In Re The Terminiation Of: B.m.c. William Chambers v. Dshs

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of
No. 74950-1-1
B.M.C,
D.O.B.: 02/13/12, DIVISION ONE
33-

UNPUBLISHED OPINION ro
Minor Child.
FILED: January 23, 2017
IN."-

Trickey, A.C.J. — William Chambers appeals the order terminating his

parental rights to his 4-year-old son, B.M.C. Chambers challenges the

sufficiency of the evidence supporting the trial court's decision. Because

Chambers has been incarcerated throughout B.M.C.'s entire life, will remain so

for at least 18 months and possibly much longer, and given the absence of any

consistent contact between Chambers and B.M.C, substantial evidence supports

the trial court's findings, which in turn, support the order of termination. We

affirm.

FACTS

B.M.C. was born February 13, 2012. At that time, Chambers was

incarcerated. B.M.C. lived with his mother for about a week when she brought

him to Elizabeth Adams. Adams had been a foster grandmother to B.M.C's

mother during her own dependency.

Chambers has spent essentially his entire adult life in jail or prison.1 In
2009, at age 16, Chambers pleaded guilty to manslaughter, second degree
robbery, and possession of stolen property. In 2011, he was sentenced to 8
1Any factual findings referenced in the facts section of this opinion refer to unchallenged
findings, which are verities on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37
P.3d 1227 (2001).
No. 74950-1-1/2

months in jail for first degree theft and sentenced to 21 months in prison for

second degree attempted assault. He was also convicted of hit and run-attended

vehicle and third degree theft. In 2013, Chambers pleaded guilty to being a felon

in possession of a firearm after he was found with a stolen assault rifle and 30

rounds of ammunition. He was sentenced to 72 months in a federal prison.

Chambers has been out of custody only two weeks during B.M.C's life.

During that two week period, when B.M.C. was about 7 months old, Chambers

saw him for the first time and spent some time with him.

In August 2013 B.M.C. was formally placed with Adams by court order. At

that time, Chambers was incarcerated in federal prison in California.

On April 23, 2014, Chambers agreed to a dependency and dispositional

order for B.M.C. The dependency order indicates that Chambers had two

parental deficiencies: uncertainty regarding B.M.C's paternity and a criminal

history which rendered him unavailable to perform parental obligations. The

dispositional order required Chambers to establish paternity, but nothing else.

Paternity testing established Chambers as B.M.C's biological father.

Chambers was incarcerated in federal prison throughout B.M.C's

dependency. While incarcerated, Chambers received multiple disciplinary

infractions. He was transferred from a medium security prison to a maximum

security prison due to fighting. He continued to be involved in fights and was
placed in a secured housing unit with 23 hours of daily lockdown. Due to
misconduct, Chambers lost phone and visitation privileges for significant periods

of time.
No. 74950-1-1/3

The Department of Social and Health Services (Department) filed a

petition to terminate Chambers' parental rights, and a hearing was held on the

petition on February 1 and 2, 2016.2 The trial court heard testimony from five

witnesses and admitted 35 exhibits. B.M.C. was almost 4 years old at the time of

trial.

Chambers is not expected to be released until April 2018, and if he fails to

accumulate good time credits, his release date could be as late as October 2018.

Chambers testified that, although he could be released to a halfway house before

his scheduled release date, this would not allow him to provide parental care to

B.M.C. He testified that he would be unable to care for B.M.C on a full time

basis until a year or two after his release from prison.

Chambers acknowledged that he had seen B.M.C. only once in California

when Adams brought him there. He also testified that B.M.C. had frequent

contact with Chambers' grandmother, Margaret Harris, and other members of

Chambers' family.

Adams testified that B.M.C. had lived with her during almost all of his life.

She testified that B.M.C. is doing well, has no special problems or needs, and is

bonded with her. She would like to adopt B.M.C.

The trial court found that, Chambers had not established a meaningful

relationship with B.M.C, was not currently capable of parenting B.M.C. and
would not be capable in the near future, and there were no services the
Department could have offered that would make Chambers available in B.M.C's

2The parental rights of B.M.C's mother were terminated earlier by default.
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No. 74950-1-1/4

foreseeable future. It found that the Department had proved termination was in

B.M.C's best interest, and entered an order terminating Chambers' parental

rights.

Chambers appeals.

ANALYSIS

Washington courts use a two-step process when deciding whether to

terminate parental rights. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d

1104 (2010); RCW 13.34.190(1). The State must prove the requirements set

forth in RCW 13.34.180(1) 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 . . . 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 near
future. . . .
. . .; and
(f) That continuation of the parent and child relationship
clearly diminishes the child's prospects for early integration into a
stable and permanent home.

