Opinion
No. 61077-5-I.
October 27, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-7-00494-3, George N. Bowden, J., entered December 4, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Appelwick and Leach, JJ.
Kenneth Kolbo appeals the trial court's order terminating his parental rights in his son, J.M.J. Kolbo contends that the Department of Social and Health Services (DSHS) failed to offer or provide services capable of correcting parental deficiencies during his incarceration and that the trial court based its finding of futility entirely on Kolbo's incarceration. He further argues DSHS failed to prove that his parental deficiencies could not be remedied in the near future because it did not offer or provide services. Because there is substantial evidence to support the trial court's findings that services would be futile under the circumstances, we affirm.
FACTS
On August 19, 2005, after he tested positive for cocaine at birth, one-day old J.M.J. was placed into protective custody. Four days later, DSHS filed a dependency petition related to Kenneth Kolbo, J.M.J.'s alleged father. At a shelter care hearing on August 25, 2005, the court ordered that J.M.J. could be placed with his mother while she resided in an inpatient drug and alcohol treatment facility. Kolbo's urinalysis on that date tested positive for cocaine.
On September 20, 2005, J.M.J.'s mother entered into an agreed order of dependency. And a default dependency order was entered against the father pursuant to RCW 13.34.030(5)(c). The court also entered a dispositional order that required the father to establish paternity. Once paternity was established, the father was ordered to complete a drug and alcohol evaluation and follow all recommendations, participate in random urinalysis, complete a parenting program and follow all recommendations, maintain a clean, sober lifestyle and home environment free of drugs and alcohol, and complete a psychological evaluation and follow all recommendations.
Kolbo has been in and out of jail since 2001 and has been convicted of at least five drug offenses. He had participated in drug treatment through the Pierce County drug court program both prior to and after J.M.J.'s birth. When J.M.J. was born in August 2005, Kolbo was out of custody. He was aware of the mother's pregnancy and of J.M.J.'s birth, although he did not believe that he was the father.
In September 2005, Kolbo was arrested and charged with unlawful delivery of a controlled substance. In October 2005, Kolbo pleaded guilty and was sentenced to ten years in prison. Kolbo testified that his projected release date was May 2012, but he hoped to be in work release in late 2008 or early 2009. Kolbo was incarcerated when J.M.J. was one month old, and he has never seen the child.
In November 2005, Kolbo was terminated from the drug court treatment program because he had relapsed and incurred new criminal charges. Kolbo applied for drug treatment services while he was incarcerated, but Department of Corrections' policies and guidelines precluded him from engaging in drug and alcohol treatment until he was within two years of his release date from total confinement. Since that time, Kolbo has not participated in drug or alcohol treatment other than attending Alcoholics Anonymous and Narcotics Anonymous meetings.
On April 21, 2006, J.M.J. was again taken into protective custody after his mother relapsed into drug use and disappeared. Through genetic testing in April 2006, Kolbo was identified as J.M.J.'s biological father.
On February 14, 2007, DSHS filed a petition to terminate the parents' parental rights in J.M.J. On May 23, 2007, J.M.J.'s mother relinquished her parental rights. On August 27, 2007, trial began to determine whether Kolbo's parental rights should be terminated.
DSHS caseworker Kelle Kennedy was assigned to the case in 2006, shortly after J.M.J. had been removed from in-home placement. She testified that she had two or three phone conversations with Kolbo during 2006. Because she had difficulty contacting Kolbo's prison counselor at Airway Heights Corrections Center, she asked Kolbo to check with the counselor regarding the availability of services. Kolbo told Kennedy that no services were available. In June 2007, after Kolbo had been transferred to McNeil Island Corrections Center, Kennedy emailed Kolbo's new prison counselor inquiring about services. He e-mailed back and informed her that there were no services such as parenting classes and that Kolbo could not begin drug and alcohol treatment until two years prior to his release from total confinement.
