In re K.D., 80209-7-I

CourtCourt of Appeals of Washington
Writing for the CourtSMITH, J.
PartiesIn the Matter of the Dependency of K.D., A minor child.
Docket Number80209-7-I
Decision Date27 September 2021

In the Matter of the Dependency of K.D., A minor child.

No. 80209-7-I

Court of Appeals of Washington, Division 1

September 27, 2021


UNPUBLISHED OPINION

ORDER WITHDRAWING AND SUBSTITUTING OPINION

On March 30, 2020, the appellant-mother filed a motion requesting that this court remove her name from the case title, remove her child's birthdate from the caption, and change the case caption of the appeal to "In re K.D." On March 31, 2020, the clerk of the court denied the mother's motion and on June 8, 2020, we denied her motion to modify the clerk's ruling. The mother filed a motion for discretionary review of the order denying the motion with the Washington State Supreme Court.

On February 5, 2021, the Supreme Court granted the mother's motion of August 28, 2020 for discretionary review as to the confidentiality issue only and entered an order on July 22, 2021 remanding to this court to remove the name of the parent and to remove the birthdate of the child from the case caption to comply with RAP 3.4. Pursuant to the order of the Supreme Court, the panel has determined that the opinion shall be withdrawn and a substitute opinion filed. Now, therefore, it is hereby

ORDERED that the opinion filed on June 8, 2020, is withdrawn and a substitute opinion shall be filed.

SMITH, J.

Danielle Graves appeals the juvenile court's order terminating her parental rights. She contends that the court violated the separation of powers when it entered an order in the underlying dependency proceeding directing the Department of Children, Youth, and Families to file a petition to terminate the parent-child relationship. The mother also alleges a violation of her due process right to an impartial tribunal because the same judge who entered the order directing the Department to file a petition presided over the termination fact-finding hearing. Finally, she argues that the Department did not meet its statutory burden to terminate her parental rights because it failed to offer or provide her with a psychological evaluation. We affirm. [1]

FACTS

Danielle Graves is the mother of K.D. She struggles with a severe drug addiction and used heroin throughout her pregnancy. K.D. was drug-affected at birth and has special needs. For approximately seven months following K.D.'s birth, the Department of Children, Youth, and Families offered voluntary services to both parents that were focused on addressing their substance abuse.[2]

In May 2017, when K.D. was almost two years old, the Department filed a dependency petition based on concerns about continuing drug use and after receiving a report that the mother was involved in a domestic violence incident with K.D.'s maternal grandmother while the grandmother was holding K.D. The mother was actively using heroin and methamphetamine at the time. K.D. was placed in the care of his paternal grandparents. Apart from a six-week period in late 2017 when K.D. resided with his mother at a treatment facility, K.D. has remained in his grandparents' care throughout the dependency.

In August 2017, the court entered an agreed dependency order as to the mother, finding K.D. dependent because he had no parent, guardian, or custodian capable of adequately caring for him under RCW 13.34.030(6)(c). The agreed-upon factual basis for the dependency was the mother's substance abuse. The mother acknowledged that her substance abuse "need[ed] to be addressed by the services" outlined in the dispositional order and that those services were "reasonable and necessary to address her parental deficiencies." The dispositional order required the mother to complete a drug and alcohol evaluation, to participate in random urinalysis testing, to attend sober support groups, and to complete a mental health assessment, a parenting assessment, and an anger management assessment. The order also required her to follow all treatment recommendations of the evaluators and service providers and to "[p]rovide documentation of Psychological evaluation."

Throughout the dependency, the Department focused primarily on the mother's chronic substance abuse as her primary parental deficiency. In May 2017, after the Department filed the dependency petition, it provided the mother with a referral for a substance abuse evaluation. That evaluation led to a recommendation for inpatient treatment.

In August 2017, the mother entered a six-month inpatient treatment program at Isabella House in Spokane. The program is tailored to pregnant and parenting women and offers comprehensive services that include substance abuse treatment, mental health treatment, and parent coaching. Soon after she began the program, the Department arranged for K.D. to be placed with the mother at Isabella House. However, approximately five weeks later, the mother left the treatment program.

The mother took K.D. when she left Isabella House and did not notify the Department as to her whereabouts for several days. When he was returned to the care of his grandparents, K.D. had sores in his mouth, an infection under his fingernails, and experienced night terrors. He was referred for an assessment which led to a recommendation for counseling.

The Department referred the mother for another substance abuse evaluation in January 2018. The mother decided to enter Family Drug Treatment Court (FDTC) in February 2018. In conjunction with that program, she entered another inpatient long-term drug treatment program at Evergreen Recovery Center the following month. The program at Evergreen offers services for co-occurring disorders and in addition to drug treatment, offers comprehensive mental health treatment. A month into the program, the mother again abandoned treatment and was discharged from FDTC. In its April 2018 order discharging her from FDTC, the juvenile court directed the Department to file a termination petition.

In July 2018, the Department referred the mother for another substance abuse evaluation. Shortly after, the mother entered detox and then entered a third long-term inpatient drug treatment program at Riel House in Yakima. Upon admission, the mother was experiencing withdrawal and the treatment provider diagnosed her with substance use disorders related to opioids, amphetamines, and cocaine. Like the other treatment programs the mother attempted, Riel House offers substance abuse treatment in conjunction with mental health treatment and parenting education. Six weeks into the program, the mother discontinued treatment.

In the meantime, in August 2018, the Department filed a petition to terminate the mother's parental rights. In the eight months leading up to the fact-finding hearing, the mother did not reengage in treatment. She told the assigned social worker in early 2019 that she intended to enter another long-term treatment program but did not do so.

In addition to substance abuse treatment, throughout the dependency the Department offered the mother services related to mental health, anger management, and urinalysis testing, and services to enable her to develop parenting skills. Although the mother was permitted to visit K.D. twice per week, she did not visit consistently. The Department also offered the mother housing assistance. The mother described her living environment with her mother as "toxic" and told the assigned social worker that she would not be able to stop using drugs while living there. Nevertheless, the mother did not follow up on the Department's offer to provide housing resources.

The hearing took place over two days in May 2019. The mother did not appear at trial. According to the mother's attorney, she entered a detox program on the eve of trial. K.D. was almost four years old at the time of the hearing and had been out of his mother's care for nearly two years. After considering the testimony of 10 witnesses and more than 30 exhibits, the court entered over 100 findings of fact and conclusions of law and an order terminating the mother's parental relationship to K.D. The mother appeals.

Standard of Review

"Parents have a fundamental liberty interest in the care and welfare of their minor children." In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007). To terminate the parent-child relationship, the State must satisfy two statutory prongs. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). First, the State must establish the six elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). Evidence is clear, cogent, and convincing if it established the ultimate fact in issue as "'highly probable.'" In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). Second, the State must show by a preponderance of the evidence that termination serves the best interests of the child. RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). "Whether a termination is in the best interests of a child must be determined based upon the facts of each case." In re Dependency of A.M., 106 Wn.App. 123, 131, 22 P.3d 828 (2001). We place very strong reliance on a trial court's determination of what serves the child's best interests. In re Welfare of L.N.B.-L., 157 Wn.App. 215, 255, 237 P.3d 944 (2010).

Where the trial court has weighed the evidence, our review is limited to determining 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 is evidence in sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise." In re Welfare of T.B., 150 Wn.App. 599, 607, 209 P.3d 497 (2009) (citing World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the...

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