IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Dependency of No. 69212-7-1
A.U.N.H. (DOB: 1/2/11) and (Consolidated with
Z.D.H. (DOB: 1/8/10), No. 69213-5-1)
CS> —
Minor children. DIVISION ONE
c- r
cr.
T f:
CAREY ALLEN HAYES,
Appellant, UNPUBLISHED
FILED: July 29. 2013 ro
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent.
Cox, J. - Carey Hayes appeals the trial court's order terminating his
parental relationship with his son, Z.D.H., and his daughter, A.U.N.H. Hayes
argues that the Department of Social and Health Services (the "Department")
failed to prove by clear, cogent, and convincing evidence that it offered him all
necessary services reasonably available and capable of correcting his parental
deficiencies within the foreseeable future. He also argues that the Department
failed to prove that there was little likelihood that his parental deficiencies would
be remedied so that his children could be returned to him in the near future.
Substantial evidence supports the trial court's findings that the Department
offered all necessary services and that there was little likelihood that conditions
No. 69212-7-1 (Consolidated with No. 69213-5-l)/2
would be remedied in the children's near future. We consequently affirm the
termination order.
Hayes is the father of Z.D.H., born on January 8, 2010, and of A.U.N.H.,
born on January 2, 2011. The children's mother, Tajana Lashea Wallace, is not
a party to this appeal.
At the time of his birth, Z.D.H.'s mother was incarcerated. Hayes cared for
him for the first few months of his life until Hayes was arrested and incarcerated
for violating a domestic violence protection order and for assaulting a police
officer during his arrest. Hayes remained incarcerated from May 2010 until
January 2011. While incarcerated, Hayes agreed to an order of dependency as
to Z.D.H., which was entered by the court in August 2010.
At the time of A.U.N.H.'s birth, Hayes was incarcerated. The trial court
found her dependent as to Hayes and her mother in June 2011.
The Department petitioned to terminate Hayes's parental relationship with
A.U.N.H. and Z.D.H. as well as the children's relationship with their mother on
January 4, 2012.
The trial court held an extensive fact-finding hearing on the petition to
terminate both Hayes's and Wallace's parental rights. After the hearing, the trial
court orally granted the Department's petition for termination of Hayes's parental
rights. The trial court then entered written findings of fact, conclusions of law,
and an order granting the petition to terminate the parent-child relationship as to
Hayes.
Hayes appeals.
No. 69212-7-1 (Consolidated with No. 69213-5-l)/3
SERVICES
Hayes argues that the Department failed to provide him with all the
necessary services that were capable of correcting his parental deficiencies. We
disagree.
Parental rights are a fundamental liberty interest.1 To terminate the
parent-child relationship, the Department must prove each of six statutory
elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence.2 If
the Department meets all six prongs, there is an implicit finding of parental
unfitness.3 The Department must then demonstrate by a preponderance of the
evidence that termination is in the best interest of the child.4 Generally, we will
not disturb the findings of the trial court as long as they are supported by
substantial evidence.5
To satisfy the requirements of RCW 13.34.180(1), the Department must
prove by clear, cogent, and convincing evidence 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
1 Santoskv v. Kramer. 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L Ed. 2d
599(1982).
2 In re Dependency of K.N.J.. 171 Wn.2d 568, 576-77, 257 P.3d 522
(2011).
3IcL
4 In re Dependency of T.R., 108Wn.App. 149, 160-61, 29 P.3d 1275
(2001).
5 In re Welfare of Hall. 99 Wn.2d 842, 849, 664 P.2d 1245 (1983) (quoting
In re Seqo. 82 Wn.2d 736, 739, 513 P.2d 831 (1973)).
No. 69212-7-1 (Consolidated with No. 69213-5-1)74
parental deficiencies within the foreseeable future have been expressly and
understandably offered or provided . . . ."6 Thus, the statute requires that the
Department must offer the services expressly ordered by the trial court and that
the Department provide other necessary services, reasonably available, which
would correct the parental deficiencies.7
An appellate court will affirm a termination order if there is substantial
evidence that the trial court could reasonably have found to be clear, cogent, and
convincing.8 Evidence is clear, cogent, and convincing when it shows the
ultimate fact at issue to be "highly probable."9 Because the fact finder has the
advantage of observing the witnesses, deference to the trial court is particularly
important in appellate review ofa termination decision.10
Here, the Department offered all services ordered by the trial court in its
dependency orders. Hayes assigns error to the trial court's findings that the
Department offered all services ordered under RCW 13.34.130, including
"domestic violence treatment, random urinalysis testing, parenting classes, drug
and alcohol evaluation and a psychological evaluation."11 But this finding was
6RCW13.34.180(1)(d).
