In re A.N.C.

Decision Date21 November 2022
Docket Number83086-4-I (consolidated with No. 83087-2-I,83088-1)
Parties In the MATTER OF the DEPENDENCY OF A.N.C., J.M.M. and W.D.A., Minor Children.
CourtWashington Court of Appeals

Smith, A.C.J.

¶1 L.S.’s parental rights to her three children, A.N.C., J.M.M., and W.D.A., were terminated after a trial. She appeals. She contends (1) that the Department of Children, Youth and Families did not offer her all the services necessary to address her parenting deficiencies, (2) that the trial court erred by not exercising its equitable powers to encourage the parties to engage in open adoption agreement discussions, and (3) that the Department's open adoption agreement policies violate equal protection. Concluding that all necessary services were offered, no right to open adoption exists to be enforced through equity, and L.S. does not have standing to make her equal protection argument, we affirm.


¶2 L.S. has three children: A.N.C., born in July 2008, J.M.M., born in September 2011, and W.D.A., born in March 2018. When L.S. realized she was pregnant for the third time, she began prenatal care. She tested positive for heroin, methamphetamines, and marijuana and sought methadone treatment.

¶3 The Department of Children, Youth and Families (DCYF) became involved after W.D.A.’s birth at Swedish Medical Center. The assigned social worker interviewed L.S. and staff at Swedish who had worked with her. Nurses were concerned about L.S.’s treatment of W.D.A; she had been seen falling asleep while holding the baby, which she denied, and she refused help from staff. L.S. disclosed to the social worker that she had PTSD1 arising from a history of confinement and sexual assault. The social worker determined that L.S. also had a history with Child Protective Services, which had screened out2 a total of 13 intakes reporting concerns of homelessness, drug use, neglect of the children, and that L.S. was the victim of domestic violence. DCYF asked her to sign a voluntary placement agreement for all three children. Initially reluctant, particularly after her partner, Nic Boaz,3 became aggressive, L.S. eventually signed the agreement and the children were placed in foster care.

¶4 When their foster parents took the children to the dentist, A.N.C. had four cavities and J.M.M. had eight. Both had histories of tardiness and absence from school.

¶5 L.S. was referred to Home Builders services, but the Home Builders therapist was unable to reestablish contact with L.S. after their first meeting and eventually ended the referral. Dependency was established in June 2018 through an agreed order.

¶6 Three years followed in which the children lived with their foster parents and L.S. was offered services in which she largely refused to engage. The trial court ordered DCYF to provide L.S. with a range of services meant to address the mental health and substance abuse difficulties she faced. DCYF complied, repeatedly providing L.S. with referrals to locations for urinalysis testing, psychiatric assessments, drug and alcohol evaluations, mental health counseling, and (though this had not been ordered by the court) domestic violence resources. With a few exceptions—most notably receiving and picking up prescriptions for her mental health problems—L.S. did not begin to engage with these services. She completed none of them.

¶7 In May 2020, two years after dependency began, DCYF petitioned for termination of L.S.’s parental rights, citing her continuing unaddressed parenting deficiencies.4 After a number of delays, trial took place in July 2021. Testimony focused on several areas. Substantial time was devoted to discussion of what services DCYF had offered and which of those L.S. had taken advantage of. Also important was the degree to which L.S. visited with the children. Of special concern was the impact of allegations that Boaz had at one point rubbed a urine-soaked rag in J.M.M.’s face. L.S. denied that Boaz had been the perpetrator of this abuse, and she avoided addressing the impact of her own disbelief on J.M.M. and A.N.C., who continued to display considerable discomfort at Boaz's mention.

¶8 After hearing evidence, but before issuing a final order, the court suggested that the parties might want to take the opportunity to continue negotiating an open adoption agreement if they wished to continue communication and contact after any termination of L.S.’s parental rights.5 The record does not indicate that any party attempted to do so. The court issued oral findings and conclusions two days later and a final, written order terminating L.S.’s parental rights on August 9, 2021.

¶9 L.S. appeals.

