FILED
DECEMBER 14, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Welfare of ) No. 34773-7-111
) (consolidated with
) No. 34774-5-111)
A.H.t )
) UNPUBLISHED OPINION
)
LAWRENCE-BERREY, J. -Mr. H. and Ms. F. appeal the trial court's order
terminating their parental rights to A.H. We affirm.
FACTS
A.H. was born on October 26, 2014. Hospital workers placed a hold on A.H. after
concerns arose about the mother, Ms. F. Department of Social and Health Services
(DSHS) workers arrived and spoke with Ms. F. and Mr. H. They determined that Ms. F.
smoked marijuana while pregnant, was homeless, and had intellectual issues. They also
t To protect the privacy interests of A.H., a minor, we use her and her parents'
initials throughout this opinion. General Order of Division III, In Re Changes to Case
Title (Wash. Ct. App. May 25, 2017),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_ orddisp&ordnumber=
2017 002&div=II1.
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
determined that Mr. H. was homeless, smoked marijuana daily, and exhibited controlling
behavior toward Ms. F.
DSHS had been involved with Mr. H.'s previous children. Mr. H. admitted to
having a 1992 second degree assault conviction for breaking the legs of one of his infants.
Mr. H.'s criminal history also included arrests for domestic violence threats to kill,
domestic violence assaults involving two of his former girlfriends, and violating no-
contact orders.
On October 29, 2014, DSHS filed a petition for dependency. A shelter care
hearing took place the same day. The court entered out of home placement for A.H., and
the parents agreed to begin services in exchange for visitation rights. Ms. F. agreed to a
neuropsychological evaluation and SafeCare. SafeCare is a project designed to show the
parents how to raise their child successfully. Mr. H. agreed to random drug testing and
SafeCare.
On January 16, 2015, Mr. H. and Ms. F. agreed to dependency and dispositional
orders. The court ordered A.H. to remain in out-of-home placement. The court ordered
Mr. H. to complete random drug screening and to obtain negative test results, a parenting
assessment to determine what services are necessary, a chemical dependency evaluation
and to follow any recommended treatment therefrom, a domestic violence assessment,
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No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H
and to demonstrate the ability to meet A.H.' s needs. The court ordered Ms. F. to
complete a neuropsychological evaluation and to follow any recommendations therefrom,
and to complete a parenting assessment to determine what services were necessary. The
services are addressed in turn rather than chronologically.
Mr. H 's failure to reduce his dependency on marijuana
DSHS scheduled Mr. H. for 30 random drug tests during the dependency
proceeding. He did not show for 13 of the 30 tests. For the other 17 tests, once he did
not submit to testing, and 14 of the remaining 16 tests he tested positive for marijuana.
The two other tests did not test for marijuana. Mr. H. admitted to smoking marijuana at
least three times per day and was not interested in reducing his use. Mr. H. asserts he
began using marijuana recreationally in 1999, but in 2008 started using it for medicinal
purposes to treat pain. Mr. H. never received a prescription for medical marijuana and
refused to consider other medical alternatives.
Mr. H. participated in a chemical dependency assessment with Iris Aleman in
February 2015. The assessment revealed that Mr. H. was dependent on nicotine and
cannabis. For cannabis, dependency was evidenced by increased tolerance, inability to
cut dosages, multiple failed attempts at reducing usage, daily use, negative consequences
on other life activities such as social or occupational activities, and continued use despite
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H.
negative consequences on health. Ms. Aleman recommended intensive inpatient
treatment, but Mr. H. disagreed and said he would seek a different assessment to get a
different recommendation. Mr. H. did not engage in inpatient treatment for his chemical
dependencies.
Mr. H. completed a second chemical dependency treatment with Kathleen
Pajimola on November 30, 2015. This assessment recommended intensive outpatient
treatment for Mr. H. to address his dependencies. Mr. H. stated he was willing to treat his
dependency to get his daughter back. The outpatient treatment required attendance at.
three sessions per week, but Mr. H.'s attendance requirements were lowered to one
session per week. Mr. H. was eventually discharged for lack of attendance, after having
attended only four sessions. Ms. Pajimola addressed these problems with him and he
revealed he did not believe there was a problem because marijuana was legal.