7 In re Dependency of T.L.G., 126 Wn. App. 181, 200, 108 P.3d 156
(2005).
8 In retheMatterofH.J.P.. 114 Wn.2d 522, 532, 789 P.2d 96 (1990).
9 In re Dependency of K.R.. 128Wn.2d 129, 141, 904P.2d 1132(1995)
(quoting Seqo. 82 Wn.2d at 739).
10 Id at 144.
11 Clerk's Papers at 279 (Finding of Fact 2.22).
No. 69212-7-1 (Consolidated with No. 69213-5-1)75
supported by substantial evidence in the record. These were the services
ordered by the dependency orders as to A.U.N.H. and Z.D.H. Thus, the
Department offered Hayes all court ordered services, in compliance with RCW
13.34.180(1)(d).
Additionally, these services were all that were necessary to address
Hayes's parental deficiencies within the foreseeable future. In the termination
order's findings of fact, Hayes's parental deficiencies were connected to
domestic violence and his role as an abuser. Thus, the offer of domestic
violence treatment services by the Department was sufficient to address his
parental deficiencies and meet the requirements of RCW 13.34.180(1 )(d).
The trial court found that Hayes "has been inappropriately hostile or
violent with the social worker, including in front of his children, with foster care
parents, his wife, a police officer, and the mother of [his] children."12 Though
Hayes challenges this finding, it was supported by substantial evidence in the
record. In 2010, when Hayes was arrested for violating a domestic violence
protection order, he was also charged with assaulting a police officer. Hayes's
social worker testified at the termination proceeding that Hayes would grow
visibly angry and upset and lash out at her in front of A.U.N.H. and Z.D.H. "He
went from—from using appropriate words to inappropriate words, foul
language."13 And during a visitation with his children, their mother arrived and
attempted to take Hayes's backpack. In response, he bit her hand.
12 Clerk's Papers at 280 (Finding of Fact 2.28).
13 Report of Proceedings (July 17, 2012) at 341.
No. 69212-7-1 (Consolidated with No. 69213-5-l)/6
Hayes also did not demonstrate that he could "maintain his aggression or
exercise decision-making to the benefit of his children. .. . The father has not
demonstrated that he understands how his behavior affects his children when he
is being hostile or observe their cues in response to his hostility [sic]."14 These
challenged findings were supported by substantial evidence in the record, and
reflected parental difficulties that would likely have been addressed by domestic
violence treatment. Hayes's social worker, the CASA assigned to his case, and
Dr. Michael O'Leary, the psychiatrist who conducted a psychological evaluation
of Hayes, all testified that they were concerned with Hayes's anger and control
issues.15
Finally, the trial court found that, "[t]he father's failure to engage in
domestic violence treatment has prevented him from making progress on"
articulating "how domestic violence affects children."16 It also concluded that
"[t]he father has delayed engagement in the critical service for domestic violence
and continues to display cognitive concerns as identified by Dr. O'Leary that
place the children at risk."17 These challenged findings of Hayes's parental
deficiencies are linked to the domestic violence treatment services and are
14 Clerk's Papers at 281 (Finding of fact 2.31).
15 Report of Proceedings (July 16, 2012) at 186-87 ("It's the atmosphere
that's created when the kids are there that there's the anger around them ");
Report of Proceedings (July 17, 2012) at 127-31; Report of Proceedings (July 19,
2012) at 565, 574
16 Clerk's Papers at 281 (Finding of Fact 2.36).
17 Clerk's Papers at 282 (Finding of Fact 2.39).
No. 69212-7-1 (Consolidated with No. 69213-5-1)77
supported by substantial evidence in the record. When Hayes testified at the
termination proceeding, he did note that the treatment helped him "try to think
before I react. . . ,"18 But Hayes was still unable to satisfactorily explain how his
violent and aggressive behavior affected his children. More importantly, as noted
above, he continued to exhibit this behavior.
Hayes argues that the Department should have offered him mental health
counseling. He contends that, though this was not a service ordered by the
dependency court, it was reasonably available and capable of correcting his
parental deficiencies. But the domestic violence treatment referral was a service
offered by the Department, targeted at addressing Hayes's parental deficiencies:
his aggression, violence, and control issues.
Further, Hayes is unable to demonstrate how mental health services
would have better addressed his anger and control issues. He notes that Dr.
