ILE')
COURT OF APPEALS plV 1
STATE OF WASHIN,G1 ON
2018 FEB 26 AM 8:140
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of )
) No. 76565-5-1
C.D.S., )
D.O.B.: 11/06/2011, ) DIVISION ONE
)
Minor child. ) UNPUBLISHED OPINION
)
)
) FILED: February 26, 2018
TRICKEY, A.C.J. — Jason Abrahamson appeals the order terminating his
parental rights to his son. Abrahamson contends that the record does not
support the juvenile court's finding that the Department of Social and Health
Services offered or provided all necessary services, reasonably available,
capable of correcting his parental deficiencies within the foreseeable future. He
also claims that certain findings are supported only by inadmissible hearsay.
Because substantial evidence supports the court's finding that necessary and
reasonably available services were offered or provided and because findings
about letters to Abrahamson's son were not prejudicial, we affirm the termination
order.
FACTS
Jason Abrahamson is the father of C.D.S., a son born on November 6,
2011. Abrahamson has a history of drug use and substantial criminal history,
largely related to his drug use, which predates his son's birth. Since 2003,
Abrahamson has been arrested and/or has faced criminal charges on over 70
No. 76565-5-1/ 2
occasions. In 2003, Abrahamson was convicted of multiple counts of robbery
and was imprisoned for approximately seven years.
Following his release from prison in 2010, Abrahamson spent
approximately three years in the community. C.D.S. was born during this period.
Also during this time, the State charged Abrahamson with several misdemeanor
offenses, including unlawful entry, possession of stolen property, assault, theft,
possessing a fraudulent driver's license, and making a false statement to a public
servant. He spent at total of four to six months in jail on these charges.
On October 3, 2013, just before C.D.S. was two years old, Abrahamson
went to prison again to serve the sentence imposed on twelve convictions of
identity theft and forgery. Abrahamson was sentenced under the Special Drug
Offender Sentencing Alternative to 36.75 months incarceration, followed by an
equal term of community custody. Abrahamson served most of his sentence at
the Monroe Correctional Complex.
About a year and a half after Abrahamson went back to prison, in
February 2015, C.D.S. came to the attention of the Department of Social and
Health Services (Department). C.D.S. was three years old and living with his
mother and maternal grandmother. He was placed out of the home in April 2015,
and has not lived with either parent since that time. The Department initially
placed C.D.S. in the care of his maternal great grandmother, then his aunt, and
finally, in May 2016, placed him in foster care with prospective adoptive parents.
C.D.S.'s mother eventually relinquished her parental rights and is not a party to
this appeal.
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The court entered an order of dependency with respect to Abrahamson in
September 2015. In the dispositional order, the court ordered Abrahamson to
obtain a drug and alcohol evaluation, and participate in random urinalysis testing,
parenting classes, and the "InsideOut Dad" program.1
Social worker Debra Price was assigned to the case in April 2015 for
about a month, and then permanently reassigned four months later, in August
2015. Between September 2015 and March 2016, Price communicated with
Abrahamson on a monthly basis through telephone calls and letters.
Abrahamson and Price generally discussed the services that were available to
Abrahamson in prison, possible placements for C.D.S., and planning for
Abrahamson's release. While in prison, Abrahamson completed a Department of
Corrections (DOC) substance abuse treatment program and the court-ordered
"InsideOut Dad" program.2 In May 2016, the Department filed a petition to
terminate Abrahamson's parental rights.
In May or June of 2016, the social worker learned that Abrahamson had
been transferred to another DOC facility and then to the Clark County Jail, where
he was being held on a pending escape charge.
Abrahamson was released in November 2016,just after C.D.S. turned five
years old. Abrahamson did not inform the social worker of his release but the
social worker learned about it when she called Abrahamson's father's home and
she promptly arranged visits with C.D.S. Abrahamson attended two visits with
C.D.S, in November and December of 2016. Halfway through the first visit,
1 Clerk's Papers at 42.
2 CP at 42.
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No. 76565-5-1 /4
C.D.S. asked Abrahamson what his name was. Abrahamson arrived late to the
second visit without any activities for C.D.S., and C.D.S. played with
Abrahamson's cellphone for the duration of the visit.
