In re Parental Rights to D.H., 060420 WASC, 97311-3

Docket Nº97311-3
Opinion JudgeJOHNSON, J.
Party NameIn the Matter of the Parental Rights to D.H., S.T., L.L, and T.L., Minor Children. v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. B.B., Petitioner,
Judge PanelMADSEN, J. (dissenting) GORDON McCLOUD, J. (concurring in dissent)
Case DateJune 04, 2020
CourtSupreme Court of Washington

In the Matter of the Parental Rights to D.H., S.T., L.L, and T.L., Minor Children.

B.B., Petitioner,

v.

STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 97311-3

Supreme Court of Washington, En Banc

June 4, 2020

JOHNSON, J.

This case concerns whether the Department of Social and Health Services1 (Department) fulfilled its statutory obligation under RCW 13.34.180(1)(d) to provide a mother necessary services before terminating her parental rights. B.B., the mother of D.H., S.T., L.L., and T.L., had her parental rights terminated after a nearly three-year long dependency. B.B. contends that the Department failed to provide her timely dialectical behavior therapy (DBT) and neuropsychological services and that the parenting education services she received were not properly tailored to her mental health needs. A Court of Appeals commissioner affirmed the termination, finding that the Department provided and properly tailored all necessary services to B.B. We affirm the termination of B.B.'s parental rights. Substantial evidence supports the trial court's finding that all necessary and ordered services were offered or provided.

FACTS

B.B. is the mother of four young children: D.H., S.T., T.L., and L.L., who are now between the ages of 4 and 11 years old. The Department first became involved with the family in 2009. Before filing for dependency, the Department had received 11 referrals regarding neglect, lack of hygiene, unsanitary living conditions, drug use, and domestic violence.

There were serious concerns about the physical condition of the home. On numerous visits, the home was laden with garbage, animal feces, and decay; visitors reported palpable stenches when they approached the home. The children were often soiled and unkempt; on multiple occasions, they were observed as underdressed during cold weather. The Department also identified safety concerns. The physical environment posed health and safety risks, and abuse was also prevalent in the home. Joseph Lewis, the father of T.L. and L.L., regularly perpetrated abuse toward B.B. She had obtained a no-contact order against him, but a Department investigation revealed that Lewis had remained in the home and fathered L.L.

The parents were also unable to adequately address the children's health and well-being. The older children's school officials voiced concern about the lack of regular attendance, which persisted. Additionally, the children experienced various health issues and did not receive prompt medical care. The children also exhibited behavioral issues that required heightened care, which was not provided in the home.

The evidence presented at the termination trial outlines the family's long history of department involvement and the numerous efforts made to resolve B.B.'s parental deficiencies. Before this dependency petition was filed, B.B. received a variety of services from the Department, including therapy, Family Preservation Services, and Homebuilders. Early department intervention was unsuccessful, and after repeated intakes, home visits, educational services, and counseling, the three older children were removed from B.B.'s care in June 2015, and L.L. was removed in August 2015, just a few days after she was born. They have not resided with B.B. since. B.B. agreed to the dependency; the three older children were found dependent in July 2015, and the youngest child was found dependent in September 2015. The parental deficiencies identified included unsanitary living conditions, unsafe exposure to domestic violence, and the parent's inability to address the children's medical needs.

Dependency

Throughout the three-year dependency period, B.B. engaged in primarily supervised visitation with the children. She also received various counseling and educational services: Promoting First Relationships, Positive Parenting Program, hands-on parenting instruction, Parent Protection group, individual counseling, and domestic violence victim treatment. The court also ordered B.B. to receive a psychological evaluation and to follow recommendations, participate in mental health counseling, and engage in parenting education. Both a psychological and a neuropsychological evaluation were completed.

In October 2015, B.B. received the psychological evaluation from Dr. Whitehill to assess her parenting abilities. The evaluation report largely identified areas of concern: B.B. lacked a proper understanding of the children's developmental needs, was unable to divide her attention between children appropriately, lacked authority, and did not fully understand her own deficiencies. Dr. Whitehill recommended a neuropsychological evaluation to determine her comprehension ability.

