Opinion
No. 66473-5-I.
Filed: September 26, 2011. UNPUBLISHED.
Appeal from a judgment of the Superior Court for King County, No. 10-7-01991-8, Patricia H. Clark, J., entered December 8, 2010.
Affirmed by unpublished opinion per Cox, J., concurred in by Becker and Spearman, JJ.
Charles Peralta appeals the trial court order terminating his parental relationship with his daughter J.V.S.R.P. The Department of Social and Health Services (the Department) proved by clear, cogent, and convincing evidence that he is unfit to parent J.V.S.R.P. The Department also proved by the same standard of proof that it either offered or provided the requisite services to address parental deficiencies. Finally, the Department established by a preponderance of the evidence that termination of the parent-child relationship is in the best interests of J.V.S.R.P. We affirm.
This matter is appropriate for accelerated review under RAP 18.13 and the decision of the trial court is affirmed.
J.V.S.R.P. was born on July 13, 2007, and is the child of Cynthia Rimel and Peralta. She was removed from Rimel and Peralta's care on July 15, 2008. The trial court found that she was dependant pursuant to an order of dependency on June 30, 2009, and disposition orders were entered as to Rimel and Peralta on July 15, 2009.
The disposition order required Peralta to sign and maintain a release of information for his mental health services at the Veteran's Administration (VA). He was also required to complete a mental health evaluation, engage in a parenting assessment, follow through with random urinalysis testing, complete parenting classes, continue with his methadone maintenance program, and establish a child-appropriate residence.
On June 3, 2010, the trial court found that visitations were contrary to J.V.S.R.P.'s health, safety, and welfare as currently structured and suspended them pending a hearing. At the hearing on June 22, 2010, the trial court found that Rimel and Peralta had "not completed and/or complied with critical court ordered services, with the exception of parenting evaluation and a 6-week parenting course." The court concluded that there was no change in the circumstances of the case since the June 3rd order. As such, it continued the suspension of visitations until the Department and the court appointed special advocate (CASA) determined that the parents had made progress on the court ordered services.
Exhibit 13 at 5-6.
J.V.S.R.P.'s termination trial took place in November and December 2010. The court heard testimony from Peralta, Rimel, the CASA, two social workers, two chemical dependency professionals, the parent coach, a psychologist, a toxicologist, and others involved in the case. Near the end of the trial, Rimel voluntarily relinquished her parental rights. Her rights are not at issue in this appeal.
The trial court found that Peralta was currently unfit to parent J.V.S.R.P. and that termination was in her best interest. As such, it ordered that the parent-child relationship between J.V.S.R.P. and Peralta be permanently terminated.
Peralta appeals.
CURRENT PARENTAL UNFITNESS
Peralta argues that substantial evidence does not support the trial court's finding that he is an unfit parent. We disagree.
It is well established that parents have a fundamental liberty and property interest in the care and custody of their children. Although parental rights enjoy constitutional protection, a parent does not have an absolute right to the custody and care of a child. Where the rights of a child conflict with the legal rights of a parent, the rights of the child should prevail. The paramount consideration in a termination proceeding is the welfare of the child. A child's right to basic nurturing includes the right to a safe, stable, and permanent home and to a speedy resolution of dependency proceedings.
U.S. Const. amends. V, XIV; Wash. Const. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Custody of Smith, 137 Wn.2d 1, 13-14, 969 P.2d 21 (1998), aff'd sub nom. by Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
In re Welfare of Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979).
Young, 24 Wn. App. at 395.
RCW 13.34.020; In re Welfare of H.S., 94 Wn. App. 511, 530, 973 P.2d 474 (1999); In re Dep. of C.R.B., 62 Wn. App. 608, 615, 814 P.2d 1197 (1991).
To terminate a parent-child relationship, the Department must establish:
(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.
These elements must be established by clear, cogent, and convincing evidence. Such evidence exists when the ultimate fact in issue is shown to be highly probable.
In re Dep. of T.L.G., 126 Wn. App. 181, 197, 108 P.3d 156 (2005).
Substantial evidence must support the juvenile court's findings. Evidence is substantial if, when viewed in the light most favorable to the prevailing party, a rational trier of fact could find the fact by the necessary degree of proof. An appellate court will not weigh the evidence or the credibility of witnesses. Unchallenged findings of fact are verities on appeal.
