In re the Parental Rights to: L.J. & L.B.

FILED
MARCH 21, 2019
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 the Matter of the Parental Rights to )
) No. 35632-9-III
L.J. ) (consolidated with
) No. 35633-7-III)
)
) UNPUBLISHED OPINION
In the Matter of the Parental Rights to )
)
L.B. )

SIDDOWAY, J. — After an almost two-year dependency, the trial court terminated

the appellant father’s parental rights to his sons L.B1 and L.J. He appeals the termination

order, arguing (1) the trial court erred when it denied his request to continue trial so that

he could present evidence of relative placement options, (2) the denial of the motion

interfered with his right to counsel, and (3) insufficient evidence supports the trial court’s

1
There is a discrepancy between our caption and that on the findings, conclusions,
and order of termination. The caption on that final order reverses the order of the boys’
names from the caption used in earlier pleadings and incorrectly identifies the surname of
the older of the two boys. We conform our caption to the petition.
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

findings that (a) he was currently unfit to parent L.B. and L.J. and (b) termination of his

parental rights was in the boys’ best interest. The court did not err or abuse its discretion

and substantial evidence supports its findings. We affirm.

FACTS AND PROCEDURAL BACKGROUND

The appellant is the father of two boys: L.B., who was born in March 2013, and

L.J., who was born in April 2014. We rely for the following factual background largely

on findings of fact entered following the termination trial that the father does not

challenge. Unchallenged findings are verities on appeal. In re Welfare of A.W., 182

Wn.2d 689, 711, 344 P.3d 1186 (2015).

In October 2015, L.B., then 2½ years old; L.J., then 18 months old; and the then

4-year-old daughter of their mother, were removed from the home of their mother and the

appellant. The family had been involved with the Department of Social and Health

Services (Department) through a voluntary services program for several months before

the dependency petition was filed and the children were removed.

The father entered into an agreed dependency for his sons in March 2016. He

agreed to complete a chemical dependency evaluation, a parenting assessment, and a

psychological evaluation; participate in random drug testing; continue mental health

treatment; complete domestic violence offender treatment; complete family therapy; and

2
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

maintain a clean, safe, nurturing, stable and drug/alcohol free home environment on a

consistent basis.

At the time he entered into the dependency, the father, a convicted felon, was

under Department of Corrections (DOC) supervision that had begun in June 2015. Seven

of his prior convictions had been for domestic violence charges. Some of the treatment

ordered in the dependency overlapped conditions of his community custody. In addition

to standard probation conditions, he was required by his supervision to complete

domestic violence and mental health evaluations, submit to UA2 testing, and was

prohibited from using or possessing illegal substances.

Before entering into the agreed dependency, the father began attending mental

health counseling at Frontier Behavioral Health in December 2015. He attended only two

sessions. When he failed to appear for five other appointments, he was discharged as a

patient.

On January 20, 2016, the parents completed a parenting assessment with Linda

Wirtz, who recommended that the father participate in a fatherhood class, complete an

anger management evaluation and domestic violence treatment, and that he engage in

mental health treatment and family therapy with his sons.

2
Urinalysis.
3
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

In mid-March 2016, the father briefly attended a single individual family therapy

appointment with Jasmine Jordan, a family therapist. She discharged him after the first

visit based on safety concerns: he smelled of alcohol and was aggressive and disruptive.

He then engaged in counseling and family therapy with Dave Smith beginning in

late August or early September 2016. Counseling with Mr. Smith went better.

Nevertheless, because the dependency petition had been filed almost a year earlier, the

children had been removed from the custody of the parents for over six months, and the

father had not participated in most services, the Department filed a petition to terminate

his parental rights in September 2016.

While the father had been sentenced to only 12 months’ probation, his time was

tolled when he was on abscond status or was incarcerated on a non-DOC matter. As a

result, he did not complete probation until November 2016. He never completed the

DOC-required evaluations, and his UA results were often positive for methamphetamine.

