Opinion
No. 68449-3-I
01-22-2013
In the Matter of the Dependency of S.B.-L., D.O.B. 02/03/2010. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. JANE DIANNA BAKER-LOUCH, Appellant.
UNPUBLISHED OPINION
Becker, J. — Jane B-L appeals the trial court's order terminating her parental rights to her daughter, SB-L. Jane argues the Department of Social and Health Services failed to prove it provided services that would have enabled her to parent separately from the child's father, including services for victims of domestic violence. But the record shows the Department offered Jane counseling and domestic violence referrals during dependency proceedings for SB-L and for Jane's two older children, who were previously removed by the State. We affirm because substantial evidence supports the termination order.
SB-L is the third child born to Jane and Kevin L., who have been together for 10 years and married for 8 years. Jane and Kevin lost the right to parent their two older children in January 2009 and lost their appeal of those terminations in 2010. In re Welfare of L.N.B.-L., 157 Wn. App. 215, 237 P.3d 944 (2010). SB-L was born on February 3, 2010. After a seven-day trial, the juvenile court entered an order terminating both Jane's and Kevin's parental rights to SB-L in February 2012. The parents filed separate appeals, and this case deals only with Jane's right to parent SB-L.
The parents' appeals were initially consolidated, but the Department filed a motion to reverse the termination order as to the father on the ground that there is insufficient evidence in the record that he made a knowing, intelligent, and voluntary waiver of the right to counsel when he insisted on representing himself at trial. See In re Welfare of G.E., 116 Wn. App. 326, 65 P.3d 1219 (2003). This court's commissioner granted the motion, severing the father's appeal and remanding his case for a new trial. The mother's appeal was allowed to go forward.
BACKGROUND
Jane and Kevin's first child, LNB-L, was born on December 7, 2005, and was removed from Jane's care at three weeks old. At the time, Kevin was in jail for a probation violation, and Child Protective Services received referrals raising concerns about LNB-L's feeding and weight gain, as he had lost 10 percent of his birth weight. In re Welfare of L.N.B.-L., 157 Wn. App. at 223. A social worker found Jane and LNB-L living in unsanitary conditions, and the State put the baby boy in protective custody.
In June 2006, the juvenile court found LNB-L dependent. The court's dispositional order required Jane to attend parenting classes, go to counseling to address psychological issues and the impact of domestic violence, and obtain housing free of drugs, alcohol, and domestic violence, among other mandatory services. In re Welfare of L.N.B.-L., 157 Wn. App. at 224. Exhibit 1 at 2. The court required Kevin to obtain psychiatric and drug and alcohol evaluations, attend counseling to address psychological issues and learn coping skills, and complete a one-year domestic violence perpetrator treatment program, among other services ordered. In re Welfare of L.N.B.-L., 157 Wn. App. at 224.
During the dependency of LNB-L, Jane was pregnant with the couple's second child, ADB-L. Jane participated in a high-risk pregnancy program at the University of Washington, which had offered her the same services while pregnant with LNB-L. Jane attended classes with Kevin, but the university eventually ejected Kevin from the program due to his volatile behavior. In re Welfare of L.N.B.-L., 157 Wn. App. at 224. As a result, Jane canceled her appointment to induce labor at the university hospital, despite her high-risk status, in order to give birth at a location where Kevin could attend. In re the Welfare of L.N.B.-L., 157 Wn. App. at 224.
ADB-L was born on January 5, 2007, and the court found him dependent after a hearing in July 2007. The court's dispositional order as to ADB-L required Jane to develop independent living skills and to complete a class entitled "Parenting Children who have witnessed Domestic Violence," among other requirements. In re Welfare of L.N.B.-L., 157 Wn. App. at 225.