At the December 2016 visit, the social worker provided a letter to
Abrahamson outlining the services ordered by the court and referrals for
parenting classes and urinalysis testing. The termination trial that had been
scheduled for December 2016, was continued in view of Abrahamson's release
and his apparent interest in engaging in visitation and services. The social
worker scheduled two additional visits for Abrahamson and C.D.S., but
Abrahamson did not attend either.
Approximately three weeks after his release from prison, Abrahamson
violated his community custody conditions when he tested positive for
methamphetamine. Police then arrested Abrahamson on December 27, 2016,
and the City of Marysville charged him with possession of drug paraphernalia.
He was released, but then failed to report to his probation officer and was
arrested again on a warrant on January 2, 2017.
At the time of the trial on the Department's petition in February 2017,
Abrahamson was incarcerated in Clark County Jail pending trial on the charge of
escape. He had been released pending trial, but the court revoked his bail after
he violated conditions of release. Abrahamson faced four or five years of
incarceration on the charge. He hoped to be admitted to drug court and had
been offered a plea deal of 51 months.
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The termination trial took place over two days. C.D.S. was five years old
and had seen Abrahamson only twice in the preceding three years. Abrahamson
testified by telephone from the Clark County Jail. He said that before he went to
prison in 2013, he lived with C.D.S. and his son's mother. Regarding his history
of drug use, he testified that he completed court-ordered drug treatment in 2010,
but was still using drugs "[o]ff and on," and by 2012, had progressed to using
them regularly.3 After he was imprisoned in 2013, Abrahamson said he
communicated with C.D.S. by telephone, video calls, and letters.
Abrahamson expressed hope that he would not be sentenced to prison on
his pending charge and said that if released, he planned to secure housing, find
employment, and stay clean so he could take care of his son. He estimated that
three to six months after his release, he would be in a position to have extended
contact with C.D.S.
The social worker testified that in her opinion, Abrahamson's primary
parental deficiencies were long-standing drug and alcohol issues and chronic
criminal conduct and he would be unable to remedy those deficiencies within the
foreseeable future. She testified that C.D.S. had no meaningful relationship with
his father and that prolonging his dependency would be detrimental to the child's
development and need for stability and permanency. The Guardian Ad Litem
(GAL) likewise testified that termination of parental rights was in C.D.S's best
interests.
The juvenile court entered more than 120 findings of fact, conclusions of
law, and an order terminating Abrahamson's parental rights.
3 Report of Proceedings(RP) at 71.
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No. 76565-5-1/6
ANALYSIS
Parental rights are a fundamental liberty interest protected by the United
States Constitution. Santosky 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. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
First, it must prove each of six statutory elements of 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 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 near 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)(a)-(f); see RCW 13.34.190(1)(a)(i); A.B., 168 Wn.2d at 911.
Second, if the juvenile court finds that the State has met its burden under RCW
13.34.180, it may terminate parental rights if it also finds by a preponderance of
the evidence that termination is in the "best interests" of the child. RCW
13.34.190(1)(b); A.B., 168 Wn.2d at 911.
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Once the trial court weighs the evidence and enters findings of fact and
conclusions of law, this court's review is limited to determining whether those
findings of fact are supported by substantial evidence and whether they support
the juvenile court's conclusions of law. In re Dependency of K.S.C., 137 Wn.2d
918, 925, 976 P.2d 113 (1999). In evaluating whether substantial evidence
supports the juvenile 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).