Kolbo testified that he wanted to participate in services while incarcerated. He testified that he had been clean and sober for ten years, during which time he held down a steady job and supported his wife and three children. He said that he relapsed into drug use in 2001 after encountering an "old friend" who "offered me some." Verbatim Report of Proceedings (Aug. 27, 2007) at 25. He acknowledged that his current prison release date was 2012, but that he hoped to obtain early work release in "roughly 2009." Id. at 41. He asked the court to "give me the options to get my life together and eventually, down the road, place [J.M.J.] with me." Id. at 21.
Following the trial, the court found that DSHS had established by clear, cogent, and convincing evidence that Kolbo's parental rights should be terminated. During its oral ruling the court explained,
I don't find that the Department had a duty to provide services to Mr. Kolbo under these circumstances both with the demonstrated criminal history, his failure at taking advantage of drug court after this child's birth, and the continuation of that same history notwithstanding intervention through drug court and the treatment that posed, but also given the length of incarceration he's now facing based upon that history.
. . . [I]t seems inescapable that for a two-year-old child who has never even met the father, to anticipate that this father could remedy his deficits over the next couple of years and have anyone think that's in the "foreseeable future" for [J.M.J.], defies belief. So it isn't merely because of the father's incarceration, it's the criminal history that underlies that incarceration and particularly the timing of some of those criminal offenses in relation to the pregnancy, the birth of the child, and the absence of contact thereafter that, while I don't find the State offered or provided the services that would have been necessary for this father, it would have been a futile act. There isn't anything the State could have done then or now that would allow this father to effectively parent this child in the foreseeable future.
Court's Ruling (Aug. 27, 2007) at 14-15. The trial court subsequently entered written findings of fact and conclusions of law. In pertinent part, the court found:
1.23. 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 father's parental deficiencies within the foreseeable future, have been expressly and understandably offered or provided.
. . . .
1.25. Even if the Department did not offer or provide drug alcohol evaluation or treatment since the father has been incarcerated, there was no specific duty or requirement to do so since these services would not allow the father to correct his parental deficiencies in the foreseeable future. Given the father's criminal history, and the length of his current incarceration, he would not be able to parent in the foreseeable future.
1.26. The father failed to take advantage of the drug court program after [J.M.J.]'s birth, and he continued in his criminal behavior notwithstanding the intervention through the drug court program and treatment.
. . . .
1.28. The father has recently sought out services, but they have not been available to him because of his incarceration. The father is precluded from engaging in drug and alcohol treatment in particular until he is closer to his release date.
1.29. There are no services available that would allow the father to become capable of correcting his parental deficiencies within the foreseeable future. The father's main parental deficiencies involve his drug and alcohol issues, as well as his criminal behavior that results in his inability to be available as a parent.
. . . .
1.35 Even with drug alcohol treatment and other services, there is little likelihood that the father could parent in the near future.
1.37. There are no circumstances that would permit [J.M.J.] to be placed with the father in the foreseeable future or near future. Services in this case would simply be futile. There isn't anything that the Department could have done then or now that would allow the father to effectively parent this child in the foreseeable future or near future.
1.38. The father has a significant criminal history and incarceration, and there is the timing of some of his criminal offenses in relation to the pregnancy and birth of [J.M.J.]. The father is unavailable to parent due to his incarceration, and will not be available in the near future.
1.39 The father testified that his release date may be as early as a year, although that would be a conditional release and work release. [J.M.J.] cannot wait a year or even less.
Clerk's Papers at 10-12.
Kolbo petitioned this court for accelerated review as required by RAP 18.13. The commissioner referred the motion to a panel of judges, and the case was set for oral argument on the next available calendar.
ANALYSIS
"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 the Welfare of M.R.H., 145 Wn. App. 10, 23, 188 P.3d 510 (2008). But where the needs of the child and the rights of a parent conflict, the child's best interests are paramount. In re Dependency of J.B.S., 123 Wn.2d 1, 8-9, 863 P.2d 1344 (1993).
RCW 13.34.180(1) sets forth six elements the State must prove to terminate the parent-child relationship.
(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.
