In re the Interest of: S. W.

FILED

OCTOBER 8, 2015

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In re the Matter of the Interest of: )
) No. 32519-9-III
S.W. and J.W., )
)
)
) UNPUBLISHED OPINION
)

KORSMO, J. - G.W. and D.W., respectively the father and mother ofS.W. and

J.W., appeal from an order terminating their parental rights. 1 We affirm.

FACTS

The Department of Social and Health Services (DSHS) received reports in the

spring of 2009 that the appellants were dealing drugs out of their home. A social

worker's visit showed unsafe conditions. The parents initially voluntarily placed the

children in out-of-home care, but revoked that placement and DSHS returned the children

to D.W. and filed a dependency petition. D.W. worked with DSHS to remedy conditions

and the children were returned in August 2009. The dependency was dismissed.

1 D.W. has another son, whose initials are also D.W., from an earlier relationship.
He is not a subject of this action.
No. 325l9-9-III
In re S. W. & J W.

In November 2010 the children were in D.W.'s sole care as G.W. was in prison in

Nevada. D.W. failed to pick up D.W. and S.W. after school one Friday. Police were

called and the children were turned over to Child Protective Services (CPS). A deputy

sheriff also found the younger child, lW., at the home ofa known drug user. lW. also

was taken to CPS. The following Monday afternoon, D.W. contacted DSHS. She

explained that a friend was supposed to pick the children up for her.

A child abandonment charge was filed against D.W. and another dependency

action was filed involving S.W. and lW.2 Orders of dependency and disposition orders

were entered in the spring of2011 against both G.W. and D.W.3 The orders required

both G.W. and D.W. to undergo chemical dependency treatment, random urinalysis

testing, domestic violence evaluations, and psychological and mental health evaluations.

With respect to G.W., the order took effect when he was released from prison in Nevada

in late 2011.

The children went through a series of foster homes during the two years of the

dependency, finally ending up in a home in Oregon interested in adopting the children.

The children showed little attachment to either of their parents and, on occasion, fear of

them. The parents both initially participated in supervised visitation with the children,

2 Son D.W. went to live with his father and was not a subject of the dependency.
3 D.W. also was convicted of third degree abandonment of a dependent person.

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No. 325l9-9-III
In re S. W. & J. W.

but some of the supervised visitation providers banned the couple from their services

after threatening and abusive behavior, some of which occurred in the presence of the

children. By May 2013, D.W. had stopped visiting.

G.W. took part in three classes while in the Nevada prison, but DSHS did not

credit him for any of them as it had no knowledge of the curriculum. G.W. took part in

couples counseling for two months 4 upon his release and also mental health counseling

with Dr. Robinson through Tapio Counseling. Dr. Robinson evaluated G.W. for

domestic violence and recommended a 52-week treatment program. G.W. sought to also

use Dr. Robinson for domestic violence treatment, but DSHS policies did not permit the

same provider to address both mental health and domestic violence treatment. It referred

him to Social Treatment Opportunities Program (STOP) for domestic violence treatment,

but G.W. refused to engage with STOP. He also refused to undergo urinalysis. He did

complete a psychological evaluation with Dr. Scott Mabee who diagnosed an antisocial

personality disorder (with unstable mood and egocentric features), mild mood

disturbances, depression, and opiate dependency.

The guardian ad litem (GAL) assigned to the children was Linda Whitaker. Ms.

Whitaker or someone from her agency visited the children in their first foster home. She

visited the children in their second foster home both in person and via Skype. She also

4 Sometime during the dependency, G.W. and D.W. decided to end their marriage.

3
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No. 32519-9-111
In re S. W. & J. W.

met with each child individually during September 2013. She did not visit the parents in

their homes and did not see them interact with the children during the supervised

visitations.

Trial was held in Ephrata over eight days 5 beginning September 12, 2013 and

ending January 30, 2014. 6 Counsel for G.W. was from Ellensburg, counsel for D.W. was

from Spokane, the assistant attorney general representing the State was from Wenatchee.

Both G.W. and D.W. were living in Spokane at the time of trial. Counsel for D.W. never

had contact with her and D.W. did not attend the trial. G.W. had difficulties traveling to

Ephrata. DSHS arranged for volunteers to drive to Spokane and bring G.W. to the trial.

G.W. did not have a stable address and would have to notify his counsel where he needed

to be picked up. The system failed on one occasion in November when the volunteer

went to the wrong address. The trial judge compensated for this absence by not hearing

testimony. G.W. also missed the two October hearing dates due to his incarceration in

Spokane.

