Opinion
67976-7-I
09-24-2012
In re the Dependency of S.J.E., a minor child, v. STEPHEN L. CZAPLA, Appellant. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent,
UNPUBLISHED OPINION
Appelwick, J.
After his child was found dependent, Czapla was directed to participate in various State-provided services, resolve all criminal matters, and comply with all conditions of release. Czapla was subsequently incarcerated four separate times, and the required services were not available in jail. The trial court terminated Czapla's parental rights a year and a half after the original dependency order. He argues the trial court erred by finding that the State provided or offered all necessary and reasonably available services. Finding no error, we affirm.
FACTS
S.J.E. was born in November 2007. He lived with his mother until January 2010, when the Department of Social and Health Services (the "State") removed him due to his mother's deteriorating mental condition. At the time, Czapla was in jail for violating a no-contact order against S.J.E.'s mother and he had never had any contact with S.J.E. When Czapla was released on January 19, 2010, he found out his son was in the State's custody.
Czapla was reincarcerated in February and March for violating the terms of community supervision. In April 2010, he agreed to a dependency and dispositional order. He was required to establish paternity; complete a drug and alcohol evaluation and follow all recommendations; maintain regular contact with S.J.E.'s social worker and guardian ad litem and notify them of any changes in address, phone, or roommates; submit to random urine analyses; establish and maintain adequate and safe housing that is free of drugs, alcohol, and domestic violence; undergo a psychological evaluation with a parenting component; complete a batterer's assessment and follow all recommendations; and resolve all criminal matters and follow all conditions of release. After subsequent dependency review hearings in June 2010, December 2010, and May 2011, similar requirements were imposed. The trial court terminated Czapla's parental rights in October 2011.
Czapla was unable to maintain adequate and appropriate housing, and repeatedly failed to follow his conditions of release. He was reincarcerated from June 22, 2010, to August 10, 2010; from August 23, 2010, to September 8, 2010; from January 1, 2011, to August 31, 2011; and from October 5, 2011, until at least the end of the termination proceedings. Because of his frequent incarceration, his visits with S.J.E. and the services actually available to him were limited.
Czapla had his first ever visit with S.J.E. on September 29, 2010. He participated in four more visits before he was arrested on January 1, 2011. S.J.E.'s social worker testified that when she tried to discuss Czapla's inappropriate behavior during a visit, Czapla said he was going to do what he wanted to do. On another occasion, Czapla put S.J.E.'s diaper on incorrectly and became angry when the foster mother tried to fix it. One visit supervisor refused to supervise any more visits, because of Czapla's aggressive behavior. S.J.E.'s social worker testified that the child was not bonded with Czapla.
When Czapla was incarcerated, S.J.E.'s social worker communicated with Czapla's parole officer about the possibility of providing services in prison. She was informed that services would not be available. Accordingly, drug and alcohol treatment, domestic violence treatment, parenting education, and individual counseling were available when Czapla was out of jail, but not while he was incarcerated.
Czapla participated in a drug and alcohol evaluation in November 2010, but no diagnosis was made, because he did not cooperate with the assessments. He participated in another evaluation in September 2011 that recommended he obtain intensive outpatient drug and alcohol treatment. He did not obtain any treatment before he was arrested on October 5, 2011. Likewise, Czapla participated in an intake session for individual counseling in September 2011 but did not participate in any further counseling before he was arrested on October 5.
Czapla showed low empathy for victims and a medium lethality risk in his first domestic violence evaluation in August 2010. It was recommended that he participate in a one-year program for domestic violence treatment. He participated in treatment until he was arrested on January 1, 2011. In a subsequent domestic violence evaluation conducted while Czapla was on work release in May 2011, his treatment provider determined that his risk for physical violence was high, his risk for verbal violence was high, his empathy for victims was low, and his lethality risk was medium. At that time, it was recommended that his treatment be extended. But, a representative from his treatment provider testified that he would likely be terminated from the program because of his October 5 arrest.
The trial court determined the State had provided or offered reasonably available services, that his original parental deficiencies persisted, and that there was little likelihood he would be able to make significant progress in the near future. It concluded that terminating Czapla's parental rights was in S.J.E.'s best interests.
DISCUSSION
To terminate parental rights, the State must first prove the six elements of RCW 13.34.180 by clear, cogent, and convincing evidence. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be highly probable. In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995). The six requirements are:
(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.RCW 13.34.180(1).
If the elements are proven by clear, cogent, and convincing evidence, the court determines whether termination is in the child's best interests. RCW 13.34.190(1)(a)(i), (2). On appeal, findings of fact must be supported by substantial evidence in light of the clear, cogent, and convincing standard. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).
