Opinion
Nos. 24781-3-III; 24782-1-III; 24783-0-III; 24795-3-III; 24796-1-III; 24797-0-III.
August 16, 2007.
Appeals from judgments of the Superior Court for Okanogan County, Nos. 05-7-00018-0, 05-7-00019-8, and 05-7--00020-1, Jack Burchard, J., entered November 15, 2005.
Affirmed by unpublished opinion per Sanders, J. Pro Tem., concurred in by Sweeney, C.J., and Stephens, J.
Terry J. Hubbard and Nicole Burt appeal the trial court's termination of their parental rights. Mr. Hubbard contends the court erred by taking judicial notice of a no-contact order between the parties and by violating the appearance of fairness doctrine. Ms. Burt contends the court erred by erminating her parental rights because the court's findings on the required statutory factors were unsupported by substantial evidence. She also contends the court erred by admitting hearsay statements, denying her motion to continue trial, she was denied effective assistance of counsel and that cumulative error requires reversal of the court's decision. Mr. Hubbard and Ms. Burt also contend the termination statutes are unconstitutional. We affirm.
Facts
Nicole Burt and Terry J. Hubbard are the parents of three children: S.H., born April 9, 2001; B.H., born May 10, 2002; and M.H, born April 16, 2003. On September 13, 2001, Ms. Burt went to a domestic violence support center. Ms. Burt said that she was having issues with Mr. Hubbard. Ms. Burt stayed at the center, but left the next day.
On February 4, 2002, Ms. Burt returned to the support center. Ms. Burt told support center staff about her problems with Mr. Hubbard. The support center updated Ms. Burt's 2001 intake report and asked her to schedule her next visit with the center. Ms. Burt, however, did not return to the center.
In June 2002, Mr. Hubbard was charged with domestic violence assault after Ms. Burt reported that Mr. Hubbard "beat her up." Report of Proceedings (RP) (Nov. 1, 2005) at 87. Ms. Burt was referred to the domestic violence support center, but she did not go. On July 16, Mr. Hubbard was convicted for fourth degree assault. The court issued a one-year, no-contact order prohibiting Mr. Hubbard from contacting Ms. Burt. On August 13, Mr. Hubbard was arrested for violating the no-contact order. On August 20, Ms. Burt requested that the court lift the no-contact order. On October 4, the Department of Social and Health Services (Department) offered Ms. Burt services with a public health nurse at Alternative Response Services. Ms. Burt, however, declined this service and claimed that no domestic violence was occurring in her home.
On May 22, 2003, Ms. Burt reported to the Department that the night before, Mr. Hubbard came home from a bar and began calling her names. She said Mr. Hubbard was drunk and refused to leave the home. She said Mr. Hubbard threw her onto the ground and kicked her in the jaw. Ms. Burt said she tried to call 911, but Mr. Hubbard jerked the telephone cord out of the wall. The next morning, Mr. Hubbard slapped Ms. Burt on the side of the head twice and grabbed her around the neck while she was holding her son. Ms. Burt told Department social worker, Jay Staggs, that Mr. Hubbard physically assaulted the children, that he was very abusive toward her and the children and that he regularly used methamphetamine and alcohol. Ms. Burt also told Mr. Staggs that the children had witnessed Mr. Hubbard assault her so many times that they had now started assaulting each other. Mr. Hubbard was arrested and charged with one count of fourth degree assault — domestic violence and one count of interfering with the reporting of domestic violence.
The Department placed the children into protective custody and a dependency petition was filed. The petition stated that Ms. Burt continued to put her children at risk due to the constant abuse by Mr. Hubbard and her failure to get away from the violence. The petition also stated that due to this abuse, the children were now starting to harm each other. The Department then referred Ms. Burt to the domestic violence support center. Ms. Burt was offered counseling services at the center. She participated in the initial intake at the center and obtained a one year no-contact order against Mr. Hubbard. The Department also referred Ms. Burt for a psychological evaluation in connection with her ability to care for and protect her children.
On June 13, 2003, Ms. Burt completed a psychological evaluation with Dr. Robert Thomas McKnight, Jr. Dr. McKnight diagnosed Ms. Burt as having a mixed personality disorder with dependent and antisocial features, a mild depressive disorder, and a language-related learning disability. Dr. McKnight determined that Ms. Burt had a significant deficit in reading vocabulary and reading comprehension. Dr. McKnight determined that Ms. Burt's learning disability would hinder any domestic violence instruction program and that such instruction would have to be presented verbally with repeat demonstrations and practice sessions.
