A.C.B. v. Wash. State Dep't of Soc. & Health Servs. (In re A.N.B.)

• Decision Date: 23 February 2015
• Docket Number: No. 71230-6-I,71230-6-I
• Court: Washington Court of Appeals
• Parties: In re the Welfare and Guardianship of: A.N.B.; A.C.B.; A.J.B.; and A.J.B., Minor Children, CARLOS BENITEZ, Appellant, v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

In re the Welfare and Guardianship of:A.N.B.; A.C.B.; A.J.B.; and A.J.B., Minor Children,CARLOS BENITEZ, Appellant, v. WASHINGTON STATE DEPARTMENTOF SOCIAL AND HEALTH SERVICES, Respondent.

No. 71230-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 23, 2015

(Consolidated with Nos. 71231-4-I, 71232-2-I, 71233-1-I, 71234-9-I, 71236-5-I, 71237-3-I)

UNPUBLISHED

COX, J. — In this consolidated appeal, Carlos Benitez contests termination of his parental rights and dismissal of his petition for guardianship. He argues that collateral estoppel does not bar the petition for guardianship. He further claims that the Department of Social and Health Services failed to prove all statutory elements for termination. Finally, he claims the trial court abused its discretion by not fully granting his motion to appear unshackled in court.

We hold that the doctrine of collateral estoppel bars relitigation of the question whether the paternal grandmother of these children is a suitable guardian. DSHS proved and the trial court properly found that one of the challenged statutory elements for termination was established. But the trial courtdid not make a required finding for the other challenged element. Finally, any error in not fully granting his motion to appear unshackled in court was harmless. We affirm in part, reverse in part, and remand for further proceedings.

Benitez is the biological father of four children—A.N.B. (D.O.B. 2/8/99), A.C.B. (D.O.B. 12/15/99), A.J.B. (D.O.B. 5/16/02), and A.J.B. (D.O.B. 9/15/06). In December 2011, the Department of Social and Health Services (DSHS) petitioned for dependency of the children for the second time. At the time, Benitez was incarcerated. The trial court ordered the children placed in foster care, and it directed DSHS to investigate whether the children's relatives could offer appropriate placement.

On March 20, 2012, the court heard oral argument on Benitez's motion to place A.J.B. with her paternal grandmother. DSHS opposed this proposed placement due to allegations of physical and sexual abuse in the grandmother's home when the children were younger. At the hearing, the children provided the court with specifics regarding her alleged conduct. Their biological mother also opposed this placement. The court denied Benitez's motion.

On April 18, 2012, the court held the dependency disposition hearing. Benitez acknowledged that he would be incarcerated until 2031. Nonetheless, he contested dependency on the basis that the children had a "guardian" or "custodian" to care for them—their paternal grandmother. But, as this court later stated in the appeal of the dependency disposition order entered on that date, Benitez "failed to refute the concerns that were raised about the paternalgrandmother at the March 20 hearing."¹ The April 18, 2012 disposition order of dependency for all the children was based on RCW 13.34.030(6)(c).² Under that statute, the children were dependent because they had "no parent, guardian, or custodian capable of adequately caring for [them] . . . ."³ They remained placed in foster care.

Benitez appealed the April 18, 2012 dependency disposition order to this court, challenging the trial court's determination that his four children were dependent and challenging the trial court's placement decision.⁴ This court rejected his arguments and affirmed. Thereafter, the supreme court denied Benitez's petition for discretionary review.

In March 2013, DSHS petitioned to terminate Benitez's parental rights. Benitez petitioned for guardianship, naming the children's paternal grandmother as the proposed guardian. He also moved to continue the termination hearing and requested that DSHS conduct a home study to consider placement of the children with the paternal grandmother. In response, DSHS moved to dismiss the guardianship petition. The trial court dismissed the guardianship petition on the basis of collateral estoppel and entered an order terminating Benitez's parental rights.

Benitez appeals.

TERMINATION OF PARENT CHILD RELATIONSHIP

Benitez makes two arguments that the trial court erred in finding that DSHS met its burden under RCW 13.34.180(1). The first is without merit. But we agree with the second.

The court may enter an order terminating all parental rights to a child only if the court finds all of the following elements are established 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. If the parent is incarcerated, the court shall consider whether a parent maintains a meaningful role in his or her child's life based on factors identified in RCW 13.34.145(5)(b); whether the department or supervising agency made reasonable efforts as defined in this chapter; and whether particular barriers existed as described in RCW 13.34.145(5)(b) including, but not limited to, delays or barriers experienced in keeping the agencyapprised of his or her location and in accessing visitation or other meaningful contact with the child.⁵

"Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be 'highly probable."'⁶ If this first step is met, the trial court must also find that termination of the parent-child relationship is in the best interests of the child.⁷ "The dominant consideration . . . is the moral, intellectual, and material welfare of the child."⁸

'"Where the trial court has weighed the evidence, review is limited to ascertaining whether the findings of fact are supported by substantial evidence, and if so, whether the findings support the conclusions of law and the judgment.'"⁹ '"Substantial evidence is evidence in sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.'"¹⁰

Here, Benitez does not challenge four of the six termination elements. Rather, he contends that DSHS failed to prove that two of the elements had been established—specifically RCW 13.34.180(1)(d) and (f).RCW 13.34.180(1)(d)

First, Benitez asserts that the State "did not expressly and understandably provide all reasonably available services capable of correcting Mr. Benitez's parental deficiencies."¹¹ We disagree.

DSHS must prove that it has offered or provided "all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future."¹² "The services offered must be tailored to each individual's needs."¹³ "[T]he court may consider any service received, from whatever source, bearing on the potential correction of parental deficiencies."¹⁴

"Even where the State inexcusably fails to offer a service to a willing parent, termination is nonetheless appropriate if the service would not have remedied the parent's deficiencies in the foreseeable future."¹⁵

Here, the trial court found that all necessary services reasonably available have been offered and that there is no hope that the child will be returned to Benitez regardless of services provided:

2.10 Since dependency was established, services ordered under RCW 13.34.130 have been offered or provided and all necessary services reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided. In this case, Mr. Benitez is in Department of Corrections (DOC) custody until the year 2031. The only services available to Mr. Benitez there, other than AA or NA, will be provided two years prior to his release. Nothing in the law requires [DSHS] to send outside professionals to an inmate who will be in custody for another twenty years.

2.11 Even if [DSHS] did send outside professionals to Mr. Benitez in prison to provide services, there is little likelihood that the conditions will be remedied so that the child could be returned to [Benitez] in the near future. There is no hope this child will be returned, regardless of services to [Benitez]. [Benitez] is unavailable due to his own making and the numerous felonies he committed.¹⁶

These findings are supported by substantial evidence, and they support the conclusion that this termination factor was satisfied. At trial, a counselor at the correctional center testified that DSHS recommended services for Benitez, but because of his incarceration until 2031, Benitez is not eligible to participate in those services until 2029.¹⁷ Benitez does not dispute that he is incarcerated until 2031.

Benitez argues that "if [he] is not offered services due to his incarceration, and his parental rights are terminated because he has not completed services which he was never offered, then incarceration is effectively the basis for terminating his parental rights."¹⁸ But, while imprisonment alone does not justify termination, "[T]he parent's resulting inability to perform his or her parentalobligations is certainly relevant to the child's welfare."¹⁹ Further, termination is appropriate if the service would not have remedied the parent's deficiencies in the foreseeable future. Benitez is incarcerated until 2031, and his deficiencies cannot be remedied in the foreseeable future.

Benitez also argues that DSHS "did...