IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE
DEPENDENCY OF No. 73265-0-1
(consolidated with No. 73266-8-1)
C.E.T.,
Minor Child
DIVISION ONE 1 f"•''• "i
ROGER TOLBERT, PO
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Appellant,
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CO
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, UNPUBLISHED OPINION
Respondent. FILED: November 23. 2015
Spearman, C.J. — Roger Tolbert appeals the trial court's order terminating his
parental rights to his daughter C.E.T. Tolbert argues that the trial court erred in
concluding (1) that the Department of Social and Health Services (DSHS) expressly and
understandably offered or provided all necessary and reasonably available services
capable of correcting his parental deficiencies within the foreseeable future; (2) that
there was little likelihood that C.E.T. could be returned to his care in the near future; and
(3) that continuation of the parent-child relationship clearly diminished C.E.T's prospects
for early integration into a stable and permanent home. Because the trial court's
unchallenged findings support its conclusions of law, we affirm the termination of
Tolbert's parental rights.
FACTS
Tolbert is the father of C.E.T., who was born on August 26, 2013. At birth, C.E.T.
and her mother, Sarah Freudenberg, both tested positive for methamphetamine. Tolbert
No. 73265-0-1/2
and Freudenberg both denied using methamphetamine, and Tolbert speculated that
one of his former roommates "dropped it into the mother's mouth while she was
sleeping." Verbatim Report of Proceedings (VRP) (Dec. 18, 2014) at 12.
Because of her prenatal drug exposure, C.E.T was admitted to the neonatal
intensive care unit (NICU). Tolbert slept most of the time during C.E.T.'s stay in the
NICU and frequently could not be roused even when C.E.T. cried loudly or nurses
attempted to wake him to feed C.E.T. A nurse was concerned that Tolbert was
exhibiting signs of "coming down" from using methamphetamine. VRP (Dec. 9, 2014) at
84. When awake, Tolbert exhibited concerning and unpredictable behavior. He yelled at
hospital staff and threatened to disrupt C.E.T.'s medical procedures. He also engaged
in a loud, profanity-filled argument with the mother, waking C.E.T. Tolbert left the
hospital for long periods of time, occasionally in the middle of feeding C.E.T., and
returned with dilated pupils and slurred speech. Tolbert also stole a cell phone from a
nurse and attempted to sell it.
The hospital contacted DSHS, which held a family team decision meeting
(FTDM) on September 3, 2013. Tolbert continued to deny methamphetamine use, but
agreed to submit a urine sample that day. DSHS social worker Katie Lloyd referred
Tolbert to a urinalysis testing facility "which was down the road," but Tolbertfailed to go.
VRP (Dec. 18, 2014) at 17. Tolbert also denied that he had any mental health issues
that would explain his behavior, but later during the meeting stated that he suffered from
anxiety and depression.
DSHS filed a dependency petition. Tolbert failed to appear for his dependency
trial and a default order of dependency was entered on January 23, 2014. The
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No. 73265-0-1/3
dependency court ordered Tolbert to participate in a substance abuse evaluation,
random urinalysis testing, a parenting assessment and parenting classes. C.E.T. was
placed with Tolbert's brother, Jared Clarkson, and Clarkson's partner, Nicole Curtis. The
dependency court authorized Tolbert to visit C.E.T. once a week for four hours.
DSHS social worker Gina Taboada referred Tolbert for urinalysis testing, a
substance abuse evaluation and parenting classes in mid-September 2013. DSHS
social workers Aleksandr Yevsyugov and Wyndi Horness mailed Tolbert additional
referrals to the same services in September and November 2014, respectively. Tolbert
did not contact DSHS or engage in any of the services. He visited C.E.T. approximately
three times at Clarkson's home in September and October 2013, but after that Clarkson
and Curtis did not hear from Tolbert for approximately a year. Tolbert also did not
appear for any of the review hearings in the dependency case.
DSHS filed a termination petition. Freudenberg did not appear in response to the
petition and her parental rights were terminated by default on September 30, 2014. A
trial as to Tolbert's parental rights started on December 8, 2014, by which time C.E.T.
was 15 months old. The trial court heard testimony from 13 witnesses over six days and
reviewed 11 exhibits.