O'Leary opined that he "suffered from adjustment disorder with mixed
disturbance of emotions and conduct as well as mixed personality disorder." But
Hayes fails to note that Dr. O'Leary recommended domestic violence treatment,
not mental health services in his report. Thus, after examining Hayes, Dr.
O'Leary felt that this treatment would sufficiently address Hayes's parental
deficiencies.
Hayes argues that his social worker was aware of his mental health
problems and was thus required to order mental health services that would have
addressed his "anger and hostility. . . ." But the social worker's alleged
18
Report of Proceedings (July 16, 2012) at 80.
No. 69212-7-1 (Consolidated with No. 69213-5-l)/8
awareness of his mental health problems did not require the ordering of such
services in view of Dr. O'Leary's recommendations. He believed that these
difficulties could be addressed by domestic violence treatment services. In
view of this record, it is unclear why more was required in this case.
Hayes contends that his case is akin to In re Dependency of T.L.G..19
where this court held that the Department had failed to offer the parents all
necessary services. But in T.L.G.. the Department was aware that the father's
bipolar disorder and mother's depression were "the issue[s]" that resulted in
termination of the parents' relationship with child.20 And yet, the Department did
not offer any mental health services to address these illnesses, about which they
knew.21 Thus, this court held that the reasonable services necessary to correct
the parents' deficiencies were not offered by the Department.22
Here, in contrast, all mental health deficiencies raised by Hayes in his
appeal relate to anger and aggression, difficulties that would have been
addressed by the domestic violence treatment program to which the Department
offered referrals. Thus, the Department did not fail to address Hayes's mental
health deficiencies but, instead, offered services that were likely to target the
particular mental health difficulties with which Hayes struggled.
19126Wn. App. 181, 108 P.3d 156(2005).
20 IdL at 199.
21 jd at 199-200.
22 Id.
8
No. 69212-7-1 (Consolidated with No. 69213-5-l)/9
Hayes also argues that the Department was required to offer him
employment services because it "knew that employment had been an issue for
him throughout the dependency process and he had very limited financial
resources."23 This was not a service required by the dependency order, nor was
it a service that would have corrected his parental deficiencies.
It is true that Hayes struggled to find employment. As the trial court
recognized, these financial difficulties may have limited his ability to enroll in
domestic violence treatment because the Department refused to pay for these
services. The trial court did note its concern "about the Department's policy of
not paying for a portion of domestic violence batterers' treatment even where
such treatment is recommended and may be unaffordable."24 But it went on to
find that "the father was able to access a very low cost program ... and still
failed to attend regularly."25 The trial court also noted that, "[t]he father provided
no explanation for why after paying for a month, he would not attend the entire
month."26 These challenged findings of fact were supported by substantial
evidence in the record. As Hayes's treatment provider, Blake Johnson, noted,
Hayes paid $50.00 a month to go to weekly treatment, but he was only attending
classes once a month. This evidence, in addition to Johnson's testimony that
Hayes only attended six classes during his time with the program, supports the
23 Appellant's Opening Brief at 17.
24 Clerk's Papers at 279 (Finding of Fact 2.22).
25 ]o\ at 280.
26 jd, (Finding of Fact 2.26).
No. 69212-7-1 (Consolidated with No. 69213-5-l)/10
findings of fact that he simply failed to comply with the domestic violence
treatment service.
Given that Hayes's failure to attend domestic violence treatment was not
entirely related to his financial situation, employment services were not services
that could have addressed his core parental deficiencies.
Finally, Hayes argues that the Department was required to provide
services to allow him to maintain a "safe, stable living environment" for his
children. We disagree. The dependency order as to Z.D.H. required Hayes to
"establish and maintain a safe, stable, living environment suitable for the child."
But the dependency court ordered no services associated with this requirement.
Nor did the trial court rely on Hayes's housing instability in its finding of parental
deficiencies at the termination hearing. Thus, housing services would not have
addressed any core parental deficiencies ifthe Department had offered them to
Hayes. Consequently, they were not services that needed to be provided to
Hayes under RCW 13.34.180(1 )(d).
Hayes argues that the burden of offering or providing the needed services
is on the State. We agree. But we also conclude that the State did so in this
case. It had no burden to provide the additional services on which Hayes relies
in this appeal.
Hayes also argues in his reply brief that we must disregard the
Department's references to facts established only in the dependency orders. We
agree. And we have not done so.
10
No. 69212-7-1 (Consolidated with No. 69213-5-1)711
PARENTAL DEFICIENCIES REMEDIED IN NEAR FUTURE
Hayes argues that the trial court erred in concluding that there was little
likelihood conditions would be remedied so that his children could be returned to
him within the near future. Because substantial evidence supported the court's
finding, we disagree.