If a parent is incarcerated, the court must also

consider whether a parent maintains a meaningful role in his or her
child's life based on factors identified in RCW 13.34.145(5)(b);
whether the department or supervising agency made reasonable
efforts as defined in this chapter; and whether particular barriers
existed as described in RCW 13.34.145(5)(b) including, but not
limited to, delays or barriers experienced in keeping the agency
No. 74950-1-1/5

apprised of his or her location and in accessing visitation or other
meaningful contact with the child.

RCW 13.34.180(1 )(f). The trial court may consider the six factors identified in

RCW 13.34.145(5)(b) in assessing whether the incarcerated parent "maintains a

meaningful role in the child's life":

(i) The parent's expressions or acts of manifesting concern
for the child, such as letters, telephone calls, visits, and other
forms of communication with the child;
(ii) The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the
purpose of complying with the service plan and repairing,
maintaining, or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable
efforts of the department or the supervising agency;
(iv) Information provided by individuals or agencies in a
reasonable position to assist the court in making this assessment,
including but not limited to the parent's attorney, correctional and
mental health personnel, or other individuals providing services to
the parent;
(v) Limitations in the parent's access to family support
programs, therapeutic services, and visiting opportunities,
restrictions to telephone and mail services, inability to participate in
foster care planning meetings, and difficulty accessing lawyers and
participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the
child's life is in the child's best interest.

If the State meets its burden under RCW 13.34.180(1), it must then prove

by a preponderance of the evidence that termination is in the "best interests of
the child." RCW 13.34.190(1 )(b).

Once the trial court weighs the evidence and enters findings of fact and

conclusions of law, this court's review is limited to whether those findings of fact
are supported by substantial evidence and whether they support the trial court's
conclusions of law. In re Dependency of K.S.C, 137 Wn.2d 918, 925, 976 P.2d
No. 74950-1-1/6

113 (1999). In determining whether substantial evidence supports the trial

court's findings, this court will not weigh the evidence or make credibility

determinations. In re Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846

(2006). Unchallenged findings of fact are verities on appeal. In re Interest of

J.F.. 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).

Chambers concedes that the first three statutory elements required for

termination were established at trial. RCW 13.34.180(1 )(a)-(c). However, he

challenges the trial court's findings that the State met its burden under RCW

13.34.180(1 )(d)-(f) in light of the additional factors relevant to incarcerated

parents. We disagree.

Necessary and Reasonably Available Services

Chambers challenges the sufficiency of the evidence supporting the trial

court's finding that the Department offered or provided all necessary services
capable of correcting his parental deficiencies within the foreseeable future as
required by RCW 13.34.180(1 )(d). "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 Dependency of D.L.B., 188 Wn. App. 905, 920, 355 P.3d
345 (2015), affd, 186 Wn.2d 103, 376 P.3d 1099 (2016); see RCW
13.34.136(1 )(b)(i) ("services" are offered to parents "to enable them to resume
custody"). Although Chambers claims parenting and anger management classes
No. 74950-1-1/7

were necessary because these services could have "facilitated the legislative

goal of family reunification," we disagree.3

Chambers' identified deficiency was his history of committing criminal acts

which rendered him unable to perform his parental obligations. Neither anger

management nor parenting classes were ordered because neither would have

addressed Chambers' deficiency.

Chambers has failed to identify any services that were capable of

correcting his parental deficiencies in the foreseeable future. Accordingly,

sufficient evidence supports the trial court's finding that the Department offered

or provided all necessary services as required by RCW 13.34.180(1 )(d) because

any additional services would have been futile. D.L.B., 188 Wn. App. at 920

("The Department is not required to offer or provide services that would be

futile."); In re Welfare of M.R.H.. 145 Wn. App. 10, 25, 188 P.3d 510 (2008)

("Where the record establishes that the offer of services would be futile, the trial

court can make a finding that the Department has offered all reasonable

services.").

Current Unfitness to Parent B.M.C

To warrant termination of parental rights, "[t]he Department must prove

that the parent is currently unfit." D.L.B., 188 Wn. App. at 921. Chambers

challenges the trial court's finding that he is currently unfit to parent B.M.C. To

meet its burden to prove current unfitness, the State must prove that the parent's

"deficiencies prevent the parent from providing the child with 'basic nurture,

3 Mot. for Accelerated Review and Appellant's Br. at 15.
7
No. 74950-1-1/8

health, or safety.'" In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062

(2014) (quoting RCW 13.34.020). At 4 years old, B.M.C needs a caregiver to

provide all of his basic needs, including food, shelter, clothing, medical care, and

education. Chambers cannot provide for any of these needs while incarcerated.