During the dependency proceedings for LNB-L and ADB-L, Jane told her assigned social worker, Hunter Morrigan, that she intended to leave Kevin and obtain independent housing. Report of Proceedings at 215. But Morrigan testified that she never saw Jane take any steps to separate from her husband during the years she worked with her. Report of Proceedings at 215. "The possibility of [Jane] divorcing [Kevin] and parenting without him came up numerous times during the dependencies, but Morrigan testified that [Jane] would be unable to parent independently." In re Welfare of L.N.B.-L., 157 Wn. App. at 233. According to the court's findings, assistance to help Jane obtain secure housing free of domestic violence was expressly and understandably offered or provided pursuant to the dependency orders of her two oldest children. Exhibit 1 at 2; Exhibit 3 at 2. The court found that Jane's "dependent and passive personality style renders her incapable of protecting herself or her children. She has done nothing to adjust her life throughout the entire dependency." Exhibit 1 at 3; Exhibit 3 at 3. After an eight-day trial and more than two years of dependency for the children, the court terminated Jane's and Kevin's parental rights to LNB-L and ADB-L.
A day after SB-L was born in February 2010, officials at Swedish Hospital placed the baby girl on an administrative hold due to concerns that Jane had "a history of not being protective," and Kevin "was engaging in a hostile and threatening manner at the hospital." Exhibit 5; Finding of Fact 3.3. In August 2010, Jane agreed to SB-L's dependency, and the court entered a dependency order in October 2010. SB-L was found dependent as to her father in November 2010 after a fact-finding hearing.
During the dependency of SB-L, Jane's mental health counselor asked her if she was trying to get housing separate from Kevin and gave her some phone numbers. Report of Proceedings at 281-82. The subject of separation also came up with Jane's Department social worker, Taku Mineshita, when Jane talked about applying for housing at the Kitsap Housing Authority, but mentioned that Kevin would not be eligible to live there because of his criminal background. Report of Proceedings at 414-15. Jane never indicated to Mineshita that she wanted to separate from Kevin. Report of Proceedings at 415.
Mineshita had conversations with Jane about the effect of domestic violence, usually prompted by an incident involving Kevin. Report of Proceedings at 415-16. According to Mineshita, Jane was very aware of services related to domestic violence and listed on her own agencies that he would have referred her to. Report of Proceedings at 440. But she indicated no willingness to participate in those services. Report of Proceedings at 440. Mineshita testified that Jane was "always adamant that she is not a victim of domestic violence, and she did not seek . . . our support, or she was not in need of any of those supports." Report of Proceedings at 440. Mineshita expressed his concern for Jane's safety and her living situation. Report of Proceedings at 417, 532. But every time he mentioned domestic violence, "she has denied all those allegations and denied any of the supports that could be provided for her." Report of Proceedings at 417-18.
Mineshita did not specifically recommend that Jane separate from Kevin, Report of Proceedings at 415, or ask her to participate in a domestic violence program because "by policy, we cannot require the victim of the domestic violence to participate in any groups or support group, forcefully, when the victim [does] . . .not identify themselves as a domestic violence victim." Report of Proceedings at 532.
Jane was referred to Dr. Joanne Solchany for a psychiatric relationship evaluation. Dr. Solchany diagnosed Jane with a dependent personality disorder:
Jane's dependence on her husband Kevin and her enmeshment with him is highly dysfunctional and has been an established pattern of behavior for almost a decade. . . .Exhibit 27 at 10-11.
. . . .
Furthermore, it is more likely than not that [Jane] will continue to put Kevin's needs/wants/demands before the best interests of her child.
Dr. Solchany noted that Jane denied any domestic violence in her relationship with her husband "despite multiple reports indicating domestic violence has been an ongoing issue between them." Exhibit 27 at 3. Dr. Solchany said participating in a domestic violence program could help Jane because she did not appreciate the risk to SB-L or how she herself was being victimized. Exhibit 27 at 12; Report of Proceedings at 143. But she cautioned,
However, unless she is willing to acknowledge Kevin's mental health issues and the risks he poses, she is unlikely to accept any incoming information and make necessary changes . . . Without mental health stability on the parts of both parents, a commitment by both of them to acknowledge the patterns of domestic violence and to make necessary changes, and participation in long term treatment, at least two years, it is highly unlikely these issues can be remedied.Exhibit 27 at 12-13.
