IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON WC=
In the Matter of the Dependency of: ) 32-
) DIVISION ONE •":"
C.J.S.(DOB: 04/25/2016), ) r—orrt
No. 78521-4-1 cJ)r
=
r•-•,
•-
Minor child, )
CHRISTINA BARRON, )
) UNPUBLISHED OPINION
Appellant, )
)
v. )
)
STATE OF WASHINGTON, )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, )
)
Respondent. ) FILED: April 29, 2019
)
ANDRUS, J. — Appellant Christina Barronl appeals the order terminating
her parental rights to C.J.S.2 She contends that the Department of Social and
Health Services (Department) failed to prove that it notified her of her alleged
parental deficiencies, that it offered all necessary services, that her deficiencies
cannot be remedied in the near future, and that she is currently unfit to parent
C.J.S. She further contends that she received ineffective assistance of counsel.
We disagree and affirm.
1 For clarity, we refer to the mother by her first name. We mean no disrespect.
2 To protect the privacy interests of the minor children, we use their initials throughout this opinion.
General Order for the Court of Appeals, In re Changes to Case Title, (Aug. 22, 2018), effective
Sept. 1,2018.
No. 78521-4-1/2
FACTS
In May 2013, the Department of Social and Health Services filed
dependency petitions relating to Christina's children, A.L., then age 4, and D.L.,
then age 2. The Department alleged the children suffered from medical neglect,
poor hygiene, and unexplained injuries. In addition, the Department alleged
Christina had a history of domestic violence and had a 2013 assault conviction
against the children's father.
Christina agreed to orders of dependency for A.L. and D.L. in December
2013. She also agreed to participate in parenting classes, to undergo domestic
violence and mental health assessments, and to obtain safe and stable housing.
She subsequently agreed to undergo a psychological evaluation, and to participate
in individual counseling. Her visitation with A.L. and D.L. was initially supervised
once a week for two hours a visit.
Over the course of the next 15 months, Christina engaged in services and
increased her contact with the children. By February 2015, the trial court noted
that although the children had been out of Christina's care for 15 of the last 22
months, good cause existed to refrain from filing a termination petition because
she was making progress on correcting her parental deficiencies and the
Department hoped to transition the children home within the next three months.
The trial court also found Christina was visiting the children regularly and gave her
unsupervised visits once a week.
But during the summer of 2015, Christina began a relationship with C.S. In
October 2015, the Department moved to modify Christina's visitation from
unsupervised to supervised, because she had permitted C.S. to participate in visits
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with her children, despite the lack of Department approval. The trial court granted
the motion and required her visits with A.L. and D.L. to be monitored based on her
lack of compliance with visitation requirements.
The Department subsequently discovered that C.S. was physically and
emotionally abusing Christina, and that he had hit her with a bat in front of A.L. and
D.L. When the Department learned Christina was pregnant with C.S.'s child, it
tried to safety plan with Christina because the social workers were concerned with
her safety and the safety of her unborn child. Christina did not cooperate with the
Department's efforts. The Department suggested that Christina move in with a
relative so that her baby could be placed with her, but she refused because the
relative would not allow C.S. on her property.
At a January 2016 dependency review hearing, the trial court ordered the
Department to file a termination petition on behalf of A.L. and D.L. The court found
that while Christina had completed mental health counseling and domestic
violence treatment, she was only making partial progress toward correcting the
problems that necessitated the children's placement in out-of-home care. The
Department filed termination petitions on behalf of A.L. and D.L. in June 2016, and
Christina agreed to relinquish her parental rights to them in September 2016.
Christina gave birth to C.J.S. on April 25, 2016. C.J.S.'s father is C.S.3 The
Department filed a dependency petition for C.J.S. two days after his birth and the
trial court placed him with a paternal aunt.
3 The parental rights of C.J.S.'s father, C.S., are not at issue in this appeal. The trial court terminated
his parental rights on August 28, 2017.
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In May 2016, the Department referred Christina to a program called
Incredible Years, a program to help her learn to "prioritize child safety and well-
being," and "to learn her infant's cues and follow through on meeting the infant's
basic, medical, and care/supervision needs." The following month, the Department
provided Christina with referrals to a mental health assessment and counseling
and a domestic violence victims' education class.
In August 2016, Christina agreed to an order of dependency for C.J.S., and
agreed to participate in domestic violence victim education and parenting classes,
and to undergo a second mental health assessment. Christina was initially allowed
three unsupervised visits with C.J.S. per week for two hours per visit. She was
prohibited by court order from permitting C.S. to participate in any visits.