A court may terminate parental rights if the State proves the elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW 13.34.190 (1). In addition, the court must find by a preponderance of the evidence that termination is in the best interests of the child. RCW 13.34.190 (2); In re Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963, 969 P.2d 1082 (1998). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown to be highly probable. In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995). The appellate court will affirm the termination order if the trial court's findings are supported by substantial evidence in light of the degree of proof required. In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). Because the fact finder has the advantage of observing the witnesses, deference to the trial court is particularly important in appellate review of termination decisions. K.R., 128 Wn.2d at 144.
Services During Incarceration
Kolbo argues that DSHS failed to prove by clear, cogent, and convincing evidence that all necessary and reasonably available services capable of correcting his parental deficiencies within the foreseeable future were offered or provided as required by RCW 13.34.180(1)(d). He argues that DSHS was not excused from its duty to offer or provide services during his incarceration and that the court's finding that services would be futile amounts to nothing more than an improper conclusion that termination is required because he is incarcerated. In addition, because DSHS failed to prove that it offered or provided services, Kolbo argues that DSHS failed to prove that his parental deficiencies could not be remedied in the near future as required by RCW 13.34.180(1).
RCW 13.34.180(1)(d) "requires the State to prove only that it provided the services that were necessary, available, and capable of correcting parental deficiencies within the foreseeable future." T.R., 108 Wn. App. at 164. "Where the record establishes that the offer of services would be futile, the trial court can make a finding that the Department has offered all reasonable services." M.R.H., 145 Wn. App. at 25. "[E]ven where the Department `inexcusably fails' to offer services to a willing parent, termination will still be deemed appropriate if the services `would not have remedied the parent's deficiencies in the foreseeable future, which depends on the age of the child.'" Id. at 25 (quoting T.R., 108 Wn. App. at 164). For young children, "the foreseeable future" may be a matter of months. See, e.g., In re Welfare of Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983) (8 months not in foreseeable future of 4-year-old); In re Dependency of P.A.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990) (6 months not in near future of 15-month-old).
There is substantial evidence to support the trial court's findings that the requirements of RCW 13.34.180(1)(d) were satisfied. First, there were no services reasonably available to Kolbo while he was in custody. The record shows that Kolbo was participating in a drug court program when J.M.J. was found dependent. His choice to commit another drug-related crime soon after J.M.J.'s birth resulted in his incarceration and rendered that service unavailable. Kolbo's caseworker made reasonable efforts to determine what services were available to Kolbo while he was incarcerated. She determined that substance abuse treatment was not yet available through DOC. Therefore, drug treatment was not reasonably available to Kolbo under the circumstances.
Kolbo contends that the trial court erred in finding that he was precluded from participating in services because DSHS was obligated to determine the availability of providers outside DOC who might be willing to provide services while he was confined. We disagree. RCW 13.34.180 (1)(d) requires DSHS to offer or provide services that are "reasonably available." DSHS and DOC are separate government agencies, and DSHS has no authority over what services are available in prison. DSHS met its statutory obligations by communicating with Kolbo and investigating the availability of services during his incarceration. See In re Welfare of M.J.H., 145 Wn. App. 10, 25, 188 P.3d 510 (2008) (rejecting father's argument that the trial court erred in terminating his parental rights because DSHS failed to offer him services during his incarceration); In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988) ("[A] parent's unwillingness or inability to make use of the services provided excuses the State from offering extra services that might have been helpful.").
Moreover, there is substantial evidence to support the trial court's finding that there were no circumstances that would permit J.M.J. to be placed with Kolbo in the foreseeable future and that services would simply be futile. There is uncontroverted evidence that Kolbo's sentence ran until 2012 and that he would not be eligible for work release until 2009 at the earliest. Kolbo does not challenge the trial court's finding that "[J.M.J.] cannot wait a year or even less" for a permanent home. And contrary to Kolbo's characterization, the court did not rely solely on the mere fact of Kolbo's current incarceration in reaching its finding that services would be futile. It also expressly referenced Kolbo's history of criminal behavior and failed drug and alcohol treatment attempts. Under these circumstances, there were no services available that would have remedied Kolbo's parental deficiencies within J.M.J.'s foreseeable future.