In re Dep. of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001).
In re Dep. of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003).
T.R., 108 Wn. App. at 161.
In re Welfare of C.B., 134 Wn. App. 336, 349, 139 P.3d 1119 (2006).
Here, the trial court found that Peralta was currently unfit to parent J.V.S.R.P. for three reasons:
1.33 Mr. Peralta's substance abuse issues directly impact his ability to be an appropriate, safe, and stable parent to his children.
1.34 . . . The court finds that the father would not protect the child from the mother or be able to provide a safe and stable home for the child. . . . .
1.38 Mr. Peralta's mental health issues directly impact his ability to be an appropriate, safe, and stable parent to his children.
Clerk's Papers at 286-87.
Peralta assigns error to a number of the trial court's findings, but the focus of his arguments is on those listed above. We conclude that substantial evidence supports each one.
First, the Department presented substantial evidence that Peralta's alcohol abuse issues negatively impact his ability to effectively parent J.V.S.R.P. especially in light of his methadone treatment.
The trial court made the unchallenged finding that Peralta is addicted to opiates and has been using opiate replacement therapy (methadone maintenance) since 1999. J.C. Ephraim, the individual who provided parent coaching to Peralta, testified that mixing alcohol, a sedative, and methadone, a narcotic, can be lethal. He explained that it can affect a person's respiratory system by slowing down the heart rate, potentially resulting in unconsciousness or death. Teresa Grimmett, a chemical dependency professional with Therapeutic Health Services (THS), testified that she warned Peralta that drinking alcohol while taking methadone was not a good idea for these reasons.
At trial, Peralta admitted that he drinks at least four times a week but denied having a drinking problem. But, several other witnesses testified about Peralta's alcohol abuse. Grimmett testified that Peralta once left her 17 messages late in the evening. The initial messages were clear, but Peralta became progressively less articulate. She concluded that, based on those messages, Peralta has a substance abuse issue involving alcohol. Ephraim also testified that Peralta's speech was slurred in all but one of the more than 30 voicemails he received from him after 8:00 p.m. Ephraim concluded that Peralta was taking some substance that affected him.
Kelly Russell, a social worker assigned to J.V.S.R.P., testified that Peralta smelled like alcohol during two visitations. Jennifer Johnson, the social worker assigned to Peralta's son, J.R.P. who was also removed from Rimel and Peralta's care, testified that during one of the visitations with J.R.P., she smelled alcohol on Peralta's breath. She concluded that Peralta has recreational substance abuse issues.
Furthermore, as part of J.V.S.R.P.'s dependency proceeding, Peralta was ordered to engage in random urinalysis testing. Dr. Bert Toivola, a clinical toxicologist, testified that Peralta tested positively for alcohol on August 28, September 25, and October 8, 2009. He also testified that Peralta tested positively for cocaine metabolite on November 30, 2009.
Ephraim testified that Peralta's excessive alcohol use raised a serious concern as to his ability to care for J.V.S.R.P. He indicated that it demonstrates a lack of good judgment.
Based on this evidence, a rational trier of fact could find that there was clear, cogent, and convincing evidence that Peralta's substance abuse issues directly impact his ability to be an appropriate, safe, and stable parent.
Next, Peralta challenges the trial court's finding that he could not provide a safe home for J.V.S.R.P. because he would not protect her from Rimel. This finding is also supported by substantial evidence.
At trial, Peralta did not appear to appreciate the significance of Rimel's mental health issues. He testified that her mental health issues were under control and that she would not be a risk to J.V.S.R.P. But at trial, Rimel admitted that she suffers from several mental defects. Specifically, she testified that she currently receives disability payments due to a neurological impairment and post traumatic stress disorder (PTSD). She also stated that she was involuntarily committed as a child, in 2006, and in 2008.
There was substantial evidence that Peralta did not protect J.V.S.R.P. from Rimel in the past. In 2008, J.V.S.R.P. was removed from Rimel and Peralta's care after Rimel was again involuntarily committed due to a mental illness episode. During that episode, Peralta testified that he left J.V.S.R.P. with Rimel in the apartment where they lived together while he "posted up" outside. He described his actions as follows:
I pretty much just walked around the premises because of — because at this time [Rimel] was agitated to the point where I felt we needed to put some space between us until I figured this out, but it didn't look to me like she presented a harm to [J.V.S.R.P.] at all, I mean, at all. She was still a good mother, she was still taking care of the baby great.