As 2016 drew to an end and counseling with Dave Smith continued to go well, an

attempt was made to increase the time the boys spent with their father from two hours a

week to four. Unfortunately, the increase in visits was emotionally disruptive for L.B.

and L.J., and they began to exhibit extreme changes in behavior. L.B. had night terrors

and cried frequently. L.J. was waking up in the middle of the night and scavenging for

food; he was taking off his diaper and smearing feces on himself and the room. Because

4
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

the behavior was at the risk of disrupting placement, the Department obtained an order

suspending visitation with the father in December 2016.

At about the same time, the father finally completed the domestic violence

assessment required by both DOC and his dispositional order. He was ordered to

complete a year of treatment. He eventually attended only 7 of 20 required classes,

dropping out in mid-April 2017. This concerned the domestic violence counselor who

had assessed him, because the father’s history of violence, including domestic violence,

demonstrated that he needed to develop “tools in order to proceed and help him be

involved appropriately within the family environment.” Sealed Report of Proceedings

(SRP) at 331.

The father completed a neuropsychological evaluation in January 2017 and was

diagnosed with borderline intellectual functioning as well as a personality disorder with

paranoid, antisocial, turbulent, and narcissistic traits. He was found to have difficulty

controlling his emotions. The clinical psychologist who performed the evaluation

concluded that in light of his diagnosis and the father’s substance use, the prognosis for

the father’s ability to parent was “guarded.” SRP at 249.

By the time the deterioration in the boys’ behavior that caused visitation to be

suspended in December 2016 had stabilized, Mr. Smith was no longer a contract provider

to the Department. The father and his sons renewed family therapy in February 2017

5
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

with Renee Brecht. Family therapy with Ms. Brecht went well in a key respect: progress

was made in the relationship between the father, L.B., and L.J. But the father was not

making progress on changes to his lifestyle that he recognized needed to be made. He

acknowledged to Ms. Brecht that he needed to deal with his use of substances, needed

appropriate and suitable housing, and needed to have better supports.

The father was often homeless during the dependency. He was admitted to

Revival House, a clean and sober living facility, but he was evicted after approximately

six months for drinking alcohol and smoking marijuana. Because he has a history of

being evicted from housing, his housing options are severely limited.

Termination trial

The termination trial was scheduled to begin on June 26, 2017. On May 16, 2017,

the boys were moved to an emergency placement after one of the boys hit a foster sibling

in the face. The next month, on June 6, their mother moved the trial court to place the

boys with her relatives, Brandon and Shawntae Croson.

Ten days later and 10 days before trial, the parents jointly moved the trial court for

a continuance to explore placement with the Crosons. The Crosons had been proposed to

the Department as a placement roughly a year earlier, in June 2016. According to the

assistant attorney general representing the Department, the Crosons indicated some

interest in having the children placed with them, but they “failed to follow through with

6
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

background checks and—and any of the other information the Department needed to

consider them for placement.” SRP at 18.

The Department opposed the continuance, arguing that the boys needed

permanence and stability. While acknowledging that the boys had recently been put in a

sixth placement, it argued that the new placement was not an unknown family. The

placement was with “the children of th[e previous] foster parent, the adult children that

are now the current placement. So they had known [the boys] for quite some time. . . .

They had been approved by the Department long ago, so—and they still maintain a

relationship with their former foster family. They get to see their former foster mother

and so forth. So it’s not a sudden change of a brand-new family.” SRP at 19-20.

The trial court denied the continuance request, observing that “these kids keep

growing” and “something’s got to give here.” SRP at 29. It did not rule out the

possibility that “something can be worked out, some kind of negotiation,” but it left the

matter on for trial beginning on June 26. Id. Evidence was presented on June 26th,

continued on the 28th, and was completed on July 10th.

Over the three days of trial, the Department called 15 witnesses. Among them

were social workers, assessment and treatment providers, the father’s community custody

officer, and the children’s guardian ad litem. The Department’s witnesses testified to the

offer of services outlined above and to the father’s failure to follow through on most of

7
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

the services offered. They testified among other matters to his untreated substance abuse

issues, his inadequately addressed problems with domestic violence, and his failure to

obtain and maintain stable housing.