The Department followed Dr. Whitehill's recommendation and issued three referrals for a neuropsychological evaluation. The Department issued the first referral in February 2016 and a second referral in June 2016. B.B. scheduled an appointment but failed to attend due to a conflict with a visitation. The Department then issued a third referral in July 2016. The date of the appointment is unknown, but B.B. attended. Dr. Shepel, the neuropsychologist, issued her evaluation report in November 2016.

Dr. Shepel determined that B.B.'s level of functioning was overall average, but B.B. was found to be performing below average in a variety of skills, particularly she was unable to notice visual safety risks to her children. Dr. Shepel's report noted that "[a]lthough cognitively . . . capable of learning and understanding of the developmental needs and her children's difficulties, she may not be able to actually apply her knowledge in the real life situations." Sealed Ex. 78, at 16. Among other treatments, Dr. Shepel recommended that B.B. attend a DBT group for 12 months to utilize cognitive methods "to implement safe personal boundaries, and to restructure the black-and-white thinking, procrastination, avoidant behaviors, and to learn to accept responsibility for her choices with increased honesty and insight into her past dysfunctional behaviors." Sealed Ex. 78, at 16-17.

B.B.'s social worker referred her to DBT, but it was not available because the local provider lacked qualified staff. The social worker understood that B.B. would be contacted when it was made available. He also contacted other providers in the general area, and none were offering DBT. Once the service became available in February 2018, B.B. began participating.

During the dependency, B.B. also received a variety of counseling and education services to improve her parenting skills. Cynthia Dyrnes treated B.B. for most of the dependency until trial. In July 2015, Dyrnes began facilitating Parenting Protection group. The treatment focused on teaching B.B. accountability and responsibility for the effect of her actions on the children. After B.B. completed the program in July 2016, Dyrnes provided individual counseling primarily to treat B.B.'s anxiety, stemming from PTSD (post-traumatic stress disorder) and childhood abuse. Dyrnes observed that B.B.'s anxiety manifests in a "shutdown," where she feels overwhelmed and unable to function. Verbatim Record of Proceedings (VRP) (Mar. 7, 2018) at 78. Dyrnes utilized cognitive behavioral therapy to help B.B. reduce stress and anxiety and to improve her focus, concentration, decision-making, and organization. She also testified that B.B. progressed after receiving PTSD medication and an antidepressant for approximately a year.

B.B. engaged in the Positive Parenting Program with Noel Villarivera from August 2016 to February 2017. Villarivera observed that B.B.'s main deficiencies were her primary focus on her infant, L.T., her feeling overwhelmed during visitation when all the children were present, her failure to apply proper disciplinary skills, and her anger. Although Villarivera testified that he believed B.B. understood the proper parenting skills, she was unable to apply them during visitation, so she did not graduate from the program.

B.B. also participated in Promoting First Relationships, counseling, and Family Preservation Services with Brenda Sullens. Sullens provided Promoting First Relationships for six months, focusing on B.B.'s parenting of the infant, L.T. She then provided Family Preservation Services for three months from December 12, 2017 to March 28, 2018. Sullens testified that the training was individualized to address B.B.'s disciplinary ability, provide her with knowledge of the children's developmental needs, and improve her relationship with the children. Consistent with the observations of the other providers, Sullens observed that B.B. was unable to balance her time among all the children.

Despite B.B.'s participation in services, the parenting issues persisted. The children's guardian ad litem observed at least 20 visitations, some as recent as three weeks before trial, and he described the visits with all four children present as chaotic and overwhelming. Visits were reduced to three and later two children at a time. He observed that B.B. tended to self-isolate with the infant, L.T. In 2017, visitation was held once in a public setting, but it was hazardous and unsuccessful, so visitation was moved back to the facility. Attempts to expand or modify visitation proved largely unsuccessful in addressing B.B.'s parental deficiencies.

In later visitations, Sullens noticed some positive progression in B.B.'s abilities where visitation was reduced to one or two children. However, B.B. continued to struggle with providing discipline, balancing her attention among the children, and understanding children's social and emotional needs. Sullens opined that without assistance, B.B. could not consistently apply the...

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