In re Dependency of T.H.

• Decision Date: 23 July 2007
• Docket Number: No. 58799-4-I.,No. 58453-7-I.,No. 58575-4-I.
• Citation: In re Dependency of T.H., 162 P.3d 1141, 139 Wn. App. 784 (Wash. App. 2007)
• Parties: In re the DEPENDENCY OF [T.H.], dob: 06/10/93, a minor. State of Washington, Department of Social and Health Services, Respondent, v. Stella Hackney-Farias, Appellant.
• Court: Washington Court of Appeals

162 P.3d 1141

139 Wn. App. 784

In re the DEPENDENCY OF [T.H.], dob: 06/10/93, a minorState of Washington, Department of Social and Health Services, Respondent, v.Stella Hackney-Farias, Appellant.

No. 58453-7-I.

No. 58575-4-I.

No. 58799-4-I.

Court of Appeals of Washington, Division 1.

July 23, 2007.

Jennifer M. Winkler, Nielson, Broman & Koch, PLLC, Seattle, WA, for AppellantStella Hackney-Farias.

Joel Jacob Delman, Attorney at Law, Trisha L. McArdle, Catherine Cruikshank, Office of the Atty. General, Seattle, WA, for Respondent DSHS.

Holly Jill Hermon, Northwest Defenders Association, Seattle, WA, for minor.

Kathryn Ann Barnhouse, King County CASA, Program, Kent, for CASA Guardian Ad Litem.

PART PUBLISHED OPINION

COLEMAN, J.

¶ 1Stella Hackney-Farias appeals the termination of her parental rights to her son, T.H., primarily contending that because her visitation rights were limited, the Department of Social and Health Services(DSHS) did not meet its burden to show that it provided all services capable of correcting parental deficiencies.We conclude that although visitation is an important right of the family, it is not—on its own—a service that must be provided under RCW 13.34.180(1)(d).Because substantial evidence supports the trial court's findings that DSHS met its burden to prove the statutory elements required for entry of a termination order, we affirm the termination of Hackney-Farias's parental rights.We reject Hackney-Farias's other contentions in the unpublished portion of this opinion.

FACTS

¶ 2 T.H. was born on June 10, 1993, and Hackney-Farias voluntarily placed him in foster care on June 15, 2004.T.H. was found dependent in November 2004.The court found that Hackney-Farias had physically and verbally abused T.H., neglected T.H., was aware that T.H. was being sexually abused by her boyfriend's son but took limited actions to protect T.H. from further abuse, and was aware her husband was physically abusing T.H. but did not intervene.The court also found that during visits between T.H. and Hackney-Farias while he was in foster care (before the dependency period), Hackney-Farias told T.H. he was lying about the abuse and insulted T.H.'s caregivers.T.H. was extremely upset and distraught after contact with Hackney-Farias.

¶ 3 In the dispositional order, the dependency court ordered Hackney-Farias to participate in a psychiatric evaluation with a parenting component, mental health counseling, parenting classes, and anger management classes.The court ordered that no in-person visitation occur until

the child's therapist recommends/supports visitation, the child . . . wishes to visit, and the social worker and [court-appointed special advocate] CASA recommend/support visitation.The social worker and/or CASA shall consult with the mother's treating psychiatrist and therapist and the youth's therapist prior to approving any visitation.

Exhibit 2, at 3.If those conditions were met, in-person visitation would be supervised "to protect the child's health, safety and welfare because of the volatility of mother's and child's relationship and past poor visits; child has been upset at prior visits with the mother."Exhibit 2, at 4.T.H. was permitted to initiate phone contact with his mother if he desired to speak with her.

¶ 4 The next month, Hackney-Farias called the police to initiate a child welfare check, alleging that she had called the home where T.H. was living to speak to him and heard him screaming in the background.Around this same time period, Hackney-Farias obtained T.H.'s e-mail address and e-mailed him directly, blaming him for lying about abuse.DSHS was notified of these occurrences and sent a letter to Hackney-Farias, reminding her that she was ordered not to initiate any contact with her son.As a result of her defiance of these orders and the inappropriate content of her contact with T.H., DSHS required future phone conversations initiated by T.H. to his mother to be monitored by T.H.'s social worker.