In September 2016, the Department referred Christina for individual
counseling. It identified the issues on which Christina needed help:
The client's parental rights of her two older sons(ages 5 and 7)were
terminated in the middle of September. This case has been open
since 5/7/2013. The client has been engaging in all of her court
ordered services, however minimal progress has been made
throughout the life of the case. Additionally the client gave birth to
another baby boy on 4/25/2016. The dependency case on the infant
remains open at this time. The department is requesting that the
client receive counseling regarding the loss of her two older sons in
order to ensure that her mental health is stable enough to care for an
infant.
The Department identified the goals for counseling as three-fold:
(1) To develop insight into the neglect and abuse her two older sons
experienced while in her care and how that is correlated with the
loss of her parental rights.
(2) To develop appropriate boundaries with the people whom she
communicates (personal relationships and professional
relationships) including insight into romantic relationships
w/unsafe men.
(3) To develop a prosocial support network.
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Around that same time, Christina ended her relationship with C.S.
Department social workers "started to see the progress. She was more willing to
communicate with [her social worker] in an open manner, more forthcoming and
honest in her communications with [her social worker]." In October 2016, the trial
court found Christina was visiting C.J.S. regularly, and she was in compliance with
the dependency court order. Without safety concerns related to C.S., the
Department allowed Christina to have unsupervised community visits with C.J.S.
When Christina left C.S., she lost her housing. The Department worked
with her through the fall of 2016 to help connect her with housing resources. In
early 2017, Christina moved into a hotel room with a new boyfriend, C.M. Christina
was aware that C.M. had a 14-year-old domestic violence conviction, and had prior
CPS history with his own child. Christina also knew that this history would create
problems for her with the Department.
Nevertheless, Christina asked the Department to allow C.M. to have
unsupervised contact with C.J.S. The Department started a background check on
C.M. at that time. In March, 2017, the Department notified Christina that C.M. had
not passed the background check because of prior CPS findings of neglect and a
fourth degree assault conviction.
Department social workers asked Christina to clarify if she wanted to move
toward reunification with C.J.S. alone or if she wanted C.M. to be a part of this
reunification plan. If she chose the latter option, the Department informed her it
needed to assess him for services.
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The Department never completed an assessment of C.M. In March 2017,
the Department asked Christina for a copy of C.M.'s criminal background history
documentation ("rap sheet"). Christina provided the rap sheet in April 2017, but
the social worker mistakenly believed Christina had not sent it to her. The
Department asked Christina to provide C.M.'s rap sheet at least three more times.
Christina consistently told the Department that she had already provided it to her
social worker. It was not until the second day of trial that a Department social
worker realized she had a copy of the rap sheet in the file and apparently had had
it for nearly a year. But Christina also had a copy of the rap sheet and refused to
provide it again when the Department repeatedly asked her to do so.
At the same time, various Department social workers asked to meet with
C.M. to assess him for services he might need to safely participate in C.J.S.'s care.
He met with a Department social worker briefly in March 2017 to complete the
background check paperwork. After that, the Department attempted to contact
C.M. or asked Christina to set up a meeting with him at least three times. He did
not follow through and the Department was never able to assess C.M. for contact
with C.J.S.
Meanwhile, at the April 19, 2017, permanency planning hearing, the court
found Christina in compliance and making partial progress toward eliminating her
parental deficiencies. Because Christina was visiting C.J.S. regularly, the trial
court, at the Department's recommendation, allowed her to have two seven-hour
unsupervised visits per week. However, because of the duration of the case, the
trial court found that returning C.J.S. home to Christina was no longer an
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appropriate permanent plan, and changed the primary permanency plan for C.J.S.
to adoption, with return home to mother as the alternative plan.
The Department renewed Christina's individual counseling referral. It noted
that Christina's counselor, Kristin Roessler, reported:
... she and the client are just over halfway through their work.
Ms. Roessler reports that they have been working on boundaries,
communication, honesty and making healthy choices. They have
also been working on "who you're choosing, how you're making
those decisions, [and] does it fit with future goals." Ms. Roessler
reports these are the same things they have worked on prior, a
couple years ago when client was in counseling during the
dependency of her two older children. Ms. Roessler reports that
mother has made progress insofar as she is "definitely more aware
than she used to be" however Ms. Roessler states that they have
more work to do in turning said awareness into action through life
choices.
On June 23, 2017, the Department filed a petition to terminate Christina's
parental rights. The Department alleged the parental deficiencies of"mental health
issues, lack of parenting skills, domestic violence, and lack of safe and stable
housing." The Department alleged that Christina failed to complete the Project
Aware classes, and had not reengaged in this service, was not making progress
in counseling sessions, and "she chose an unsafe person to live with."