On January 29, 2014, G.W. contacted his attorney in the late afternoon to advise

that he would need a ride to the following day's trial and gave the address where he could J
be picked up. Counsel promptly contacted DSHS, but was advised that it was too late in
I
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5 The seven trial dates in 2013 were September 12, 13,26, October 24,25,
November 7, and December 5.
6 S.W. was nine years old and J.W. five years old at the beginning of trial.

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No. 32519-9-111
In re S. W & J. W

the day to find a volunteer. G.W. did not appear for trial the next day and his counsel

sought a continuance, pointing out that this was the day for G.W. to put on his case. 7

Counsel did not make an offer of proof concerning any proposed testimony by her client.

The court denied the request and had counsel call her client and determine if he would

appear telephonically. She reached him, but he declined to appear by telephone. 8 The

court explained at some length why the continuance would be denied, noting the

numerous accommodations made for G.W. during the trial and indicating that the

difficulty of gathering counsel together made it likely another month or two would pass

before the trial could resume.

G.W.'s counsel then called two witnesses, telephonically, before resting. There

were no additional witnesses and the case proceeded to argument. The guardian ad litem,

Ms. Whitaker, made a brief statement recommending termination of the parent-children

relationship as being in the best interests of both children. With respect to G.W., she

stated that the children did not feel safe around him and that he was scary. Report of

Proceedings (RP) (Jan. 30, 2014) at l360.

7G.W. had been called to testify by the State early in the trial, but his counsel had
declined to examine her client and reserved his testimony to the defense case.
8 No explanation was given for this decision, but the record suggests that he did
not have permission to use the telephone at which his counsel was able to reach him.

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No. 32519-9-III
In re S. W. & J. W.

The court took the matter under advisement and returned its decision before

counsel in the courtroom three weeks later. In a 27 page summary of findings and

reasoning on the record, the court did not mention the guardian ad litem at all. The court

ordered that the parent-child relationship be terminated with respect to each parent and

each child. He cited numerous deficiencies that G.W. had been unable to address and

would not be able to address in a timely manner despite appropriate services being

offered or provided. Specifically, the court found that G.W. had not started on chemical

dependency or domestic violence treatment. The court also detailed several deficiencies

that left G.W. unable to parent his children. In particular, the court noted that his bond

with the children was nonexistent and that his parenting skills were unlikely to be fixed.

He also had no empathy for the children and it was unlikely that any bond could develop

because both children suffered from reactive attachment disorder.

Appropriate findings in support of the decision were entered. Each parent then

timely appealed to this court.

ANALYSIS

D.W. presents a single issue in this appeal; she alleges a due process violation

based on the guardian ad litem's alleged failure to provide adequate services. G.W.

alleges that he was denied due process because he did not attend the final day of trial,

takes issue with whether he was offered all appropriate services, arid also contends that

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No. 32519-9-111
In re S. W. & J. W.

the court prematurely terminated the parent-child relationships. We address the claims in

the order listed, beginning with the mother's contention.

Guardian ad Litem Services

D.W. contends that her due process right and her children's due process rights

were violated by the guardian ad litem allegedly conducting an inadequate investigation

of the case. 9 The State raises several responses to this argument, including lack of

standing and lack of manifest constitutional error. While we question standing, 10 we do

not address it (or any of the State's other responses) because we agree that there was no

manifest constitutional error.

This issue is framed by RAP 2.5(a). That rule provides that an appellate court will

not consider an issue on appeal which was not first presented to the trial court. RAP 2.5(a);

State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3) permits

a party to raise initially on appeal a claim of "manifest error affecting a constitutional

9 D.W. also takes issue with the corresponding finding of fact, no. 2.17, that the
GAL had regular contact with the children throughout the dependency and termination
case. We believe that the evidence does support the finding, noting the evidence cited
earlier concerning the visits with the children, and will not further address the issue in
light of our resolution of the primary issue.
\0The GAL represents the children, not the parents. RCW l3.34.105(1).
Accordingly, we question D.W.'s standing to present a challenge to the performance of
the GAL for the first time on appeal as a parent's personal due process right. We also
question whether a parent has standing to assert the children's interests in a termination
action. E.g., In re Marriage ofAkon, 160 Wn. App. 48, 59,248 P.3d 94 (2011)
(stepparent could not assert children's rights in dissolution).

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No. 32519-9-III
In re S. W. & J W.

right." Id. at 684. The error must be both (1) manifest and (2) truly of constitutional

magnitude. Id. at 688. A claim is manifest if the facts in the record show that the

constitutional error prejudiced the defendant's triaL State v. McFarland, 127 Wn.2d 322,

333,899 P.2d 1251 (1995). However, if the necessary facts are not in the record, "no

actual prejudice is shown and the error is not manifest." Id.