Mr. H 's noncompliance with domestic violence counseling and slow progression
with mental health counseling
Mr. H. completed a domestic violence assessment on April 14, 2015. The
assessment rated Mr. H. as low risk for domestic violence and many other categories, but
as a medium risk for truthfulness. Nonetheless, the assessment recommended one year of
domestic violence treatment, to begin June 27, 2015. He missed that session and all
sessions in July. He missed three sessions in August and attended three or four sessions
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No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H
each month until December. Except for February 2016, he did not meet the minimal
attendance requirements for any month. He was discharged on June 1, 2016, for
noncompliance, having not attended a session since April 16, 2016.
Mr. H. also received mental health services from Steven Erickson, starting
September 10, 2015. Mr. Erickson identified anger management and impulse control as
mental health issues. Mr. H. fully engaged in this program and had stellar attendance
from the starting date until trial. Mr. H. had strong progress in the beginning of the
sessions, but began to regress. Mr. Erickson reported that Mr. H. was aware that he
needed to control his tendencies to display his frustration openly, Mr. Erickson identified
that Mr. H. was evicted in part because of these issues. Mr. Erickson was optimistic
about Mr. H.'s relationship with A.H., and Mr. H.'s ability to benefit from further
treatment. Based on Mr. H.'s pattern of progress and regression, Mr. Erickson estimated
it would take four to five months of treatment from the time of trial to make satisfactory
progress.
Ms. F. 's neuropsychological assessment and general failure to attend mental
health counseling appointments
Ms. F. completed a neuropsychological assessment with Dr. Scott Mabee in July
2015, after missing scheduled assessments in March and June. Dr. Mabee attempted to
identify emotional and cognitive capabilities with his testing. He identified concerns with
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
depression, immaturity, and "borderline intellectual functioning." Report of Proceedings
(RP) at 430. At trial, Dr. Mabee clarified that Ms. F.'s intellectual functions were "above
the area that we talk about in terms of intellectual disability but it's below the average
level." RP at 430. He noted that Ms. F. had problems with communicating her thoughts
through language, but also noted standard memory. In comparing her results to an
intelligence test scale, he scored her at 80 for verbal language processing, and 89 for
spatial ability to form concepts. He stated she could identify and process things visually
much better than she could communicate her thoughts verbally. Tory Carl, an employee
with the DSHS Developmental Disabilities Administration (DDA), determined that Ms.
F. was not qualified for DDA services because she had no qualifying condition such as an
intellectual disability.
Amanda Clemons performed the first parenting assessment in February 2015 and
· referred Ms. F. for mental health treatment for concerns over her functioning and ability
to identify support systems. For reasons not apparent in the record, she did not begin
treatment until September of that year. Her treatment counselor, Gary Woods, reported
that Ms. F. missed 12 of26 sessions, and arrived late for 2 others. Ms. F.'s last in-person
treatment occurred in February 2016, and she had one phone contact in April 2016.
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In re Welfare ofA.H.
The parents 'failure to attend and progress with parenting services
Mr. H. and Ms. F. started SafeCare services in November 2014. Mr. H. attended
only 3 of the 10 sessions. Ms. H. attended only 5 of the 10 sessions. The provider was
concerned about the parents' lack of attendance. These services were terminated in
January 2015 so the parents could follow the recommendations of a parenting assessment.
The parenting assessment recommended services, including family therapy, as well
as an additional second assessment when A.H. was six months older. Ms. Clemons also
referred the parents to family therapy as a result of the first parenting assessment, to begin
in February 2015. The parents missed four sessions and were discharged from the
program. DSHS re-referred them on June 17, 2015, to Tim Hanson for more family
therapy. They were discharged from this second program for failure to engage. On
July 23, 2015, DSHS again referred them to family therapy. After one month of
attempted contact, they finally engaged with this service in September 2015.
In November 2015, and because of their positive engagement with family therapy,
Mr. Hanson recommended the parents to attend weekly Promoting First Relationships
(PFR) services. After two weeks of PFR, the parents began arriving without the
necessary supplies such as milk, diapers, food, and wipes. They attributed the problems
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
to either being late or forgetting. The parents stopped responding to feedback and were
transitioned back to family therapy in December 2015.