At the September 27, 2017, dependency review hearing, the court found
Christina in partial compliance but making no progress in eliminating her parental
deficiencies. It found Christina had one domestic violence class to complete "but
ha[d] disengaged." It also found Christina had stopped attending counseling
4 After the court made this finding, Christina completed the Project Aware classes in November
2017.
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No. 78521-4-1/8
sessions with Ms. Roessler, had not yet found safe and stable housing, and was
no longer visiting C.J.S. on a regular basis.
Christina's termination trial occurred in March 2018. The focus of the trial
was Christina's inability to parent C.J.S., manifested through her infrequent visits
with her son, her failure to participate in his medical and dental appointments, and
her prioritizing her relationship with C.M. over the needs of her child.
Visits. At trial, the trial court found that before July 2017, C.J.S.'s caregiver
initiated visits, and under those circumstances, Christina visited four to eight times
each month. But when the caregiver stopped prompting, Christina's visits
decreased. Christina visited C.J.S. only once in September 2017. Over the fall of
2017 and winter and spring of 2018, her visits remained sporadic. She visited
C.J.S. only four times in October, once in November and December, three times
in January 2018, and once in February. Her visits became more regular only in
the weeks before the March 2018 termination trial.
Christina testified she lived in Tulalip and C.J.S. lived in Monroe, making it
difficult for her to make trips to see her son. But the Department provided bus
passes or an ORCA bus card for Christina to use to travel for the visits.
Sometimes, Christina drove herself to visits in C.M.'s car. Christina saw C.J.S.
only once in September 2017 because she did not want to interact with his relative
placement who was then transporting the child to and from visits.
Even though Christina had graduated to unsupervised visits with C.J.S.,
Christina twice requested that the visits revert to supervised visits with
Department-provided transportation. Her purpose was for C.M. to attend the visits
and she also wanted to avoid C.J.S.'s caregiver. When Christina first made the
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No. 78521-4-1/9
request, the Department sought a transporter but found no one willing to pick up
the contract. When Christina later requested a visit supervisor, the Department
denied the request because Christina's visits were too inconsistent and supervised
visits too restrictive.
Christina also worked throughout the dependency, sometimes more than
one job, and cited her work schedule as a barrier to consistent visitation with C.J.S.
But the Department presented evidence that Christina's explanations for not
visiting C.J.S. were not credible. In October and November 2017, Christina was
only working part-time between 8 and 20 hours a week. Once she started working
for Wal-Mart around Thanksgiving 2017, she began working 25 hours a week. Her
work hours thereafter averaged between 30 and 40 a week.
Christina testified she missed visits in November 2017 because a car
accident impacted her transportation, but she had the monthly bus pass, did not
tell her social worker that the accident was a barrier to visitation until weeks after
the accident, and she missed no work as a result of the accident. And she admitted
she made no attempt to visit C.J.S. on Christmas, despite having the day off of
work.
The Court Appointed Special Advocate(CASA)expressed her concern with
Christina's lack of visitation, explaining that "[t]he number of visits that she could
have set up, followed through with and attended, I can barely count them on my
fingers. When you look at the number of hours she could have spent with this child,
it's minimal at best." Department social workers echoed this concern. One social
worker, when discussing Christina's deficits, testified that Christina's current
unfitness to parent was based in large part on her failure to spend meaningful time
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No. 78521-4-1/10
with C.J.S. "[H]er lack of visitation was a big part of it. . .[T]hat's time that's used
to gain parenting skills and create that bond." The CASA described Christina as
more of a "playmate" to the child than a parent.
Medical and Dental Appointments. Christina attended only one of four
medical appointments for C.J.S. in the fall of 2017. She did not attend either of his
two scheduled dental appointments. C.J.S.'s social worker notified Christina of
these appointments but Christina did not show up, either claiming she had to work
or admitting that she had forgotten about them.
Prioritizing Relationship with C.M. over C.J.S. The Department first learned
Christina was living with C.M. in January or February 2017. Initially, Christina
described him as a "roommate," and the Department did not understand whether
he was an intimate partner. The Department learned of this fact for the first time
from C.J.S.'s caregiver. When her social worker confronted Christina with this fact,
she denied having a romantic relationship with C.M. It was C.M. who disclosed
the relationship on his background check form in March 2017. Yet, Christina
testified at trial that she and C.M. were not a couple until May 2017. Christina's
counsel represented that the relationship had begun in February 2017.
The Department social worker testified that she met with Christina in
October 2017 and clearly explained to her what she needed to do to achieve
reunification with C.J.S., including having C.M. contact her to be assessed. C.M.
failed to do so.