The termination of parental rights statute provides a two-step process: the first step

focuses on the adequacy of the parents, which must be proven by clear, cogent, and

convincing evidence, and the second step focuses on the child's best interests, which need

only be proven by a preponderance of the evidence; only if the first step is satisfied may

the court reach the second. In re Welfare ofA.B., 168 Wn.2d 908, 911, 232 P.3d 1104

(2010). When assessing the adequacy of the parents, RCW 13.34.180(1) lists six elements

that the State must prove.

The best interest of the child is represented by the GAL. See In re the Dependency

ofJ.B.S., 122 Wn.2d 131, 856 P.2d 694 (1993) (in a dependency proceeding, it is the duty

of the guardian ad litem to represent the best interest of the child). In performing this

function, a GAL must meet the requirements ofRCW 13.34.105(1), which include:

(a) To investigate, collect relevant information about the child's
situation, and report to the court factual information regarding the best
interests of the child;

(b) To meet with, interview, or observe the child, depending on the
child's age and developmental status, and report to the court any views or
positions expressed by the child on issues pending before the court;

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No. 32519-9-II1
In re S. W. & J. W.

(t) To represent and be an advocate for the best interests of the child;

RCW 13.34.105(1)(a), (b), (t).

Guardian ad litems are also subject to the Guardian Ad Litem Rules (GALR). These

rules provide GALs with minimum requirements, including: acting on behalf of the best

interest of the child, maintaining independence and the appearance of fairness, and

informing the court. GALR(2)(a), (b), (i). Additionally, the rules speak to the sufficiency

ofa GAL's investigation. A GAL must:

(g) Become informed about case. A guardian ad litem shall make
reasonable efforts to become informed about the facts of the case and to
contact all parties. A guardian ad litem shall examine material information
and sources of information, taking into account the positions of the parties.

GALR(2).1I

A GAL's performance of these duties is considered in light of heightened due

process requirements afforded to parents and children alike in termination proceedings.

See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Due

process includes the procedural right to be heard and the substantive right to have an

accurate determination by the court. State v. Santos, 104 Wn.2d 142, 147-149, 702 P.2d

11 "These measures are intended to assure that the welfare of the children whose
parents are involved in litigation concerning them remains the focus of any investigation
and report, and that acrimony and accusations made by the parties are not taken up by an
investigator whose only job is to report to the court after an impartial review of the
parties and issues." In re Marriage ofBobbitt, 135 Wn. App. 8,25,144 P.3d 306 (2006).

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No. 32519-9-III
InreS.W &J.W

1179 (1985). In determining whether a procedure violates due process, a court considers

three factors: (1) the parents' interest, (2) the risk of error created by the procedures used,

and (3) the countervailing government interest supporting use of the challenged

procedures. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,47 L. Ed. 2d 18

(1976). A GAL's violation ofa mandatory statutory requirement and GALR does not

necessarily amount to a due process violation. See In re Dependency ofP.H. VS., 186 Wn.

App. 167, 182-183,339 P.3d 225 (2014) (failure of an incapacitatedparent's GAL to

appear at the morning session of the third day of a dependency hearing in violation of

statute was also a due process violation, but harmless error).

With these principles in mind, we conclude that this allegation does not present an

issue of manifest constitutional error. First, it does not appear that there was any error

here. The GAL was an active participant at trial, testifying and examining witnesses as

well as giving a brief statement during closing argument. Counsel for D.W. cross-

examined the GAL briefly, but did not ask any questions concerning her investigation. 12

D.W.'s argument on appeal addresses how well the GAL did her job, but no evidence was

presented at trial concerning whether the GAL was required to do other than she did. The

statute imposes a duty to investigate, but the particulars of the investigation are left to the

12Counsel for G.W. did question the GAL about the fact that she had not observed
the parents' visitation with the children (GAL was afraid of making volatile situation
worse) and had not interviewed the parents. Report of Proceedings (RP) 951-953.

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No. 32519-9-111
InreS.W &JW

GAL, other than a duty to meet with or observe the child. RCW 13.34.105(1). D.W. has

not established that the GAL had an obligation to meet with the parents or observe them

interact with the children. On this record, we doubt that there was any error.

But, even if there was an obligation to do more, any error also would have been

harmless. The trial judge did not mention the GAL once in the lengthy rendition of the

court'sjudgment. There was no mention of the GAL's investigation. The written

findings only reflect that the GAL did her job. These facts are unsurprising since the

focus of a termination trial is on whether the State established the six elements ofRCW

13.34.180(1), all of which address the parent and the services made available to her, as

well as the parent-child relationship and the best interests of the child. The activities of

the GAL are simply not among the issues of proof at a termination proceeding.