The mother’s parental rights were also at issue in the trial. At the conclusion of

the State’s case, she stipulated to the termination of her parental rights. As her lawyer

explained, the mother concluded that her rights would be terminated and she wanted to

preserve an open adoption agreement she had reached with the Department.

The father testified in his own behalf. He admitted to continued use of marijuana

and alcohol. He conceded he had no ability to provide basic necessities to his sons and

admitted that the boys’ and their half sister’s disclosures of a traumatic home

environment were accurate. He acknowledged wanting to make changes but not doing so

during the almost two years the dependency case was open, and identified no plan for

how to be successful in the future. He did propose a plan for drug treatment, testifying

that a “couple days” earlier, he had spoken to someone from a long-term (18 month)

residential drug treatment program for men in Seattle that allowed patients to bring their

children. SRP at 533. He testified that the woman he spoke to told him that all he

needed to do was have someone fax her an assessment “and then we take it from there.”

SRP at 533. He had not obtained the assessment yet, but intended to do it “as . . . soon as

. . . we don’t have court tomorrow.” SRP at 534. When the lawyers delivered their

8
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

closing arguments on July 10, the father’s lawyer represented that after testifying, the

father had obtained a chemical dependency assessment, and the Seattle residential drug

treatment program was “ready to admit him.” SRP at 566. He informed the court that

the program would allow L.B. and L.J. to be placed with the father after he had

completed 90 days’ worth of treatment.

What proved to be of greatest concern to the trial court was the testimony of Carol

Thomas, who provided individual therapy to L.B. and L.J. beginning in April 2017, a few

months after she began providing therapy to their half sister. Ms. Thomas testified that in

therapy the half sister described the father’s involvement in the domestic violence in the

home and told Ms. Thomas that she regularly saw the boys’ father and her mother having

sex. She also said that the boys’ father had sexually assaulted her.

Ms. Thomas described L.B. as having continually struggled with “a lot of

confusion and grief” and as missing earlier foster parents and his half sister, because she

had been the one who took care of him. SRP at 289. He described hiding from the

domestic violence that had taken place when he was living with his father and mother.

He struggled “back and forth” between wanting to see his father or not. SRP at 293.

She testified that the boys struggled with trust, because for them, “people just

disappear, people don’t want to be their mom anymore or people don’t want them.” SRP

at 293-94. She recommended not moving the boys again, because “it’s taken its toll. . . .

9
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

[T]hey’re not trusting permanence and they’re not understanding why they keep losing

people.” SRP at 301. In response to trial court questioning, Ms. Thomas expressed the

view that it is possible for children as young as L.B. and L.J. to process their traumatic

experiences, but “now is the time to deal with it.” SRP at 322.

After taking the matter under advisement, the trial court reconvened the parties

after a few days and announced its decision to terminate the father’s parental rights.

Because the father’s principal argument on appeal centers on undisputed testimony that

the two hour a week therapy sessions revealed the affection between the father and his

sons, we quote at length the trial court’s explanation why this was not enough:

[W]e’ll never know exactly what went on in that home. But from what
[their half sister] explains—and these boys were 1 and 2 when they were
removed from the home, and so their ability to verbalize is not going to be
very good. But [their half sister] has shed a lot of light upon what has
happened in the home. It’s undoubtedly clear that the boys have been
traumatized so much so that their placements have had to be changed,
because they couldn’t be managed. And I think most significant for me
was Carol Thomas. I asked her a couple questions, and she said, “You
know, if we can stabilize these boys now, they can process anything
they’ve gone through and they can grow up to be solid good men.” But she
also says that another loss for these boys would really take a devastating
toll on them.
So again, what she’s saying is that these boys, just like any other
child, need stability. They need to know that when they get up in the
morning they’re going to have breakfast. They need to know that things are
expected of them, that after breakfast they’re going to do X, Y, Z and that
Mom or Dad or somebody, whoever their care provider is, is going to be
there; that they’re not going to have to fend for themselves or have their 5-
year-old sister taking care of them. Stability is what these boys need,
particularly these boys.

