FILED
MARCH 24, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re Dependency of: ) No. 32320-0-111
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O.R.L. ) PUBLISHED OPINION
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LA WRENCE-BERREY, 1. - Kristi Dawn Lewis appeals the trial court's order
terminating her parent-child relationship with O.R.L. Ms. Lewis contends that the
termination should be reversed because the Department of Social and Health Services
(Department) failed to offer or provide all reasonably available services capable of
correcting her parental deficiencies. Specifically, Ms. Lewis maintains that visitation is a
remedial service that the Department failed to provide. We reaffirm In re Dependency of
T.H., 139 Wn. App. 784, 162 P.3d 1141 (2007), hold that visitation is not a required
service, and affirm the trial court's order terminating Ms. Lewis's parental rights to
O.R.L.
No. 32320-0-II1
In re Dependency ofOR.I.
FACTS
Ms. Lewis is the mother ofO.R.L. born September 17,2012. One week prior to
O.R.L.'s birth, Ms. Lewis's doctor sent a letter to the Department expressing concern for
Ms. Lewis and the unborn child. The doctor stated that Ms. Lewis missed multiple
scheduled appointments, was suffering from a long history of mental illness, attempted
suicide multiple times, had no stable home, exhibited comprehension difficulties, and
failed to utilize services available to her. The doctor also informed the Department that
Ms. Lewis was seen panhandling as "homeless and pregnant," although she gave the
doctor a different account of her living situation. Ex. P-4.
The day after O.R.L. was born, the Department removed O.R.L. from Ms. Lewis's
care and filed a petition for dependency. The dependency order was entered on
November 7,2012. The court found O.R.L. dependent because there was no capable
parent of adequately caring for the child and because the child was in circumstances that
placed her in danger of substantial damage to her psychological or physical development.
The court required the following services to be offered to Ms. Lewis: drug and alcohol
evaluation and treatment, random urinalysis, parenting classes, a psychological
evaluation, mental health services and related medication management, a women's
support group, and weekly contact with the caseworker.
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In re Dependency ofOR.I.
The Department filed a termination petition in November 2013 due to Ms. Lewis's
alleged failure to participate in required services. On February 13, 2014, a termination
hearing occurred to address Ms. Lewis's parental rights. 1 At the time of the hearing,
O.R.L. was a dependent minor for all but one day of her life, a little less than 15 months.
The child was in a safe and stable foster care home and had an opportunity for adoption
into a permanent family with her foster parents.
The testimony and exhibits at the hearing established that in the year prior to
O.R.L.'s birth and through much of the dependency, Ms. Lewis was homeless or
bouncing from house to house. When O.R.L. was born, Ms. Lewis was temporarily
living with friends whose parental rights to their own children were terminated due to
physical abuse. After a few days at this address, she continued to move house to house
and shuffled between five different cities without finding permanent housing. However,
at trial, Ms. Lewis testified that she moved into an apartment in Lewiston, Idaho, on
November 3,2013.
Ms. Lewis had a history of chronic unemployment and had not worked since 2009.
She held only short~term jobs in the fast food industry, one that lasted two to three weeks
1 O.R.L. 's father relinquished his parental rights prior to the termination hearing.
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No. 32320-0-II1
In re Dependency ofOR.L.
and another that lasted three months. During the dependency, Ms. Lewis reported that her
income was from disability.
Ms. McDougall's Testimony. Department social worker Sheila McDougall was
assigned to O.R.L.'s case. Ms. McDougall said that the Department was concerned that
Ms. Lewis's mental illness would prevent her from parenting. She was also concerned
that Ms. Lewis frequently moved residences and tended to stay with unsafe people or
people she did not know welL
After O.R.L.'s birth, Ms. Lewis attended four weeks of visitation at the beginning
of the dependency. However, she showed no understanding of how to care for an infant
and did not appear to understand the normal actions of a child that age. One month into
the dependency, Ms. Lewis discussed the possibility of relinquishing her rights. Shortly
thereafter, Ms. Lewis lost contact with Ms. McDougall except for sporadic telephone
calls to check in on O.R.L.
Ms. McDougall testified that the Department provided numerous services to assist
Ms. Lewis. These services included chemical dependency and psychological evaluations
and treatment, a women's support group, a community sexual assault program, an alcohol
dependency evaluation, counseling, an intensive outpatient program for mental illness,
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No. 32320-0-III
In re Dependency oIOR.L.
and parenting classes. The Department also provided opportunities for visitation and
referrals for housing assistance.
From the beginning of the dependency in November 2012 until August 2013, Ms.
Lewis failed to participate in the required intensive outpatient program for chemical
dependency. Although she completed an initial chemical dependency evaluation in
June 2013, she did not follow through with any treatment. She also scheduled two intake
appointments in August and September 2013 with a different chemical dependency
provider, but failed to show up for either appointment. In September 2013, Ms. Lewis
finally began a behavioral health program, but she attended for only three days before
abandoning the program. The program found her not amendable for treatment due to her
untreated mental illness.
Around July 2013, Ms. Lewis contacted Ms. McDougall and asked to resume
visitation. The Department determined that it was not in the child's best interest for Ms.
Lewis to become involved unless she was truly going to work toward reunification. Ms.
McDougall told Ms. Lewis that she could restart visitation once Ms. Lewis began to
meaningfully engage in services. Ms. McDougall thought that it was not good for the
child to develop a relationship with Ms. Lewis that would eventually disappear again.
Ms. Lewis promised to engage in services, but failed to do so.
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No. 32320-0-III
In re Dependency ofo.R.L.
Ms. Lewis also failed to participate in other required services and eventually
stopped contacting the Department in mid-November 2013. In January 2014, one month
before the termination hearing, Ms. Lewis participated in a one-day women's support
group and again enrolled in an outpatient treatment program. There was no evidence at
the hearing on whether Ms. Lewis followed up with either required service.
At some point, Ms. McDougall arranged for a meeting between Ms. Lewis,
O.R.L., and the foster parents, with the goal of convincing Ms. Lewis that O.R.L. was
doing well in foster care. Ms. McDougall was hoping that Ms. Lewis would relinquish
her parental rights and avoid the termination proceedings. Even though Ms. Lewis had
not seen O.R.L. in many months, Ms. Lewis made statements indicating an intimate
relationship with the child.
Dr. Richard Gallaher's Testimony. Also testitying at the hearing and submitting a
report was Dr. Richard Gallaher, a clinical psychologist who treated Ms. Lewis. Ms.
Lewis was first offered a psychological evaluation in 2012, but she did not complete the
process. One year later, in September 2013, Ms. Lewis reengaged in the evaluation
process, and Dr. Gallaher completed his investigation. Dr. Gallaher diagnosed Ms. Lewis
with schizophrenia, paranoid type, chronic posttraumatic stress disorder, and found
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No. 32320-0-II1
In re Dependency ofo.R.L.
multiple ongoing Axis IV psychosocial and environmental stressors that may have
affected the diagnosis.
Dr. Gallaher also found that Ms. Lewis was quite scattered in her presentation and
could not explain why child protective services had intervened. He noted that she
described hallucinations and distorted thinking, had problems with good judgment, and
described a split personality that caused her not to remember what she did for up to three
hours. Ms. Lewis also admitted hearing up to 10 voices at a time. Dr. Gallaher found
Ms. Lewis's psychosis was quite active in spite of medication, that her illness was a major
deterrent to appropriate child care, and that it would be hard for her to provide a safe and
stable environment for a baby.
Dr. Gallaher also evaluated Ms. Lewis with the MMPI-2,2 a psychometric testing
instrument. The evaluation suggested significant clinical problems, including somatic
distress of an unusual nature, a pattern of ineffectiveness in life, difficulty managing
routine affairs, disconnection from reality at times, and the likeliness of blatant hostility.
Dr. Gallaher identified negative factors concerning parenting including major learning
difficulties and long-term mental illness that was a primary factor in her inability to
parent. He stated that she may not be willing to engage in more mental health treatment
2 The Minnesota Multiple Personality Inventory-2.
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No. 32320-0-III
In re Dependency o/o.R.L.
and that she had very few opportunities to receive ongoing support for her medication
needs and counseling.
Ms. Lewis's prognosis indicated that she was highly likely to remain unchanged
unless she could maintain long-term stability, counseling, and manage her mental illness.
Dr. Gallaher concluded that this would be very difficult to achieve. He found that Ms.
Lewis was not capable of parenting a child and that her very significant mental illness
was very unlikely to improve.
Dr. Gallaher's report recommended that Ms. Lewis obtain a stable residence that
would promote metal stability and stronger relationships with treatment providers. He
also recommended that Ms. Lewis manage her mental illness with anti-psychotic and anti
depressant medications, as well as counseling, which would also help Ms. Lewis deal
with a traumatic personal history.
Kristi Lewis's Testimony. Ms. Lewis also testified at the hearing. She said that
her mental stability had improved significantly, and after many years of unsafe and
unstable residences, she secured housing and obtained an apartment. She said the
apartment had sufficient space for O.R.L. Ms. Lewis also reported that her boyfriend, a
convicted felon, would be living with her once he was released from an Idaho prison
rehabilitation program. Ms. Lewis was pregnant with her second child at the time of the
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No. 32320-0-III
In re Dependency ofOR.L.
hearing. Although, when asked about the pregnancy, she repeated that she was unsure if
she was pregnant because the doctor could not tell if she was 5 or 10 weeks along in her
pregnancy after conducting an ultrasound.
Ms. Lewis acknowledged that she heard voices and hallucinated all of her life, but
that symptoms diminished once she obtained a stable place to live and felt safe for the
first time. She also reported that she enrolled in an intensive outpatient treatment
program and began attending support groups.
The trial court announced its decision at the conclusion of the trial. The court
terminated Ms. Lewis's parental rights. In ordering termination, the court found that the
Department offered Ms. Lewis all necessary services, but she failed to sufficiently
engage in the programs. Also, the court found that the Department met the criteria in
RCW 13 .34.180(1)(e) and (t) for termination. Finally, the court found that Ms. Lewis
was unfit to parent and found termination was in the child's best interests. In making
these findings, the court noted that mental illness in general does not render a parent unfit
but, based on Dr. Gallaher's opinion, the severity of Ms. Lewis's illness rendered her
incapable of parenting O.R.L. The court also noted that Ms. Lewis's newfound efforts to
comply with services came too late.
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No. 32320-0-111
In re Dependency ofo.R.L.
Ms. Lewis appeals. She challenges the court's finding that the Department offered
all necessary services under RCW 13.34.136 that were reasonably available and
capable of correcting parental deficiencies within the foreseeable future. See
RCW 13.34.180(1)(d). Specifically, she contends that the Department failed to provide
visitation, which she asserts is a reasonably available service capable of correcting her
parental deficiencies.
ANALYSIS
The trial court in a termination of parental rights proceeding has broad discretion
to evaluate the evidence in light of the rights and safety of the child. In re Welfare of
Siegfried, 42 Wn. App. 21, 27, 708 P .2d 402 (1985). The decision of the trial court is
entitled to great deference on review and its findings of fact are upheld if supported by
substantial evidence. In re Dependency ofK.S.C., 137 Wn.2d 918, 925, 976 P.2d 113
(1999). Substantial evidence is evidence in sufficient quantity to persuade a fair-minded,
rational person of the truth of the declared premise. World Wide Video, Inc. v. City of
Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991) (quoting Bering v. Share, 106 Wn.2d
212,220, 721 P.2d 918 (1986)). Unchallenged findings are verities on appeal. In re
Mahaney, 146 Wn.2d 878, 895, 51 P.3d 776 (2002).
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No. 32320-0-II1
In re Dependency ofOR.L.
The reviewing court may not decide the credibility of witnesses or weigh the
evidence. In re Dependency ofA. V.D., 62 Wn. App. 562, 568, 815 P.2d 277 (1991). The
dominant consideration in a termination proceeding is the moral, intellectual, and material
welfare interests of the children. In re Dependency ofJ. W, 90 Wn. App. 417,427,953
P.2d 104 (1998). Where the parent's interest conflicts with the child's right to basic
nurture, physical health, mental health, and safety, the rights of the child prevail.
RCW 13.34.020.
"Under RCW 13.34.180 and RCW 13.34.190, a court may terminate parental
rights if it finds (1) the requisite allegations are supported by clear, cogent, and
convincing evidence and (2) termination is in the best interests of the child." In re
Welfare ofMR.H, 145 Wn. App. 10,29-30, 188 P.3d 510 (2008). "'Clear, cogent and
convincing' means highly probable." Id. at 24.
The six allegations that the Department must prove in a termination hearing 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
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No. 32320-0-III
In re Dependency ofo.R.L.
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.
(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).
Washington courts have settled the question of whether visitation is a service that
must be provided. In T.H., the court held that visitation is not a service that the
Department is required to provide under RCW 13.34.180(1)(d). TH., 139 Wn. App. at
786. The court found that RCW 13.34.l80(l)(d) refers to services ordered under
RCW 13.34.136, and that RCW 13.34.136 affords services to a parent designed "'to
enable them to resume custody.'" T.H., 139 Wn. App. at 791 (quoting In re Dependency
ofA.A., 105 Wn. App. 604, 608-09, 20 P.3d 492 (2001)). The court reasoned, "There
may be situations where visitation is part of a required service, such as interactive
parenting classes. But it does not, on its own, correct parental deficiencies to enable the
parent to resume custody, and thus, we conclude that it is not a 'service' that must be
provided under RCW 13.34.180(1)(d)." TH, 139 Wn. App. at 792. The court also
recognized that RCW 13.34.136 clearly differentiates between services and visitation and,
the fact that the legislature prohibited a trial court from limiting visitation as a sanction
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No. 32320-0-III
In re Dependency a/OR.L.
for not complying with services, evidences an intent that the visitation is not a service.
T.H., 139 Wn. App. at 792.
Ms. Lewis asks this court to reconsider T.H. and hold that visitation is a required
remedial service under Washington law. Ms. Lewis contends that RCW 13.34.025, which
addresses remedial services, incorporates a federal law that was revised in 2011 to make
visitation a service. RCW 13.34.025(2)(a) states, "For purposes of this chapter, remedial
services are those services defined in the federal adoption and safe families act [ASFA] as
time-limited family reunification services. Remedial services include individual, group,
and family counseling; substance abuse treatment services; mental health services;
assistance to address domestic violence; services designed to provide temporary child
care and therapeutic services for families; and transportation to or from any of the above
services and activities." Under the ASFA, as amended in 2011, time-limited family
reunification services include "[s]ervices and activities designed to facilitate access to and
visitation of children by parents and siblings." 42 U.S.C. § 629a(a)(7)(B)(vii).
Ms. Lewis's argument is unpersuasive. First, while RCW 13.34.025(2)(a)
references the federal law, it also specifically lists services to be provided. Visitation is
not listed as a remedial service. Second, even if 42 U.S.C. § 629a(a)(7)(B)(vii) of the
ASFA is incorporated into Washington law, it does not provide visitation, but instead
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In re Dependency ofo.R.L.
provides services and activities designed to facilitate access to the children and visitation.
Thus, if incorporated, the Department must offer services that would make visitation
possible. For instance, if visitation is prohibited because of an anger issue by a parent,
the Department would be required to provide services to address the anger issue so
visitation would be possible. See In re Welfare ofS.J., 162 Wn. App. 873, 883-84,256
P.3d 470 (20 II).
We find no reason to depart from the reasoning of T.H Nor do we believe that
RCW 13.34.180(1)(d) or RCW 13.34.136 need reinterpretation. The legislature amended
RCW 13.34.136 several times since T.H. was decided and did not revise the statute to
include visitation as a service to be provided to parents.
All necessary services that were reasonably available and capable of correcting
parental deficiencies within the foreseeable future were expressly and understandably
offered or provided to Ms. Lewis. The Department was ordered to provide drug and
alcohol evaluation and treatment, random urinalysis, parenting classes, a psychological
evaluation, mental health services and related medication management, and a women's
support group. Ms. Lewis does not dispute that these services were offered to her or were
capable of remedying her parental deficiencies. While visitation was offered to Ms.
Lewis, it was not a required remedial service.
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No. 32320-0-III
In re Dependency ofOR.I.
Were we to examine the federal standard, we would conclude that the Department
did offer services to Ms. Lewis that were designed to facilitate access to and visitation
with O.R.L. The parenting classes and mental health treatment offered by the Department
were remedial services designed to address Ms. Lewis's parenting issues that she
displayed during visitation when O.R.L. was an infant. However, Ms. Lewis made no
effort to start services. Without the ability to care for her child, O.R.L.'s safety was an
issue and visitation was inappropriate.
The Department established all of the required statutory elements of
RCW 13.34.180. Specifically, the Department offered or provided all reasonably
necessary services capable of correcting Ms. Lewis's parental deficiencies. The trial
court did not err in ordering termination of Ms. Lewis's parental rights to O.R.L.
Affirm.
Lawrence-Berrey, J.
WE CONCUR:
Brown, J. (J
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