At trial, Christina testified she had understood for six months that her
relationship with C.M. was a barrier to her reunification with C.J.S. Christina
testified that although the social worker asked to meet C.M., she and C.M. did not
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No. 78521-4-1/11
have the time to do so. C.M. admitted Christina asked him to call the social worker
but that she did not explain why. He acknowledged he never reached out. When
Christina was asked why she did not make sure C.M. met with the Department,
her response was simply "I don't control others."
In January 2018, Christina asked her social worker if she should move into
a shelter to have C.J.S. placed with her. The social worker confirmed that C.J.S.
could be placed with her if she were living in a shelter, but Christina did not take
this step.
Christina testified at trial that although she wanted to be a family with C.M.
and C.J.S., she would have asked C.M. to move out or break off the relationship if
the Department had just asked her to do so. C.M. similarly testified he would be
willing to do services if the Department asked him, despite failing to contact the
Department for almost a year after being asked to do so. C.M. also testified he
would have moved out of his home with Christina.
At trial, there was disputed testimony regarding C.M.'s history of substance
abuse and potential current use of marijuana and alcohol. C.M. testified that after
CPS was involved in his family, he underwent inpatient drug and alcohol treatment,
followed by intensive outpatient treatment. On cross examination, he admitted
marijuana was his drug of choice and that he had been diagnosed with alcohol
dependence. He admitted he still used marijuana and drank alcohol, although he
denied using alcohol with Christina. Christina, however, testified she had a drink
with C.M. on only one occasion and denied C.M. ever used drugs or drank alcohol.
The CASA, who met with C.M., testified she could smell marijuana in the trailer.
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No. 78521-4-1/12
The Department was never able to assess C.M.'s substance use or fitness to
parent C.J.S. because he refused to meet with Department social workers.
After the three-day termination hearing, the trial court terminated Christina's
parental rights as to C.J.S. The trial court entered over 200 findings of fact. But
the key findings are:
• C.J.S. had been found to be a dependent child,
• the court had entered a dispositional order,
• C.J.S. had been removed from Christina's custody for at least six
months,
• services ordered under RCW 13.34.136 have been expressly and
understandably offered or provided, and all necessary services
reasonably available, capable of correcting Christina's parental
deficiencies within the foreseeable future, were expressly and
understandably offered to her,
• Christina's parenting deficiencies are in the area of neglect by not
prioritizing the child over new relationships, subjecting her children
to unapproved and/or unsafe people and witnessing domestic
violence, and not attending to the child's medical, social or
psychological needs and her lack of consistent visitation,
• there is little likelihood that conditions will be remedied so that C.J.S.
can be returned to Christina in the near future and that the mother is
currently unfit to parent,
• continuation of the parent-child relationship clearly diminishes
C.J.S.'s prospect for early integration into a stable and permanent
home, and
• termination of Christina's parental rights was in the best interest of
the child.
ANALYSIS
A. Standard of Review
Parental rights are a fundamental liberty interest protected by the United
v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
States Constitution. See Santoskv.
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No. 78521-4-1/13
71 L.Ed.2d 599 (1982). However, "the State has an equally compelling interest in
protecting the physical, mental and emotional health of the children." In re
Dependency of H.W., 70 Wn. App. 552, 555, 854 P.2d 1100 (1993) (citing In re
Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973)). In order to terminate the parent-
child relationship, the Department must first prove six 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 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.
RCW 13.34.180(1). Next, due process requires the trial court to expressly or
impliedly find by clear, cogent, and convincing evidence that the parent is currently
unfit. In re Welfare of A.B., 168 Wn.2d 908, 918-19, 232 P.3d 1104 (2010). If all
of these elements are proven, the trial court must also find by a preponderance of
the evidence that termination is in the "best interests" of the child.
RCW 13.34.190(1).
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On review, we ask only 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 Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990).
"Substantial evidence exists if the record contains evidence of sufficient quantity
to persuade a fair-minded, rational person of the truth of the declared premise."
Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918(1986)(citing In re Snyder, 85
Wn.2d 182, 185-86, 532 P.2d 278(1975)). "If there is substantial evidence which
the lower court could reasonably have found to be clear, cogent and convincing,
an appellate court should not disturb the trial court's findings." In re Welfare of
Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
B. Notice of Parental Deficiencies
Christina contends that her due process rights were violated because she
received inadequate notice of her parental deficiencies. She argues that the
dependency and termination petitions did not allege that her parental rights could
be terminated due to C.M.'s substance use or her inconsistent visitation with C.J.S.