10
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

SRP at 588-89.

The court acknowledged that the father had identified a residential drug treatment

program where L.B. and L.J. could be transferred to reside with him. But the court

observed, emphatically, that the residential treatment program was not a realistic solution.

It expressed its view that having L.B. and L.J. uprooted from Spokane after 90 days and

placed with their father full time in Seattle would be traumatic for them, noting that it

took only increased visitation with the father the prior December to cause severe

deterioration in their stability and behavior. The court continued:

[The father] finds himself in the unenviable situation of having a rough life.
He’s had a rough upbringing, he’s had a rough life, he’s homeless, he’s got
some mental health issues, he’s got some drug-and-alcohol issues. Do I
want to penalize him for the situation that he finds himself in? Absolutely
not. But realistically speaking, what I think about here and is of paramount
importance to me are these boys.
For whatever reason, [the father] continues—and he’s very candid
with me. He’s very candid—he continues to smoke marijuana and he
continues to drink alcohol because life is hard and that’s the only way you
can cope with life sometimes. And I get that. The difficulty with that . . .
is that when you drink and you smoke pot, all bets are off with regard to
domestic violence, all bets are off with putting your kids first.
There’s no plan for how to support these boys, how to clothe them,
how to feed them, how to house them. [The father] acknowledged that
what the kids saw and related was all true and that he was relieved actually
when CPS removed these kids. I can’t—that amount of disclosure doesn’t
get any better, because there’s a realization of what was going on. But it’s
the ability to control that environment for the sake of the boys that is
lacking.
....
So as we sit here today, there’s no plan, there’s—[the father] does
not have a plan for how he’s going to care for these boys. So I’m going to
make a finding that continuation of this parent-child relationship diminishes
11
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

their prospects for early integration into a stable and permanent home. The
best predictor of what a person will do in the future is frankly what they’ve
done in the past.

SRP at 590-92. Addressing the father, the court said:

And understand, . . . I could give a hoot about your criminal history.
It doesn’t—I don’t care about it. It’s what happened in the lives of these
children that matters. And I can’t—they were such a tender age. Not that
it’s great at any time, but they were so young that this is—the only chance
we’re going to have with them is to keep them stable, which I frankly don’t
believe that you are equipped to give them.
Again, I know [you have] had a rough—rough life. And you have,
you had, the ability to change. You’re not 18, you’re not 25. You’re 40?
41? You’re 40.
[THE FATHER]: (Moved head up and down.)
THE COURT: So this is the lifestyle that you adopted, and it’s not
clear to me whether or not you’re motivated to change. It’s not my
business at this particular point in time. All I was looking for is something
in the past 24 months that—that isn’t—wasn’t there.

SRP at 592.

The father appeals.

ANALYSIS

The father’s first two assignments of error are based on the trial court’s denial of

his and the mother’s request for a continuance to explore relative placement. We address

the refusal of the continuance before turning to the father’s challenges to the trial court’s

findings following the termination trial.

12
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

I. MOTION TO CONTINUE TRIAL

The father argues that the trial court’s denial of the parents’ continuance request

violated his right to due process and deprived him of the effective representation of

counsel.

It is well settled that in both criminal and civil cases, a trial court’s decision to

grant or deny a continuance is reviewed for a manifest abuse of discretion. State v.

Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). In exercising discretion to grant or

deny a continuance, trial courts may consider many factors, including surprise, diligence,

redundancy, due process, materiality, and maintenance of orderly procedure. Id. at 273

(citing State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974); RCW 10.46.080;3 CrR

3.3(f).4

3
RCW 10.46.080 provides:
A continuance may be granted in any case on the ground of the absence of
evidence on the motion of the defendant supported by affidavit showing the
materiality of the evidence expected to be obtained, and that due diligence
has been used to procure it; and also the name and place of residence of the
witness or witnesses; and the substance of the evidence expected to be
obtained, and if the prosecuting attorney admit [sic] that such evidence
would be given, and that it be considered as actually given on the trial or
offered and overruled as improper the continuance shall not be granted.
4
Authorizing the court to grant continuances based on written agreement of the
parties or “when . . . required in the administration of justice,” so long as the defendant
will not be prejudiced in the presentation of his or her defense. CrR 3.3(f)(2).