Report of Proceedings (Nov. 3, 2010) at 156.
Peralta admitted that if Rimel had a future episode that put J.V.S.R.P. in danger he would "secur[e] the baby first and foremost, secur[e J.V.S.R.P.]. . . ." He also explained his prior actions by stating "[Rimel] became so distraught that the apartment manager really requested that one of us go, one of us leave, and obviously I'm not going to have the baby and her leave the apartment, so I left and stood sentry as close as I could."
There was also evidence that Peralta could not control Rimel during visitations. At trial, Peralta acknowledged that the Department separated Rimel and Peralta's visitations with J.V.S.R.P. due to an incident during which Rimel became agitated and was asked to leave the visitation center. But, Peralta testified that he still wanted Rimel to attend his visitations. Amanda Goll, the CASA, testified that Rimel would sometimes appear at Peralta's individual visitations and he would not tell her to leave.
Ephraim testified that, based on his observation of one visitation, Peralta "showed no signs of being able to control [Rimel], none at all." Johnson also testified that Peralta did not correct Rimel when she told J.V.S.R.P. that she loved her more than Peralta, that the foster parents were not parenting adequately, and that the visitation supervisors would not let them see her.
There was also evidence that Peralta was dependent upon Rimel and would not choose to live apart from her. Peralta testified that he was in a committed relationship with Rimel and Ephraim testified that he was dependent upon her for basic needs because she paid for "everything."
Based on this evidence, a rational trier of fact could find that there was clear, cogent, and convincing evidence that Peralta would not protect J.V.S.R.P. from Rimel or be able to provide a safe and stable home for her.
Finally, Peralta challenges the trial court's finding that his mental health issues impact his ability to effectively parent J.V.S.R.P. But, this finding is also supported by substantial evidence.
As part of J.V.S.R.P.'s dependency, the court ordered Peralta to sign a release of information for his mental health services at the VA and to take a mental health evaluation and follow any recommendations. The trial court made the following, unchallenged finding of fact regarding Peralta's release of his mental health information:
1.24 The father's testimony that he signed a release of information for his mental health services at the Veteran's Administration for DSHS and maintained a current release of information with DSHS for the Veteran's Administration throughout the duration of the dependency is not credible. The Department does not have a release of information for his mental health services at the Veteran's Administration on file, and the father has failed to produce any evidence that he signed such a release. The father's testimony regarding what services he engaged in at the Veteran's Administration is contradictory.
Clerk's Papers at 283-84.
Peralta did obtain two mental health evaluations from Barbara Lui, a clinical psychologist. During the first evaluation in August 2009, Lui diagnosed Peralta with generalized anxiety disorder. She recommended that he receive follow up counseling, but he was never assigned a counselor. In September 2010, Lui updated Peralta's mental health evaluation and diagnosed him with generalized anxiety disorder and an adjustment disorder with mixed emotional features. She again referred him to mental health services with THS. At the time of trial, Peralta had met with a counselor twice. But, there was no evidence that he engaged in any mental health counseling before October 2010.
At trial, Peralta testified that he did not believe that he was in need of mental health treatment or that he had a current mental health diagnosis.
Russell testified that Peralta's untreated mental health issues affected J.V.S.R.P. because they caused him to be paranoid about systems and project mental health issues onto her. Russell explained that that kind of an environment "could have proved disastrous for the child growing up to have a sense of just real intense complexity around her sense of identity. . . ."
Johnson also testified that Peralta's absence of mental health treatment had an impact on his visitations with J.V.S.R.P. She believed that he suffered from PTSD, which caused him to escalate, express extreme concern for J.V.S.R.P., and fixate on those concerns. She stated that those issues could have been addressed by mental health counseling.
The court made the following, unchallenged finding of fact regarding the effect a volatile caregiver might have on J.V.S.R.P.:
1.76 If [J.V.S.R.P.] were to have a volatile caregiver, [she] would have ongoing anxiety. Anxiety causes cortisol to flood the brain, causing an inability for a person to self-soothe. This can result in poor academic progress, acting out behaviors, and potentially drug use.
Clerk's Papers at 293.