Mineshita referred Jane for mental health counseling on various occasions, both verbally and through service letters. Report of Proceedings at 424. Jane obtained some counseling from Snoqualmie Behavioral Health starting in November of 2010. Report of Proceedings at 425; Exhibit 9. But she terminated her sessions in March 2011, around the same time Kevin stopped attending. Report of Proceedings at 428. The agency stopped serving Kevin because he refused to sign an agreement to "refrain at all times from any threatening behavior or speech" toward his therapist or his wife in the therapist's presence and refused to participate in other services, including a domestic violence assessment. Exhibit 9 at 11-12. Mineshita also referred Jane to Sound Mental Health, Kitsap Mental Health, and the Center for Child and Family Therapy, among other providers. Report of Proceedings at 431-32; Exhibit 23 at 3. Although Jane got an appointment with her previous counselor at the Center for Child and Family Therapy, the appointment was canceled, and she never made another one. Report of Proceedings at 432. Jane testified that she attended six months of counseling during the dependencies of her older children and obtained three months or less of counseling during SB-L's dependency, less than what the court ordered. Report of Proceedings at 280-81.
Prior to trial, Pam Jensen, the Court Appointed Special Advocate, recommended terminating the rights of both parents to SB-L:
In the five years that cover [SB-L's] out of home placement, and the dependency of her two older brothers, mother has completed some, but not all of her services. Her interactions with [SB-L] haveClerk's Papers at 168.
improved, and she clearly enjoys being with her. However, she has not made any progress in assuring a safe home environment for [SB-L].
During the same time, the father has adamantly refused to complete any services, and has continually displayed loud and angry behavior in [SB-L's] presence.
The trial court considered 64 exhibits and heard testimony from nine witnesses, including Jane, Kevin, Mineshita, SBL's therapist, and Dr. Solchany. The court noted that the dynamics of the trial allowed it to observe Kevin's behavior and the interaction between Jane and Kevin, and on several occasions required the intervention of court security to contain Kevin's agitation. Clerk's Papers at 310; Finding of Fact 1.6. The court entered extensive and detailed findings of fact, finding that both Jane and Kevin were unfit to parent SB-L and that termination was in the child's best interests. Jane appeals.
DISCUSSION
Standard of Review
In order to terminate the parent-child relationship, the State must satisfy two prongs. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). First, the State must prove the six statutory elements set out in RCW 13.34.180(1) by clear, cogent, and convincing evidence:
(a) That the child has been found dependent;RCW 13.34.180(1); In re Dependency of K.N.J., 171 Wn.2d at 576-77.
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed from the parent's custody for at least six months by the time of the hearing, pursuant to a finding of dependency;
(d) That the services rendered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; and
(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
Evidence is clear, cogent, and convincing when the ultimate fact at 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).
If the State satisfies the first prong, the court proceeds to the second prong, determining if termination is in the best interests of the child. In re Dependency of K.N.J., 171 Wn.2d at 577; RCW 13.34.190(1)(b). Whether termination is in the best interests of the child must be proved by a preponderance of the evidence. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). An order terminating parental rights must be affirmed if substantial evidence supports the trial court's findings in light of the degree of proof required. In re Welfare of Aschauer, 93 Wn.2d at 695.
The only statutory element Jane challenges on appeal is whether all necessary services reasonably capable of correcting her parenting deficiencies within the foreseeable future have been expressly and understandably offered or provided as required under RCW 13.34.180(1)(d). Jane argued at trial that services to help her break the cycle of her abusive relationship with Kevin and to parent separately were necessary services the State failed to offer as required by the fourth statutory element. Appellant's Brief at 8. She assigns error to 3 out of 56 findings of fact: Findings of Fact 2.20, 2.21, and 2.31. The last 2 are at the heart of her case:
DCFS social worker Taku Mineshita on multiple occasions discussed services available to domestic violence survivors with [Jane]. On each occasion, [Jane] responded that she knew of these services and declined the need for them.Clerk's Papers at 314-15.