13
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

A. Due process

“[F]ailure to grant a continuance may deprive a defendant of a fair trial and due

process of law, within the circumstances of a particular case.” State v. Williams, 84

Wn.2d 853, 855, 529 P.2d 1088 (1975) (citing State v. Cadena, 74 Wn.2d 185, 443 P.2d

826 (1968)). “Whether the denial of a continuance rises to the level of a constitutional

violation requires a case by case inquiry.” Downing, 151 Wn.2d at 275 (citing Eller, 84

Wn.2d at 96).

In arguing that denial of his request for a continuance amounted to a due process

violation, the father likens his request for a continuance to the facts of In re Welfare of

R.H., 176 Wn. App. 419, 309 P.3d 620 (2013). In that case, the Department had

petitioned in October 2011 to terminate the parental rights of Bobby Adolphus. By

January 2012, the children’s aunt had come forward as a potential guardian. When it

appeared the Department’s completion of a required home study of the aunt might not be

completed in time for the May 3, 2012 trial, Mr. Adolphus moved on April 5 for a

continuance or to expedite the home study. The trial court denied the motion, accepting

the Department’s argument that whether the children would be placed with their aunt was

immaterial to whether the State could prove a basis for termination at trial.

The court was required in R.H. to address whether guardian legislation enacted in

2010 was relevant to any factor the State was required to prove to support termination.

14
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

With the 2010 legislation, “the legislature [had] created a ‘more flexible alternative to

parental termination—guardianship under RCW 13.36.040.’” 176 Wn. App. at 423.

R.H. holds that an impending guardianship is material to the State’s burden of proving

that “continuation of the parent and child relationship clearly diminishes the child’s

prospects for early integration into a stable and permanent home,” a termination factor

provided by RCW 13.34.180(f) (discussed further below). Id. at 428.

The stated holding in R.H. is that “an identified guardianship” is material to this

determination. Id. at 423 (emphasis added). Elsewhere, the court observed that “the

potential for a guardianship placement had been established for four months prior to the

termination trial and the State had completed the necessary background check and was in

the process of approving the aunt for guardianship placement.” Id. at 429. Subsequent

decisions have made clear that “R.H. does not hold that a trial court’s refusal to continue

a termination trial to allow a parent to explore the possibility of a guardianship is per se a

manifest abuse of discretion.” In re Welfare of N.M., 184 Wn. App. 665, 674, 346 P.3d

762 (2014). “R.H. stressed the need for an ‘identified guardianship,’” and “[a]n

‘identified guardianship’ requires, at a minimum, an identified guardian.” Id. Given the

facts deemed material in R.H., before implicating a due process right, the “identified

guardian” (or, as here, a relative placement) must have offered to serve, submitted to the

approval process, and have a realistic prospect for approval. Where there is no identified

15
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

guardian, the standard applied to denial of a continuance is the usual abuse of discretion

standard.

The father does not demonstrate an abuse of discretion by the trial court.

Dependency proceedings had been commenced almost two years earlier, and the children

had been out of the father’s home during that time. The Department had petitioned to

terminate his parental rights almost a year earlier. The Crosons had taken no action to be

approved for placement; there was no evidence that they had a good chance of being

approved for placement; and there was no evidence they were even currently willing to

have L.B. and L.J. placed with them.

B. Ineffective assistance of counsel

The father makes a novel alternative argument that when the trial court denied his

motion to continue, it rendered his trial lawyer ineffective. No authority is cited for the

proposition that a trial court’s action can render a lawyer ineffective. The closest we can

come (and it is not close) is Washington case law holding that for a court to grant a

motion to continue a criminal trial violates a defendant’s constitutional rights if it forces

the defendant to choose between the right to a speedy trial and the right to be represented

by counsel who has sufficient opportunity to prepare a defense. E.g., State v. Sherman,

59 Wn. App. 763, 769-70, 801 P.2d 274 (1990). Reversible error exists in those cases not

16
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

because the lawyer provides ineffective assistance, but because the trial court erred in

putting the criminal defendant to the choice.