On July 14, 2003 agreed dependency orders were entered as to Ms. Burt, finding the children had no parent capable of providing for their care. Agreed dependency orders were later entered as to Mr. Hubbard, finding that the children had been abused and neglected by their father and that they had no parent capable of providing for their care. The disposition order required Ms. Burt to complete the following services: (1) psychological evaluation and recommendations; (2) an education assessment; (3) urinalysis (UA) monitoring; (4) parenting classes; (5) domestic violence counseling; and (6) visitation. Ms. Burt was required to not engage in domestic violence and to comply with the existing restraining order against Mr. Hubbard. Mr. Hubbard was also required to complete the following services: (1) a psychological evaluation; (2) chemical dependency evaluation; (3) domestic violence counseling; (4) parenting classes; and (5) visitation. Mr. Hubbard was required to comply with Ms. Burt's restraining order, not engage in any domestic violence, and maintain a stable living environment.
Ms. Burt completed her UA testing and her psychological and educational assessments with Dr. McKnight. She also regularly visited the children. In September 2003, the Department moved the children to a foster home in Spokane to be closer to their parents. While in Spokane, Ms. Burt missed over one-half of her visits with the children while Mr. Hubbard attended very few of the supervised visits and did not engage in any services or request visits with the children.
On January 8, 2004, Ms. Burt returned to the domestic violence center and requested services. The shelter conducted an initial intake and offered Ms. Burt services, but she did not participate in any services at the shelter. Instead, for the next several months, Ms. Burt met with a domestic violence counselor. She completed parenting classes, submitted to random UA testing and had not made any contact with Mr. Hubbard. Ms. Burt had also obtained employment and was renting a home that the Department determined was appropriate for the children. Because Ms. Burt was making significant progress in services and visitation, the Department planned to transition the children back to their mother in July.
On July 27 and 28, the children were scheduled for two consecutive overnight visits with Ms. Burt. But on July 27, social worker Anthony Block learned from Child Protective Services that Mr. Hubbard had been at Ms. Burt's home earlier that week and was arrested for punching a 17-year-old in the face. Mr. Block was also told by the children's paternal great-grandmother, Elaine Leyman, that she had taken Ms. Burt, Mr. Hubbard and the children to McDonald's Restaurant and to the park. Because the Department was concerned that the mother was seeing the father and allowing his contact with the children, the Department requested an early review hearing on September 16, 2004. At the conclusion of the hearing, the court determined that a termination petition should be filed.
On January 28, 2005, the Department filed the termination petition. On April 7, the court granted the Department's motion to continue trial. On April 15, Ms. Burt was again referred for counseling services at the domestic violence support center. But Ms. Burt only completed four chapters of the center's 17-chapter/17-week educational program; she failed to complete her counseling homework; and did not show for counseling sessions on several occasions.
On July 28, the court granted the parents' motion to continue the trial. The Department retained Dr. Catherine McClennan to conduct psychological evaluations of the children. Dr. McClennan completed these evaluations on October 7. Defense counsel received these evaluations on October 21, but because they were unable to interview the doctor who was out of town at the time, Ms. Burt and Mr. Hubbard moved for another continuance of the trial. The court denied the parents' motion, determining that the children needed an answer and that any testimony that the doctor could offer was irrelevant to the issues before the court. Trial then commenced on November 1. Dr. McClennan did not testify.
At trial, Ms. Burt and Mr. Hubbard both testified that they intended to pursue a relationship together. Mr. Hubbard testified that he and Ms. Burt wanted to "work things out" and get their children back. RP (Nov. 1, 2005) at 152. Ms. Burt testified that she did not consider Mr. Hubbard to be a danger to the children and that she was willing to allow Mr. Hubbard to have contact with the children and be in the home as the two of them saw fit. She testified that Mr. Hubbard had never harmed the children and there was no reason for him not to be in the home with her and the children once the restraining order expired.
Mr. Block also testified. He testified that Mr. Hubbard had drug/alcohol and domestic violence problems. He testified about Ms. Burt's inability to say "no" to Mr. Hubbard and stay away from him in order to protect herself and the children. RP (Nov. 1, 2005) at 197. Mr. Block concluded that Ms. Burt would be unable to protect her children from domestic violence situations and that she had a drug/alcohol problem, as of March 2005, while she was pregnant with her youngest child.
Mr. Block testified that Ms. Burt needed a minimum of 18 months to two years domestic violence counseling, parenting classes, and six months inpatient drug/alcohol treatment. He testified that he did not think that change was likely, especially with respect to Ms. Burt's relationship with Mr. Hubbard. He also testified the discontinuation of the July 2004 transitional overnight visits had a significant impact on the children. He testified that the children suffered from confusion, behavioral problems and depression. He concluded the continuation of the parent-child relationship would confuse the children even more, create longer-term behavioral problems and that adoption was in their best interests.
The court then heard testimony from domestic violence treatment provider Neil Beaver and Dr. McKnight concerning the effect of domestic violence on children. Mr. Beaver testified that the impact on young children of domestic violence in the home included long-term emotional problems, psychological issues, problems in school, discipline type problems, post-traumatic stress disorder and depression. Dr. McKnight also testified without objection that:
[Domestic violence] causes depression, anxiety, discomfort, in general. It makes children grow up in families where they feel insecure. They tend to have problems academically in school . . . behavior problems at school and often at home . . . sleep difficulties . . . [and an] increased incident of psychological problems as teenagers and adults. There is an increased chance that these children are going to wind up in front of a juvenile court at some point. And then there is the adult that grow[s] up in the abusive home environment that perpetuates it for yet another generation, as we have here.
RP (Nov. 1, 2005) at 402.
At the conclusion of the trial, the court terminated Mr. Hubbard and Ms. Burt's parental rights. This appeal follows.
Judicial Notice
Mr. Hubbard contends the court erred by independently investigating the existence of a no-contact order preventing Mr. Hubbard from contacting Ms. Burt. During trial Mr. Hubbard disputed whether the no-contact order was still in effect when he was in contact with Ms. Burt. To resolve the issue, the trial judge checked the court's computer system to verify Mr. Hubbard's criminal record and the terms of the no-contact order. The court determined that a no-contact ordered was issued on June 11, 2003 and expired on June 10, 2005. Mr. Hubbard argues the court was not permitted to take judicial notice of facts at issue in the termination trial and the court's actions violated the appearance of fairness doctrine. We review judicial notice decisions de novo. Welch Foods v. Benton County, 136 Wn. App. 314, 324, 148 P.3d 1092 (2006).
Generally, courts may take judicial notice of the record of a case presently before it or "in proceedings engrafted, ancillary, or supplementary to it." Swak v. Dep't of Labor Indus., 40 Wn.2d 51, 53, 240 P.2d 560 (1952). Courts may not, however, while trying one cause, "take judicial notice of records of other independent and separate judicial proceedings" even if they are between the same parties. Id. at 54. This is because the decision of a case must depend on the evidence introduced in that case. Id.
But under ER 201, a court may take judicial notice of certain adjudicative facts. ER 201(b) states in pertinent part:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
In support of his argument Mr. Hubbard relies on In re Adoption of B.T., 150 Wn.2d 409, 78 P.3d 634 (2003). In B.T., the Department appealed the reinstatement of an adoption petition brought by the grandparents of B.T., a child whose parents' rights had been terminated. Id. at 413. The Department requested that judicial notice be taken of the superior court's order in the dependency action pursuant to ER 201, but our Supreme Court declined to do so. The Court held that although the dependency action and the adoption proceedings concerned the same child, judicial notice of the dependency action was not warranted because the two actions constituted separate judicial proceedings. Id. at 415.
Here, although the no-contact order was entered in a cause completely independent and separate from the termination case, under ER 201 the court was permitted to take judicial notice of a fact not subject to reasonable dispute and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." ER 201(b)(2). Both Mr. Hubbard and Ms. Burt testified at trial as to the existence of the no-contact order. The only issue concerned the dates that order was in effect. This was capable of accurate and ready determination via the court system database. The court did not err by taking judicial notice of the terms of the no-contact order.
Appearance of Fairness
Mr. Hubbard next contends the appearance of fairness doctrine was violated when the judge independently investigated facts at issue in the case by taking judicial notice of the existence of the no contact order. Due process, the appearance of fairness doctrine, and the Code of Judicial Conduct all require a judge to disqualify himself if he is biased against a party or his impartiality reasonably may be questioned. In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955); State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992); CJC 3(D)(1). The test is objective: whether a reasonable person with knowledge of the relevant facts would question the judge's impartiality. Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995). Prejudice is not presumed, and the party claiming bias or prejudice must support the claim with evidence of the judge's actual or potential bias. State v. Dominguez, 81 Wn. App. 325, 328-29, 914 P.2d 141 (1996).
Here, Mr. Hubbard did not produce any evidence of actual prejudice or bias on the part of the trial court to implicate the appearance of fairness doctrine. Moreover, the record does not support a claim that the court's intervention projected an appearance of improper advocacy or partiality. Evidence of a judge's actual or potential bias is required before the appearance of fairness doctrine will be applied. Post, 118 Wn.2d at 618-19. The judge did not violate the appearance of fairness doctrine.
Constitutionality of Termination Statutes
Mr. Hubbard and Ms. Burt contend the termination statutes, RCW 13.34.180 and RCW 13.34.190, are unconstitutional. They argue that they limit a parent's fundamental rights and are not narrowly drawn to meet a compelling State interest. Interpreting a statute and determining whether a statute is unconstitutional are questions of law that we review de novo. In re Parentage of C.A.M.A., 154 Wn.2d 52, 57, 109 P.3d 405 (2005).
The courts have historically recognized that a biological parent has a fundamental liberty interest in the care, custody and control of his or her child. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980). However, this fundamental right is not absolute. Sumey, 94 Wn.2d at 762. The State has both a right and an obligation as parens patriae to intervene to protect the child when the parent's actions or inactions endanger the child's physical or emotional welfare. Id. Under RCW 13.34.180 and RCW 13.34.190, a court may terminate parental rights if it finds that (1) the requisite allegations are supported by clear, cogent and convincing evidence; and (2) termination is in the best interests of the child.
Mr. Hubbard and Ms. Burt argue that the Washington termination statutes are unconstitutional because they improperly allow the court to terminate parental rights based on the "best interests of the child" standard and not a "harm to the child" standard. They also argue that the termination statutes do not require the State to prove that a less restrictive alternative, such as guardianship or the continuation of the dependency, would be harmful before terminating parental rights. Division One and Division Two of this court have recently addressed these arguments in In re Dependency of I.J.S., 128 Wn. App. 108, 114 P.3d 1215, review denied, 155 Wn.2d 1021 (2005) and In re Welfare of C.B., 134 Wn. App. 336, 139 P.3d 1119 (2006), which we are constrained to follow. Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005).
The "best interests of the child" is insufficient to serve as a compelling state interest overruling a parent's fundamental right in his or her children. In re Custody of Smith, 137 Wn.2d 1, 20, 969 P.2d 21 (1998). But State interference with the parents' protected right to raise their children is allowed where the State seeks to prevent harm or the risk of harm to the children. Id. at 18. Thus, the State can constitutionally intrude on parental rights only when parental actions seriously conflict with the child's physical or mental health. Id.
As both Division One and Division Two have observed, the termination statutes require the State to show termination of the parent-child relationship is necessary to prevent harm to the child. I.J.S., 128 Wn. App. at 117-18; C.B., 134 Wn. App. at 344-45. Although the termination statutes focus on a best interest of the child standard, the State must prove the six statutory factors set forth in RCW 13.34.180 and that the child's relationship with its parents actually or potentially harms the child. Id. Only after the State proves these statutory factors will the court consider whether a preponderance of the evidence establishes that termination is in the best interests of the child. Id. Therefore, although the statute does not expressly utilize a "harm to the child" standard, the State is required to demonstrate that termination of parental rights is required to prevent harm or risk of harm to the child. Id.
Moreover, the trial court is not required to consider guardianship or continuation of the dependency action as a least restrictive alternative if no such petition or request has been filed. I.J.S., 128 Wn. App. at 120; C.B., 134 Wn. App. at 345-46. The statutory factors of RCW 13.34.180 also require the State to (1) prove that continuation of the parent-child relationship will harm the child and that in such circumstances, guardianship would not be an appropriate alternative to termination; and (2) to provide services to cure parental deficiencies providing the parent with a less restrictive alternative before the termination of parental rights. C.B., 134 Wn. App. at 345 (quoting RCW 13.34.180(1)(f)).
Because RCW 13.34.180 and RCW 13.34.190 require the Department to prove that its request to terminate parental rights is based on the prevention of harm or risk of harm to the children and require the Department to provide the parent with a less restrictive alternative before termination, the statutes survive strict scrutiny and are constitutional.
Termination of Parental Rights
Ms. Burt contends the court erred by terminating her parental rights. Parents have a fundamental right to the care and custody of their children, and a trial court asked to interfere with that right should employ great care. In re Welfare of H.S., 94 Wn. App. 511, 530, 973 P.2d 474 (1999), cert. denied, 529 U.S. 1108 (2000). RCW 13.34.180(1) governs the termination of parental rights and sets forth six factors the State must allege and prove in a termination hearing:
(a) That the child has been found to be a dependant 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 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. . . .