. . . .
[Jane's] assertions that she will separate from Kevin are not credible. She has made this assertion for years, dating back to the dependencies of the older children, and has yet to take active steps to implement it.
Unchallenged findings of fact are verities on appeal. In re Interest of Mahaney, 146 Wn.2d 878, 895, 51 P.3d 776 (2002). Because only the trial court has the opportunity to hear the testimony and observe the witnesses, its decision is entitled to deference and this court 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).
Contrary to Jane's assertions, sufficient evidence supports the finding that social worker Mineshita discussed services available to domestic violence survivors with her, and on each occasion, Jane declined the need for them. Mineshita testified that he had an ongoing conversation with Jane about domestic violence issues, but she was adamant she was not a victim of domestic violence:
My understanding of the [domestic violence] protocol is that . . . we are unable to force or put in the court order to seek DV counseling for the victim of the domestic violence. That is only for the perpetrator of the domestic violence. The protocol suggested - from my understanding of the protocol - suggested that through the life of the case, the social worker is to have a conversation around domestic violence and to know that the client has a knowledge of available support and resources if and when they choose to seek those supports.Report of Proceedings at 439.
Mineshita's testimony is corroborated by Dr. Solchany's evaluation, which notes that Jane denied domestic violence was a problem in her relationship, despite multiple reports to the contrary, and that she was unwilling to acknowledge Kevin's mental health issues and the risks he posed. Exhibit 27 at 3, 12-13.
Furthermore, it is clear from the record that Jane's case has been saturated with services, including those intended to address her dysfunctional relationship with her husband since the proceedings involving her two older children through the dependency of SB-L. Services offered in prior dependencies are properly considered as factual evidence in a current dependency. In re Welfare of Angelo H., 124 Wn. App. 578, 587, 102 P.3d 822 (2004) (citing In re Dependency of P.D., 58 Wn. App. 18, 22, 792 P.2d 159 (1990)), review denied, 154 Wn.2d 1028 (2005). The dependency proceedings involving LNB-L and ADB-L resulted in affirmed findings that Jane was provided all necessary services, reasonably available, capable of correcting her parental deficiencies within the foreseeable future.
In In re the Welfare of L.N.B.-L., 157 Wn. App. 215, Jane and Kevin raised several claims under the Indian Child Welfare Act. SB-L, like her older siblings, is an "Indian Child" as defined under federal and state laws, but Jane raises no arguments under the Indian Child Welfare Act, so we do not consider the issue.
In In re Welfare of L.N.B.-L., the Court of Appeals, Division Two, noted,
While [Jane] did much of what the Department asked her to do, she was either unwilling or unable to use the services to sufficiently improve her ability to raise and protect her children. . . . Morrigan, Paez, and Dr. O'Leary all stated that [Jane], even after receiving extensive counseling and parenting services, could not safely parent her children. Morrigan believed that [Jane] did not have the interest, willingness, or ability to make needed changes. Paez noted that "it would be hard for [Jane] to protect herself and the children from [Kevin]." . . . Dr. O'Leary concluded that [Jane] could not protect her children's safety, even if she separated from [Kevin], and he concluded that she would not benefit from additional services. Therefore substantial evidence supports the finding that [Jane's] availment of the Department's services was not effective because it did not improve her ability to raise and protect her children.In re the Welfare of L.N.B.-L., 157 Wn. App. at 251.
Here, Jane testified that she went to even less counseling during SB-L's dependency than during the proceedings that eventually terminated her rights to her two older children. Dr. Solchany concluded that without a commitment by both Jane and Kevin to acknowledge the pattern of domestic violence and to make necessary changes, including mental health treatment of at least two years, it was highly unlikely the problems could be remedied. The record shows Jane has shown no such sustained commitment, though she may love her children. Notably, Jane does not challenge the court's finding that the Department has consistently offered services to both parents, and both parents' participation in services "has been sporadic at best." Finding of Fact 2.25, Clerk's Papers at 314. 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. In re Dependency of A.M., 106 Wn. App. 123, 136, 22 P.3d 828 (quoting In re Dependency of P.D., 58 Wn. App. at 26), review denied, 144 Wn.2d 1015 (2001).