Applying the Strickland5 standard for effective representation, a plaintiff asserting

ineffective assistance of counsel must show deficient performance and resulting

prejudice. In re Dependency of S.M.H., 128 Wn. App. 45, 61, 115 P.3d 990 (2005)

(citing State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001) and Strickland, 466 U.S.

at 694). “Counsel’s performance is deficient if it falls ‘below an objective standard of

reasonableness based on consideration of all the circumstances.’” Id. at 61 (quoting State

v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987)). To demonstrate prejudice, a

party must show that “‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Thomas,

109 Wn.2d at 226 (quoting Strickland, 466 U.S. at 694).

The father does not articulate any respect in which his trial lawyer’s performance

was deficient. He does not articulate how, but for his lawyer’s performance, the result of

5
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). We recognize there is an unsettled question of whether a less stringent standard
for what constitutes “effective” representation applies in proceedings under chapter 13.34
RCW. See, e.g., In re Welfare of J.M., 130 Wn. App. 912, 920, 125 P.3d 245 (2005)
(discussing the different, due process standard applied in In re Moseley, 34 Wn. App.
179, 184, 660 P.2d 315 (1983)). We give the father the benefit of the doubt by applying
Strickland’s higher standard for effective representation.

17
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

the proceeding would have been different. No basis for reversing the trial court’s refusal

to continue trial is shown.

II. TERMINATION DECISION

“The fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been model

parents or have lost temporary custody of their child to the State.” Santosky v. Kramer,

455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Because parents have a

fundamental liberty interest in the custody and care of their children, the State may

terminate parental rights “‘only for the most powerful [of] reasons.’” In re Welfare of

S.J., 162 Wn. App. 873, 880, 256 P.3d 470 (2011) (alteration in original) (quoting In re

Welfare of A.J.R., 78 Wn. App. 222, 229, 896 P.2d 1298 (1995)). A parent has a due

process right not to have the State terminate his or her relationship with a natural child in

the absence of an express or implied finding that he or she, at the time of trial, is currently

unfit to parent the child. In re Welfare of A.B., 168 Wn.2d 908, 918, 232 P.3d 1104

(2010) (citing Santosky, 455 U.S. at 760). Current parental unfitness must be

demonstrated by at least clear and convincing evidence. Id. at 919 (citing Santosky, 455

U.S. at 769). The father’s first challenge to the trial court’s termination of his parental

rights is that the State did not make the required showing of his current parental unfitness.

18
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

A. Current parental unfitness

Washington statutes provide a two-step process before a court may terminate

parental rights.

The first step requires that the State prove six statutory termination factors.6 This

first step “focuses on the adequacy of the parents and must be proved by clear, cogent,

and convincing evidence.” A.B., 168 Wn.2d at 911 (footnote omitted). Satisfying all six

of the statutory elements raises an implied finding of current parental unfitness. In re

Parental Rights to K.M.M., 186 Wn.2d 466, 479, 379 P.3d 75 (2016).

The father explicitly concedes in his briefing that the State proved the first five

termination factors. As for the sixth—that “[c]ontinuation of the parent-child relationship

clearly diminishes the child’s prospects for early integration into a permanent and stable

6
The six elements appear at RCW 13.34.180(1)(a)-(f):
(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 [to be provided to the parent] 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.
19
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

home”—the father does not concede it in his briefing but does not assign error to the trial

court’s finding that it was proved, making it a verity on appeal. Sealed Clerk’s Papers

(SCP) at 121 (Finding of Fact (FF) VIII). Since this is the termination factor to which

evidence of an impending placement with the Crosons would have been material, we

understand why the father would not explicitly concede it in his briefing despite knowing

it was proved at trial.