Thus, he is currently unfit to parent B.M.C. D.L.B.. 188 Wn. App. at 921.

Chambers claims that imprisonment alone is insufficient to show current

parental unfitness, but his citation to In re Seqo. 82 Wn.2d 736, 513 P.2d 831

(1973), in support of that contention is unavailing. In Seqo, the court made no

ruling as to whether incarceration renders a parent currently unfit. 82 Wn.2d at
740 (incarceration alone "does not necessarily justify an order of permanent

deprivation" (emphasis added)); cf In re Dependency of T.L.G., 126 Wn. App.
181, 203-04, 108 P.3d 156 (2005) (the court first considers whether a parent is
currently unfit and then asks whether the evidence supports a "finding under
RCW 13.34.180(1 )(e) that 'there is little likelihood conditions will be remedied so
that the child[] can be returned to the parent[] within the near future'" (footnote
omitted) (quoting RCW 13.34.180(1 )(e))). Because Chambers is unavailable to
provide for any of B.M.C's basic needs while he is incarcerated, he is currently
unfit.

Little Likelihood of Reunification

Chambers challenges the trial court's finding under RCW 13.34.180(1 )(e)
that "there is little likelihood that conditions will be remedied so that the child can

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No. 74950-1-1/9

be returned to the parent in the near future."4 He claims he will be able to care

for B.M.C. when he is released from prison in late 2017 or 2018 because he and

B.M.C. can live with Harris. We disagree.

Chambers will not be released from prison until April 2018 and possibly

much later. In addition, he acknowledges that he will not be capable of caring for

B.M.C. until a year or more after he has been released from prison. Thus,

Chambers' own testimony supports the trial court's finding that B.M.C. will not

have a parent available to meet his daily needs until he is 6 or 7 years old, at

which point he will have never lived with his father.

What constitutes "near future" depends on the age of the child. T.L.G..

126 Wn. App. at 204. B.M.C. was almost 4 years old at the time of the

termination hearing, and taken from his point of view, the near future is

significantly less than the two years Chambers had remaining on his prison term.

See, e.g., In re Dependency of T.R., 108 Wn. App. 149, 165-66, 29 P.3d 1275

(2001) (one year is not foreseeable or near future for a 6-year-old child); In re

Dependency of A.W., 53 Wn. App. 22, 32, 765 P.2d 307 (1988) (one year not in

the near future of 3-year-old child). To the contrary, as noted by the Court

Appointed Special Advocate, Cassie Short, from B.M.C's perspective, waiting
another two years until Chambers was released would be like waiting "a

lifetime."5

4 Mot. for Accelerated Review and Appellant's Br. at 16.
5 Report of Proceedings (RP) at 162.
No. 74950-1-1/10

No Meaningful Relationship Existed Between B.M.C and Chambers

Because Chambers was incarcerated at the time of trial, the trial court had

to consider whether Chambers could maintain a meaningful role in B.M.C's life

and whether the Department made reasonable efforts to help him remedy his

deficiencies.6 See In re Parental Rights to M.J., 187 Wn. App. 399, 408, 348

P.3d 1265 (2015). In deciding whether Chambers maintained a meaningful role

in B.M.C's life, the trial court had to consider the factors identified in RCW

13.34.145(5)(b). See In re Dependency of A.M.M., 182 Wn. App. 776, 787, 332

P.3d 500 (2014) (trial court's assessment of RCW 13.34.180(1 )(f) in cases

involving incarcerated parent must be "informed by evidence presented and

conclusions reached regarding the six factors contained in RCW

13.34.145(5)(b)"). Even though the trial court is statutorily mandated to consider

the factors set forth in RCW 13.34.145(5)(b), these factors do not compel any

conclusion regarding termination of parental rights. In re Welfare of E.D., 195

Wn. App. 673, 381 P.3d 1230 (2016).

After reviewing the factors contained in RCW 13.34.145(5)(b), the trial

court concluded that Chambers "ha[d] not had a meaningful role in [B.M.C.j's

life."7 Chambers challenges this finding, claiming that he has built a relationship

with B.M.C. He notes that he has had several in-person visits with B.M.C, talked

6 In Sego, the court identified certain factors to be taken into account when determining
an incarcerated parent's fitness, including the nature of the crime, the victim, and the
parent's conduct before and during incarceration. 82 Wn.2d at 740. Unchallenged
findings establish that the trial court considered all of the factors set forth in Sego.
Chambers does not challenge these findings on appeal.
7 Clerk's Papers (CP) at 160 (Finding of Fact (FF) 2.29).
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No. 74950-1-1/11

to B.M.C. on the phone, and has sent cards, letters, and pictures. He claims that

through these efforts, he maintained a bond with B.M.C.