On return to family therapy, the parents were detached and stopped making
progress. They were argumentative and defensive. They attended both of the December
2015 sessions. Mr. H. missed two January 2016 sessions and the therapist became
concerned about the parents' increasingly poor attendance and participation. Mr. H.
attended only one session in February 2016. Ms. F. missed two February 2016 sessions
and arrived alone without milk for a third. She claimed her roommate drank all of A.H.' s
milk. In March 2016, the parents began attending all sessions, but continued to arrive
without any supplies. One time, the parents brought a workout supplement, Muscle Milk,
in place of regular milk. Another time, they brought sugar water. The therapist stated he
thought these behaviors reflected parent-centered decision making instead of child-
centered decision making. The sessions had positives such as the parents' interactions
with A.H., but the therapist was continually concerned about attendance, engagement,
both parents missing A.H.'s cues, and Mr. H.'s confrontational and aggressive behavior.
The therapist doubted that the parents were able to nurture and care for A.H.
Nonetheless, Mr. Hanson again referred the parents to PFR, in addition to continued
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
family therapy. In May 2016, the parents were discharged from family therapy for lack of
attendance and engagement.
Ms. F.'s second referral for PFR went poorly. Ms. F. did not appear on time for
the first session on April 22, 2016, and, by the time she did arrive, it had already been
rescheduled. Ms. F. showed for the second session. Ms. F. did not show for any further
PFR sessions, and she was discharged. DSHS found another provider who was willing to
work with Ms. F., starting June 2, 2016. Ms. F. did not show for that appointment and
she was discharged. No further engagements with PFR occurred.
The parents' poor attendance with out-of-home supervised visits, and inability to
maintain condition of their own home
The court order provided the parents supervised visitation with A.H. three times
per week, with each visit lasting two hours. From November 2014 to September 2015,
the visits took place at the Salvation Army. Ms. F. did not show for 49 of the 120 visits
during this time, and Mr. H. did not show for 54 of the 120 visits.
Supervised visitation moved to the parents' home in September 2015, and
continued there until May 2016. Shanna Porter, the DSHS case manager supervising the
visits, noted that during these in-home visits, the parents frequently were unprepared and
had to leave to get supplies.
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
Initially, Ms. Porter was pleased with the home's appearance, and the parents
responded to concerns such as fixing smoke alarms and making electrical outlets safe.
However, the condition of the home began to deteriorate. The parents refused to allow
Ms. Porter to inspect portions of the home. Ms. Porter saw cat feces, animal vomit,
cigarette butts, and a dead mouse. In May 2016, the visits were moved because of the
continued deterioration of the home.
Mr. H 's expressions ofanger and threats
Mr. H. constantly expressed anger with Ms. Porter throughout the proceedings. He
called her stupid and a liar several times, and muttered threats that he would kill himself.
He sent several angry communications to her online.
Ms. F. and Mr. H. had another child, C.H., in May 2016. DSHS removed C.H.
from his parents' care. Mr. H. was extremely upset and began making online threats to
Ms. Porter and her supervisor saying that he would come "first thing in the morning." RP
at 680. The next day he went to DSHS offices, visibly outraged and screaming. Shortly
after, he returned and Ms. Porter heard him screaming 50 feet away and through the
building's glass walls. Mr. H. 's unidentified companion threatened physical harm to
DSHS staff. DSHS summoned police, and police advised Mr. H. that he no longer was
permitted on DSHS property.
10
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
Mr. H. and Ms. F. were evicted from their home on May 31, 2016. The reasons
they were evicted included Mr. H.'s continued marijuana use, the presence of four cats in
the house without the landlord's permission, and Mr. H.'s anger issues.
The trial began June 28, 2016. During the 17 months between the shelter care
hearing and the trial, Mr. H. and Ms. F. lacked housing during only the initial and the last
month. During trial, the court made a record of the multiple times the parents were late
returning from recess because they were smoking. At the conclusion, the trial court
announced its decision to terminate Mr. H.'s and Ms. F.'s parental rights to A.H. During
the trial court's oral decision, Mr. H. left the courtroom.
Mr. H. and Ms. F. appealed.
ANALYSIS
Mr. H. argues there was insufficient evidence to support the trial court's findings
that certain ordered services were offered or provided, that there was little likelihood that
conditions could be remedied so that A.H. could be returned to him in the near future, that
he was currently unfit to parent A.H., and that termination was in A.H.' s best interest.