Accordingly, we conclude that D.W. has failed to establish any prejudice from the

alleged deficiencies of the GAL's performance in this case. The alleged error therefore is

not manifest. RAP 2.5(a)(3).

Attendance at Trial

The first issue G.W. presents is whether his due process rights were violated by his

absence from the final day of trial. He does not challenge the court's denial of his request

for a continuance, but does contend that trial should not have finished in his absence. We

conclude that he has not established a due process violation.

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No. 32519-9-111
InreS.W &JW

As noted previously, these types of due process challenges are adjudged under the

flexible Mathews balancing test. In re Welfare ofL.R., 180 Wn. App. 717, 724, 324 P.3d
I
737 (2014). That test looks to the (1) interest at issue, (2) the risk of error created by the

procedure, and (3) the countervailing government interest in using the procedure.
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Mathews, 424 U.S. at 335. In this appeal only the second factor is seriously at issue. The

State concedes that the first factor weighs in G. W. 's favor given his fundamental liberty
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interest in parenting his children, while he concedes that the final factor weighs in the 1

State's favor. The question remaining, then, is whether denying the continuance and
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proceeding in G.W.'s absence created a risk of error. Under these facts, it did not. r
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"The second factor assesses whether the hearing had sufficient procedural

safeguards to ensure that the parent had a full and fair opportunity to defend-Le., to
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present evidence, rebut opposing evidence, and present legal arguments." L.R., 180 Wn. !
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App. at 725. That standard is satisfied here. G.W. had been present for much of the trial
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and already had testified, although he had reserved the right to testify again in his case-in- I,
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chief. The trial court offered G.W. the chance to appear telephonically. He also was t

represented by counsel for the entire trial, which had previously been extended once to I
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accommodate his travel difficulties. His counsel called two additional witnesses on his l"
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behalf on the final day, indicating that the defense was ready to proceed, but made no I
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offer of proof concerning what more G.W. would have testified about or why he could t
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No. 32519-9-III
In re S. W. & J W.

only do so in the courtroom. 13 Under these facts, there simply is no reason to believe that

O.W.'s absence contributed to the risk of an erroneous decision. The trial court provided

him a process to present any additional evidence he might have had. Therefore, we

conclude that this Mathews factor favors the government.

Although O.W. had a fundamental interest in parenting his children, that interest

does not outweigh the fact that his presence on the last day of trial did not increase the

risk of an erroneous decision. In light of the important governmental interest in bringing

finality to the children, extending the then 38-month dependency and the trial, which

itself was in its fifth month, was not justified. The second and third Mathews factors do

not favor O.W.'s argument here. Accordingly, we conclude there was no due process

violation in declining to extend trial to secure O.W.'s presence to testifY about unknown

matters.

There was no due process violation.

Provision ofServices to G. W.

O.W. next raises a series of arguments concerning whether or not he was provided

adequate services that would have allowed him to continue to parent his children. We

agree with the trial court that the appropriate services were offered.

Nor was any post-trial motion for relief filed suggesting what new evidence
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would have been presented ifO.W. had testified. f
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No. 32519-9-II1
In re S. W. & J. W.

At issue is RCW 13.34.l80(l)(d):

(d) That the services ordered under RCW 13.34.136 have been

expressly and understandably offered or provided and all necessary

services, reasonably available, capable of correcting the parental

deficiencies within the foreseeable future have been expressly and

understandably offered or provided.

It is the State's burden to establish this factor by clear, cogent, and convincing evidence.

RCW 13.34.l90(l)(a)(i).

This factor requires DSHS to offer all necessary services capable of correcting

G.W.'s parental deficiencies within the reasonable future. In re MR.H, 145 Wn. App.

10,25, 188 P.3d 510 (2008). DSHS must tailor the services it offers to meet each

individual parent's needs. In re Dependency afT.R., 108 Wn. App. 149, 161,29 P.3d

1275 (2001). It must provide all court ordered and necessary services to the parent. In re

Dependency afD.A., 124 Wn. App. 644, 651,102 P.3d 847 (2004). A service is

"necessary" if it is needed to address a condition that precludes reunification of the parent

and child. In re Welfare afCS., 168 Wn.2d 51,56 n.3, 225 P.3d 953 (2010).

G.W. contends that this factor was not established. He argues (1) DSHS failed to

give him properly tailored services because it did not investigate the courses he

completed in Nevada, (2) failed to provide domestic violence treatment in group therapy,

and (3) failed to offer necessary family therapy and therapeutic visitation. We address

each contention in the order stated.