The trial court reviewed Chambers efforts, but concluded that they did not

show that Chambers had a meaningful role in B.M.C's life. Substantial evidence

supports the trial court's conclusion.

Unchallenged finding of fact 2.21 establishes that Chambers has had one

face-to-face visit with B.M.C. in the past three years and that was two years ago;

and that in the past six months, Chambers was only able to call B.M.C. once. In

addition, Adams testified that Chambers' phone calls were inconsistent, and he

went eight or nine months without any calls to B.M.C. She also testified that
B.M.C. never asked to speak with Chambers, and it was unclear whether B.M.C.

could even "put the voice with a face in his mind."8 Short testified that she did
not believe B.M.C. knew who his father is, the phone calls were not meaningful to

him, and there was no bond on the part of B.M.C. with his father.

Unchallenged finding of fact 2.17 acknowledges that Chambers' minimal,
intermittent contact with B.M.C. made it difficult for Chambers "to have a

meaningful relationship" with B.M.C9 It also establishes that Chambers' lack of
contact with B.M.C. resulted from his own conduct—misbehavior in prison—not

from any action or inaction on the part of the Department.

Accordingly, substantial evidence supports the trial court's finding that
Chambers "ha[d] not had a meaningful role in [B.M.C]'s life" and there are "no

8 RP at 60-61.
9 CP at 158.

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No. 74950-1-1/12

efforts the Department can make that would provide services to [Chambers] that

can correct his deficiency of being unable to provide parenting responsibilities."10

Continuation of the Parent/Child Relationship

Chambers challenges the trial court's finding that continuation of the

parent-child relationship clearly diminished B.M.C's prospects for an early

integration into a permanent and stable home because his relationship with

B.M.C. was not endangering his placement. See RCW 13.34.180(1 )(f). He

contends that there is no indication Adams will cease caring for B.M.C. before

Chambers is released.

The main focus of this factor is whether the parent-child relationship

impedes the child's prospects for integration. K.S.C, 137 Wn.2d at 927. The

Department can satisfy RCW 13.34.180(1 )(f) by showing that "prospects for a

permanent home exist but the parent-child relationship prevents the child from

obtaining that placement." In re Welfare of R.H.. 176 Wn. App. 419, 428, 309

P.3d 620 (2013).

It is undisputed that prospects for a permanent home exist because

Adams desires to adopt B.M.C. Evidence that the parent-child relationship is

preventing B.M.C from a permanent placement includes Department Social
Worker Diane Drobinski's testimony that B.M.C's relationship with Chambers

created a barrier which prevented adoption from occurring, and Adams'

testimony that she does not wish to enter into guardianship.

10CPat160(FF2.29).
12
No. 74950-1-1/13

Chambers again argues that he has maintained a meaningful role in

B.M.C's life despite incarceration, but as previously discussed, substantial

evidence showed otherwise. Thus, substantial evidence supports the court's

finding that continuation of the parent-child relationship impeded B.M.C's

prospects for early integration into a stable and permanent home because it

prevented Adams from adopting B.M.C.

Termination was in B.M.C's Best Interest

Chambers challenges the trial court's determination that termination is in

B.M.C's best interest. We accord broad discretion to the trial court's best

interest determination and its decision receives great deference on review. In re

Dependency of J.A.F., 168 Wn. App. 653, 670, 278 P.3d 673 (2012). Substantial

evidence supporting the trial court's finding on this issue includes: (1) Adams'

testimony that B.M.C. is doing well in her care and has no problems or special

needs; (2) Drobinski's testimony that B.M.C. does not have a meaningful

relationship with Chambers and it is in B.M.C's best interest to be adopted by

Adams; and (3) Short's testimony that B.M.C. considers Adams to be his parent

and that moving B.M.C. from his current placement would be a "huge disservice"

and "very harmful" to him.11

Chambers contends that termination of his parental rights is not in

B.M.C's best interest because it will sever B.M.C's relationship with Harris and

other family members. However, testimony at trial indicates that Adams and

Harris have an amicable relationship, and there is no reason to think Adams will

11 RP at 160-63.

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No. 74950-1-1/14

act in a way that is contrary to B.C's best interest by refusing to foster

relationships that are beneficial to him.

Affirmed.

I^\c/t<*y AC3
WE CONCUR:

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14