At trial, Tolbert continued to deny ever using methamphetamine. Tolbert testified
that he stopped participating in the dependency case because he had "really bad
anxiety" and "didn't know how to deal with [the situation]," but also because he was
frustrated with DSHS transferring his case to new social workers and because he was
trying to help Freudenberg get into substance abuse treatment. VRP (Dec. 8, 2014) at
47. He also admitted that he had been incarcerated for a portion of the time for a theft
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No. 73265-0-1/4
conviction and a pending residential burglary charge. Tolbert stated that he had
previously sought treatment for his anxiety but "never followed through with it." VRP
(Dec. 9, 2014) at 156. However, he testified "I'm willing to now" and stated he had
recently obtained a prescription for anti-anxiety medication. Id. Tolbert testified that he
had visited C.E.T. at Clarkson's home six to eight times since August 2014, and that
when he visited he would always stay the entire weekend, from Friday to Sunday. He
also stated that he had undergone a parenting assessment and substance abuse
evaluation on his own, which did not recommend any treatment, and that he planned to
start the parenting classes soon.
Julie Larsen, the therapist who conducted Tolbert's parenting assessment,
testified that she met with Tolbert approximately two weeks prior to the termination trial
for an interview and a parent-child observation session. Larsen also interviewed
Tolbert's new wife as well as Clarkson and Curtis. She testified that while Tolbert and
his wife claimed that Tolbert had never used any drugs aside from some teenage
experimentation with marijuana, Clarkson and Curtis told her that Tolbert had a long
history of using methamphetamine and heroin.. Larsen testified that she "absolutely
would have significant concerns about [C.E.T.] being placed in [Tolbert's] home" and did
not recommend reunification. VRP (Dec. 10, 2014) at 15. She testified that the most
critical issue preventing reunification was Tolbert's substance abuse.
Horness, who was Tolbert's DSHS social worker at the time of the termination
trial, recommended Tolbert's parental rights be terminated because C.E.T. "has been in
care for going on 16 months" and she did not believe Tolbert was "in a position to
appropriately parent now or in the near future" because "[h]e doesn't have a good
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No. 73265-0-1/5
history of having extended periods of stability" and "hasn't demonstrated an ability to
meet [C.E.T.'s] needs on an ongoing basis." VRP (Dec. 19, 2014) at 51-52. She was
also concerned that Tolbert's pending residential burglary charge would involve jail time
and render him unavailable to parent C.E.T.
Clarkson testified that when C.E.T. was born, Tolbert looked "terrible" and
disclosed that he and Freudenberg had been using [methamphetamine]" quite a bit. [d,
at 119. Clarkson did not hear from Tolbert between October 2013 and September 2014,
when Tolbert called and asked if he could visit C.E.T. Clarkson testified that Tolbert told
him that he had been "just kind of floating around" and using methamphetamine
throughout the previous year. Id. at 127. Clarkson testified that Tolbert visited C.E.T.
three times in September and October 2014, but had not visited since that time, and
only one of the visits lasted the entire weekend.
Curtis testified that Tolbert had "been very open about" his methamphetamine
use with family members, but had asked her and Clarkson not to tell Larsen about his
drug history. Id. at 171. According to Curtis, Tolbert said "there's no way to prove he's
done drugs" because he had never done urinalysis testing for DSHS. ]d. at 173. Curtis
testified that she sent Tolbert monthly Facebook messages about how C.E.T. was
doing, and while the messages contained a read receipt indicating they had been
viewed, Tolbert never responded. Curtis corroborated Clarkson's testimony that Tolbert
had only visited three times and only one visit involved an overnight stay.
After the close of evidence, Tolbert pled guilty in the residential burglary case.
Tolbert's guilty plea reflected that the standard range sentence for the crime was three
to nine months incarceration.
No. 73265-0-1/6
On February 5, 2015, the trial court issued an oral ruling terminating Tolbert's
parental rights. The trial court subsequently entered written findings of fact and
conclusions of law consistent with its oral ruling. Tolbert appeals.
ANALYSIS
Parental rights are a fundamental liberty interest protected by the United States
Constitution. Santoskv v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982). To terminate parental rights, the State must satisfy a two-step test. First, it must
prove the following statutory elements by clear, cogent, and convincing evidence:
(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 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 future . . .; [and]
(f) That the 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). Ifthe State meets its burden under RCW 13.34.180(1), it must then
also prove by a preponderance of the evidence that termination is in the "best interests"
of the child. RCW 13.34.190(b).