Standard of Review

¶10 We review a trial court's decision to terminate parental rights by considering "whether substantial evidence supports the trial court's findings of fact by clear, cogent, and convincing evidence." In re Parental Rights of K.M.M., 186 Wash.2d 466, 477, 379 P.3d 75 (2016). Because termination proceedings are "highly fact-specific," we defer to "the trial court's determinations of witness credibility and the persuasiveness of the evidence." K.M.M., 186 Wash.2d at 477, 379 P.3d 75. Whether the trial court's findings of fact support its conclusions of law is reviewed de novo. K.M.M., 186 Wash.2d at 477, 379 P.3d 75.

Provision of Necessary Services under RCW 13.34.180(1)(d)

¶11 L.S. first challenges whether DCYF met its burden to prove that it had provided her with all the necessary services RCW 13.34.180(1)(d) obligates it to. More specifically, she argues that the DCYF failed to satisfy its obligation because it did not provide her with parenting classes. We disagree and conclude that all necessary services were provided.

¶12 Parents possess a fundamental liberty interest in the custody and care of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). For the State to terminate those parental rights, it must first demonstrate by clear, cogent, and convincing evidence that it has met six statutory requirements laid out in RCW 13.34.180(1). RCW 13.34.190(1)(a)(i). "Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be ‘highly probable.’ " In re Dependency of K.R., 128 Wash.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare of Sego, 82 Wash.2d 736, 739, 513 P.2d 831 (1973) ). After it meets this burden, the State must also show, this time by a preponderance of the evidence, that termination is in the best interests of the child. RCW 13.34.190(1)(b) ; In re Dependency of A.V.D., 62 Wash. App. 562, 571, 815 P.2d 277 (1991).

¶13 At issue here is the fourth of the six statutory factors that must be demonstrated by clear, cogent, and convincing evidence. It requires "[t]hat the services ordered under RCW 13.34.136[6 ] 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." RCW 13.34.180(1)(d).

¶14 The trial court ordered provision of—and L.S.’s compliance with—a number of services under RCW 13.34.136 : (1) random urinalysis testing (UAs) twice a week for 90 days; (2) a drug/alcohol evaluation and L.S.’s compliance with resulting recommendations; (3) a psychiatric assessment for medication management and L.S.’s compliance with resulting recommendations; (4) individual mental health counseling and L.S.’s compliance with resulting recommendations; and (5) a psychological evaluation with a parenting component and L.S.’s compliance with resulting recommendations. L.S. does not assign error to the trial court's finding of fact 2.11: "Services ordered under RCW 13.34.130[7 ] have been expressly and understandably offered or provided to the mother." Because unchallenged findings are verities on appeal, we need not analyze whether DCYF met its burden to demonstrate it provided these services; the findings establish that they did. See Robel v. Roundup Corp., 148 Wash.2d 35, 42, 59 P.3d 611 (2002) ("[u]nchallenged findings are verities on appeal").

¶15 Still at issue is whether DCYF adequately demonstrated that it provided all the "necessary services" required by RCW 13.34.180(1)(d). " ‘Necessary services’ " are services that are " ‘needed to address a condition that precludes reunification of the parent and child.’ " K.M.M., 186 Wash.2d at 480, 379 P.3d 75 (quoting In re Dependency of A.M.M., 182 Wash. App. 776, 793, 332 P.3d 500 (2014) ). Services must therefore be tailored to the parent's needs; parents face different challenges and require different assistance.

In re Parental Rights of D.H., 195 Wash.2d 710, 727, 464 P.3d 215 (2020). A service that is not reasonably available to a parent is not a necessary service. K.M.M., 186 Wash.2d at 480-81, 379 P.3d 75.

¶16 Here, we conclude that substantial evidence supports the trial court's finding that all necessary services were offered. The parties’ dispute concerns whether certain services, specifically "parenting classes and parent coaching services," were necessary. Neither service was expressly offered by DCYF. Instead, seeking to fulfil the trial court's order to provide a psychological evaluation with a parenting component, DCYF referred L.S. to Dr. Sierra Swing. As explained by Mary Tran, the social worker, the goal of this referral was to assess L.S.’s background, observe her interactions with her children, and determine how...

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