It was not improper for the trial court to consider Kolbo's incarceration in reaching this conclusion. Although imprisonment alone does not necessarily justify terminating parental rights, the trial court may consider the causes and frequency of imprisonment in a termination proceeding. In re Interest of Skinner, 97 Wn. App. 108, 120, 982 P.2d 670 (1999). Where the record establishes that the offer of services would be futile or that a prison term is so long that the parent has little hope of establishing a relationship with the child, the court may find that all reasonable services have been offered. In re Welfare of Ferguson, 32 Wn. App. 865, 869-70, 650 P.2d 1118 (1982), rev'd on other grounds, 98 Wn.2d 589 (1983). A parent's inability to perform his or her parental obligations because of incarceration is relevant to the child's welfare. In re Dependency of J.W., 90 Wn. App. 417, 426, 953 P.2d 104 (1998). A parent's prison term may constitute a continuing incapacity affecting the parent's ability to meet parental obligations and, if so, it justifies a finding that reunification is not likely in the foreseeable future. Id.
Kolbo argues that the trial court erred in concluding that services would be futile because there is no statutory authority outside of RCW 13.34.132 that would excuse DSHS from providing services. That statute excuses DSHS from making efforts to reunify the family in certain cases where the court finds "aggravated circumstances." RCW 13.34.132(4). But the trial court did not rely on RCW 13.34.132(4). Rather, its futility determination was based on the requirements of RCW 13.34.180(1)(d) and the well-settled common law principles interpreting it.
Kolbo further argues that the court's findings that services were futile and need not be offered directly contradicts its finding that DSHS reasonably and understandably offered services.
1.23. 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 father's parental deficiencies within the foreseeable future, have been expressly and understandably offered or provided.
CP at 10. But when this finding is viewed as a whole and within the context of the entire case, it is apparent that the trial court did not actually find that services were offered or provided. Rather, the court's finding means that it found that the statutory requirements of RCW 13.34.180 (1)(d) were satisfied because of futility.
Kolbo also argues that the trial court erred in finding that he "has not been available for any visitation due to his incarceration." CP at 11. He contends that there was no evidence that visitation could not occur during his incarceration and that DSHS should have facilitated it. At oral argument, DSHS asserted that visitation was terminated by the dependency court due to Kolbo's incarceration and argued that Kolbo's failure to appeal that ruling below means that the issue cannot be raised now. Although the record before us does not contain the dependency court order terminating Kolbo's visitation rights, Kolbo did not challenge this assertion during oral argument.
DSHS is correct. A parent who fails to appeal a dependency dispositional order entered by the dependency court cannot then argue in an appeal of the termination order that the order was improper. In re Dependency of T.H., 139 Wn. App. 784, 792-93, 162 P.3d 1141 (2007). Moreover, visitation is not a "service" that must be provided under RCW 13.34.180 (1)(d). Id. at 792.
Kolbo also contends that DSHS failed to prove that his parental deficiencies could not be remedied in the near future as required by RCW 13.34.180 (1)(e) because it did not offer or provide services. Because we conclude that DSHS met its burden to provide services under these circumstances, we reject this argument.
Reporting Requirements
RCW 13.34.136(2)(b)(iv) provides,
"The agency charged with supervising a child in placement shall provide all reasonable services that are available within the agency, or within the community, or those services which the department has existing contracts to purchase. It shall report to the court if it is unable to provide such services." Kolbo argues that this statute requires DSHS to inform the juvenile court regarding the unavailability of services prior to the termination hearing. He contends that the State violated this statute by failing to confirm the availability of services offered by DOC until July 2007, more than 14 months after entry of the dependency disposition order and only a few weeks before the termination trial. Kolbo raises this conclusory argument for the first time on appeal, and we decline to address it. RAP 2.5(a).
In sum, there is substantial evidence under a clear, cogent, and convincing standard of proof that DSHS met its burden under RCW 13.34.180 (1)(d) and (e). We affirm.