Czapla assigns error to the trial court's findings that all necessary and reasonably available services were offered or provided, and that he is currently unfit to parent and there are no services that could be offered that would correct his deficiencies in the foreseeable future. But, he does not provide any argument or authority for his challenge to the findings regarding his current fitness and whether additional services could remedy his deficiencies in the foreseeable future. We will not consider assignments of error that are not supported by argument or authority. See, e.g., Lassila v. City of Wenatchee, 89 Wn.2d 804, 809, 576 P.2d 54 (1978); State v. Wood, 89 Wn.2d 97, 99, 569 P.2d 1148 (1977). Accordingly, the only issue presented is whether there is substantial evidence to support the trial court's finding that all necessary and reasonably available services were offered or provided pursuant to RCW 13.34.180(d).
Czapla also claims the trial court erred by finding termination to be in S.J.E.'s best interests. But, his argument is limited to an assertion that the trial court should not have reached the issue because RCW 13.34.180(d) was not satisfied.
Czapla argues that he was unable to participate in services while he was incarcerated, and that his imprisonment did not absolve the State's duty. He claims that he was willing and able to engage in ordered services when given the opportunity, and that additional or alternative services would not have been futile.
But, RCW 13.34.180 and RCW 13.34.136 require only that reasonably available services be offered. It is undisputed that the State provided all necessary services when Czapla was not incarcerated. While Czapla was incarcerated, the services were not reasonably available. S.J.E.'s social worker testified that she communicated with Czapla's parole officer about providing services and was informed that such services could not be provided. Czapla claims that the court could have "ordered the [State] to provide alternative services or allowed outside service providers into prison to facilitate [Czapla]'s needs." But he does not identify any available alternatives services nor does he articulate what authority the Whatcom County Superior Court has to order outside service providers into King County jail.
Generally, a parent's unwillingness or inability to make use of the services provided excuses the State from offering extra services. In re Dependency of P.A.D., 58 Wn.App. 18, 26, 792 P.2d 159 (1990). In In re Welfare of C.B., 134 Wn.App. 36, 139 P.3d 1119 (2006), there was substantial evidence to support a finding that reasonable services were provided where the parent did not engage in services when they were available and then violated conditions of community supervision leading to incarceration and the unavailability of further services. Similarly, in this case Czapla was directed to follow all conditions of release and resolve any pending criminal matters. He repeatedly violated that requirement and was incarcerated four separate times during the year and a half between the original dependency order and the termination proceedings. His repeated violations directly led to the unavailability of services.
Moreover, where there is sufficient evidence to determine that additional services could not have corrected parental deficiencies in the foreseeable future, then the reasonable services requirement is satisfied. In re Welfare of Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983). The trial court entered findings that Czapla was unlikely to remedy parental deficiencies based on his inability to discontinue criminal activities and unwillingness to acknowledge his own parental deficiencies. It concluded that it would optimistically take at least one year to make sufficient progress to justify reunification and realistically two to three years. In contrast, at S.J.E.'s age, reunification needed to occur within three to four months at most. It noted that Czapla offered no evidence to rebut the presumption that he would not be able to make significant progress in the near future. Czapla does not challenge any of those findings, and they are verities on appeal. In re Interest of J.F., 109 Wn.App. 718, 722, 37 P.3d 1227 (2001). There is substantial evidence to support the trial court's finding that the State provided or offered all necessary and reasonably available services.
Nevertheless, Czapla argues that the trial court erred, because RCW 13.34.136(2)(b)(vi) requires the State to "report to the court if it is unable to provide" reasonable services. He claims that at intermediate dependency hearings, the State "imposed the same service requirements without informing the court it could not provide them." He claims that the RCW 13.34.136 requirement, which concerns the permanency plan of care for review hearings, is incorporated into RCW 13.34.180 by reference. The State argues that RCW 13.34.136(2)(b)(vi) is separate and irrelevant to the requirements for termination. It is unnecessary to resolve this dispute because Czapla's contention is not supported by the record. Czapla did not raise this issue at the termination proceedings, and there is no factual development of whether the trial court knew services were not available. To the contrary, the only evidence indicates that, at a minimum, the trial court was aware that Czapla was in and out of jail and on notice that services may be unavailable. The December 2010 dependency review order stated that there was a new criminal charge filed in September 2010. The May 2011 dependency review order stated that Czapla was noncompliant in resolving pending criminal matters and that the "[f]ather [was] incarcerated" at the time of the hearing.
We affirm.