The father thus effectively concedes the State’s proof at trial of all six termination

factors. Yet he still challenges the trial court’s finding that he is currently unfit to

parent.7 This ignores In re Dependency of K.R., 128 Wn.2d 129, 141-42, 904 P.2d 1132

(1995), in which our Supreme Court held that if a trial court finds all six termination

factors, it has implicitly found current parental unfitness. In A.B., the court addressed

whether this holding of K.R. “always, or only sometimes, permits an appellate court to

7
That finding states in its entirety:

The parent(s) is currently unfit to parent the child. The father admits
to continued use of marijuana and alcohol. He [h]as no ability to provide
basic necessities to the boys and admits that the children’s disclosures of a
traumatic home environment were accurate. The father acknowledges
wanting to make changes, but has been unable to do so during the two years
the dependency case has been open, and has no plan for how to be
successful in the future. Even if the father participates in chemical
dependency treatment on the west side of the state, it would be far too
disruptive and traumatic for the children to be removed from their current
homes and placed in a strange facility.

SCP at 121 (FF VII).
20
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

imply or infer a finding of current parental unfitness.” 168 Wn.2d at 921. It held that a

finding of the six factors is always substantively sufficient; its issue is only whether the

trial court intended to find current parental unfitness. Id. (an appellate court can infer the

omitted finding “if—but only if,” it is clear from the record that the omitted finding “was

actually intended, and thus made, by the trial court”). The trial court in this case made an

explicit finding of parental unfitness, so its intent is clear. Because the finding of the six

termination factors is sufficient to establish current parental unfitness and the court

explicitly found parental unfitness, no further analysis is required.

B. Best interests of the child

The second step in a trial court’s decision whether to terminate parental rights is

for the court to ascertain the best interests of the child. RCW 13.34.190. “Because the

parent’s rights will already have been observed in the first step, this second step need be

proved by only a preponderance of the evidence.” A.B., 168 Wn.2d at 912.

The father assigns error to the trial court’s finding that termination was in L.B.’s

and L.J.’s best interest, which it explained in its finding IX:

It is in the child’s best interests to terminate the parent-child
relationship. The children experienced significant trauma while in the care
of their parents. Their parents were physically and emotionally unavailable
to them and the boys were left to fend for themselves. There was often no
food in the house and they witnessed domestic violence and explicit sexual
activity between their parents. Both children exhibited extreme behavioral
disruptions, anxiety, anger, and aggression. They have had multiple
placements and suffered several losses as a result. It is critical that the
children are provided a safe, permanent home with consistent caregivers.
21
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J.

SCP at 122.

If substantial evidence supports the trial court’s finding in light of the

preponderance of evidence standard that applies, the order terminating parental rights

must be affirmed. In re Dependency of T.R., 108 Wn. App. 149, 160-61, 29 P.3d 1275

(2001). “Because of the highly fact-specific nature of termination proceedings, deference

to the trial court is ‘particularly important.’” K.M.M., 186 Wn.2d at 477 (quoting In re

Welfare of Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983)). We defer to the trial court’s

determinations of witness credibility and the persuasiveness of the evidence. Id.

“Where a parent has been unable to rehabilitate over a lengthy dependency period,

a court is ‘fully justified’ in finding termination in the child’s best interests rather than

‘leaving [the child] in the limbo of foster care for an indefinite period’” while the parent

seeks to rehabilitate himself. T.R., 108 Wn. App. at 167 (alteration in original) (quoting

In re A.W., 53 Wn. App. 22, 33, 765 P.2d 307 (1988)). It is always easier for a trial court

to make the “best interests” finding, and for us to affirm it, when a parent has forgone

visitation and family therapy, showing no real bond with his child, so the affection

between the father and his sons weighs against the finding here. Many other facts

strongly support the finding, however. Substantial evidence supports the trial court’s

finding that the best interests of L.B. and L.J. required much more than a father who was

a loving parent in two-hour-a-week visits.

22
No. 35632-9-III (consol. w/ 35633-7-III)
In re Parental Rights to L.J

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.

~dhtu~ '~
oway,J.
WE CONCUR:

.~.

23