. . . .
(f) That continuation of the parent and child relationship clearly diminishes that child's prospects for early integration into a stable and permanent home.
A court may terminate parental rights if the Department proves the elements of RCW 13.34.180(1) by clear, cogent and convincing evidence. RCW 13.34.190(1). "Clear, cogent and convincing" means highly probable. In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995). Additionally, the trial court must also find by a preponderance of the evidence that termination is in the best interests of the child. RCW 13.34.190(2).
The court's factual findings under RCW 13.34.180(1) must be upheld if supported by substantial evidence from which a rational trier of fact could find the necessary facts by clear, cogent and convincing evidence. In re Dependency of C.B., 61 Wn. App. 280, 286, 810 P.2d 518 (1991). Because only the trial court has the opportunity to hear the testimony and observe the witnesses, its decision is entitled to deference and we will not judge the credibility of the witnesses or weigh the evidence. In re Dependency of A.V.D., 62 Wn. App. 562, 568, 815 P.2d 277 (1991).
Provision of Reasonably Necessary Services
Ms. Burt first challenges the trial court's finding under RCW 13.34.180(1)(d) that the Department provided all services reasonably necessary to correct her parental deficiencies. She first argues that the Department failed to provide safe housing for herself and the children at the outset of the dependency, and instead chose to separate the family by putting the children in a foster care facility.
But according to the record, in 2001, Ms. Burt came to the domestic violence support center and was offered the services of the center's shelter. Ms. Burt stayed at the shelter for one night before leaving the next day with her grandfather. The Department referred Ms. Burt to the support center in 2002, 2003, 2004, and 2005, but Ms. Burt declined to participate in services at the center and did not take advantage of the shelter. In 2002, Ms. Burt was able to obtain low-income subsidized housing, but she was evicted after it was discovered that Mr. Hubbard was living with her. When the Department offers a service, but the parent refuses to participate, RCW 13.34.180(1)(d) is satisfied. There was substantial evidence that Ms. Burt was offered safe housing.
Ms. Burt next argues that the Department failed to tailor the domestic violence counseling to accommodate her learning disability. But in April 2005, Ms. Burt was referred to the support center, where she began a domestic violence curriculum entitled "Boundaries." Ms. Burt was able to complete four chapters of the curriculum and the homework required in those chapters. Ms. Burt watched videos with support center staff and participated in discussions about the videos. When Ms. Burt was unable to go to the center for her counseling sessions, the center scheduled in home visits with her. The record does not establish that Ms. Burt had any difficulties completing or participating in the curriculum offered by the center. Instead, the record shows that the center was very accommodating to Ms. Burt's needs. Ms. Burt was only unable to complete the program due to her inability and unwillingness to keep the scheduled counseling appointments. Again, when the Department offers a service, but the parent refuses to participate, RCW 13.34.180(1)(d) is satisfied.
Visitation
Ms. Burt also argues that the Department offered her inadequate visitation with her children. In July 2005, the court suspended visitation between Ms. Burt and the children after the Department determined that visitation was damaging to the children and the only reason they wanted to visit their mother was for the toys she brought for them. Ms. Burt argues the suspension of visitation was in error because Department was required to maximize visitation and encourage maximum parent-child contact.
Generally, "[t]he agency shall encourage the maximum parent and child . . . contact possible, when it is in the best interest of the child, including regular visitation." RCW 13.34.136(1)(b)(ii). But visitation may be limited or denied "if the court determines that such limitation or denial is necessary to protect the child's health, safety or welfare." RCW 13.34.136(1)(b)(ii). Moreover, the agency is not required to develop a plan of services for the parents or provide services to the parents if the court orders that a termination petition be filed. RCW 13.34.136(1)(c). After a termination petition has been filed, visitation is only required pending a fact-finding hearing on the termination petition if visitation would be in the best interests of the child. RCW 13.34.136(1)(c).
Here, the record on appeal does not contain the court hearing on the Department's request to suspend visitation. Therefore, it is unclear as to what actually occurred during this hearing and this issue may not be properly before this court. RAP 9.2(b). Nonetheless, according to the testimony at trial, Ms. Burt was afforded many opportunities for visitation with her children between 2001 and 2005. The Department's request to suspend visitation after the termination petition was filed was based on the fact that the visitation sessions with Ms. Burt were damaging to the children. The children were also having behavioral problems and appeared confused, which took a long period of time to resolve after each visit. The Department also indicated that the only reason the children wanted to visit Ms. Burt was for the toys she brought to the sessions. Given that visitation is only required in the best interests of the child after the termination petition has been filed, the court did not err in suspending visitation in July 2005. The evidence was substantial that Ms. Burt was offered adequate visitation with her children.
Finding Adverse Conditions Unlikely to be Remedied
Ms. Burt next challenges the court's finding under RCW 13.34.180(1)(e) that there was little likelihood that conditions would be remedied so that the children could be returned to her in the near future. She argues that the court's finding concerning this factor was premature because the Department failed to provide adequate services. But the focus of this factor is whether the identified parental deficiencies have been corrected. K.R., 128 Wn.2d at 144. If all necessary services reasonably capable of correcting parental deficiencies within the foreseeable future are offered or provided, and the parental deficiencies are not substantially improved within 12 months of the dependency order, a presumption arises that this factor is established. In re Dependency of T.R., 108 Wn. App. 149, 165, 29 P.3d 1275 (2001).
Here, Ms. Burt was offered adequate services by the Department. The dependency was initiated in 2003, but by 2005, Ms. Burt was still having difficulties completing the services offered to her by the Department. There was substantial evidence to support the court's finding on this factor.
Failure to Avoid Domestic Violence
Ms. Burt also argues that the court erred in finding that the primary basis for the court's termination of her parental rights was her failure to avoid domestic violence situations. She argues that the court erred in finding that domestic violence has a very significant affect on young children. Ms. Burt asserts that the Department presented no evidence that the children were actually harmed by any exposure to the domestic violence. Citing various law review articles and cases from other jurisdictions, she argues that current research does not support the conclusion that children are necessarily harmed by such exposure. Her reliance on this authority, however, was not raised in the trial court and thus was not properly preserved for consideration by this court. RAP 2.5(a).
Ms. Burt cites to the following law review articles and cases in support of her argument: Note, At the Crossroads of Law and Social Science: Is Charging a Battered Mother with Failure to Protect her Child an Acceptable Solution when her Child Witnesses Domestic Violence?, 69 Fordham L.Rev. 1487, 1500-18 (2001); Justine Dunlap, Sometimes I Feel Like a Motherless Child: The Error of Pursuing Battered Mothers for Failure to Protect, 50 Loy. L.Rev. 565, 583 (2004); Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002); New Jersey v. Div. of Youth Family Servs. v. S.S., 372 N.J. Super.13, 855 A.2d 8 (2004).
Moreover at trial the court heard testimony from the Department's witnesses, Mr. Beaver and Dr. McKnight, about the significant impact domestic violence has on young children. Ms. Burt neither challenged the admissibility of this testimony nor presented any evidence to rebut the testimony of the Department's witnesses.
Mr. Beaver testified that he had specialized training and education pertaining to the impact of domestic violence on the children of a relationship. He said that domestic violence in the home causes emotional problems, psychological issues, problems in school, and discipline-type problems. He also testified that children who are subjected to domestic violence in their home also are often diagnosed with post-traumatic stress disorder and other disorders such as depression.
Dr. McKnight testified that he had researched and published books on the impact of domestic violence on young children. He testified domestic violence in the family causes young children to suffer from depression, anxiety and discomfort. He said that the children grow up feeling insecure, tend to have academic problems and behavioral problems and have an increased incident of psychological problems as teenagers and adults.
The Department also presented testimony from social workers, Mr. Block and Mr. Staggs. Mr. Block testified that Mr. Hubbard was still present in the home during the dependency action and that he was still having contact with Ms. Burt and the children. Mr. Block also testified that the children were confused, had behavioral problems and were depressed.
Mr. Staggs testified that Ms. Burt reported to him that Mr. Hubbard assaulted the children and was very abusive towards them. But, Ms. Burt then testified at trial that she did not consider Mr. Hubbard to be a danger to the children and that she was willing to allow Mr. Hubbard to have contact with the children and be in the home as the two of them saw fit. Based on the testimony at trial, there was sufficient evidence for the court to conclude that there was little likelihood that the conditions would be remedied so that the children could be returned to Ms. Burt in the near future.
Finding on Early Integration
Ms. Burt next challenges the trial court's finding under RCW 13.34.180(1)(f) that the continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. She argues that termination of her parental rights was not necessary to provide the children with a stable and permanent environment, because such environment existed with her.