Ms. F. argues that DSHS's burden of proof must be viewed through the lens of the
Americans with Disabilities Act of 1990 (ADA),§§ 12101-12213. She also argues there
was insufficient evidence to support the trial court's findings that certain ordered services
11
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
were offered or provided, and that there was little likelihood that conditions could be
remedied so that A.H. could be returned to her in the near future.
A. STANDARD OF REVIEW
All but two of the issues raised by the parents involve whether substantial evidence
supports the trial court's findings under RCW 13.34.180(1). This court must affirm
findings of fact under RCW 13 .34 .180( 1) if substantial evidence from which a rational
trier of fact could find the necessary facts by clear, cogent, and convincing evidence
supports the findings. In re Dependency ofK.S.C., 137 Wn.2d 918,925,976 P.2d 113
(1999). Evidence is substantial if it is sufficient to persuade a fair-minded person of the
truth of the matter asserted. In re Welfare ofS.J., 162 Wn. App. 873,881,256 P.3d 470
(2011 ). Clear, cogent, and convincing evidence exists when the ultimate fact at issue is
· "highly probable." K.S.C., 137 Wn.2d at 925. Unchallenged findings are verities on
appeal. In re Interest ofMahaney, 146 Wn.2d 878,895, 51 P.3d 776 (2002).
Because the trial court hears the testimony and observes the witnesses, it is entitled
to deference concerning credibility of witnesses or weight of the evidence. In re Welfare
ofL.NB.-L., 157 Wn. App. 215,243,237 P.3d 944 (2010). If a trial court has resolved
conflicting evidence, this court will not substitute its judgment for that of the trial court,
even if this court would have resolved a factual dispute differently. Mairs v. Dep 't of
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993). The party claiming error has the
burden of showing that a finding of fact is not supported by substantial evidence. Fisher
Properties, Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).
B. GENERAL PROOF REQUIRIMENTS FOR TERMINA TICN PROCEEDINGS
Parents have a fundamental liberty interest in the care, custody, and
companionship of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982). Therefore, the State may interfere with parents' rights
"' only for the most powerful [of] reasons.'" S.J, 162 Wn. App. at 880 (internal
quotation marks omitted) (alteration in original) (quoting In re Welfare ofA.JR., 78 Wn.
App. 222,229, 896 P.2d 1298 (1995)). When the parental actions may cause harm or a
risk of harm to the child, the State has a right and responsibility to protect the child. In re
Custody ofSmith, 137 Wn.2d 1, 18, 969 P.2d 21 (1998). Therefore, "reunification must
be balanced against the child's right to basic nurture, physical and mental health, and
safety; ultimately, the child's rights and safety should prevail." In re Welfare ofA.G., 155
Wn. App. 578, 589, 229 P.3d 935 (2010), vacated on other grounds on remand, 160 Wn.
App. 841,248 P.3d 611 (2011).
Washington courts use a two-step process to determine whether to terminate
parental rights. RCW 13.34.180(1); In re Welfare ofA.B., 168 Wn.2d 908,911,232 P.3d
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
1104 (2010). The first step focuses on the adequacy of the parents and requires the State
to prove the six statutory elements ofRCW 13.34.180(1) by clear, cogent, and convincing
evidence. RCW 13.34.190(l)(a); A.B., 168 Wn.2d at 911. The six statutory elements
required by the first step are:
(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 reasonable 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. A parent's
failure to substantially improve parental deficiencies within twelve months
following entry of the dispositional order shall give rise to a rebuttable
presumption that there is little likelihood that conditions will be remedied
so that the child can be returned to the parent in the near future ....
(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). The second step asks whether termination is in the best interests of
the child. RCW 13.34.190(l)(b); A.B., 168 Wn.2d at 925.
C. SPECIFIC ISSUES RAISED BY THE PARENTS
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
1. RCW 13.34.180(1)(d): Services ordered were expressly and
understandably offered or provided
Mr. H. and Ms. F. contest the trial court's finding that DSHS offered or provided
all court-ordered services.