I. Services Offered
Abrahamson contends that the Department failed to prove that it offered or
provided all necessary services capable of correcting his parental deficiencies as
required by RCW 13.34.180(1)(d). According to Abrahamson, the juvenile court
identified his lack of a relationship with his son as a parental deficiency and the
termination order hinges on the court's finding that he will be unable to remedy
this deficiency in the foreseeable future. He argues that the primary barrier
preventing him from developing a relationship with his son was the Department's
failure during the dependency period to provide in-person visits or visits through
the DOC's "JPAY" system—a video call system similar to Skype.4
The court found that the Department made the following relevant findings:
2.39 Social Worker Debra Price was assigned to the dependency
matter in August 2015. In order to try to facilitate the father's
telephonic visitation, Ms. Price made reasonable efforts to arrange for
the father to visit with [C.D.S.] by means of a Skype or FaceTime-type
program. Ms. Price attempted to arrange this contact through a
4 RP at 121.
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No. 76565-5-1 /8
program called JPAY, but for various reasons was unable to
accomplish this despite her diligent efforts.
2.51 The court finds that all services ordered, and all necessary
services that were reasonably available and capable of correcting the
father's parental deficiencies within the foreseeable future, have been
expressly and understandably offered or provided.[51
Abrahamson's claim fails because, first and foremost, while undeniably
crucial for reunification, our courts have held that visitation is not a service for the
purposes of proving RCW 13.34.180(1)(d). In re Dependency of T.H., 139 Wn.
App. 784, 791-92, 162 P.3d 1141 (2007). The statute's reference to "services"
required under RCW 13.34.136, includes "domestic violence counseling,
parenting classes, drug and alcohol counseling," random urinalysis, and other
similar services. T.H., 139 Wn. App. at 791 (quoting In re Dependency of A.A.,
105 Wn. App. 604, 608-09, 20 P.3d 492 (2001)). Visitation, on the other hand, is
not rehabilitative in of itself. Nor is this a situation "where visitation is part of a
required service," such as a parenting class. T.H., 139 Wn. App. at 792. As the
court recognized, the fact that Abrahamson was incarcerated almost
continuously since C.D.S. was 23 months old made it difficult for him to establish
and maintain a relationship with his son. This unfortunate fact does not
transform visitation into a required service the Department was required to
provide in order to meet its burden under RCW 13.34.180(1)(d).
Second, Abrahamson mischaracterizes the Department's obligations and
efforts. The initial September 2015 dispositional order permitted Abrahamson to
have twice monthly supervised contact with C.D.S. by telephone or video calls as
5 CP at 42-43.
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No. 76565-5-1 / 9
arranged by the DOC facility. The order also allowed in-person visitation at the
DOC facility, if such visitation was approved by the facility and the travel was not
unduly burdensome for C.D.S. The order directed the Department to request
funding to use the video call system. Ten months later, when Abrahamson's
release appeared to be imminent, a court order following a permanency planning
hearing provided for supervised contact by telephone and for supervised
visitation upon his release from confinement.
The testimony established that after the social worker was reassigned to
the case in August 2015, she investigated visitation through the DOC's JPAY
system, but could not secure funding because there was no mechanism in place
that allowed the Department to pay the DOC for this service. The social worker
then attempted to arrange for in-person visitation at the facility. At the time,
C.D.S. was living relatively close to the DOC facility with his aunt. C.D.S.'s aunt
and uncle agreed to transport him for in-person visits and indicated on several
occasions that they would submit the required forms, but failed to follow through.
Nevertheless, C.D.S.'s aunt agreed to telephone contact, the social worker
verified that Abrahamson had the aunt's telephone number, but no telephone
contact occurred.
After C.D.S. was placed in foster care, the social worker attempted to
secure a professional supervisor to bring him to the facility. She submitted a bid
for a professional supervisor, and after some time, a provider accepted the
contract and completed the facility's approval process. However, when the
supervisor attempted to schedule a visit, he learned that Abrahamson had been
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No. 76565-5-1/ 10
transferred to different facility. The social worker testified that it was impossible
to facilitate the visitation after Abrahamson moved briefly to the Washington
Corrections Center in Shelton and then to the Clark County Jail. Contrary to
Abrahamson's argument, the Department's efforts were not limited to submitting
an on-line application and sending two e-mails. Although visitation is not a
service for purposes of satisfying RCW 13.34.180(1)(d), substantial evidence
nonetheless supports the juvenile court's finding that the social worker made
reasonable efforts to facilitate visitation.