But the testimony at trial established that the children were in foster care for nearly two years before the termination trial began. In 2002 Ms. Burt obtained low-income subsidized housing for herself and the children, but was evicted for allowing Mr. Hubbard into the home. In July 2004 Ms. Burt had obtained employment and an appropriate home for the children. The Department planned to transition the children back into the home, until it was discovered that Ms. Burt had been allowing Mr. Hubbard into the home and that Mr. Hubbard had been arrested for assaulting a 17-year-old. Based on this evidence, there was substantial evidence to support the court's finding that Ms. Burt was unable to provide the children with a stable and permanent home.
Termination in Best Interest of Children
Finally, Ms. Burt contends that because the statutory requirements of RCW 13.34.180 were not met, the trial court's conclusion that termination was in the best interest of the children constituted error. The trial court must make this finding by a preponderance of the evidence. RCW 13.34.190(2).
Here, as stated above, the statutory requirements of RCW 13.34.180(1) were met. The children had been dependent for a period of nearly two years before termination of Ms. Burt's parental rights. Ms. Burt had made minimal progress in separating herself from Mr. Hubbard and completing or utilizing the services offered to her to regain custody of the children. The Department presented evidence that if the parental rights were not terminated, such a situation where the children were without a permanent home would only confuse them and create longer-term behavioral problems. The Department also presented evidence that adoption of the children was their best option to further each child's development. Based on the evidence presented at trial, the court did not err in finding that termination was in the best interests of the children. RCW 13.34.190.
Hearsay
Ms. Burt next contends the court erred by admitting hearsay statements at trial. The admission of evidence is within the sound discretion of the trial court. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). We will not disturb its decision on review absent an abuse of discretion. Id. An abuse of discretion occurs when the trial court's decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Under ER 801(c), hearsay is defined as a statement, other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. Ms. Burt first argues the court erred by admitting Individual Service and Safety Plans (ISSPs) for each child, because they constituted inadmissible hearsay.
During trial, defense counsel objected to the admission of the ISSPs on the ground that they contained inadmissible hearsay. The court admitted the documents finding that the ISSPs provided a history of the services proposed by the Department, the incidents and allegations giving rise to the need for services, notice to the parents as to what their perceived parenting deficiencies were and recommendations for curing those deficiencies. The court, however, determined the ISSPs could not be used "to establish a hearsay fact not otherwise established in the evidence as substantive evidence that would support a finding of fact." RP (Nov. 1, 2005) at 488.
RCW 13.34.110(2)(b) provides that during a court's fact-finding hearing on a termination petition, "[n]o social file or social study may be considered by the court . . . except as otherwise admissible under the rules of evidence." In a nonjury case, liberal admission of evidence is ordinarily encouraged, and where a court perceives a distinction between admissible and inadmissible purposes for which evidence is offered, and rules accordingly, there is no error in its admission. In re Welfare of Noble, 15 Wn. App. 51, 547 P.2d 880 (1976).
In In re Welfare of Henderson, 29 Wn. App. 748, 751, 630 P.2d 944 (1981), the trial judge admitted into evidence, over the defense's repeated hearsay objections, correspondence and status reports contained in a social file. On appeal, the court upheld the admission of evidence finding that
the trial judge made clear that he was not admitting the written documents and challenged oral testimony as proof of the contents thereof (hearsay under ER 801), but rather as evidence relevant to determining what was done by the various social agencies that worked with Mrs. Henderson, and whether the State provided all necessary services it should reasonably have offered her.
Id. at 751-52.
Here, the ISSPs were not admitted for the truth of the matters asserted. The court admitted the documents with the limitation that that any hearsay contained in them would not be admissible unless otherwise established by the evidence. The court later reiterated that the ISSPs were admitted subject to "some limitations." RP (Nov. 1, 2005) at 704. The court was also able to distinguish between the admissible and inadmissible purposes for which the evidence was offered and articulated that the evidence was very important for the court to look at the history of services offered, the perceived parenting deficiencies and the Department's recommendations for curing those deficiencies. Under Henderson, the court's admission of the ISSPs did not constitute error.
Ms. Burt next argues the court erred by admitting a letter from Ms. Leyman, because it constituted inadmissible hearsay. Prior to trial, Mr. Block asked Ms. Leyman to write a letter outlining an incident in July 2004 where she had taken Ms. Burt, Mr. Hubbard and the children to McDonald's Restaurant and the park. The letter stated that Mr. Hubbard had called Ms. Leyman from Ms. Burt's home to tell her the children were there visiting for the night.
During trial, the letter was admitted into evidence even though Ms. Leyman did not remember writing the letter. Ms. Leyman testified, however, that she remembered talking to "someone" about the incident. RP (Nov. 1, 2005) at 669-70.