¶ 5 A review hearing was held in January 2005, and the court found that Hackney-Farias had not complied with the court order requiring participation in a psychiatric evaluation or anger management classes and had not attended counseling for most of the previous two months.As to visitation, the court stated that

Mother is not to have in person visits at this time until recommended by the child's therapist and if agreed upon by all parties.Therapist does not recommend or support visitation at this time.Mother has engaged in internet instant messaging and email contact with child, but has made inappropriate comments.All written communication from the mother is being screened by the Department.

Exhibit 4, at 4.

¶ 6 At the next review hearing in May 2005, the court found that Hackney-Farias had "not demonstrated consistent measurable progress in meeting the dispositional plan requirements," and found that the phone visitation was adequate.Exhibit 30, at 2.The court noted that T.H. had initiated phone contact, but that during that contact, Hackney-Farias

alluded to future activities she and child could do this summer and does not demonstrate the ability to understand that while no visits are occurring, it is inappropriate for her to offer social and travel activities she is planning in the near future for herself and the child.Mother does not demonstrate the ability to place the child's needs above her own wants.

Exhibit 30, at 3.The court indicated that DSHS should file a termination petition.

¶ 7 At a July 2005 review hearing, the court found that Hackney-Farias had not yet participated in court-ordered individual counseling and reiterated that "Mother is not to have in person visits at this time until recommended by mother's therapist, child's therapist, CASA and [Department of Children and Family Services] social worker."Exhibit 36, at 4.The court ordered Hackney-Farias to sign releases of information to allow DSHS to verify with her therapist that she attends sessions regularly and also verify the therapist's diagnosis.

¶ 8 At a permanency planning hearing the next month, the court found that Hackney-Farias had not provided any documentation that she was participating in counseling or that she had signed the court-ordered releases of information.The court noted that phone visitation was still permitted if initiated by T.H., but denied Hackney-Farias's request for in-person visitation.

¶ 9 A review hearing was held in October 2005, and the court found that Hackney-Farias had not complied with court-ordered parenting classes and training as recommended by her psychologist and had not completed a psychiatric evaluation.

¶ 10 At a review hearing in February 2006, the court denied Hackney-Farias's motions for in-person visitation and joint counseling with T.H. "based on the positions of [T.H.] and his therapist."Exhibit 55, at 6.

¶ 11 A seven-day termination trial was held in April 2006, after which the trial court terminated Hackney-Farias's parental rights to T.H.After the court had issued its oral ruling, but before the written order was entered, Hackney-Farias attempted to contact T.H. on his MySpace.com website.On the same day that the court entered its written termination order, it entered a restraining order prohibiting Hackney-Farias from contacting T.H. in any way.Hackney-Farias moved to vacate the order, but the court denied the motion.

¶ 12 Hackney-Farias timely appealed the termination order and the restraining order.

ANALYSIS

Visitation as a Service

¶ 13RCW 13.34.180(1)(a)-(f) sets forth elements that must be proved in order to terminate parental rights.One of these elements is that "all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided[.]"RCW 13.34.180(1)(d).Hackney-Farias contends that visitation is a service that must be provided under this statute and, therefore, because she was not provided with in-person visitation, the court erred in finding that DSHS met its burden as to RCW 13.34.180(1)(d).

¶ 14 While Hackney-Farias cites no statute expressly defining visitation as a service, she contends that the Legislature consistently considers visitation a service, and she cites two statutes as evidence of this consistent approach.RCW 13.34.138(1)(b) states that if a dependent child is not returned home after a review hearing, the court must state in writing

(vi)Whether the parents have visited the child and any reasons why visitation has not occurred or has been infrequent;

(vii)Whether additional services, including housing assistance, are needed to facilitate the return of the child to the child's parents; if so, the court shall order that reasonable services be offered specifying such services[.]

Hackney-Farias contends that because one section refers to visitation and the following section refers to "additional services,"the Legislature considers visitation a service.But the statute is discussing a hearing reviewing the dispositional order; because this is a review hearing, "additional services" logically refers to services in addition to those provided in the dispositional order.The dispositional order has separate sections for services and visitation, and simply because these two sections are mentioned in adjacent sections of this statute does not imply that visitation is a type of service.

¶ 15 As a second example of the Legislature's treatment of visitation as a service, Hackney-Farias cites RCW 13.34.145(13), which provides in part:

The approval of a permanency plan that does not contemplate the return of the child to the parent does not relieve the supervising agency of its obligation to provide reasonable services, under this chapter, intended to effectuate the return of the child to the parent, including but not limited to, visitation rights.

This section does refer to...