Third, the premise of Abrahamson's argument is flawed because the
Department's inability to facilitate visitation during the dependency period was
not the primary reason for the absence of a meaningful relationship with C.D.S.
The court's findings also reflect that the termination was based on the cumulative
effect of Abrahamson's long-term substance abuse, instability, chronic criminal
behavior, and unavailability. It was this chronic criminal behavior that led to a
lack of a relationship with his child and made Abrahamson simply unavailable to
parent or play any important role in his child's life. For instance, the court found:
2.52 The father's parenting deficiencies include substance abuse
issues and criminal activity, including lengthy incarceration, as well
as lack of parenting skills, and lack of safe and stable housing.
2.57 Though the father completed the two services in prison, there
is essentially no evidence in this case that he actually absorbed the
necessary knowledge to be in a position to begin to parent the child
and remain clean and sober.
2.58 The father faces the possibility of four or five years in prison
on his escape charge.
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No. 76565-5-1 / 11
2.59 The father testified that he hopes to be admitted to Drug
Court, but there is no evidence that that is a reasonable possibility.
Even if the father were admitted to Drug Court, common experience
indicates that he would be under intensive supervision and would
need to concentrate first and foremost on his recovery. It is difficult
to imagine that he would have the time and energy necessary to try
to reestablish a relationship with his son.
2.60 The father also will need to deal with the outstanding charges
pending against him in the other courts and he may well face
additional jail time in he's found guilty of those charges.
2.64 The father's parental deficiencies include his drug abuse,
which was a problem long before these dependency proceedings
began. His ongoing issue with substance abuse is evidenced by
his recent relapse and use.
2.65 The father's parental deficiencies also include his chronic
criminal history, including new charges being filed just since he was
released from prison. This history has rendered him unable to
perform his parental obligations.
2.66 The father's parental deficiencies also include his long-term
failure to provide a safe and stable home for the child and his lack
of any meaningful relationship with the child.
Abrahamson had already been in prison for more than a year and a half
when C.D.S. was removed from his home. Although Abrahamson maintains that
he communicated with C.D.S. when he was first incarcerated, he does not
dispute the fact that when C.D.S. was declared dependent in September 2015,
he had not seen C.D.S. in almost two years. C.D.S. does not know Abrahamson
because he has been unavailable to form a relationship with him. Nothing the
Department could have done in the 14 months between September 2015 and
November 2016 would have remedied this. Even if the Department had been
able to facilitate an occasional visit in prison or twice monthly JPAY video calls, it
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No. 76565-5-1 / 12
would not have enabled a child of C.D.S.'s age to develop a meaningful
relationship.
Abrahamson also appears to claim that the court improperly focused on
the effect of his incarceration on his relationship with his child and treated his
lengthy incarceration as an "aggravating" factor, rather than as a "mitigating"
factor, as required by statute.6 See RCW 13.34.180(1)(f); RCW 13.34.145(5)(b);
In re Parental Rights to K.J.B., 187 Wn.2d 592, 387 P.3d 1072(2017).
If a parent is incarcerated, RCW 13.34.180(1)(f) requires the court to
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
apprised of his or her location and in accessing visitation or other
meaningful contact with the child.
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
6 Br. of Appellant at 18.
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No. 76565-5-1/ 13
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.
Here, the court explicitly considered the statutory incarceration factors,
including whether Abrahamson played a meaningful role in his son's life, whether
the Department's efforts were reasonable, and whether particular barriers
existed. Nothing in the statute suggests that incarceration should be treated as a
"mitigating" factor. Contrary to Abrahamson's argument, in considering an
incarcerated parent's ability to maintain a meaningful role in a child's life, the
court need not "disregard the negative effects that incarceration may have on a
delicate parent-child relationship . . . [or] ignore the child's need for timely
permanency." In re Welfare of E.D., 195 Wn. App. 673, 695, 381 P.3d 1230
(2016), review denied, 187 Wn.2d 1018, 390 P.3d 351 (2017). The court's
acknowledgment that Abrahamson was ultimately responsible for his own
behavior which resulted in his lengthy and repeated incarceration was not
contrary to nor inconsistent with RCW 13.34.180(1)(f) and RCW 13.34.145(5)(b).