No. 73265-0-1/7
Where the trial court has weighed the evidence, appellate review is limited to
determining whether the court's findings of fact are supported by substantial evidence
and whether those findings support the court's conclusions of law. In re Dependencv of
PAD., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). In determining whether substantial
evidence supports the trial court's findings, this court does not weigh the evidence or
the credibility of witnesses. In re Dependencv of E.L.F.. 117 Wn. App. 241, 245, 70 P.3d
163 (2003). Unchallenged findings of fact are verities on appeal. In re Interest of J.F.,
109 Wn. App. 718, 722, 37 P.3d 1227 (2001).
Necessary and Reasonable Services
Tolbert contends that the trial court erred in terminating his parental rights
because the State failed to prove that "all necessary services, reasonably available,
capable of correcting the parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided" as required by RCW
13.34.180(1 )(d). In particular, he contends that DSHS should have offered him mental
health, housing and anger management services.
A service is necessary within the meaning of the statute if it is needed to address
a condition that precludes reunification of the parent and child. In re Welfare of C.S.,
168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010). The services offered must be individually
tailored to a parent's specific needs. In re Dependencv of DA, 124 Wn. App. 644, 651,
102 P.3d 847 (2004). However, even if DSHS fails to offer or provide necessary
services, this element may still be met if there is evidence in the record from which the
trial court could have concluded that such services would not have remedied parental
deficiencies "in the 'foreseeable future.'" In re Welfare of Hall, 99 Wn.2d 842, 851, 664
No. 73265-0-1/8
P.2d 1245 (1983). DSHS is not required to offer or provide services that would be futile.
In re Dependencv of T.R., 108 Wn. App. 149, 163, 29 P.3d 1275 (2001).
Tolbert argues that "his alleged drug use ... may well have been cured sooner if
mental health services were provided." Brief of Appellant at 10. But the record does not
support Tolbert's speculation. Here, the trial court found that Tolbert "has significant
substance abuse issues" and "his substance abuse issues have not been addressed"
despite the fact that DSHS "offered substance abuse services repeatedly." Clerk's
Papers (CP) at 26. The trial court also found that Tolbert was "essentially uninvolved"
for the first year of C.E.T.'s life:
Mr. Tolbert did not participate much when he was at the hospital, he
did not engage in any of the services recommended by the
Department, and at least for about the first year he did not show up
for court. He did not even have contact with his family, including the
family that was taking care of [C.E.T.]. By everyone's account, Mr.
Tolbert checked out of the situation.
CP at 25. Tolbert does not challenge these findings and they are verities on appeal. In
addition, Tolbert told Curtis that he refused to participate in urinalysis testing so that
DSHS could not prove he was using drugs. It is clear that the primary barrier to
reunification was Tolbert's use of methamphetamine. It is equally clear that Tolbert had
no intention of participating in good faith in services to address his substance abuse.
Consequently, DSHS was not required to offer still other services that might have been
helpful.
In addition, Tolbert fails to challenge the trial court's finding that mental health
services were not a necessary service for the purposes of RCW 13.34.180(1 )(d).
Specifically, the trial court found:
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No. 73265-0-1/9
As to the issue of mental health, the Court does believe that Mr.
Tolbert does have mental health issues. Most people that have
substance abuse issues have mental health issues. There is a lot of
overlap. The issue was never identified as a needed service, and the
Court is not finding that the mental health assessment or services were
necessary. Although Mr. Tolbert is currently involved in mental health
services, he still has not moved forward on the dependency action.
CP at 26. We accept as a verity the trial court's finding that mental health services
would not have rectified Tolbert's parental deficiencies.
Tolbert's reliance on In re the Termination of S.J., 162 Wn. App. 873, 876, 256
P.3d 470 (2011) is misplaced. In S.J., the dependency court ordered the mother to
participate in substance abuse and mental health services, but DSHS delayed referring
the mother for mental health services until she was clean and sober. It took the mother
nearly a year to successfully complete substance abuse treatment, and she contended
that she would have been more successful had DSHS referred her to mental health
services at the same time. But the mother in S.J, fully engaged in the services offered to
her. Here, as the trial court found, Tolbert "checked out" of the dependency proceedings
and was completely unresponsive to the efforts of DSHS and his family members to
offer resources and support. It would have been futile to offer Tolbert additional services
at the time, and DSHS was not obligated to do so.
Tolbert additionally claims that "the State critically failed to offer [him] anger
management and housing services despite clear evidence he needed both." Brief of
Appellant at 12. But the record contains no evidence for the claim that anger
management services were "necessary" within the meaning of RCW 13.34.180(1 )(d).
Tolbert points to testimony that he argued with Freudenberg and was combative with
medical staff at the hospital. But that evidence is insufficient to show that Tolbert had a
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No. 73265-0-1/10
significant problem managing his anger, that anger management services would have
been helpful, or that he would have participated in them had they been offered. Equally
speculative is Tolbert's claim that homelessness was a barrier to reunification. The
dependency court may order housing assistance only when "a parent's homelessness
or lack of suitable housing is a significant factor delaying permanency for the child."
RCW 13.34.138(4). While Tolbert moved around a great deal during the dependency
proceedings, staying with various friends and relatives, there was no evidence that any
of these housing options were inappropriate for C.E.T., had Tolbert addressed his
substance abuse issues and been capable of caring for her. Even if Tolbert's housing
instability was an issue in the case, it was certainly not the primary issue, which was
Tolbert's substance abuse. Tolbert did not cite homelessness as a reason for failing to
participate in the dependency proceedings, instead stating that he was frustrated with
his social workers and focusing on his relationship with Freudenberg. Substantial
evidence supports the trial court's conclusion that DSHS offered all necessary services.
Little Likelihood of Reunification
Tolbert argues the trial court erred in finding under RCW 13.34.180(1 )(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." The focus of this factor is "whether parental
deficiencies have been corrected." T.R., 108 Wn. App. at 165 (quoting RCW
13.34.180(1 )(e)). What constitutes the "near future" depends on the age of the child. ]n
re Dependencv of T.L.G., 126 Wn. App. 181,204, 108P.3d 156 (2005); see also
PAD., 58 Wn. App. at 27 (1990) (six months is not in the "near future" of a 15 month
old child).
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No. 73265-0-1/11
Tolbert contends that he was employed and had a stable residence by the time
of the termination trial, and that the trial court noted that he did not appear to currently
be using drugs. He also presented evidence that he was loving and appropriate with
C.E.T. on the occasions that he did visit. But the trial court found that Tolbert had not
addressed his substance abuse issues or maintained a parental relationship with C.E.T.
The trial court also found that Tolbert would be unavailable to parent C.E.T. as a result
of the jail time he faced.
[E]ven while on medication he was prescribed previously, he still has not
completed the recommended substance abuse evaluation or the UA's or
what the Court thinks he needs to do to become a father in this case. He
still has not visited [C.E.T] on a consistent basis since Halloween, and it is
now February, so the Court is not seeing any progress in that relationship.
The Court informed Mr. Tolbert that his daughter's future is in a matter of
months, not years. That she cannot look forward, she is not six or seven
or ten. Her life, what's in the near future, is much different than what is in
the near future for you. [C.E.T] needs to have a home where she feels
secure. She has that now.
The Court does not think at this point, given the issues that still need to be
addressed, that Mr. Tolbert can provide the safety and security in a home
at present. He has too many of his own issues to deal with. Mr. Tolbert's
stability is tenuous at best.... He is newly married, he is not engaged in
services, he has a few months in jail that still need to [be] addressed. The
Court thinks by everybody's testimony, including the parenting evaluator,
Mr. Tolbert has some work to do.
CP at 27. These unchallenged findings adequately support the trial court's conclusion
that there was little likelihood that C.E.T. could be returned to Tolbert's care in the near
future.
Continuation of the Parent-Child Relationship
Finally, Tolbert contends that the trial court erred in concluding that continuation
of the parent-child relationship diminished C.E.T.'s prospects for early integration into a
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No. 73265-0-1/12
stable and permanent home. But Tolbert's challenge to this conclusion is premised on
his claim that he was capable of providing C.E.T. a stable and permanent home at the
time of the termination trial. As discussed above, the trial court's conclusion to the
contrary was supported by its unchallenged findings. Accordingly, the trial court did not
err.
We affirm the trial court's order terminating Tolbert's parental rights to C.E.T.
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WE CONCUR:
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