Parental rights cannot be abridged without due process of law. In re
Dependency of A.M.M., 182 Wn. App. 776, 790-91, 332 P.3d 500 (2014). In
particular, due process requires "'that parents receive notice of the specific issues
to be considered" at a termination hearing. Id. at 791 (quoting In re Welfare of
Martin, 3 Wn. App. 405, 410, 476 P.2d 134 (1970)). Such notice is necessary "to
prevent surprise, helplessness and disadvantage." Id.(quoting Martin, 3 Wn. App.
at 410). We look to the entire dependency and termination record when
determining the adequacy of the notice. In re the Parental Rights of F.M.O., 194
Wn. App. 226, 232, 374 P.3d 273(2016).
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No. 78521-4-1/15
The trial court found that "[t]he mother's failure to consistently visit her child
and her failure to attend medical appointments is ongoing evidence of the parental
deficiency of neglect and failing to attend to the emotional and medical needs of
her child." The record shows that Christina had notice of these parental
deficiencies.
First, throughout the dependency with A.L. and D.L., Christina was aware
that the court was monitoring the consistency and duration of her visits with her
children. In C.J.S.'s case, Christina was also aware the trial court was deciding
whether she was visiting him regularly and meeting her visitation schedule and
conditions. She also knew that in a September 2017 dependency review hearing,
the court found that she was not visiting C.J.S. regularly and that, as a result, she
was not making any progress toward remedying her parental deficiencies.
Second, Christina had been participating in individual therapy for several
years and one of the specific issues the Department asked her counselor to
address was Christina's "need[] to learn her infant's cues and follow through on
meeting the infants [sic] basic, medical, and care/supervision needs." Christina's
counselor, Kristin Roessler, testified that she discussed with Christina how her lack
of contact with C.J.S. would affect him. Christina acknowledged to Roessler that
she knew her lack of contact needed to improve.
Third, Christina knew the Department had removed A.L. and D.L. from her
care because of neglect. She also knew the trial court had removed C.J.S. from
her care because it had determined she was incapable of adequately caring for
him, placing him in danger of damage to his psychological or physical
development. She had notice over the course of C.J.S.'s dependency that her
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parental deficiencies included a lack of parenting skills and lack of attention to her
children's needs.
Christina next argues that she did not have notice that C.M.'s substance
use could be a basis for termination. The trial court found:
2.147 Given [C.M.'s] and the mother's history of neglecting their
prior children, [C.M.'s] use of marijuana and alcohol is concerning
because one of the mother's primary parental deficiencies is the
neglect of [C.J.S.] and another is choosing unsafe partners and
allowing them to be around her children.
Christina argues that before trial, the Department's concern about C.M. centered
on his CPS and domestic violence history, not his substance use. This may be
true, but it would have been difficult for the Department to notify Christina, before
trial, that C.M.'s drug or alcohol use was a concern when C.M. refused to
voluntarily meet with or be assessed by the Department. C.M. revealed the nature
of his past substance abuse while testifying at trial. And it is a misstatement to
contend that C.M.'s drug use was the basis for termination. The finding makes it
clear that the primary parental deficiencies were her neglect of her child and her
choosing unsafe partners, not C.M.'s drug use.
Christina was on notice that exposing her children to unsafe partners was
a basis for termination. The termination petition alleged there was little likelihood
that Christina could remedy her parental deficiencies in the near future because
she "chose an unsafe person to live with." The person she was living with at the
time was C.M. Christina was aware that her relationship with C.M. was a barrier
to reunification. She thus was on notice that the Department had concerns about
C.J.S.'s safety if C.M. were in Christina's home. C.M.'s history of substance abuse,
which was revealed by C.M. for the first time at trial, is merely evidence that
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Christina was unwilling to acknowledge C.M. may have presented a safety risk to
C.J.S.
Christina had sufficient notice from the overall record to correct and defend
against her lack of visitation and attendance at medical appointments and to
correct and defend against her choice of unsafe partners. Her due process rights
were not violated.
C. Failure to Offer Services
Christina argues the Department failed to offer her services to improve the
consistency of her visitation with C.J.S. The record does not support this
argument.
In order to terminate parental rights, the Department must prove that it
offered "all necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future." RCW 13.34.180(1)(d).
Necessary services are those services "needed to address a condition that
precludes reunification of the parent and child." In re Parental Rights of K.M.M.,
186 Wn.2d 466, 480, 379 P.3d 75 (2016)(quoting A.M.M., 182 Wn. App. at 793).
The trial court found that the Department offered Christina all necessary
services. From this finding, we infer the trial court found transportation-related
services were not necessary. Substantial evidence supports this finding.
Christina contends that she would have visited more regularly if the
Department had arranged transportation for her, because she lived so far away,
wanted to avoid contact with C.J.S.'s caregiver, and had a busy work schedule.
But the trial court did not find credible Christina's testimony that she was unable to
visit C.J.S. because of the travel distance or work schedule. The trial court found
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No. 78521-4-1/18
Christina had been able to visit regularly for several months, despite living in
various locations. Christina chose to move to Tulalip, despite the fact that C.J.S.
lived in Monroe. In fact, Christina did not look for a home or a job near her child in
Monroe, despite having no particular ties to Tulalip or Marysville. The trial court
could see no "reason for her failure to visit for over a month at a time."
The trial court also rejected Christina's suggestion that her work schedule
interfered with consistent visits. Her work schedule did not explain why she did
not visit at all in October until October 18, 2017, when she then scheduled four
visits relatively close together. And up until Thanksgiving, her work schedule in
November 2017 was only 8 to 20 hours per week, yet Christina only visited C.J.S.
on November 1, and not again until December 6, 2017. It also found not credible
Christina's testimony that she rarely had a day off, finding "[t]he mother should
have been arranging to have at least one day off, as she had done previously so
she could visit at least one day a week." These findings support a conclusion that
Christina chose not to visit C.J.S. and that the lack of transportation was simply a
convenient excuse, not a true barrier.
Moreover, when Christina initially asked to revert from unsupervised to
supervised visits so she could obtain Department-provided transportation, the
Department requested a visit transporter and no one picked up the contract. In
September 2017, the Department rejected Christina's second request in part
because her visits had been so inconsistent and because it would result in more
restrictive visitation. The trial court found the Department made it clear to Christina
that she needed to have a consistent visit schedule for a transporter to be willing
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to accept the job. Although Christina stated she would have a more consistent
schedule, she did not respond with more consistent visits.
These findings and credibility determinations support the ultimate finding
that the Department offered necessary services, reasonably available, and
capable of improving Christina's parental deficiencies.
D. Near Future
Christina argues that the Department failed to prove that there was little
likelihood that her parental deficiencies could be remedied in the near future. We
disagree.
The focus of RCW 13.34.180(1)(e) is "whether parental deficiencies have
been corrected." In re Dependency of K.R., 128 Wn.2d 129, 144, 904 P.2d 1132
(1995)."A determination of what constitutes the near future depends on the age of
the child and the circumstances of the placement." In re Dependency of T.L.G.,
126 Wn. App. 181, 204, 108 P.3d 156(2005)(citing In re Dependency of T.R., 108
Wn. App. 149, 165-66, 29 P.3d 1275 (2001)).
A parent is not entitled to an unlimited time to become a fit parent, and
theoretical possibilities of improvement in the near future are not enough. In re
Welfare of C.B., 134 Wn. App. 942, 958, 143 P.3d 846 (2006)(quoting T.R., 108
Wn. App. at 166)). "When it is eventually possible but not imminent, for a parent
to be reunited with a child, the child's present need for stability and permanence is
more important and can justify termination." Id. at 958-59 (citing TR., 108 Wn.
App. at 166).
The trial court found that C.J.S.'s near future is two to four months. It also
found:
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No. 78521-4-1/20
2.191 [T]he court considered setting the case out six to eight weeks
to see what progress could be made as far as consistent visitation,
and the mother showing more responsibility for [C.J.S.'s] needs.
2.192 However, even if the Court were to accept the testimony that
Mother is willing to have [C.M.] move out, the court cannot see a trial
return home for at least three months. The mother would need to first
show that she can attend all of her allowed visits and attend medical
appointments. She would then need to increase visitation to
overnights and come up with a viable plan for the care of [C.J.S.]
while she is working. She would also need to show the ability to
schedule and attend necessary medical and dental appointments.
After a return home, given the mother's history, there would need to
be a several-month period of close monitoring.
2.193 Thus, it would take at least 6 months for the mother to
demonstrate she is currently fit to parent. At this time, she is currently
unfit.
2.195 Given the age of the child and the length of this dependency,
six months is beyond the foreseeable future for this child. [C.J.S's]
near future is two to four months.
2.196 Thus,the Court finds by clear cogent and convincing evidence
that there is little likelihood that conditions will be remedied so that
the child can be returned to the parent in the near future.
Substantial evidence supports these findings. First, C.J.S. was removed
from Christina's care at birth. By the time of trial, he had been out of her care for
almost two years. He had never resided with Christina or even spent an overnight
with her.
Second, Christina was aware that a lack of contact was harmful to her
relationship with her child and was resulting in a lack of a bond with him. She knew
she needed to begin overnight visits with C.J.S. to make progress. But instead of
finding ways to increase her contact with C.J.S., it decreased between July 2017
and March 2018.