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No. 32519-9-III
In re S. W. & J. W.

The first argument fails on the record. A social worker testified that she received

the certificates of completion from G.W., but the courses had not been approved by

DSHS and she had never seen the course curricula. RP 1120-1121. G. W. contends that

DSHS should have then investigated the courses and reassessed him. This argument

misses the mark because it was the court, rather than DSHS, that entered the order

requiring G.W. to complete the services. That order was based on the information known

to the court in view of the documented problems uncovered during the dependency. If

G.W. believed that the prison courses were the equivalent of any that DSHS was offering

him, he was free to prove that to DSHS or the trial court and ask for credit and/or a new

assessment. He did not. He presents no authority that either DSHS or the trial court was

required to act on the certificates and attempt to determine if they bore on the existing

court order.

DSHS is not required to offer services outside of the agency or the community.

RCW 13.34.136(2)(b)(vii). Here, DSHS had no control over the out-of-state prison and

no ability to provide services there. Accordingly, the court ordered that services be

provided upon G.W.'s release from prison. We are aware of no authority that required

the court to update that order merely because G.W. completed a prison sentence and may

or may not have made good use of his time there. IfG.W. had any information of

significance to the order, he was free to provide it, but we discern no duty on the part of

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No. 32519-9-II1
In re S. W. & J. W.

either DSHS or the trial court to reevaluate G.W.'s circumstances at the time of release

from custody.

G.W.'s second argument is that he was not provided group domestic violence

therapy. That claim fails factually. He was offered the services of STOP, but he refused

to go there because he preferred to stay with his existing services with Dr. Robinson. The

statute merely requires DSHS to "expressly and understandably" offer or provide the

necessary services. RCW 13.34.l80(1)(d). DSHS did that here with its referral to STOP,

an approved provider. Nothing in the statute entitles G.W. to require DSHS to pay for

equivalent services with his preferred provider. Although DSHS could have referred

G.W. to Dr. Robinson for that therapy, doing so would have run afoul of a different

DSHS policy. Again, nothing here required that action. This argument is unavailing.

Finally, G.W. argues that the department should have provided therapeutic

visitation and family therapy. This argument fails on several grounds. First, it was not a

requirement of the disposition order. The duties of DSHS extend to those services

ordered by the court rather than services that the parent believes desirable. RCW

13.34. 180(1)(d). Second, G.W.'s failure to make use of the existing referrals excused

DSHS from considering family therapy. Parental "unwillingness or inability to make use

of the services provided excuses the State from offering extra services that might have

been helpful." In re Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988). Third, the

record here is replete with evidence that forcing additional visitation on the children in

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No. 32519·9-II1
In re S. W & 1. W

light of the repeated inappropriate visitation behavior by the parents was not in the

children's best interests. G.W. had to overcome other problems before he was in a

position to interact positively with his children. DSHS was not required to indulge in this

request where he was already failing to progress at other, more basic services.

Accordingly, we conclude that the record supports the trial court's determination

that all necessary services were offered and provided to G.W. The requirements ofRCW

13 .34.180( 1)(d) were satisfied.

Timely Remediation

Finally, G.W. argues that the termination was premature because he was making

efforts and progressing in remedying his deficiencies as a parent. The trial court

correctly applied this statutory factor.

RCW 13 .34.180( 1)(e) requires that the State prove "there is little likelihood that

conditions will be remedied so that the child can be returned to the parent in the near

future." What constitutes "the foreseeable future" is determined from the child's point of

view and depends on the age of the child and the circumstances of the placement. In re

Dependency ofA.C., 123 Wn. App. 244, 249, 98 P.3d 89 (2004). Here, there was

testimony that by the time of trial, the "foreseeable future" had declined to two weeks for

lW. and a month for S.W. RP (Oct. 25, 2013) at 944-945. Both children were in

desperate need of permanency. Clerk's Papers at 182.

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No. 32519-9-III
In re S. W. & J W.

In contrast, G.W. had not even attempted all of his necessary services yet, having

declined some and not started others. In particular, he had a severe drug dependency

problem that had not been addressed and was anticipated to need one year of treatment.

RP (Feb. 18,2014) at 22. The children did not have that time.

The trial court correctly determined that there was little likelihood G.W.'s parental

deficiencies could be remedied in the near future. The evidence amply supported this

determination. There was no error.

The order of termination is affirmed.

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.

WE CONCUR:

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Siddoway, C.J.

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f..n...Lawrence-Berrey,
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