To meet its burden under RCW 13.34.I80(1)(d), DSHS must show it offered or
provided the required services and the parent either failed to engage or waived their right
to such services. In re Welfare ofS. VB., 75 Wn. App. 762, 770, 880 P.2d 80 (1994). The
services offered or provided must be tailored to the individual parent's needs. In re
Dependency of TR., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). A parent's
unwillingness or inability to avail himself or herself of remedial services within a
reasonable period is highly relevant to a court's determination of whether the elements of
RCW 13.34.180 are established. In re Dependency of CT, 59 Wn. App. 490,499, 798
P.2d 1170 (1990). A service is necessary if it is "needed to address a condition that
precludes reunification of the parent and child." In re Parental Rights to I.M-M, 196
Wn. App. 914, 921, 385 P.3d 268 (2016).
a. Ms. F. failed to assert her ADA argument to the trial court, so
we will not review it on appeal
As an initial matter, Ms. F. contends that the ADA increases the burden on DSHS
to tailor required services to her needs. Ms. F. cites several out-of-state jurisdictions for
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
the conclusion that compliance with the ADA is relevant to this court's determination of
whether DSHS appropriately offered or provided court-ordered services. See State ex rel.
KC. v. State, 2015 UT 92,362 P.3d 1248, 1252; People in Interest ofC.Z., 2015 COA
87, 360 P.3d 228,233. The State does not respond to this argument.
Ms. F. did not assert her ADA argument to the trial court. Her failure to assert the
argument to the trial court prevented the parties from developing a sufficient factual
record as to whether Ms. F. was disabled for purposes of the ADA and also prevented the
trial court from entering findings in this respect.
In general, an appellate court may refuse to review a claim of error that was not
raised in the trial court. RAP 2.5(a). The general rule is subject to three exceptions. Ms.
F. does not argue that any exception applies. For the reasons discussed above, we decline
to review this undeveloped claim of error.
b. Court-ordered services were offered or provided to Ms. F.
The trial court ordered DSHS to provide the following services to Ms. F. so that
her parental deficiencies could be remedied: a neuropsychological evaluation, individual
counseling, family therapy, Project SafeCare parenting instruction, PFR parenting
instruction, and two parenting assessments. Specifically, Ms. F. contests the finding that
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
DSHS sufficiently provided the PFR service to her. She argues the PFR service was not
tailored to her learning limitations and that it was offered too late. We disagree.
Substantial evidence contradicts Ms. F.'s argument. Mr. Hanson was the PFR
provider, and his testimony supports the finding. Mr. Hanson was aware of Ms. F.'s
intellectual limitations, although he did not have the psychological report created by Dr.
Mabee. Mr. Hanson considered Ms. F.'s limitations, and modeled skills and used
repetition to account for her learning ability. Mr. Hanson also as part of all sessions
offered "additional education based on observable behavior in that session." RP at 150.
PFR first began with two sessions in November 2015. Providers recommended
PFR because although initial family therapy was positive, Ms. F. was having trouble
recognizing A.H. 's cues. The first PFR session went well. Within two weeks, however,
Ms. F. and Mr. H. began arriving without necessary supplies, including milk, diapers,
food and wipes because they "forgot or were running late." RP at 158. Mr. Hanson
talked about the necessity of having the appropriate supplies, and the parents were not
receptive to his feedback. Because of the lack of engagement, the parents were placed
back into family therapy.
Back in family therapy, Ms. F. and Mr. H. were detached, less responsive to
feedback, argumentative, and defensive. They continued to arrive without necessary
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In re Welfare ofA.H.
supplies. Both parents began to frequently arrive late or not attend at all. Ms. F. attended
only two scheduled sessions in February 2016, and in one of those sessions, did not bring
any supplies.
Ms. F.'s engagement and attendance increased in March, but she still did not bring
adequate supplies. She explained the deficiency as her roommates were drinking her
milk. One time she brought a workout supplement instead of milk and another time she
brought sugar water. Mr. Hanson questioned whether she was making child-centered
decision making.
PFR began again at this point, and Ms. F. was referred to Ashley Suter for her new
sessions. Ms. F. arrived over 15 minutes late for the first session on April 22, 2016, so
that session was rescheduled to April 29, 2016. Ms. F. did not show for the next session
on May 6, 2016. She was discharged from PFR at this point for noncompliance. At the
request of Ms. F.'s attorney, Ms. Suter contacted her to reschedule, but Ms. F. could not
work out a date and time that would work for her. Ms. F. was again discharged on
May 13, 2016.
