Department of Social & Health Services v. H.O.

Yu, J.

¶58 (dissenting) — By the time of the termination trial, two-and-a-half-year-old B.P. had already spent most of her young life in dependency, waiting for her mother H.O. to become a stable parent. During this time, B.P. went through four placements, and due to H.O.’s failure to maintain a consistent relationship with her, B.P. no longer has an attachment to her mother. The instability of B.P.’s first few years have already taken a serious toll on her. Experts testified at trial that B.P. was in danger of developing an attachment disorder that could delay her social and emo*323tional development. She could not risk yet another placement disruption.

¶59 B.P. is now five years old. She is still in dependency but has formed a complete and secure attachment to her foster parents. The effect of the majority’s opinion is to stop the clock yet again on B.P.’s permanent placement. “To postpone [the child’s] access to stability in the hope that the mother will be able to correct deep-seated emotional problems and assume the obligations of parenthood, when all the evidence shows that she lacks the capacity to do so, is to ignore the desperate needs of the [child].” In re Welfare of Aschauer, 93 Wn.2d 689, 694-95, 611 P.2d 1245 (1980). The majority holds that B.P. must continue to wait rather than have the stability and permanence she so desperately needs to ensure her healthy development.

¶60 Weighing all of the evidence before it, the trial court made the difficult but tenable decision to terminate H.O.’s parental rights. There is substantial evidence in the record to support the trial court’s findings of fact, yet the majority now reweighs the evidence itself and determines otherwise. Because the record supports the trial court’s decision to terminate H.O.’s parental rights and the majority exceeds this court’s proper role on review, reaching a result that will likely be detrimental to B.P, I must respectfully dissent.

Analysis

¶61 “We are firmly committed to the rule that a trial court’s findings of fact will not be disturbed on appeal if they are supported by ‘substantial evidence’.” In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). Our role on appeal is to determine whether there are sufficient facts to support the trial court’s findings of fact. Id. at 740. It is not our role to assess the credibility of the witnesses or determine how much weight to give the evidence presented. Yet this is precisely what the majority does.

¶62 Contrary to the majority’s assertions, there is substantial evidence in the record to sustain the trial court’s *324findings of fact. The testimony presented at trial shows that all necessary services were provided to H.O., but she remained unfit to parent B.P. at the time of trial.

A. Necessary Services

¶63 RCW 13.34.180(1)(d) requires the Department of Social and Health Services (Department) to offer or provide “all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future.” The Department identified H.O.’s parental deficiencies as “substance abuse, mental health issues, criminal history and an inability to meet the physical and emotional needs of the child.” Clerk’s Papers (CP) at 2. It is undisputed that H.O. was offered or provided with the following services: “chemical dependency inpatient treatment, outpatient treatment, [urinanalysis/blood alcohol] monitoring, individual counseling, parenting assessment, parenting services including family preservation services and therapeutic visits with [Lori] Eastep in part to address the mother child relationship.” Id. at 181.

¶64 H.O. asserts that the Department failed to provide her with all necessary services because she never received attachment therapy. However, the evidence substantially shows that (1) H.O. was provided with services tailored to address her identified parental deficiencies and (2) any additional services would not remedy H.O.’s parental deficiencies within the foreseeable future. Consequently, there is sufficient evidence in the record to support the trial court’s finding that the Department fulfilled its obligation to provide all necessary services under RCW 13.34.180(1)(d).

1. H.O. was provided with services tailored to address her identified parental deficiencies

¶65 Although concerned that “attachment services in the classical and clinical sense were not articulated to have been provided to [H.O.],” 3 Verbatim Report of Proceedings *325(VRP) at 442, the court ultimately determined that “[t]he services offered were those needed to remedy [H.OJ’s parental deficiencies,” CP at 181. This determination is supported by the evidence in the record, and the majority overlooks the fact that H.O. did receive services specifically tailored to address her parental deficiencies.

¶66 H.O.’s persisting parental deficiencies were her “mental health and how it impacted her ability to parent [B.P.] ” and “issues with her parental relationship with [B.P] r Id. at 182, 184. Among the services provided to H.O. were “parenting services including family preservation services and therapeutic visits with Ms. Eastep in part to address the mother child relationship.” Id. at 181. These services were clearly intended to address the parental deficiencies identified by the Department.

¶67 When visitation resumed after H.O.’s relapse, H.O. had not had any contact with her daughter for 11 months. 1 VRP at 62. The Department made a referral to Ms. Eastep, a licensed independent clinical social worker, to assess parent-child interactions. Id. at 61. The majority mischaracterizes Ms. Eastep as being “confused” about the Department’s goals regarding visitation. Majority at 318. The evidence in the record, however, shows that Ms. Eastep was actually accounting for existing and potential circumstances as they were presented to her at the time.