RCW 13.34.180(1 )(e) requires the Department prove 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 focus of this element is whether a parent has
corrected his or her parental deficiencies.27 "A determination ofwhat constitutes
the near future depends on the age of the child and the circumstances of the
placement."28 Thus, "[a] matter of months for young children is not within the
foreseeable future to determine if there is sufficient time for a parent to remedy
his or her parental deficiency."29
As noted above, Hayes's parental deficiencies centered on his past
domestic violence and the anger and control issues connected with this violence.
There was substantial evidence in the trial record to support the conclusion that
these issues would not have been remedied within the foreseeable future. By
the time of trial, Hayes had completed only six domestic violence treatment
classes. Though services were ordered in June 2011, Hayes did not begin
27 In re Dependency of T.R.. 108 Wn. App. at 165.
28 T.L.G.. 126 Wn. App. at 204.
29 In re Dependency of M.R.H.. 145 Wn. App. 10, 28, 188 P.3d 510
(2008).
11
No. 69212-7-1 (Consolidated with No. 69213-5-1)712
attending classes until the spring of 2012. Even when he began attending
classes, his attendance was sporadic, despite the fact that his treatment provider
testified that he told Hayes to come every week. Hayes attended a class in April
2012, two in May 2012, and two in July 2012.
While Hayes and his treatment provider testified that the domestic
violence treatment was helping Hayes to understand the effects of violence,
there was insufficient proof that this progress would occur within his young
children's near future. During the fact-finding hearing, Dr. O'Leary was asked
whether "five group sessions [would] constitute compliance" with the treatment
he was seeking for Hayes."30 He replied, "No. Five sessions would probably be
just the beginning.'™ Additionally, the CASA and social worker assigned to
Hayes's case testified that they believed that he continued to demonstrate he is
unable to deal with his anger in a way that is not destructive to his children's
lives.
Further, Hayes's demonstrated his anger and inability to control his
responses to others during the dependency period. As noted above, he bit his
children's mother during a visitation in October 2011. He also raised his voice
and became visibly enraged when speaking to his social worker. These
incidents, combined with Hayes's failure to follow-through with the domestic
violence treatment until four months before the termination hearing, support the
30 Report of Proceedings (July 19, 2012) at 611.
31 Id. (emphasis added).
12
No. 69212-7-1 (Consolidated with No. 69213-5-1)713
trial court's conclusion that Hayes's parental deficiencies could not be remedied
in the near future.
Hayes argues that he was progressing in domestic violence treatment and
notes that his treatment provider testified that he had markedly improved "even
though he had only attended six classes." Indeed, the trial court acknowledged
this progress in its findings of fact, noting that, "[t]he father is reportedly doing the
best that he can in domestic violence treatment."32 But the court then went on to
find "that is not enough to alleviate the risks of his long history of violence . . . ."33
Hayes's failure to begin domestic violence treatment until four months before the
termination hearing, combined with his continued aggression, provided sufficient
evidence for the court to conclude that his deficiencies would not be remedied
within the children's near future.
Additionally, Hayes argues that he did not begin services until April at
least in part because of the Department's failure to pay for his domestic violence
treatment services. But, as noted above, Hayes's treatment provider testified
that, though he paid for weekly classes, he only attended once or twice a month
even when he started attending treatment. Further, Hayes told his social worker
and Dr. O'Leary that he did not believe treatment was necessary. This statement
indicated that his resistance to treatment was an important factor in his delay in
seeking services.
32 Clerk's Papers at 280 (Finding of Fact 2.27).
33 Id.
13
No. 69212-7-1 (Consolidated with No. 69213-5-1)714
Hayes also contends that the court's conclusions ignored the services in
which he had participated. But Hayes's completion of the urinalysis testing and
parenting classes did not address the largest deficiency in his parenting: his
anger and lack of control. Thus, they are not relevant to the question of whether
he could remedy these deficiencies within the near future.
Finally, Hayes argues that the trial court's ruling ignores his abilities as a
parent. In its oral ruling, the trial court did note that Hayes was affectionate with
his children, and that they had affection for him. In its findings of fact, the trial
court also noted that Hayes "generally engaged in visitation." But Hayes's lack of
affection and failure to engage in visitation were not the basis of his parental
deficiencies. Thus, this argument fails to address the parental deficiencies on
which termination was based.
We affirm the termination of Hayes's parental rights to A.U.N.H. and
Z.D.H.
^7XtJ
WE CONCUR:
Tt
14