Here, the letter was clearly offered for the truth of the matters asserted therein — that Ms. Leyman had taken the family to the park and that Mr. Hubbard had called Ms. Leyman from Ms. Burt's home. But there was other evidence presented at trial establishing Ms. Burt's continual contact with Mr. Hubbard. Based on this evidence, the admission of Ms. Leyman's letter was not prejudicial. The court did not err by admitting the letter.
Ms. Burt also argues that admission of the letter constituted error, because it was not properly authenticated. ER 901(a) states that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."
Ms. Leyman testified at trial that she did not remember writing the letter. Therefore the letter was not properly authenticated. ER 901(a). However, the court's admission of the unauthenticated letter was harmless because Ms. Leyman specifically testified at trial that she took Ms. Burt, Mr. Hubbard and the children "to get some hamburgers" and to the park. RP (Nov. 1, 2005) at 669. She also testified that Mr. Hubbard had called her on one occasion to come over for a visit, because Ms. Burt had the children on an overnight visit. Moreover, there was evidence presented at trial that Ms. Burt was in contact with Mr. Hubbard throughout the dependency. As a result, Ms. Burt cannot establish prejudice from the admission of the unauthenticated letter.
Effective Counsel
Ms. Burt next contends she was denied effective assistance of counsel. Ms. Burt argues that Mr. Block's testimony at trial consisted of hearsay statements from social workers, police officers and relatives. She asserts that defense counsel was ineffective for failing to object to these statements.
To establish ineffective assistance of counsel, a party must show deficient performance and resulting prejudice. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Counsel's performance is deficient if it falls "below an objective standard of reasonableness based on consideration of all the circumstances." State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To satisfy the prejudice prong, a party must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "[S]crutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption of reasonableness." Thomas, 109 Wn.2d at 226. Unless the parent can show that she did not receive a meaningful hearing, counsel's effectiveness is presumed. In re Moseley, 34 Wn. App. 179, 184, 660 P.2d 315, review denied, 99 Wn.2d 1018 (1983).
If counsel's conduct can be characterized as legitimate trial strategy, it cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). "The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989).
Here, Ms. Burt's counsel did not object to portions of Mr. Block's testimony. Based on the record, however, the failure to object was likely a tactical decision. Defense counsel vigorously cross-examined Mr. Block on his testimony at trial. Defense counsel's failure to object was not ineffective assistance.
Continuance
Ms. Burt also contends the court erred by denying her continuance request. She argues the continuance was required in order for defense counsel to interview child psychologist, Catherine McClennan, Ph.D., who was retained by the Department to evaluate the children. The court's denial of a motion to continue is reviewed for an abuse of discretion. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).
In a termination of parental rights, the "parties, attorneys and the court have an obligation to expedite resolution of issues to limit the period during which children face an uncertain future." In re Dependency of O.J., 88 Wn. App. 690, 696, 947 P.2d 252 (1997), review denied, 135 Wn.2d 1002 (1998). Here, the court denied Mr. Hubbard and Ms. Burt's motion for continuance, because the court did not feel that any testimony that Dr. McClennan could offer was relevant to the issues before the court. The court stated that the only issues before the court were whether services had "been offered to the parents in an appropriate way, how have they responded, what is the likelihood of them being able to care for the children in a responsible way in the future, [and] what is the best interests of the child," not any evidence that could be offered by Dr. McClennan as to how the children were doing. RP (Oct. 31, 2005) at 47. Moreover, the court ruled that it could not grant a continuance, because the matter needed resolution as the children had been in foster care for 29 months.
Considering that any testimony Dr. McClennan could offer was not crucial for either party to resolve the issues before the court, and Dr. McClennan did not testify for the State, the court did not abuse its discretion when denying Mr. Hubbard and Ms. Burt's motion for a continuance. "The child has a considerable interest in a speedy resolution to termination proceedings." In re Welfare of Angelo H., 124 Wn. App. 578, 590, 102 P.3d 822 (2004), review denied, 154 Wn.2d 1028 (2005).
Cumulative Error
Finally, Ms. Burt contends the doctrine of cumulative error requires reversal of the trial court's termination of her parental rights. Under this doctrine, a party may be entitled to a new trial when errors cumulatively produced a fundamentally unfair trial. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). But when no prejudicial error is shown, cumulative error could not have deprived a party of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990).
Ms. Burt fails to identify any prejudicial error occurred here. Therefore cumulative error is inapplicable.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J.
STEPHENS, J. Concur