her relationship with the children was difficult, the court concluded termination was in the best interests of the children. "When a parent has not been able to address parental deficiencies over a lengthy dependency, a court is `fully justified' in finding termination is in the child's best interests." In re S.M.H. and J.C.H., 128 Wn. App. at 61 (quoting In re A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)).
Constitutionality of the Termination Statutes
Smith also challenges the constitutionality of the termination statutes, RCW 13.34.180 and RCW 13.34.190. Smith argues that because the termination statutes regulate a fundamental right, the statutes must require only that degree of regulation necessary to prevent harm o the child. Smith also argues the statutes improperly shift the burden to the parent to show less restrictive alternatives to termination. The exact same arguments were recently considered and rejected by this court in In r e the Dependency of T.C.C.B., 138 Wn. App. 791, 158 P.3d 1251 (2007).
A statute is presumed constitutional, and the party challenging it has the burden of proving beyond a reasonable doubt that it is unconstitutional. In re Welfare of C.B., 134 Wn. App. 336, 342, 139 P.3d 1119 (2006).
CONCLUSION
Because DSHS met its burden of establishing the statutory elements of RCW 13.34.180 by clear, cogent and convincing evidence and substantial evidence supports the trial court's decision to terminate the parental rights of Smith and Fuiava to T.S.S. and T.C.S., we affirm