Based on this evidence, a rational trier of fact could find that there was clear, cogent, and convincing evidence that Peralta's mental health issues directly impact his ability to be an appropriate, safe, and stable parent to J.V.S.R.P. Accordingly, there is substantial evidence that Peralta is currently unfit to parent J.V.S.R.P.
Peralta argues that the Department did not prove unfitness because he established child-appropriate housing and witnesses testified that he and J.V.S.R.P. had a loving, bonded, and appropriate relationship. There is ample evidence in the record that Peralta and J.V.S.R.P. had a strong relationship, that he truly loved her, and that his residence during trial was child-appropriate. But, Peralta cites no authority that this evidence results in the Department's failure to prove unfitness. We will not consider an issue absent citation to legal authority.
State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Next, Peralta argues that the Department did not prove how his substance abuse and mental health problems prevented him from being a capable parent. But, as explained above, Ephraim testified that Peralta's substance abuse issues negatively affected his ability to parent and Johnson and Russell testified that Peralta's untreated mental health issues negatively affected his ability to parent. Therefore, this argument is not persuasive.
PROVISION OF NECESSARY SERVICES
Peralta argues that the Department did not provide sufficient parent coaching, a necessary and court-ordered service. We disagree.
Under RCW 13.34.180(1)(d) the Department must prove that it offered or provided all court-ordered and necessary services that are reasonably available and capable of correcting parental deficiencies within the foreseeable future. The Department does not need to provide services that would be futile.
In re Dep. of T.L.G., 126 Wn. App. at 200.
In re Dep. of S.M.H. J.C.H., 128 Wn. App. 45, 54, 115 P.3d 990, review denied, 156 Wn.2d 1001 (2005).
Here, the trial court made the unchallenged finding that Peralta was referred for parenting classes with Ephraim on May 19, 2010.
Ephraim first met with Peralta and Rimel during a visitation on May 21, 2010. Ephraim testified that he intended for the visitation to be a screening assessment evaluation from which he could come up with a plan for later coaching. The social worker stopped the visitation early when Peralta and Rimel failed to follow instructions about how to feed J.V.S.R.P. In response, Rimel grabbed J.V.S.R.P. and told everyone to "call the police." The social worker was able to get J.V.S.R.P. back from Rimel without incident.
There was a second visitation scheduled, but Peralta and Rimel did not show up. They did notify Ephraim and the social worker that they were not going to make it, but not until everyone was already waiting at the visitation site.
Ephraim met with Peralta and Rimel for the last time on May 28, 2010. He was unable to observe the scheduled visitation because Rimel and Peralta arrived late and J.V.S.R.P. had already been taken home. But, he did meet with them to come up with a plan going forward.
On June 3, 2010, the court temporarily suspended visitations because they were contrary to J.V.S.R.P.'s health, safety, and welfare. They were never reinstated.
In this case, the Department provided parent coaching services sufficient to satisfy RCW 13.34.180(1)(d). Ephraim attempted to provide parent coaching services at three different visitations. He was unable to do so each time because the parents' behavior caused the visitation to end early or because the visitation was cancelled due to the parents' tardiness. Because of the parents' actions, it was futile to provide additional parent coaching services and the Department was not required to do so.
BEST INTERESTS OF THE CHILD
Peralta argues that the Department did not prove that termination is in J.V.S.R.P.'s best interests. We disagree.
If the six statutory factors in RCW 13.34.180(1) are proved by clear and convincing evidence, then the trial court must also find by a preponderance of the evidence that termination of parental rights is in the child's best interests. The trial court is afforded broad discretion in making this determination, and its decision will receive great deference on review. The best interests of a child must be decided on the facts and circumstances of each case.
In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010); RCW 13.34.190.
Young, 24 Wn. App. at 395.
In re Dep. of A.V.D., 62 Wn. App. 562, 572, 815 P.2d 277 (1991).
Here a parent coach, two social workers, the CASA and the court recognized Peralta's significant parental deficiencies. Although J.V.S.R.P. and Peralta had a strong and loving bond, the record supports the trial court's determination that he was not capable of parenting her. At trial, he had an unacknowledged substance abuse problem and he was unable to protect J.V.S.R.P. from Rimel. He also made no significant progress on his mental health issues since the commencement of the dependency in 2008. It was clearly within the broad discretion of the trial court to find that termination is in J.V.S.R.P's best interests.
We affirm the order of termination.
We Concur: