In re: H. T.

FILED

APRIL 30, 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 the Tennination of: )
) No. 32234-3-III consolidated with
H.T., A.L. and K.T. ) 32235-1-III and 32236-0-III
)
)
)
)
) UNPUBLISHED OPINION
)
)

FEARING, J. - J.L. appeals the tennination of her parental rights to three children,

A.L., K.T., and H.T. We reject J.L. 's request to reverse and dismiss the tennination

petition for insufficiency of evidence. Nevertheless, we vacate the tennination orders and

remand for a further hearing because the trial court relied on grounds for tennination not

earlier disclosed to J.L.

FACTS

J.L. bore three children: A.L., born November 14,2005; K.T., born January 27,

2011; and H.T., born May 6, 2012. J.L. gave birth to A.L. when she was sixteen years

old. J.L. and her children have always lived with J.L.'s mother, M.L., in Walla Walla.

S.T., father to H.T., also lived in the home.

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Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H.T., A.L. and K.T.

H.T. was born Mary 6, 2012, ten weeks premature. During the delivery, lL.

giggled and spoke slurringly. J.L.'s incongruous behavior led delivery room staff to

suspect lL. was high on methamphetamine. H.T. weighed three-and-a-halfpounds at

birth and suffered from respiratory distress. Care providers airlifted her from Walla

Walla General Hospital to a neo-natal intensive care unit at Kadlec Regional Medical

Center in Richland. General Hospital nursing staff contacted Department of Social and

Health Services (DSHS) because of concern for J.L.'s behavior during H.T.'s birth and

because, during the pregnancy, J.L. tested positive for marijuana, methamphetamine, and

amphetamine.

On May 7, 2012, DSHS social workers Janel Torrescano and Brooke Martin

visited J.L. at home and spoke with her outside. J.L. refused to permit ingress into the

home, but brought her children, A.L. and K.T., outside the residence to speak with the

social workers. Both children looked "content." Clerk's Papers (CP) at 3. The social

workers asked lL. about her drug use. lL. admitted using marijuana, but denied using

methamphetamine.

A drug screen conducted in April 2012 indicated that J.L. used methamphetamine

during H.T.'s pregnancy. After reviewing the screen results in mid-May 2012, Janel

Torrescano returned to lL.'s home on May 16. lL. again refused entry. Torrescano

concluded that J.L. was then high and sedated. J.L. giggled during the interaction. As

Torrescano left the home, a neighbor expressed concern to T orrescano about the

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Nos. 32234-3-III; 32235-I-III; 32236-0-III
In re the Termination of HT, A.L. and K.T

condition of lL.'s home and reported that detectives had arrested S.T. at the home in the

past.

On May 16,2012, Janel Torrescano contacted the Walla Walla Police Department

for assistance in entering J.L.'s house. The police department referred Torrescano to the

Department of Corrections (DOC), who had an outstanding arrest warrant for S.T. for

failing to report to his parole officer. DOC officers accompanied Torrescano back to

J.L.'s house. On gaining entry to the home, Torrescano observed debris from floor to

ceiling, dangling electrical wire, and an impassable hallway. Torrescano could not see

the kitchen counters due to piles of dishes, food, and household cleaners. Four dogs and

at least ten people inhabited the home. The dwelling reeked with cigarette smoke, mold,

and animal waste. The trial court aptly characterized the home asa "hoarder['s]" house.

CP at 208. Clutter, such as abandoned tools, dotted the home's yard.

During the home inspection, J.L. told Janel Torrescano that she, the children, and

her boyfriend slept together on a king size water bed. Torrescano observed no space for a

crib for H.T.'s use. According to Torrescano, the home also lacked provisions to care for

an infant. Torrescano concluded that the living conditions were unsanitary and unsafe for

children. On May 16,2012, DSHS took A.L. and K.T. into protective custody and placed

the two with a neighbor. H.T. remained in critical care at Kadlec Medical Center.

Subsequent to A.L.'s and K.T.'s placement in protective custody, DSHS gained

information showing that the children had missed many well child medical examinations

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H T., A.L. and K. T.

and immunizations. A.L.'s teeth rotted and caused her pain.

On May 18,2012, the State filed a dependency petition for all three of 1.L.'s

children. S.T. voluntarily relinquished his parental rights to H.T., and the trial court

terminated his rights on May 8, 2013. On August 14,2012, the trial court entered an

agreed order of dependency for all three children. As part of the dependency order, the

trial court directed 1.1. to complete a drug and alcohol assessment and participate in any

recommended substance abuse treatment. The trial court ordered J.1. to submit weekly

to random urinalyses, abstain from drug and alcohol use, render her home safe and

sanitary for occupation by her children, and participate in parenting classes after

maintaining sobriety for 90 days. The trial court directed J.1. not to engage in criminal

activity or associate with persons with a history of assaultive behavior or abusers of illicit

substances; sign release of information forms; and maintain monthly contact with DSHS.

The dependency order did not direct 1.1. to undergo psychological testing or counseling

or seek domestic violence victim's treatment and support.

During the ensuing months, J.1. did not participate in services offered by DSHS to

assist in parenting. DSHS encountered difficulty contacting J.1. because she provided

erroneous phone numbers. 1.1. refused to acknowledge the risks to her children, failed to

show for many scheduled visits with the children, and appeared to be under the influence

of illegal drugs or alcohol during some visits. J.1. encountered difficulty in managing all

three children during the few visits. Although the children knew J.L. as their mother, the

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H T., A.L. and K. T.

children lacked bonding with her. She failed to bring diapers, toys, or snacks to visits

with H.T. DSHS suspended visits in August 2013.

Infant H.T. suffers from serious acid reflux and will need surgery, with attendant

aftercare. The malady interferes with her ability to eat and digest food. H.T.'s lungs

were undeveloped at birth. As a result, she cannot reside in a home with animal dander,

dust, mold, or smoke.

A.L. exhibited signs of an attachment disorder and anxiety. She wet herself,

withdrew at school, and reluctantly expressed her needs. A care provider placed A.L. on

medication for attention deficit disorder.

The court held dependency review hearings on November 20,2012 and December

30,2013. J.L. did not attend either hearing. In the meantime, J.L. did not submit to drug

and alcohol assessment and treatment. On December 6, 2012, law enforcement arrested

J.L. for possession of methamphetamine, and she remained incarcerated until February 7,

2013. After her release, J.L. was jailed eight additional times in the subsequent months

for violating conditions of release.

PROCEDURE

On July 22, 2013, DSHS petitioned to terminate J.L.'s parental rights to all three

children. J.L. then sat in jail for violating the conditions of her community custody. In

early October 2013, lL. returned to her mother's home. On October 24,2013, J.L.'s

termination trial began, but J.L. was not present because of an arrest the prior day for

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H.T., A.I. and KT.

being unable to produce a urine sample pursuant to conditions of release.

During the October hearing, DSHS Social Worker Loni Conklin testified that

continuation of lL.'s parental relationship is detrimental to each child. Conklin opined

that uncertainty in foster care for the children led to behavioral issues and attachment

disorders in the two oldest children. Conklin declared that H.T. did not know her mother,

since H.T. had little meaningful contact with her mother since birth. After hearing

testimony on October 24, the trial court continued the trial to allow lL. to complete an

inpatient treatment program and to allow a transition of the children into a home where

the parents wished to adopt all three. DSHS then identified a home wherein the foster

parents wished to adopt all three children.

On November 26,2013, J.L. completed a 28-day inpatient treatment program.

J.L. attended parenting classes while in substance abuse treatment. After J.L.' s release

from the inpatient program, DSHS granted her visitation with the children. According to

a DSHS social worker, J.L. interacted well with the children during the visits, except with

H.T.

Trial resumed on December 20,2013. By that date, all three children resided in

the new foster home. During the hearing, Loni Conklin testified that a 28-day inpatient

drug program was inadequate to rid one of methamphetamine addiction. Conklin

expected more substance abuse relapses and a longer rehabilitation until J.L. could

control her addiction. Conklin urged termination because of the prospective adoptions.

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H.T., A.L. and KT.

During the December 20 hearing, J.L. testified that three to six months remained

in her intensive outpatient substance abuse treatment and that treatment aftercare could

last 24 months. At the time of the hearing, J.L. had been sober for two months. She

pledged motivation to complete treatment and maintain sobriety. J.L. offered recent

photographs of her mother's house as evidence that she complied with the order to render

the home safe for her children. lL. testified that her children bonded with her during the

two recent visits.

On January 28, 2014, the trial court terminated lL.'s parental rights to all three

children. In so ruling, the trial court found:

There are still numerous services for the mother to complete prior to
the court even contemplating sending the children home to her, including
parenting classes, psychological testing and counselling, finding a
permanent home, establishing a stable source of income, continued
outpatient drug treatment, domestic violence victim's treatment and
support. The successful completion of these items and demonstrated
stability would take at least a year, most likely longer, depending on relapse
frequency and length.

CP at 207 -08.

LA W AND ANALYSIS

J.L. contends: (1) the evidence does not support the trial court's determination that

her parental deficiencies will not be remedied in the near future, (2) the evidence does not

support the trial court's finding that termination of parental rights is in the best interest of

the children, (3) the trial court violated her constitutional due process right to notice when

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Nos. 32234-3-111; 32235-1-111; 32236-0-III
In re the Termination of H. T., A.L. and K. T.

it ordered her parental rights terminated based on parenting deficiencies that were not

identified during the dependency process, or proven at trial, (4) the trial court erred when

it, in part, terminated her parental rights because she lived with her mother and did not

have a "stable source of income" at the time of trial, (5) DSHS failed to provide to her all

necessary services capable of correcting her parental deficiencies, and (6) her defense

counsel was ineffective for failing to request a continuance until a pending home study

could be completed on lL.'s mother's house to determine if the children could be

returned to lL. We address these contentions in such order after answering a preliminary

question.

Issue 1: Should we review findings offact entered by the trial court?

Answer 1: No. Although J.L. assigns error to many findings, J.L. presents no

argument in support ofmost assignments.

J.L. assigns error to findings of fact 2.2(e)(2), 2.2(e)(3), 2.2(e)(4), 2.2(e)(5),

2.2(e)(l2), 2.2(e)(13), 2.2(f)(3) and 2.2(f)(4). These findings concern discrete

deficiencies in J.L.'s parenting. Nevertheless, lL. provided no argument in her brief in

support of these assignments. This court does not review errors alleged but not argued,

briefed, or supported with citation to authority. RAP 10.3; Valente v. Bailey, 74 Wn.2d

857,858,447 P.2d 589 (1968); Meeks v. Meeks, 61 Wn.2d 697,698,379 P.2d 982

(1963); Avellaneda v. State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012). Therefore,

we will not consider challenges to the listed findings of fact. J.L. assigns error to other

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Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H. T., A.L. and K. T.

findings of fact that concern her overall fitness as a parent, and she provides argument in

her brief in support of the assignments. When relevant, we will address those

assignments.

Issue 2: Whether substantial evidence supports the trial court's finding that there

was little likelihood that conditions would be remedied so that J.L. 's children could

return to her in the near future?

Answer 2: Yes.

l1. asserts two errors that, if we acknowledged, would require us to dismiss the

termination petition rather than remanding the case for further review by the trial court.

Therefore, we address these two assignments of error first.

1.1. initially contends that substantial evidence does not support the trial court's

finding that there was little likelihood that her children could be returned to her in the

near future. She argues that DSHS did not meet its burden of establishing this element by

clear, cogent, and convincing evidence since she engaged in outpatient treatment at the

time of trial; she and her mother had cleaned, tidied, replaced carpet, freshly painted, and

decorated each of the children's bedrooms for a return to home; and she had no history of

failed attempts at reforming herself as a parent.

Termination of parental rights is a two-step process. In re Welfare ofCB., 134

Wn. App. 942,952, 143 PJd 846 (2006). First, the State must show that the six statutory

requirements under RCW 13J4.180(1) are established by clear, cogent, and convincing

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H. T., A.L. and K. T.

evidence. RCW 13.34.190(1)(a). This means the State must show that the ultimate fact

in issue is "highly probable." In re DependencyofK.R., 128 Wn.2d 129, 141,904 P.2d

1132 (1995); In re Welfare ofSego, 82 Wn.2d 736,739,513 P.2d 831 (1973). One of

those requirements entails promptly remedying parental deficiencies. Under RCW

13.34.l80(1)(e), DSHS must show:

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;
(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; or
(iii) Failure of the parent to have contact with the child for an
extended period of time after the filing of the dependency petition if the
parent was provided an opportunity to have a relationship with the child by
the department or the court and received documented notice of the potential
consequences of this failure, except that the actual inability of a parent to
have visitation with the child including, but not limited to, mitigating

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H T, A.L. and K. T

circumstances such as a parent's current or prior incarceration or service in
the military does not in and of itself constitute failure to have contact with
the child.

The trial court's factual findings under RCW 13.34.180( 1) must be upheld if

supported by substantial evidence from which a rational trier of fact could find the

necessary facts by clear, cogent and convincing evidence. In re Dependency ofCB., 61

Wn. App. 280, 286, 810 P.2d 518 (1991). 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 Welfare ofMR.H, 145 Wn. App. 10,24,188 PJd 510 (2008).

When DSHS relies on substance abuse to establish that there is little likelihood

that parental deficiencies will be remedied in the near future, it need not prove that the

parent is currently abusing alcohol or another substance in order to justify an order

terminating parental rights. In re Dependency ofJ.C, 130 Wn.2d 418,427-28, 924 P.2d

21 (1996). The statute permits a court to consider a parent's use of intoxicating or

controlled substances as a factor in determining whether the "conditions will be

remedied" in the near future. RCW 13.34.180(1)(e)(i); In re Dependency ofJ.C,130

Wn.2d at 427-28. Past history is a factor that a court may consider in weighing a parent's

current fitness. In re Welfare ofRoss, 45 Wn.2d 654, 657, 277 P.2d 335 (1954). This

position is sensible because if substance abuse is so extensive as to render a person unfit

to parent and it is unlikely that the unfitness can be remedied in the near future, it makes

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H. T., A.L. and K. T.

little difference whether that abuse occurred in the past or present. In re Dependency of

J.c., 130 Wn.2d at 428.
I
The "near future" is a key term in RCW 13.34.180(l)(e). The parental
I
deficiencies must be remedied such that the child may be returned to the parent in the I
I
"near future." "Near future" is determined from the child's point of view. In re

Dependency ofA.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004). What constitutes "near
I ,I
I
future" depends on the age of the child and the circumstances of the child's placement.
I f
In re Dependency ofT.L.G., 126 Wn. App. 181,205, 108 P.3d 156 (2005). The cases l

support the proposition that the younger the child the shorter is the "near future." A f

matter of months for young children is not within the foreseeable future to determine if I I
J
there is sufficient time for a parent to remedy his or her parental deficiency. In re

Welfare ofMR.H, 145 Wn. App. at 28 (2008). Eight months was not in the foreseeable I
i
I
f

future of a four-year-old. In re Welfare ofHall, 99 Wn.2d 842, 844, 850-51, 664 P.2d

1245 (1983). One year was not in the foreseeable future ofa three year-old. In re

Dependency ofA. W, 53 Wn. App. 22, 31-32, 765 P.2d 307 (1988). Six months was not

foreseeable in the near future ofa 15 month-old. In re Dependency ofP.D., 58 Wn. App.

18,27, 792 P.2d 159 (1990).

The focus of RCW 13 .34.180( 1)(e) is "whether the identified deficiencies have I
been corrected." MR.H., 145 Wn. App. at 27. Even when there is evidence that the
I
t
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~
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parent may eventually be capable of correcting parental deficiencies, termination is still f

}

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Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of H. T, A.L. and K. T

appropriate when deficiencies will not be corrected within the foreseeable future. In re

Dependency ofA. W, 53 Wn. App. 22, 32, 765 P.2d 307 (1988). If the State offers or

provides all necessary services reasonably capable of correcting parental deficiencies

within the foreseeable future, and the parent does not substantially improve within a year

of the dependency order, a presumption arises that the State has established RCW

13.34.l80(l)(e); In re Welfare ofA.G., 155 Wn. App. 578, 590, 229 P.3d 935 (2010). If

RCW 13.34.l80(l)(e)'s rebuttable presumption applies, it shifts the burden of production,

but the State must still convince the trial court that it is highly probable that the parent

would not improve in the near future. In re Welfare ofCE., 134 Wn. App. at 956 (2006).

Because a parent's constitutional rights are implicated, the presumption shifts only the

burden of production to the parent. CE., 134 Wn. App. at 955. The State retains the

burden of convincing the court that it is highly probable that the mother would not have

improved in the near future. CE., 134 Wn. App. at 956.

The State need not give a parent an unlimited time to become a fit parent. In re

Dependency ofTR., 108 Wn. App. 149, 167,29 P.3d 1275 (2001). When it is eventually

possible, but not imminent, for a pareht to be reunited with a child, the child's present

need for stability and permanence is more important and can justify termination. TR.,

108 Wn. App. at 166.

We later rule that the trial court should not have relied, in part, on parental

deficiencies for which DSHS gave no notice. In addressing this first assignment of error,

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 I

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Nos. 32234-3-III; 32235-l-III; 32236-0-III ~
I
I
In re the Termination of H T., A.L. and K. T.
II
we exclude that evidence sustaining the deficiencies for which J.L. received no notice. i
I

Nevertheless, substantial evidence supports the trial court's finding of little likelihood I
I
that J.L.'s children could be returned to her in the near future. Photographs showed
I
improvement in the condition of the home. J.L. concluded eight hours of parenting
t
instruction while in inpatient treatment, but she provided no details of the nature and ,!
success of the treatment. At the time of the second trial date, J.L. had just completed a
,t
t
!

28-day inpatient drug treatment program. Nevertheless, she still faced months of !
t
intensive outpatient treatment along with two years of follow-up treatment care. DSHS
l
t
presented testimony that J.L. needed further parenting instruction once sober for a longer
i
(
period of time and that she likely would encounter substance abuse relapses. Given J.L.' s

slow start in the dependency process, the trial court could reasonably determine that she
I
I•

would not sustain her recent gains in sobriety and parenting long enough for her children I
f
to return to her in the near future. J.L. presented no testimony from substance abuse
I
counselors as to her sobriety. Under existing Washington precedent, such evidence

qualifies as "substantial" for the purpose ofRCW 13.34.180(1)(e); In re Welfare o/T.B.,
I,
•

150 Wn. App. 599,609,209 P.3d 497 (2009). t
i
I
!
J.L. relies on In re Welfare o/CB., 134 Wn. App. at 956 (2006) to argue the !
,1
f
insufficiency of evidence about the likelihood of returning the children to her in the near

future. In In re Welfare o/CB., this court reversed a parental termination order becaus~

the mother showed significant remediation by the time of trial. DSHS contended that the

14
Nos. 32234-3-III; 32235-I-III; 32236-0-III
In re the Termination of H.T., A.L. and K.T.

past behavior of the mother established the rebuttable presumption. The mother

contended that she rebutted that presumption because she made substantial progress. The

mother's home had earlier been found unfit for children. Nevertheless, DSHS presented

no testimony at the termination hearing that the mother's home was unsafe. Although

she was dilatory, the mother completed parenting classes. She was more dilatory in

attending anger management classes, but was in attendance at the time of the termination

trial.

In Welfare o/CB., the mother's primary deficiency related to drug use. This court

held that the mother met her burden to produce evidence that she was improving in that

area because she completed her chemical dependency programs and presented evidence

from her counselors and friends that her prognosis was good and that she was a different

person. Even the State conceded that the mother completed all drug treatment programs.

Her only outstanding service was for anger management, which she was enrolled to begin

shortly after the termination hearing. DSHS presented no evidence that it would take

more than one year to reunite the mother with the children. To the contrary, the only

further treatment needed would end in four months.

Unlike in Welfare o/CB., J.L. needed two years, at the time of trial, of substance

abuse treatment. lL. had yet to learn how to care for H.T., who suffered from significant

disabilities. lL. encountered difficulties in visiting with the children. She needed

additional parenting instruction.

IS

Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H T, A.I. and K. T

A case with similar factors is In re Dependency ofA.C., 123 Wn. App. 244, 98

P.3d 89 (2004). The DSHS social worker testified that the mother could regain custody

of the children only after she completed at least one year of sobriety. The trial court and

court of appeals relied on this testimony when finding an unlikelihood that conditions

would be remedied in the near future.

Issue 3: Whether substantial evidence supports the trial court's finding that

termination ofJ.I. 's parental rights was in the children's best interests.

Answer 3: Yes.

J.L. next contends that the trial court erred in finding that termination of her

parental rights was in her children's best interests. The State contends that substantial

evidence supports the trial court's finding.

The second step in DSHS' burden in a parental termination case involves proving

by a preponderance of evidence that termination is in the child's best interests. RCW

13.34.l90(1)(b). As noted in In re Welfare ofA.B.:

By virtue ofRCW 13.34.180(1) and RCW 13.34.190, a Washington
court uses a two-step process when deciding whether to terminate the right
of a parent to relate to his or her natural child. The first step focuses on the
adequacy of the parents and must be proved by clear, cogent, and
convincing evidence. The second step focuses on the child's best interests
and need be proved by only a preponderance of the evidence. Only if the
first step is satisfied may the court reach the second.

168 Wn.2d 908,911,232 P.3d 1104 (2010) (footnotes omitted). No specific factors are

involved in a best interest determination, and each case must be decided on its own facts

16

Nos. 32234-3-III; 32235-I-III; 32236-0-III
In re the Termination of H.T., A.L. and K.T.

and circumstances. In re Welfare ofMR.H, 145 Wn. App. at 28 (2008). When a parent

has been unable to rehabilitate over a lengthy dependency period, a court is justified in

finding termination in the child's best interest rather than leaving the child in the limbo of

foster care for an indefinite period while the parent seeks to rehabilitate herself. In re

Welfare ofA.G., 155 Wn. App. at 595 (2010).

In In re Welfare ofMR.H, 145 Wn. App. at 28, this court affirmed a trial court's

finding that termination of parental rights served the children's best interest. The

children's counselors testified that reintroducing the parent into the lives of the children

could cause them to be anxious, to have extreme negative behavioral responses, and the

children needed structure and stability. The children's guardian ad litem testified the

children were happy and bonded to their foster parents. DSHS presented evidence that

adoption of the children was in their best interests so that they would not be in limbo any

longer. The children had been dependent for nearly two and one-half years. Similar

testimony supports the trial court's determination that IL.'s children's best interests lay

in termination.

Issue 4: Whether DSHS deprived J.L. ofdue process during the termination

proceeding as a result ofa lack ofnotice ofgrounds on which DSHS sought termination?

Answer 4: Yes.

J.L. contends that she was deprived of due process because the trial court

improperly based its decision to terminate her parental rights on deficiencies not

17

Nos. 32234-3-III; 32235-1-III; 32236-0-III
In re the Termination of' H. T., A. L. and K. T

identified before the termination' hearing or proved at the hearing. J.L. argues that she

cannot be faulted for failing to remedy a deficiency that was not proven at trial and for

which she had no notice. lL. emphasizes the trial court's finding of fact 12 that declared

psychological testing and counseling and domestic violence victim treatment and support

were needed prior to the court contemplating returning the children to J.L. Because J.L.

did not receive notice of these purported parental deficiencies on which the trial court

ultimately based its decision, we vacate the termination and remand for an additional

hearing.

Both the United States and Washington Constitutions recognize a parent's

fundamental liberty interest in care and custody of her children. U.S. CONST. amends. V,

XIV; WASH. CONST. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, lO2 S. Ct. 1388,

71 L. Ed. 2d 599 (1982); In re Custody ofSmith, 137 Wn.2d 1, 13-14,969 P.2d 21

(1998). The due process clause of the Fourteenth Amendment protects a parent's right to

the custody, care, and companionship of her children. In re Welfare ofKey, 119 Wn.2d

600,609,836 P.2d 200 (1992). That right cannot be abridged without due process of

law. U.S. CONST. amend. XIV; In re Dependency ofA.MM, 182 Wn. App. 776, 790-91,

332 P.3d 500 (2014). Accordingly, parental termination proceedings are afforded strict

due process protections. In re Darrow, 32 Wn. App. 803, 806, 649 P.2d 858 (1982).

Due process requires that parents have notice, an opportunity to be heard, and the

right to be represented by counsel. Key, 119 Wn.2d at 611; In re Welfare ofMyricks, 85

18

Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H. T, A.L. and K. T

Wn.2d 252, 254,533 P.2d 841 (1975). More specifically, the due process protections

afforded parents in a tennination hearing include notice, open testimony, time to prepare

and respond to charges, and a meaningful hearing before a competent tribunal in an

orderly proceeding. In re Dependency ofH. W, 70 Wn. App. 552, 555 n.1, 854 P.2d 1100

(1993); In re Moseley, 34 Wn. App. 179, 184, 660 P .2d 315 (1983). The trial court

should assure that the parent is afforded a full and fair opportunity to present evidence or

rebut evidence presented against him. In re Dependency ofA.MM, 182 Wn. App. at

791. Courts consider notice to a parent of the specific issues to be considered at a

termination hearing to be critical. In re Dependency ofA.MM, 182 Wn. App. at 791; In

re Welfare ofMartin , 3 Wn. App. 405, 410, 476 P.2d 134 (1970). This latter principle

controls our holding.

The well-reasoned In re Dependency ofA.MM, 182 Wn. App. 776 (2014),

governs the disposition of this issue. In fairness to the trial court, this court decided

A.MM after the trial court's order of tennination. In A.MM, Brittany Knopff appealed

the trial court's order tenninating her parental rights to her three children. Knopff

contended, among other assertions, that DSHS failed to satisfy the exacting requirements

of due process when it neglected to provide notice of a parental deficiency on which the

trial court relied in terminating her parental rights. This court held that DSHS failed to

provide Knopff with constitutionally adequate notice of one of the parental deficiencies

on which the trial court relied in tenninating her parental rights. Accordingly, we

19

Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H. T., A.L. and K T.

reversed and remanded to the trial court with instructions to strike from its findings the

parental deficiency of which she did not receive adequate notice and to consider whether,

on the basis ofthe remaining parental deficiencies, termination of parental rights is

nonetheless warranted.

In A.MM, an order of dependency directed Brittany Knopff to participate in

intensive outpatient chemical dependency treatment, to undergo random urinalysis twice

per week, and to engage in parenting classes. In a later dependency review order, the

trial court directed Knopff to participate in a psychological evaluation with a parenting

component. Knopff did not complete her drug and alcohol treatment, never produced a

clean urinalysis, and failed to appear for nearly half of her court hearings. The

psychological evaluation concluded that Knopff could not remediate her clinical and

parenting deficits to a degree that would consistently and effectively meet the safety and

developmental needs of her children. At the time of the evaluation, Knopff admitted that

she was using heroin. Knopff failed to consistently take advantage of visits with her

children and visits negatively impacted the children.

On appeal, Brittany Knopff argued that DSHS deprived her of the constitutional

right to adequate notice because the trial court terminated her parental rights based, in

part, on her lack of knowledge regarding her children's developmental needs, despite the

fact that she was not notified that this would be considered a basis for termination. The

record supported Knopffs contention. Neither the termination petition nor the

20

Nos. 32234-3-III; 32235-1-III; 32236-0-II1
In re the Termination of H T., A.I. and K. T.

dependency petition stated that Knopffs lack of knowledge regarding her children's

developmental needs constituted a parental deficiency. The record also lacked notice to

Knopff that she could lose her parental rights if she did not adequately familiarize herself

with her children's developmental needs. Nonetheless, the trial court found that Knopffs

ignorance regarding her children's developmental needs constituted a parental deficiency.

Since the trial court findings did not declare that other grounds alone supported

termination, this court rejected DSHS' argument that findings regarding other

deficiencies required affirmation of the termination.

Our record on appeal fails to show notice to lL. of all the parental deficiencies

used as the basis for terminating her parental rights. The order of termination declares

that domestic violence victim's treatment and support would be necessary before the trial

court could return J.L.' s children to her. Nevertheless, the order of dependency did not

direct and no review order directed lL. to seek such treatment or support. The order of

termination also lists J.L.' s need to complete psychological testing and counseling before

the court would return her children to her. Again, the record lacks evidence that J.L. had

notice that her mental health or psychological state was a deficiency that could result in

the loss of her parental rights.

DSHS does not recognize the lack of notice as an issue on appeal. DSHS does not

directly address J.L.' s constitutional challenge, but obliquely argues that, if J.L. had met

the case plan and maintained sobriety earlier in the dependency process, DSHS could

21

Nos. 32234-3-III; 32235-1-III; 32236-0-II1
In re the Termination of H. T, A.I. and K. T.

have evaluated her need for additional services and informed the trial court of the need at

the dependency review hearings. DSHS emphasizes J.L.' s inability to achieve and

maintain her sobriety and her repeated incarcerations. DSHS thereby sidesteps apt law

by accentuating bad facts. J.L.'s troubling parental deficiencies do not excuse

deprivation of her constitutional rights. We follow A.MM, vacate the termination

orders, and remand to the trial court to assess whether the remaining parental deficiencies

merit termination of parental rights.

Issue 5: Whether the trial court impermissibly relied on JI. 's poverty when

terminating JI. 's parental rights?

Answer 5: No.

Because we remand this case to the trial court for additional review, we also

address other arguments of lL. to determine if we should give the lower court additional

directions. J.L. next contends that the trial court improperly relied on her poverty and

lack of independent housing in ordering termination. She argues that poverty alone

cannot serve as the basis to terminate a parent's rights to raise her children, and that, if

lack of independent housing is a deficiency, the State should have offered housing

services. The State argues that the trial court did not terminate J.L.'s parental rights on

socio-economic factors.

The termination order's finding of fact 2.2(e)(12) lists "finding a permanent home,

[and] establishing a stable source of income" as services the mother needed to complete

22

Nos. 32234-3-III; 32235-I-III; 32236-0-III
In re the Termination of H. T., A.L. and K. T.

before return to her of the children. CP at 207. Contrary to the State's assertion, the trial

court based its decision to terminate, at least partially, on those factors. Nevertheless, the

trial court also based the termination on numerous other grounds. We must decide

whether a permanent home and a source of income may form, in part, the basis of a

parental rights termination.

Poverty of a parent does not of itself make the children dependent within the

meaning of the statute, unless that poverty renders the children destitute of a suitable

home. In re Welfare o/Warren, 40 Wn.2d 342, 345, 243 P.2d 632 (1952). Poverty and

homelessness alone do not constitute negligence or maltreatment of a child. In re

Dependency o/Schermer, 161 Wn.2d 927, 945-46, 169 P.3d 452 (2007). The tendrils of

parental affection entwine around the offspring of the poor with as much strength as they

do around the children of the rich; if, indeed, with not greater strength by reason

ordinarily of more intimate relationships and sacrifices that have to be made and which

tend to strengthen mutual love and affection. In re Application o/Fields, 56 Wash. 259,

266-67, 105 P. 466 (1909). Nevertheless, a court may consider a family's financial

resources when additional bases lie for finding parents unfit. Schermer, 161 Wn.2d at

946. A child can be found dependent when the child is homeless as a result of the

parent's poverty, but the State should offer housing services to help remedy the problem

ifpoverty and lack of housing is the only issue. Schermer, 161Wn.2d at 946.

We need not decide if unsafe housing conditions at the grandmother's home,

23

Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H T, A.L. and K. T

particularly for H.T., alone merit termination of parental rights. Even excluding those

grounds on which J.L. lacked notice, J.L.' s dearth of income and lack of a residence other

than her mother's home were not the sole basis for the trial court's termination order.

The trial court also found J.L. unfit based in part on her lack of progress in establishing

and maintaining her sobriety and improving her parenting skills. Therefore, the trial

court did not err in taking into consideration her finances and housing resources.

Issue 6: Whether DSHS provided all necessary services capable ofcorrecting

JL. 's parental deficiencies?

Answer 6: This issue is moot since the list ofnecessary servicesforwarded byJL.

would only address deficiencies on which DSHS may not rely upon remand.

J.L. contends that DSHS did not provide all necessary services to correct her

parental deficiencies because it only offered services to address those deficiencies

identified in the dependency order and not those that eventually appeared in the

termination order. DSHS answers that it was not required to impart the additional

services because those services would not help unless and until J.L. solved her drug

addiction.

When DSHS seeks to terminate a parent's rights, it must show, in part, 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 parental deficiencies within

24

Nos. 32234-3-III; 32235-1-111; 32236-0-III
In re the Termination of H T., A.L. and K. T.

the foreseeable future have been expressly and understandably offered or
provided.

RCW 13.34.l80(l)(d). To comply with the requirements ofRCW 13.34.l80(l)(d):

the State must tailor the services it offers to meet each individual
parent's needs DSHS, however, is not required to offer services when a
parent is unable to benefit from the services. Further, even where the State
inexcusably fails to offer a service to a willing parent ... termination is
appropriate if the service would not have remedied the parent's deficiencies
in the foreseeable future.

In re Welfare ofS.J, 162 Wn. App. 873, 881,256 P.3d 470 (2011) (citations omitted)

(internal quotation marks omitted).

We previously ruled that the trial court terminated J.L.'s parental rights based on

two deficiencies for which she received no notice: the need for domestic violence

services and want of mental health treatment. The record shows no offering by DSHS of

services to address these deficiencies. We remand for the trial court to determine

whether, after excluding these grounds, other grounds are sufficient for termination.

Since the trial court should not rely on the two grounds, services to correct these

problems are immaterial. Therefore, we issue no ruling on this assignment of error.

Issue 7: Whether defense counsel was ineffective in failing to request a

continuance until a pending study ofmaternal grandmother's home was complete?

Answer 7: No.

J.L. alleges ineffective assistance of counsel for her defense attorney's failure to

request a continuance to allow time for DSHS to complete a home study of J.L.'s

25

Nos. 32234-3-III; 32235-I-III; 32236-0-II1
In re the Termination of' H. T., A.L. and K. T.

mother's home. J.L. argues that due process entitles her to introduce all relevant

evidence for the trial court to consider prior to termination of her rights. lL. argues that

her trial counsel's performance was deficient because, if she had requested a continuance,

it would likely have been granted in light of In re Welfare ofR.H., 176 Wn. App. 419,

309 P.3d 620 (2013). In response, DSHS cites a home visitation study it conducted three

months prior to trial. The social worker ended the visitation prematurely due to the smell

of animal urine and cigarette smoke.

A claim of ineffective assistance of counsel requires proving that (1) counsel's

performance was deficient, and (2) the deficient performance prejudiced the defendant.

State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance

occurs when counsel's performance falls below an objective standard of reasonableness.

State v. Stenson, 132 Wn.2d 668,705,940 P.2d 1239 (1997). This court presumes that

counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995). To rebut the strong presumption that counsel's performance was effective, the

defendant bears the burden of establishing the absence of any. conceivable legitimate

tactic explaining counsel's performance. State v. Hamilton, 179 Wn. App. 870, 879-80,

320 PJd 142 (2014). In order to establish actual prejudice, a person claiming ineffective

assistance of counsel must show that the trial court likely would have granted the motion

their counsel failed to make. Hamilton, 179 Wn. App. at 882.

26
Nos. 32234-3-111; 32235-1-111; 32236-0-111
In re the Termination of H T., A.L. and K T.

Because of the parent's fundamental constitutional rights at stake in termination

hearings, due process requires that parents have the ability to present all relevant

evidence for the juvenile court to consider prior to terminating a parent's rights. In re

Welfare ofR.H, 176 Wn. App. at 425-26 (2013). A trial court's denial ofa continuance

to present additional evidence in a proceeding to terminate a parent's rights can be

reversible error. In re Welfare ofShantay c.J., 121 Wn. App. 926, 937,91 P.3d 909

(2004). Nevertheless, the trial court has broad discretion to grant or deny a continuance.

R.H., 176 Wn. App. at 424-25.

We do not decide whether J.L.' s trial counsel's performance fell below an

objective standard of reasonableness, because J.L. cannot show that failure to request the

continuance prejudiced her sufficiently to warrant reversaL Unsafe housing was one of

several deficiencies J.L. needed to remedy during the dependency proceeding, but J.L.

had not made significant progress in other deficiencies such as substance abuse treatment

and parenting classes. Therefore, J.L. cannot establish that the trial court would have

denied the parental termination if a home study was performed. She shows no prejudice.

We recognize significant passage of time between the December 2013 trial and

our remand to the trial court. When the trial court reviews this case on remand, J.L. may

renew her motion for a home study before entry of a final order. The trial court will then

exercise its discretion in determining whether to grant the motion for the study.

27

Nos. 32234-3-III; 32235-I-III; 32236-0-III
In re the Termination of H. T, A.L. and K. T

CONCLUSION

We reject J.L.'s request to dismiss the termination petitions and orders.

Nevertheless, we vacate the orders and remand to the trial court to decide whether to

terminate J.L.' s parental rights without consideration of any failure of J.L. to engage in

psychological testing and counseling or domestic violence victim treatment and support.

On remand, the trial court need not entertain new evidence but may, because of the

passage of time, exercise its discretion in allowing either party the opportunity to present

evidence of conditions impacting J.L.' s ability to parent since the December 2013

hearing.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

I CONCUR:

Siddoway, C.

28

 Nos. 32234-3-111; 32235-1-111 and 32236-0-111

BROWN, J. (dissenting) - Sadly, J.L. did too little, too late. Given this record, the

trial court correctly decided: (1) The State proved the six alleged RCW 13.34.180(1)

elements by clear, cogent, and convincing evidence; (2) J.L. was unfit because her
I,
I
unfitness to parent these children is implicitly if not explicitly stated after establishing the

RCW 13.34.180(1) elements under In re Dependency of K.R., 128 Wn.2d 129, 141-42,

904 P.2d 1132 (1995); and (3) the children's best interests were served by termination
I
!
as required by RCW 13.34.190. After noting the children were in "a foster to adopt

placement," the court found: "The [Court Appointed Special Advocate] testified that the
r
children needed to be in a stable, safe, permanent home as soon as possible. [J.L.] is r,

I
I.:..
unable to provide this kind of home, now or in the foreseeable future." Clerk's Papers ..

(CP) at 255. 1 !

The record at CP 251-52 shows the many basic services the State expressly and

understandably offered J.L. under RCW 13.34.180(1)(d). The dependency order partly

directed J.L. to U[c]omplete a drug and alcohol assessment and participate in any

1 Similar findings, conclusions, and orders were entered for each of the three
children.
No. 32234-3-111; 32235-1-111; 32236-0-111
In re Welfare of H. T., A.L., K. T.

recommended treatment." CP at 252. The court reasonably adopted the State's view

that ,J.L. needed to complete drug treatment before other offered services could be

started with any chance of success. J.L. never participated in a drug and alcohol

assessment; thus, no opportunity existed to identify additional helpful services. The

prerequisite service to all other services was drug treatment. Sequential services are

appropriate in cases like this. See In re Termination of S.J., 162 Wn. App. 873, 882-83,

256 P.3d 470 (2011).

Significantly, the trial court followed the outline of the RCW 13.34.180(1 )(a)-(f)

allegations at CP 251-55 when making its findings. The court appropriately discusses

services under part (d) and timeliness under part (e) at CP 253-54, including the

incorrectly criticized portion of the record. There, the court aptly reasons, in essence,

J.L.'s failure to timely begin and successfully complete drug treatment necessarily

delayed completion of the other basic services offered her for too long. The court

foresaw J.L. would still, even then, likely need advanced, perhaps yet unidentified,

services like psychological testing and counseling after the basic services were

completed and they "would take at least a year, most likely longer, depending on

relapse frequency2 and length." CP at 252-54. In context, the court's criticized findings

are intended to support RCW 13.34.180(1)(e)'s timeliness requirements, not to

retroactively set new service requirements violating due process notice requisites.

2 The record shows J.L.'s history of numerous relapses.

2
No. 32234-3-111; 32235-1-111; 32236-0-111
In re Welfare of H. T., A.L., K. T.

J.L.'s trial began October 2013, some 17-months after the dependency was filed,

and was not completed until two months later; J.L. did not even enter her 28-day drug

treatment until aftertrial began. While J.L. tardily completed her initial treatment before

trial's end, she still had three to six months of intensive outpatient treatment followed by

additional regular outpatient treatment. Report of Proceedings at 99. J.L. testified

aftercare could take 12,18, or 24 months. See In re Welfare of T.B., 150 Wn. App. 599,

608-11,209 P.3d 497 (2009) (evidence the mother participated in a substance abuse

treatment group for six weeks before the termination trial commenced did not support a

finding that her deficiencies would be remedied so that the child could be returned home

in the near future). "Where a parent has been unable to rehabilitate over a lengthy

dependency period, a court is 'fully justified' in finding termination in the child's best

interest rather than 'leaving [the child] in the limbo of foster care for an indefinite period

while [the parent] sought to rehabilitate [herselfJ.'" In re Dependency of TR., 108 Wn.

App. 149, 167,29 P.3d 1275 (2001) (some alterations in original) (quoting In re

Dependency of A. W, 53 Wn. App. 22, 33, 765 P.2d 307 (1988)).

In my view, the trial court correctly found little likelihood existed for J.L. to remedy

her parental inadequacies so that the children could be returned to her in the near future

under RCW 13.34.180(1 )(e). Finishing an early part of her treatment midtrial does not

make J.L. a fit parent. The State did not seek to terminate J.L.'s rights based on socio-
f-

economic conditions; drug treatment was the court's focus. While some progress was

reported at the grandparents' home by the end of the termination hearing, "there were I
~

still a number of concerns regarding the grandparents that had not been addressed,
3 I
No. 32234-3-111; 32235-1-111; 32236-0-111
In re Welfare of H. T., A.L., K. T.

including the medical neglect issues." CP at 255. Because the trial court's criticized

remarks were doubtlessly intended to support RCW 13.34.180(1)(e)'s timeliness

requirements and not meant to retroactively judge J.L. by new service requirements

without notice, no due process violation occurred. I would hold the trial court did not err

in terminating J.L.'s parent-child relationship with the three children. Therefore, I

respectfully dissent.

4