20
No. 78521-4-1/21
As one social worker explained, "seeing a child once a month is very
-
different from being responsible for that child 24/7, and the mother had every
opportunity to see her child more consistently to develop a stronger bond with him
and to demonstrate safe parenting over more sustained periods of time." Another
social worker explained "if a parent was having weekly visitation, they could show
a lot more skills, parenting skills." Because C.J.S. had been dependent since birth,
Christina had two years to not only complete ordered services, but to improve her
parenting deficiencies. She accomplished the former but not the latter.
Third, Christina never demonstrated an ability or willingness to actually
parent C.J.S. The trial court found Christina does not have a viable plan for raising
this child or providing for his care. She had not determined who might provide
childcare while she was at work. She had not assumed the responsibility of
actually scheduling C.J.S.'s medical or dental appointments or followed through
with C.M.'s background check. In sum,she had not shown the ability to proactively
parent this child.
Christina argues that her parental deficiencies could be remedied in two to
four months based on the court's finding that "even if the Court were to accept the
testimony that Mother is willing to have [C.M.] move out, the court cannot see a
trial return home for at least three months." Christina is taking this finding out of
context.
First, the trial court explicitly rejected Christina's testimorw that she ever
intended to move to a shelter or have C.M. move out of their trailer:
2.194 Considering the mother's history of allowing unapproved
individuals around her children, and the fact that the mother did not
move to a shelter prior to trial or have [C.M.] move out of the trailer
21
No. 78521-4-1/22
prior to trial, the Court finds that[C.M.] would continue to be a part of
the mother's life even if he moved out and that the mother would
ultimately allow [C.M.]to be around [C.J.S.] whether[C.M.] had been
approved or not.
Second, the trial court framed its finding in the subjunctive mood,
expressing its skepticism that Christina would complete all the necessary steps for
such a trial return home. The trial court found Christina had not, in the prior two
years, demonstrated any ability to meet any of these expectations. Thus, the trial
court's doubts about a potential return home actually support its ultimate finding
that there was little likelihood Christina could or would remedy her parental
deficiencies within the near future.
Christina argues that her lack of progress during the dependencies of A.L.
and D.L. should not be basis for termination, and that she made progress during
and after C.J.S.'s dependency. There is nothing inappropriate in considering
Christina's parenting history, including prior dependencies, to determine whether
it was likely that she would remedy her parental deficiencies in the near future.
While Christina made progress in therapy and engaged in services during C.J.S.'s
dependency, the trial court found the services did not ameliorate her underlying
parental deficiencies.
Finally, Christina asks that we consider evidence she provided to the trial
court with her motion for reconsideration in which she stated she had been able to
consistently visit C.J.S. after trial. Christina's motion for reconsideration is
governed by CR 59(a). The decision to grant or deny a motion for reconsideration
after trial is within the discretion of the trial court and will not be reversed absent
an abuse of discretion. Rivers v. Wash. State Conf. of Mason Contractors, 145
22
No. 78521-4-1/23
Wn.2d 674, 684-85, 41 P.3d 1175 (2002). A trial court may consider newly
discovered evidence after trial under CR 59(a)(4) only if it would probably change
the result of the trial, was discovered since the trial and could not have been
discovered before trial by an exercise of due diligence, is material and is not merely
cumulative or impeaching. Go2Net, Inc. v. Cl Host, Inc., 115 Wn. App. 73, 88, 60
P.3d 1245(2003)(citing Holadav.
v. Merceri, 49 Wn. App. 321, 329, 742 P.2d 127
(1987)).
The trial court considered Christina's evidence and concluded it would not
alter the trial court's findings'. It concluded that "the 'newly discovered evidence'
does not address all of the court's concerns." It also concluded that "visiting her
child regularly and attending medical and dental appointments are not things that
anyone should have to tell a parent to do. Those things are essential to the care
and physical and emotional well-being of a child. A parent cannot cure this
deficiency with a short burst of regular visitation and attending a couple of
appointments." We find no abuse of discretion in the trial court's decision to deny
the motion for reconsideration and this court will not consider evidence not
admitted at trial.
E. Currently Unfit
Christina argues that the State failed to prove that she was currently unfit to
parent C.J.S. We reject this argument as well.
In addition to meeting the statutory prerequisites of RCW 13.34.180(1), the
State must show current parental unfitness by clear, cogent, and convincing
evidence. In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062 (2014). To
meet this burden, the State must prove that the parenting deficiencies prevent the
No. 78521-4-1/24
parent from providing the child with "'basic nurture, health, or safety." Id. (quoting
RCW 13.34.020). Recognized parental obligations include expressing love and
affection to one's children; expressing personal concern over their health,
education and welfare; supplying the necessary food, clothing and medical care;
providing an adequate domicile; and furnishing social or religious guidance. In re
Adoption of Lvbbert, 75 Wn.2d 671, 674, 453 P.2d 650 (1969).