¶68 Following her initial therapeutic visit, Ms. Eastep advised that “ [i] t seems contraindicated to begin visitation if the Department is moving toward termination and [H.O.] has not made sufficient progress in a timely manner to extend or postpone the trial.” 1 VRP at 64. Bear in mind that at the time of Ms. Eastep’s evaluation, the original date of the termination hearing was imminent and H.O. had only then filed a motion requesting visitation after an extended absence. Ms. Eastep explained:

Because we were looking at a very short timeframe and for a child of [B.P.fs age, being brought to a visitation place, being exposed to people that she’s very unfamiliar with can create a *326lot of internalized stress. It can create unnecessary upset. If the termination trial was going to still move forward, it did not seem to make sense to me at that time.

Id. at 65. Therefore, she stated that “[i]f visitation is only to satisfy a service requirement, it would be detrimental to [B.PJ’s emotional stability and create placement instability and possible upset and would not be in the best interest of [B.P.].” Id. In the alternative, however, Ms. Eastep recommended that “if [H.O.] has demonstrated the necessary progress and is given an opportunity to demonstrate this further, [she] would support reinstatement of visitation with [B.P.].” Id. Thus, it is apparent that Ms. Eastep’s recommendations were dependent on H.O.’s ability to remedy her parental deficiencies in the context of the upcoming termination trial.

¶69 Consistent with Ms. Eastep’s recommendation, the dependency court ultimately decided to continue the termination hearing based on the fact that “the parties agree that the mother needs to have some visitation in order to determine if the parent child relationship can be repaired.” CP at 66. The majority correctly observes that the order for continuance was contrary to a prior order that denied visitation. Majority at 299; see CP at 66. It is unclear from the record why the dependency court changed its mind. However, what is clear is that H.O. was granted additional time and services—weekly therapeutic contact and a parenting assessment—specifically to address her relationship with B.P. CP at 66.

¶70 Ms. Eastep continued working with B.P. and H.O., ultimately conducting a total of 22 sessions. 1 VRP at 82. Ms. Eastep’s work with B.P. and H.O. resulted in limited success. She observed that mother and child had developed a social relationship and there was an emerging emotional connection but no evidence of an attachment. Id. at 67-68, 75.

¶71 The majority unfairly rebukes the Department for providing only therapeutic visitation with Ms. Eastep that *327“predictably” resulted in a social relationship between H.O. and B.P. Majority at 318. However, this assessment overlooks the fact that when visitation resumed after an extended period of no contact, H.O. and B.P. had no relationship at all. 1 VRP at 63. The development of an emotional relationship that would allow for a secure attachment requires emotional stability, which H.O. has yet to achieve, and significant time, which B.P. does not have.

¶72 The majority also disregards the services provided by Ms. Eastep because “Eastep testified that she is not an attachment expert, and [Amanda] Clemons testified that she could be doing attachment work with H.O. and B.P.” Majority at 319. However, there was no testimony that the services Ms. Eastep provided were inappropriate, inadequate, or different from what other service providers would have provided. In fact, the evidence suggests that the services provided to H.O. by Ms. Eastep were similar to those provided by Ms. Clemons to B.P.’s foster parents—Ms. Eastep testified that her treatment goals with H.O. included “to assist [H.O.] in identifying cues and boundaries that [B.P] has related to their physical and emotional contact,” 1 VRP at 67, while Ms. Clemons testified that her work with the foster parents included helping them understand what B.P.’s underlying needs were when she “miscue[s],” 2 VRP at 166. H.O. has a completely different relationship with B.P. than B.P.’s foster parents, who are her primary caregivers and primary attachments. It appears that both H.O. and the foster parents were provided with training on how to interact with B.P. given the particular nature of their relationships, and under the circumstances presented, it would be unreasonable to expect the services provided to H.O. to be identical to those provided to the foster parents.

¶73 Consequently, reliance on In re Welfare of S.J., 162 Wn. App. 873, 256 P.3d 470 (2011), and In re Welfare of C.S., 168 Wn.2d 51, 225 P.3d 953 (2010), is misplaced. In S.J., the Court of Appeals concluded that the Department had failed *328to tailor services to the mother’s needs. 162 Wn. App. at 882. Similarly, in C.S., the Department failed to provide services to the mother that had been provided to the foster parents and would have helped the mother manage the child’s behavioral problems. 168 Wn.2d at 55-56. Neither of these factual scenarios is present here. In this case, H.O. was provided with services that were tailored to her specific parental deficiencies—treatment for her substance abuse, individual therapy to address her mental health issues that were affecting her ability to parent B.P., and also therapeutic visitation aimed at building a relationship with B.P.