Despite being twice discharged for noncompliance with PFR, Ms. Porter referred
Ms. F. for further PFR. Ms. F. was scheduled for intake on June 2, 2016, but again did
not attend. By June 13, 2016, the PFR counselor still had not been able to communicate
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In re Welfare ofA.H
with Ms. F. By the time of trial, Ms. F. had made no further attempts to engage with PFR
services.
All indications from the record show PFR was reasonably tailored to Ms. F.'s
abilities during the first referral. She was discharged from the program for lack of
engagement and lack of attendance. She was further discharged from every other PFR
referral because of further lack of attendance. The trial court found she was reasonably
offered this service in a tailored fashion, and substantial evidence supports this finding.
c. Court-ordered services were offered or provided to Mr. H
Mr. H. contends that DSHS never offered him any housing assistance, and housing
assistance was necessary because it was the primary parental deficiency preventing
reunification. "[A] juvenile court hearing a dependency proceeding has authority to order
DSHS to provide the family with some form of assistance in securing adequate housing in
those cases where homelessness or lack of safe and adequate housing is the primary
reason for the foster placement or the primary reason for its continuation." Wash. State
Coalition/or the Homeless v. Dep't ofSoc. & Health Servs., 133 Wn.2d 894,924,949
P.2d 1291 (1997). But we disagree that the rule stated above applies here.
First, the trial court never identified homelessness as a primary parental deficiency.
The trial court identified Mr. H.'s parental deficiencies as the cumulative effect of,
19
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No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
"chemical dependency issues, parenting issues, domestic violence issues, and the inability
to meet the child's physical, emotional, and psychological needs." Clerk's Papers (CP) at
141.
Second, the record indicates that homelessness was not the basis for termination of
Mr. H.'s parental rights. The basis for termination of Mr. H.'s parental rights included
his untreated marijuana addiction and his inability to control his anger. Mr. H. and Ms. F.
received housing assistance and used it to pay rent. The ability to afford housing was not
at issue. They were evicted near the time of the termination trial because they violated
their lease agreement that prohibited cats and because of Mr. H.'s ongoing marijuana use
and his anger issues.
Mr. H. also argues that he needed housing assistance because he could not provide
a safe home for A.H. The record does not support his argument. Ms. Porter was initially
pleased with the house during her visits and the actions Mr. H. took to fix her safe
housing concerns. She testified that the housing situation significantly deteriorated
during subsequent walkthroughs. Mr. H. and Ms. F. began barring her from various
rooms in the home. Nonetheless, Ms. Porter could see and smell extensive animal urine
and animal vomit from the portions of the home the parents permitted her to see.
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In re Welfare ofA.H
We conclude the evidence does not support Mr. H.'s contention that homelessness
was a primary parental deficiency. We further conclude that the causes of Mr. H. 's
homelessness near the time of the termination trial were nonfinancial causes, wholly
within his and Ms. F. 's control.
2. RCW 13.34. l BO(l)(e): Likelihood that conditions will be remedied
Ms. F. argues that DSHS failed to prove there was little likelihood that conditions
would be remedied so that A.H. could be returned to her in the near future. We disagree.
DSHS must prove "[t]hat there is little likelihood that conditions will be remedied
so that the child can be returned to the parent in the near future." RCW 13.34.180(1)(e).
The focus of this element is whether the identified deficiencies have been corrected. In re
Welfare ofMR.H., 145 Wn. App. 10, 27, 188 P.3d 510 (2008). If the parent is unable to
resolve his or her deficiencies within 12 months after the child has been declared
dependent, the statute provides a rebuttable presumption that there is little likelihood that
conditions will change, and the burden of production shifts to the parent. In re Welfare of
T.B., 150 Wn. App. 599,608,209 P.3d 497 (2009). DSHS must still prove it is highly
probable that the parent would not improve in the near future. Id.
"A parent's unwillingness to avail herself of remedial services within a reasonable
period is highly relevantto a trial court's determination as to whether [the Department]
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In re Welfare ofA.H
has satisfied RCW 13.34.180(1)(e)." Id. Even if some evidence suggests that the parent
may eventually be capable of correcting his or her deficiencies, termination is still
appropriate where the deficiencies will not be corrected within the foreseeable future.
A.G., 155 Wn. App. at 590. The foreseeable future must be determined from the child's
point of view. In re Dependency ofP.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990).
Ms. F. does not assign error to the trial court's findings of fact IV or VIII, which
are therefore verities on appeal. Finding of fact IV states that A.H. was found dependent
on January 16, 2015, as to both parents. Finding of fact VIII states that the parents have
displayed an inability to change throughout the dependency, A.H. has been removed from
her parents for her entire two-year life, an adoptive home has been found, and only the
dependency proceeding was a barrier to that adoption. Because these findings establish
that Ms. F. had not been able to remedy her parental deficiencies within 12 months of the
dependency, the statutory presumption against the parent applies.
Ms. F. claims the record supports the idea that she might be able to remedy the
conditions that led to the dependency. We disagree. Her argument is both contrary to the
record and the trial court's findings. Moreover, once the statutory presumption against
the parent applies, Ms. F. must establish that she could remedy the conditions in the near
22
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
future, as measured by the child's perspective. Here, neither the record nor the trial
court's finding supports this.
Ms. F.' s lack of engagement with services was a major theme throughout the
termination proceeding. She frequently was not prepared, arrived late, or missed
appointments. Ms. F. was constantly re-referred to services as a result of her lack of
engagement. Even during trial, Ms. F. and Mr. H. were repeatedly late returning from
trial recesses because they were smoking outside.
We conclude that substantial evidence supports the trial court's finding that there
was little likelihood that conditions would be remedied in the near future so that A.H.
could be returned to Ms. F.
3. Parental unfitness ofMr. H.
Mr. H. argues DSHS failed to sufficiently establish that he is currently unfit to
parent A.H. We disagree.
Due process requires the trial court to explicitly or implicitly find by clear, cogent,
and convincing evidence that the parent is currently unfit. A.B., 168 Wn.2d at 918-19. A
trial court cannot terminate a parent's rights absent this finding of unfitness. Id. at 918.
Parental deficiencies alone do not render a parent currently unfit, "[t]he proper inquiry is
whether the existing parental deficiencies, or other conditions, prevent the parent from
23
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
providing for the child's basic health, welfare, and safety." In re Parental Rights to
K.MM, 186 Wn.2d 466, 493, 379 P.3d 75 (2016). Here, the trial court made the
following finding relating to the challenged issue, a finding we review for substantial
evidence:
Mr. [H.] is currently unfit in that the parental deficiencies set forth
herein render the parent unable to safely parent the child. Mr. [H. 's]
parental deficiencies include chemical dependency issues, parenting issues,
domestic violence issues, and the inability to meet the child's physical,
emotional, and psychological needs.
It is the cumulative effect of all the deficiencies identified that make
the parent's [sic] currently unfit to parent.
The parents are barely able to take care of themselves ....
CP at 141. Mr. H. specifically contests the trial court's findings that his drug use and
domestic violence issues are parental deficiencies that render him unfit to parent.
a. Mr. H 's chemical dependency
Mr. H. argues that his marijuana use does not interfere with his parenting ability
and that he uses marijuana to reduce pain. We disagree. The record supports the trial
court's finding that this deficiency contributed to his lack of fitness.
Ms. Aleman provided a chemical dependency evaluation for Mr. H. The
evaluation showed that Mr. H. was dependent on nicotine and cannabis. His cannabis use
was increasing because of his growing tolerance. Mr. H. could not reduce his usage
24
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
amounts when he tried. He smoked daily. Another provider stated that Mr. H. had no
interest in stopping his marijuana use and did not recognize the negative consequences of
use, and that marijuana use had once cost Mr. H. his job. As discussed above, marijuana
use contributed to at least one instance of homelessness.
The trial court heard testimony that people can become dependent even on legal
substances. The trial court heard testimony marijuana use affects attention and influences
ability to attend services. The trial court directly asked Dr. Mabee a number of questions
about the use of marijuana on the body. Dr. Mabee testified marijuana affected
neurological functions, including the abilities to multi-task, stay organized, and manage
learning. Usage affects attention and concentration, which also implicates memory.
Chronic usage enhances these impairments and deficits. Dr. Mabee concluded that
marijuana use affected parenting skills: "[C]annabis's effect on concentration, attention,
being able certainly to multi-task gets impaired, the ability to make another individual's
needs a priority, all of those can be affected by chronic use." RP at 456.
The record also shows that Mr. H. is committed to his marijuana dependency. Mr.