The trial court found that Christina was currently unfit to parent C.J.S. There
is substantial evidence to support this finding. While Christina clearly loved C.J.S.,
she had never parented him. Three times during the dependency, she failed to
visit him for a period of over one month. She did not attend his medical
appointments or arrange for appropriate daycare. She did not have a clear plan
for paying for food and supplies. Whether her unfitness arises out of an
unwillingness to parent, or an inability to parent, substantial evidence supports that
Christina was not fulfilling her parental obligations. Under these circumstances,
the Department met its burden to show that Christina is not currently fit to parent
the child.
Christina contends that the trial court focused on C.M.'s unfitness, rather
than her own. This is not a fair reading of the trial court's 203 findings of fact. Only
25 of the findings directly relate to C.M.'s criminal history, CPS history, and
substance use. The trial court's findings relating to C.M. underscored Christina's
understanding that her relationship with C.M. was a barrier to reunification with
C.J.S. and that her choice of romantic partners was an ongoing parental deficit.
Christina also argues that the trial court impermissibly shifted the burden for
Christina to show that she was fit to parent. The trial court did not indicate a shifting
No. 78521-4-1/25
in the burden of proof; it merely found that the Department established Christina
was not currently fit to parent C.J.S. The fact that the most compelling evidence
the Department presented was Christina's actions and inactions during the
dependency does not mean the trial court shifted the burden of proof to her.
F. Ineffective Assistance of Counsel
Christina argues that her counsel was ineffective for failing to object to
CASA testimony regarding C.M.'s substance use, which she characterizes as
improper expert testimony. Parents have a statutory right to representation by
counsel at all stages of a dependency proceeding. RCW 13.34.090(2); In re
Dependency of V.R.R., 134 Wn. App. 573, 581, 141 P.3d 85 (2006). This right
includes the right to effective legal representation. Id. at 580.
To prevail on a claim of ineffective assistance of counsel, Christina must
show (1) deficient performance by counsel and (2) resulting prejudice. In re
Dependency of S.M.H., 128 Wn. App. 45, 61, 115 P.3d 990 (2005). There is a
strong presumption of effective representation, and Christina has the burden to
show that there are no legitimate strategic or tactical reasons for the challenged
conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). If
counsel's conduct can be characterized as legitimate trial strategy, it cannot
provide the basis for a claim of ineffective assistance of counsel. State v. Aho, 137
Wn.2d 736, 745, 975 P.2d 512(1999).
During her investigation, the CASA met with C.M., who told her that he had
been clean and sober for 15 years. At trial, C.M. testified that he occasionally uses
marijuana and drinks alcohol. When asked about C.M.'s testimony, the CASA
said, "Clean and sober to me means just that, clean and sober . . . [C.M.'s]
No. 78521-4-1/26
testimony today also was that he had never had a drink with [Christina]. [Christina]
testified the first day that they had a drink over dinner not too long ago. That also
is not clean and sober to me."
Arguably, the CASA was offering testimony in the form of an opinion
regarding a witness's credibility and such testimony is typically inadmissible. State
v. Sutherbv, 138 Wn. App. 609, 617, 158 P.3d 91 (2007), aff'd, 165 Wn.2d 870,
204 P.3d 916 (2009). But the decision of when or whether to object is a classic
example of trial tactics. Only in egregious circumstances, on testimony central to
the State's case, will the failure to object constitute ineffective assistance of
counsel. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). We do
not find this case to present such egregious circumstances.
Moreover, we do not find that Christina has demonstrated prejudice. The
trial courtfound that C.M.'s admission that he smokes marijuana and drinks alcohol
to be concerning given his prior addiction to these substances. It also was
concerned because of Christina's history of neglecting her prior children, and her
primary parenting deficiencies of neglecting C.J.S. and choosing unsafe partners.
There is no reason to believe the trial court's ruling would have been any different
had Christina's counsel raised an objection to the CASA's testimony.
Christina also argues that counsel was ineffective for failing to cross-
examine the CASA about misconduct within the Snohomish County Volunteer
Guardian ad Litem program. Christina argues that defense counsel should have
questioned the CASA about "systemic deception and misconduct" within the
Snohomish County program. How to cross-examine a witness is generally a
matter of judgment and strategy. See In re Pers. Restraint of Davis, 152 Wn.2d
No. 78521-4-1/27
647, 720, 101 P.3d 1 (2004). Christina has not demonstrated what impact, if any,
past misconduct within the VGAL program had on any of the work the CASA did
or any testimony she provided in this case. She has thus not demonstrated her
counsel was deficient for failing to cross-examine the CASA about the prior
misconduct.
We affirm.
27