2. Additional services would not correct parental deficiencies within the foreseeable future

¶74 RCW 13.34.180(1)(d) does not require the provision of all services capable of correcting parental deficiencies, only those capable of doing so within the foreseeable future. The majority gives short shrift to this statutory requirement and fails to consider that the foreseeable future is determined from the point of view of the child. See In re Welfare of Hall, 99 Wn.2d 842, 851, 664 P.2d 1245 (1983). The trial court concluded that “[B.PJ’s foreseeable future is now,” CP at 187, and additional services would not have been capable of remedying H.O.’s parental deficiencies within the foreseeable future because “the services necessary to build the type of relationship necessary to meet [B.PJ’s needs would take one year or more and that is too long.” Id. at 186; see also 3 VRP at 443 (“necessary services were certainly given and they were quality services, but they simply were not able to overcome the fact that the foreseeable future cannot be yet another year”). The record amply supports this finding; indeed, the record suggests that the one-year time frame is conservative at best.

¶75 In order for H.O. to be a stable parent to B.P, she would need to first address her significant mental health issues. Ms. Eastep testified that B.P. would not form an attachment with H.O. unless B.P. was removed from her *329current foster placement and returned to H.O.’s custody. See 1 VRP at 77-79. In the event of such removal, B.P. would need substantial emotional support to grieve the loss of her attachment to her foster parents. CP at 92. However, testimony indicated H.O. would not be able to provide such support in the near future. Although H.O. had made strides in individual therapy, her therapist Sandra Gormon-Brown was unsure if H.O. had “made enough progress therapeutically to be able to be emotionally available to [B.P.] ” to allow for reunification. 1 VRP at 147-48. According to Ms. Gormon-Brown, it would take “at least another six months in individual therapy” to resolve H.O.’s trauma history. Id. at 149-50. Six months may not seem like a significant amount of time, but it might as well be an eternity for B.P. See Hall, 99 Wn.2d at 851 (“ ‘Three months may not be a long time for an adult decisionmaker. For a young child it may be forever.’ ” (quoting Joseph Goldstein, Anna Freud & Albert J. Solnit, Beyond the Best Interests of the Child 43 (1973))).

¶76 There was also consistent testimony about B.P.’s pressing need for stability and permanence. By the time of trial, B.P. had already been through four placements. CP at 90. Carol Thomas, a licensed mental health therapist who conducted a parent-child assessment of H.O. and B.P, testified that continued disruptions in B.P.’s ability to form attachments would turn into an attachment disorder. 2 VRP at 163. Ms. Thomas explained that an attachment disorder “impacts pretty much every arena of [a person’s] life: [l]ow self-esteem, can create depression, anxiety issues, other mental health concerns, emotional disregulation in children, behavioral issues as a result.” Id. Thus, the absence of permanent placement in the immediate future would likely have “significant ramifications” for B.P.’s emotional development and mental well-being. Id.

¶77 Furthermore, six months was not the amount of time it would take to make H.O. fit to parent B.P.—six months was only the minimum amount of time H.O. would need in *330individual therapy to work through her own trauma. In addition to this work in individual therapy, H.O. would need to maintain her sobriety for an extended period of time. Marcey Monohan, the social worker assigned to B.P.’s case, testified that given the length of H.O.’s drug addiction, she would want to see H.O. maintain sobriety for 18 months to 2 years before she would feel comfortable that H.O. was solidly in recovery this time. Id. at 283. This time period was echoed by Carla Paullin, who provided H.O. with chemical dependency therapy. Ms. Paullin testified that for someone with H.O.’s extensive history of intravenous drug use, she would want to see 2 years of structured treatment therapy before she would consider the addiction to be in remission.11 Id. at 198.

¶78 On top of the work needed to resolve her parental deficiencies, developing a relationship that would allow B.P. to securely attach to H.O. would likely take much longer. By the time of trial, Ms. Eastep testified that B.P. and H.O. had developed only a social relationship, akin to a child’s relationship with a babysitter, and an emotional connection was just emerging. 1 VRP at 75, 77-78. It would take “hundreds and sometimes thousands of contacts” to transition from an emerging emotional relationship to a secure attachment that would allow for reunification. Id. at 77. There simply is no way of telling how long it would take for this to occur—or if it would occur at all. See id. at 71.

¶79 While it is possible that H.O. will be able to maintain her sobriety and continue to successfully work on her mental health issues, there was no evidence provided that she would reach a point of stability within a time period that would be conducive to B.P.’s emotional well-being. I am sympathetic to H.O.’s concerted effort to become a stable parent and recognize that past behavior is not necessarily a measure of future success. However, it is undeniable that *331the threat of relapse is real and the potential harm to B.P. would be significant.

¶80 Ms. Eastep testified that the Department would be taking a “calculated risk” by returning B.P. to her mother’s custody. Id. at 84. H.O. has not been able to maintain her sobriety outside of a structured living environment, and, just prior to the termination trial, H.O. was already exhibiting worrisome behaviors. Karen Schweigert, the guardian ad litem, expressed concern that H.O. lied to a counselor about returning her phone calls. 2 VRP at 237-38. Even more troubling was Ms. Monohan’s testimony about H.O.’s failure to attend support groups, a behavior that had preceded H.O.’s prior relapse. Id. at 281-82. This contravened her counselor’s explicit recommendations. 1 VRP at 38. Paige Beerbohm, H.O.’s counselor at Isabella House, testified that it was concerning that H.O. was struggling to attend self-help groups so early in her recovery. Id. Failure to attend self-help meetings can increase the risk of relapse. Id. at 37. H.O.’s therapist emphasized the importance of building a strong support system to help maintain her sobriety. 2 VRP at 198.

¶81 Whether a parent is capable of correcting parental deficiencies is not the only question that we must ask here. RCW 13.34.180(1)(d) requires us to inquire into the probable length of time that it will take for parental deficiencies to be remedied by specifying that the services to be offered or provided are limited to those services “capable of correcting the parental deficiencies within the foreseeable future.” (Emphasis added.) Whether the length of time it will take to correct parental deficiencies warrants delaying termination so the parent may receive additional services depends on the child’s developmental needs as determined by the context of the child’s placement and age. See In re Dependency of T.R., 108 Wn. App. 149, 164-65, 29 P.3d 1275 (2001) (“T.R. was six years old at the time of trial and had been in foster care all her life. To wait another year, or longer, is to wait well beyond T.R.’s foreseeable future.”); In re Depen*332dency of P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990) (6 months was not within the “near future” of a 15-month-old).

¶82 In this case, there was evidence of B.P.’s urgent—if not immediate—need for permanence in order to allow for her healthy emotional development. The testimony was consistent on the fact that H.O. was not stable at the time of trial and that it would take a considerable amount of time beyond the time that B.P. had already spent in dependency before H.O. might be stable enough to provide for B.P.’s emotional needs. These facts substantially support the trial court’s finding that H.O.’s parental deficiencies cannot be remedied within the foreseeable future.12

B. Current Parental Unfitness

¶83 The majority declines to address the issue of current parental unfitness, but the record substantially supports the trial court’s finding that H.O. was unfit to parent B.P. at the time of the termination trial. The focus at a termination trial is current parental unfitness. In re Welfare of H.S., 94 Wn. App. 511, 523, 973 P.2d 474 (1999) (citing In re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995)). Because every parent-child relationship is different, parental unfitness is determined on a case-by-case basis. See In re Welfare of A.B., 168 Wn.2d 908, 921, 232 P.3d 1104 (2010). However, in the broadest sense, a parent must be able to fulfill his or her duty to provide a child with “basic nurture.” RCW 13.34.020. There was substantial evidence showing that H.O. was unable to provide for B.P.’s emo*333tional needs, which is a component of basic nurture. This is sufficient to support the trial court’s finding of current parental unfitness.

¶84 The tragic story that the record tells about H.O. is of a deeply troubled person who is unable to put the needs of B.P. above her own. See 2 VRP at 213. B.P. was born addicted to methamphetamine, a drug that H.O. first used at the age of 13 and continued to use through all of her pregnancies, including her pregnancy with H.O.’s younger sibling, A. B.P. was immediately removed from H.O.’s custody at birth and spent the first two months of her life in dependency. She was eventually returned to H.O.’s custody for 10 months, only to be removed again when H.O. relapsed. B.P. has been in dependency ever since.

¶85 H.O. has been a sporadic presence in B.P.’s life. After missing 10 scheduled visits with B.P, the dependency court decided to suspend H.O.’s visitation at the end of October 2012. Id. at 261. The court ordered that visitation would not resume unless H.O. brought a motion to reinstate visitation. CP at 89. H.O. did not file her motion to reinstate visits until almost nine months later, in July 2013—which was more than six months after the Department filed its petition to terminate parental rights. During this time, B.P. had no contact with her mother. When visitation resumed in August 2013, B.P. no longer recognized H.O. as her mother—in fact, B.P. no longer recognized H.O. at all.