H. first began using marijuana recreationally in 1999 but began using it to medicate pain
in 2008. He testified that he does not have a medical marijuana prescription and has no
interest in medical alternatives. He uses marijuana at least three times per day, and his
25
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H
urinalysis results have shown the same consistent use for the entirety of the dependency
process. During his testimony, the following exchange took place:
[Counsel:] lf--if a court determined that you needed to stop using
marijuana to safely parent [A.H.], would you do it?
[Mr. H.:] I'd appeal it.
[Counsel:] You'd appeal it?
[Mr. H.:] Uh-huh.
[Counsel:] You would appeal the court's decision?
[Mr. H.:] Yes, I would.
RP at 414. Mr. H. regularly missed meetings, was late to meetings, and had trouble
putting A.H.' s needs before his own interests, all negative consequences associated with
marijuana use, as testified to in the record. We conclude that the record supports the trial
court's finding that marijuana use contributed to Mr. H.'s parental fitness.
b. Mr. H. 's domestic violence and threatening behavior
Mr. H. attempts to explain the reasonableness of certain episodes of domestic
violence and threatening behaviors. Minimizing these problems, he argues that the trial
court's finding that domestic violence contributed to his parental unfitness is not
supported by substantial evidence. We disagree.
Mr. H. has a lengthy history of domestic violence. He was convicted of second
degree assault for breaking the legs of an infant child of his. Courts had issued protective
orders against him for the purpose of protecting his past girlfriends. Mr. H. had even
26
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H
violated one or more of those orders. The trial court also heard testimony that Mr. H.
self-reported yelling at, shouting at, and controlling the money of his partners.
In addition, Mr. H.' s propensity toward domestic violence is supported by
evidence of his aggressive and confrontational nature. Mr. H. threated A.H.'s foster
parents after a session with A.H. He sent threatening communications to Ms. Porter. He
sent threatening communications to DSHS after another child was removed and showed
up at DSHS the next day, screaming so loud from outside the building that he could be
heard inside. In addition, he posted threats to others on Facebook, vowing revenge.
Mr. Erickson provided individual counseling to Mr. H. He identified anger
management and impulse control as part of Mr. H.'s mental health issues. Mr. Erickson
noted that Mr. H. would become aggressive when he felt defensive, such as when
interacting with DSHS. Mr. Erickson noted these issues contributed to Mr. H.'s recent
eviction.
We conclude that substantial evidence supports the trial court's finding that Mr.
H.' s history of domestic violence is a factor that contributed to his parental unfitness.
4. RCW 13.34.190(J)(b): Termination is in the best interests ofA.H
27
No. 34773-7-111; No. 34774-5-111
In re Welfare ofA.H
Finally, both Mr. H. and Ms. F. challenge the trial court's finding that termination
is in the best interests of A.H. They additionally contend that the finding was premature.
We disagree.
Mr. H. minimally cites to the record to show that he and A.H. had begun to bond.
He offers no other argument and does not explain why this court should substitute its
judgment for that of the trial court. Here, the trial court entered the following uncontested
finding: "Continuation of the parent-child relationship diminishes the child's prospects
for early integration into a permanent and stable home. . . . A permanent, adoptive home
has been identified for the child, and the only barrier to adoption is parental rights." CP
at 142. The trial court also explicitly gave weight in its findings to the court appointed
special advocate's testimony that termination was in the best interests of A.H. We reject
Mr. H.'s argument because we do not reweigh conflicting evidence.
As mentioned earlier, termination of parental rights is a two-step process. A.B.,
168 Wn.2d at 925. The trial court must always consider the first step-alleged unfitness
of the parent as outlined by RCW 13.34.180-before moving to the second step, which
focuses on the child's best interests. Id.
Mr. H. and Ms. F. both argue that the trial court was premature in determining
termination was in the best interests of A.H. They argue the trial court's findings
28
No. 34773-7-III; No. 34774-5-III
In re Welfare ofA.H
pertaining to RCW 13 .34 .180( 1) were erroneous, and for this reason, the trial court never
properly considered the first step before progressing to the second. In other words, their
argument on this issue depends on this court deciding the previous issues in their favor.
Because we determined those issues unfavorably to the parents, their argument here must
also fail. We conclude that the trial court did not prematurely consider A.H.' s best
interests.
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.
WE CONCUR:
Fearing, c.JY Pennell, J.
29
In re the Welfare Of: A.H.
Combined Opinion