Similarly, Jane asks this court to reverse the trial court's finding that her assertions that she will separate from Kevin are not credible. Jane and Kevin have been together for more than a decade, and at the time of trial, they were living together. Report of Proceedings at 283. According to social worker Morrigan, the topic of Jane separating from Kevin and parenting without him came up numerous times during the dependencies of the couple's two older children, but Jane took no steps to do so. Report of Proceedings at 215; In re the Welfare of L.N.B.-L., 157 Wn. App. at 233. Jane never told Mineshita, her social worker during SB-L's dependency, that she planned to separate from Kevin, but rather mentioned he would be ineligible to reside with her in certain public housing due to his criminal history. Report of Proceedings at 414-15. Jensen, the Court Appointed Special Advocate, testified that this issue "raised its head every few months" and reported that Jane "has not made any progress in assuring a safe home environment for [SB-L]." Report of Proceedings at 559; Clerk's Papers at 168.
Jane's own testimony and assertions showed she had no internalized basis for separating from her husband. She testified that Kevin was a "good husband," who is considerate of her needs and provides a stable home. Report of Proceedings at 329. She said she felt he was a "good parent." Report of Proceedings at 342. She denied being verbally abused by Kevin, Report of Proceedings at 295, did not feel as though Kevin was trying to control her, and did not wish to separate from him. Report of Proceedings at 335. Jane also told Dr. Solchany that she falsely reported she lived apart from Kevin in order to obtain a larger social security benefit. Report of Proceedings at 97; Exhibit 27 at 2.
Visitation observation records show that while Jane cares for SB-L, she consistently puts her husband's irrational behavior and needs before her child, as noted by Dr. Solchany. The trial court found, and Jane does not challenge, that Kevin "is often inappropriate, angry and ranting during the visits," expecting things from SB-L "that are far beyond her developmental capability." Finding of Fact 2.35; Clerk's Papers at 314. The court noted that Kevin has been unable to keep his behavior in check during the visits, to the point where some of the visits had to be terminated, and SB-L's therapist recommended they cease altogether. Finding of Fact 2.35; Clerk's Papers at 315. But rather than protecting SB-L from that behavior, Jane has agreed with Kevin to cut her visits by half, "apparently in protest of the Thursday visits no longer being offered in the community, as a result of frequent disruptions." Finding of Fact 2.38; Clerk's Papers at 316.
Jane attempts to equate her status as a victim of domestic violence, and her seeming inability to acknowledge that reality, to situations where the Department has failed to offer individualized services to accommodate a parent's disabilities. Appellant's Brief at 9-10, citing In re Dependency of T.L.G., 126 Wn. App. 181, 108 P.3d 156 (2005), and In re Dependency of H.W., 92 Wn. App. 420, 961 P.2d 963, 969 P.2d 1082 (1998). The comparison fails. The record does not show that Jane suffers from a disability; rather it demonstrates that through more than five years and the loss of three children, she has been unable to separate from her husband and break the grip of domestic violence. Jane's situation can be contrasted with the mother in In re Dependency of B.R., who had not contacted an abusive partner for more than two years, and where the father's last incident of domestic violence against her occurred before the youngest child was born, more than five years earlier. In re Dependency of B.R., 157 Wn. App. 853, 239 P.3d 1120 (2010). Unlike that mother, Jane has been unwilling to give Kevin up and unable to recognize the risks he poses to her and their children.
In summary, substantial evidence supports the termination order and the trial court's finding that the Department provided Jane all necessary services capable of correcting the domestic violence victimization she has suffered.
Because substantial evidence supports the findings Jane challenges, we do not reach the Department's argument that Jane's personality disorder is pervasive and renders her incapable of parenting SB-L, regardless of whether she remains in a relationship with her husband.
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Affirmed.
____________ WE CONCUR:
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