¶86 Now, after an extensive absence from B.P.’s life, H.O. wants to be a parent to her daughter. Yet the consistent testimony at trial was that H.O. has not remedied her parental deficiencies. Her recent sobriety is relatively short compared to her decades-long struggle with substance abuse; she has yet to establish that her recovery is stable. H.O. has no track record of maintaining her sobriety outside of a structured living environment. There was testimony that the longest she had been able to maintain sobriety was five years. 1 VRP at 34-35. H.O. has never successfully parented a child for an extended period of time, *334nor has she ever parented without assistance or supervision. See 2 VRP at 235. H.O. cannot remain in structured living indefinitely. Furthermore, H.O. was beginning to exhibit the same behavior that led up to her prior relapse.

¶87 Not one of the service providers assigned to this case testified that B.P. should be returned to H.O.’s custody. The trial court stated:

The mother is currently unfit to parent [B.P.]. This element requires the court to determine if [H.O.] is able to meet [B.P.] ’s needs. The evidence clearly indicates that she cannot. [H.O.] relapsed causing a disruption in her relationship with [B.P.]. She failed to consistently visit [B.P] and did not maintain a relationship with her. [H.O.] is responsible for the stops and starts in her parenting. She does not understand [B.P.] ’s needs for permanency or the risk she faces if she develops an attachment disorder. [H.O.] cannot claim that because [A.] is in her care, that she must be fit to parent. [B.PJ’s needs are different and her attachment issues are the result of her mother’s actions. [H.O.] has not demonstrated an ability to understand her own feelings, or those of [B.P.]. Thus, the Department has established that [H.O.] is currently unfit to parent.

CP at 187-88. The trial court’s findings regarding H.O.’s inability to provide for B.P.’s emotional needs are supported by testimony presented at trial. See, e.g., 2 VRP at 275 (Ms. Monohan testified that H.O.’s mental health remains a concern “in regards to her ability to be emotionally available for a child like [B.P.] ”).

¶88 The evidence presented at trial shows that H.O. was currently unable to provide for B.P.’s emotional needs. Consequently, there is substantial evidence in the record to support the trial court’s finding that H.O. is unfit to parent B.P.

Conclusion

¶89 Under our laws, B.P. has a right to “basic nurture,” which includes “the right to a safe, stable, and permanent *335home and a speedy resolution of any proceeding under this chapter.” RCW 13.34.020. Furthermore, our legislature has explicitly declared that “[w]hen the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail.” Id. The majority ignores this mandate and fails to properly consider B.P.’s rights.

¶90 I agree with the trial court’s assessment that “[H.O.] clearly loves [B.R] and wants to parent her. However, [B.P.] can no longer wait for [H.O.] to remedy her parental deficiencies.” CP at 187. There is no question that H.O. was “dealt a difficult set of cards.” 3 VRP at 438. The progress that she has achieved thus far is commendable. However, although H.O. has started down the road to recovery, progress is rarely ever a straight path, and there is no question that H.O. has a difficult and long journey ahead of her. The sad reality is that H.O.’s progress comes too little, too late for B.P.

¶91 The facts show that H.O. was provided with all necessary services to remedy her parental deficiencies as required by RCW 13.34.180(1)(d), yet she still remains unfit to parent B.P. What she asks for now is more time to remedy her parental deficiencies despite a demonstrated inability to do so. As the trial court observed, “Without termination, the child remains in the limbo of foster care indefinitely.” CP at 187. How much longer must B.P. remain there?

¶92 I would affirm the Court of Appeals and must respectfully dissent.

Madsen, C.J., and Owens and González, JJ., concur with Yu, J.

Ms. Paullin also pointed out that the type of therapy that H.O. would need to achieve remission is not even offered in her service area. 2 VRP at 198.

The majority misinterprets this assertion as an application of the futility doctrine. Majority at 319-20. We should not conflate the question of whether providing a service would be futile with whether the service could remedy a parental deficiency within the foreseeable future, as required by RCW 13.34.180(1)(d). The issue here is not whether it would be futile to provide H.O. with additional services. Rather, the issue is whether there is substantial support in the record for the trial court’s finding that any additional services would not remedy H.O.’s parental deficiencies within the foreseeable future, as determined from B.R’s point of view in accordance with our case law. See Hall, 99 Wn.2d at 851. I conclude that the evidence presented at trial does support such a conclusion and the majority’s reweighing of the evidence is troubling.