In sum, substantial evidence supports the court's finding that all services
ordered and all necessary services that were reasonably available, capable of
correcting the father's parental deficiencies within the foreseeable future, were
offered or provided.
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No. 76565-5-1 / 14
II. Hearsay
Abrahamson contends that the trial court erred in considering hearsay
evidence included in the GAL report for substantive purposes. In his report, the
GAL opined that Abrahamson had little "sustainable interest" in his son.7 His
assessment was based, in part, on the fact that while Abrahamson expressed
interest in visiting with his son and wrote letters to the social worker, he wrote no
letters to C.D.S. during his three years of incarceration. The GAL's report states
that "there is no evidence in the discovery files nor can the child's previous
caregivers recall any letters, birthday cards, or holiday cards from the father to
his son."8 Abrahamson claims that the evidence about the prior caregivers'
recollections was hearsay, and admissible only to show the basis of the GAL's
opinion. Along the same lines, Abrahamson challenges the testimony of the GAL
and the social worker about a note in the Department's file reporting that during a
2015 meeting, that neither witness attended, Abrahamson was encouraged to
write letters to C.D.S.
An error in the admission of evidence requires reversal only when the
error is prejudicial. In re Dependency of R.S.G., 174 Wn. App. 410, 433, 299
P.3d 26(2013). An error is prejudicial if it has a substantial likelihood of affecting
the outcome of the case. R.S.G., 174 Wn. App. at 433.
Here, there is no likelihood that the admission of evidence about whether
or not Abrahamson wrote letters to C.D.S. during his incarceration, or was
encouraged to do so, affected the outcome of the trial. The court found that
7 OP at 80.
8 OP at 79.
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No. 76565-5-1/ 15
although Abrahamson claimed he had sent letters to C.D.S., there was "no
record of such letters."9 Abrahamson testified that he wrote to C.D.S. but
provided no copies of his letters to the Department and it was undisputed that the
Department's file did not contain any such letters. Only letters Abrahamson
wrote to the social worker were admitted into evidence and no prior caregivers
testified at trial. Disregarding the alleged hearsay testimony about C.D.S.'s
caregivers' recollections, substantial evidence supports the court's finding that
there was "no record" of letters Abrahamson claimed to have sent.1°
To the extent that the court's finding that Abrahamson agreed in a 2015
meeting to write letters to C.D.S. is supported only by hearsay evidence
concerning a note in the Department's file, it is a non-essential finding. Nor was
the finding prejudicial in view of Abrahamson's testimony that he did, in fact, write
letters to his son.11
The properly admitted evidence supports the court's finding that
Abrahamson "did little in terms of any expressions or acts of manifesting concern
for the child."12 For instance, the social worker testified that while she provided
information to Abrahamson about C.D.S.'s circumstances, he did not request
such information. And the evidence indicated that Abrahamson did not take
advantage of opportunities to communicate with C.D.S. by telephone during the
dependency. When Abrahamson was released in 2016, although he had not
seen C.D.S. in three years, he did not initiate contact with the social worker to
9 CP at 41.
1° CP at 41.
11 Given the lack of prejudice, we need not address Abrahamson's claim that counsel's
failure to object to hearsay testimony amounted to constitutionally deficient performance.
12 CP at 46.
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No. 76565-5-1/ 16
arrange visitation. The social worker called him. Abrahamson did not introduce
himself to C.D.S. when he saw him in 2016, nor did he appear to know how to
relate to him. He was late for the second visit, called to cancel the third visit
when the social worker and C.D.S. were already enroute, and did not attend the
third visit because he was in jail.
In addition to numerous unchallenged findings, the finding that
Abrahamson's actions largely did not manifest concern for his child supports the
court's determination that his was currently unfit, that his deficiencies could not
be remedied in the foreseeable future, and that termination of the parent-child
relationship was in C.D.S.'s best interests.
We affirm the juvenile court's order terminating Abrahamson's parental
rights.
/1Ke.
WE CONCUR:
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