In re Parental Rights to K.M.M.

• Decision Date: 08 September 2016
• Docket Number: No. 91757–4,91757–4
• Citation: 186 Wash.2d 466,379 P.3d 75
• Parties: In the Matter of the Parental Rights to K.M.M.
• Court: Washington Supreme Court

186 Wash.2d 466

379 P.3d 75

In the Matter of the Parental Rights to K.M.M.

No. 91757–4

Supreme Court of Washington, En Banc.

Argued May 3, 2016

Filed Sept. 8, 2016

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507–6490, Skylar Texas Brett, Law Office of Skylar Brett, P.O. Box 18084, Seattle, WA, 98118–0084, for Petitioner(s).

Peter Everett Kay, Office of the Attorney General—Tacoma 1250 Pacific Ave., Suite 105, P.O. Box 2317, Tacoma, WA, 98401–2317, Jay Douglas Geck, Office of the Attorney General, P.O. Box 40100, Olympia, WA, 98504–0100, for Respondent(s).

Eric J. Nielsen, Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122–2842, Jennifer L. Dobson, Attorney at Law, P.O. Box 15980, Seattle, WA, 98115–0980, for Minor(s).

Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164–2008, Sharon Jean Blackford, Sharon Blackford PLLC, 1100 Dexter Ave. N., Ste. 100, Seattle, WA, 98109–3598, for Amicus Curiae on behalf of ACLU.

Lillian Marie Hewko, Washington Defender Association, 110 Prefontaine Pl. S., Ste. 610, Seattle, WA, 98104–2626, for Amicus Curiae on behalf of Washington Defender Association.

Sara Lyle Ainsworth, Legal Voice, 907 Pine Street, Suite 500, Seattle, WA, 98101, for Amicus Curiae on behalf of Legal Voice.

Devon Carroll Knowles, Seattle University School of Law, 1215 E. Columbia St., Seattle, WA, 98122–4419, for Amicus Curiae on behalf of Incarcerated Parents Project of Seattle University.

Linda Lillevik, Carey & Lillevik PLLC, 1809 7th Ave., Ste. 1609, Seattle, WA, 98101–1313, for Amicus Curiae on behalf of Dr. Susan Spieker and Dr. Marian Harris.

Joseph Anthony Rehberger, Cascadia Law Group PLLC, 606 Columbia St. N.W., Ste. 212, Olympia, WA, 98501–1093, for Amicus Curiae on behalf of Center for Children & Youth Justice.

Erin Kathleen Shea McCann, Attorney at Law, 11709 20th Ave. N.E., Single Family Home, Seattle, WA, 98125–5127, for Amicus Curiae on behalf of Mockingbird Society and Children and Youth Advocacy Clinic/U. of Wash. School of Law.

D'Adre Beth Cunningham, Attorney at Law, P.O. Box 61055, Seattle, WA, 98141–6055, Hannah Elizabeth Roman, King County Dept. of Public Defense, 420 W. Harrison St., Ste. 202, Kent, WA, 98032–4491, Tara Urs, The Defender Association Division, 810 3rd Ave., Ste. 800, Seattle, WA, 98104–1695, Kathleen Michelle McClellan, Northwest Defenders Division, KCDPD, 1109 1st Ave., Ste. 300, Seattle, WA, 98101–2992, Anita Khandelwal, King County Department of Public Defense, 401 5th Ave., Ste. 800, Seattle, WA, 98104–2391, Alena K. Ciecko, Irina Nikolayev, King County Department of Public Defense, 1401 E. Jefferson St., Ste. 200, Seattle, WA, 98122–5570, Kelli M. Johnson, King County Office of Public Defense ACA, 110 Prefontaine Pl. S., Ste. 200, Seattle, WA, 98104–2674, for Amicus Curiae on behalf of King County Public Defense.

Yu

, J.

¶1 This case requires us to determine whether parental rights may be terminated where a father is unable to parent his child due to a lack of attachment and continuing the parent-child relationship will be detrimental to the child's emotional development and mental well-being.

¶2 The child has been in foster care since she was six and a half years old. She was removed from her biological parents' custody in 2009 because their serious substance abuse problems resulted in a neglectful home environment. She was 11 years old at the time of trial in 2013 and will be 14 years old this coming August. She has been in two foster care placements and was physically abused in one of those placements.

¶3 It is undisputed that the father completed court-ordered services and remedied the deficiencies identified by the dependency court in prior proceedings. Nevertheless, the trial court terminated his parental rights based on its conclusion that he remains “unable to parent” due to the child's lack of attachment to him. Clerk's Papers (CP) at 112.

¶4 There is substantial evidence to support the trial court's conclusion that all necessary services have been provided to the father and that the provision of any additional services would be futile. Furthermore, the record supports the trial court's finding of current parental unfitness based on the father's inability to parent the child. Consequently, we affirm the Court of Appeals decision to uphold the termination order.

FACTUAL & PROCEDURAL HISTORY

A. DEPENDENCY

¶5 The child, K.M.M., was born on August 8, 2002. She will be 14 years old as of August 2016 and has been in foster care for six and a half years—almost half of her life. Since May 2012, K.M.M. has refused to have contact with her father, J.M. (the appellant in this case), and her mother, D.C. (who is not a party on appeal). K.M.M. has expressed her desire to be adopted by her foster parents, whom she refers to as “mommy” and “daddy.” 2 Verbatim Report of Proceedings (VRP) at 282, 303.

¶6 K.M.M. and her younger sister K.M. were removed from their parents' custody in February 2009, following an emergency room visit where it was suspected that K.M. had been physically abused by J.M. CP at 106, 123. The hospital staff also had concerns that the parents were misusing prescription opiates. Id. at 58. The parents' substance abuse problems created a neglectful home environment. Id. at 106. K.M.M. testified that she had to “take care of [her] sister and pretty much change her diaper.” 2 VRP at 283. Although ultimately no allegations of abuse were confirmed, D.C. and J.M. agreed to dependency for their daughters on the grounds that neither of them was able to care for the children due to their substance abuse problems. CP at 58; RCW 13.34.030(6)(c)

.

¶7 K.M.M.'s early dependency was marked by instability. The original permanency plan was for K.M.M. and her sister to return to their parents' custody just a few months later. 4 VRP at 653. However, both parents relapsed and went into inpatient treatment, so the children had to remain in foster care. Id.

¶8 K.M.M.'s first foster placement was an abusive one. It was discovered later that the foster mother spanked K.M.M. with a wooden spoon to punish her for things like running late for school. 2 VRP at 201–02, 290. K.M.M. and her sister were removed from the foster home in July 2009 after the foster mother was hospitalized for a “mental breakdown.” CP at 59. They were then placed with K.M.M.'s current foster parents.

¶9 When K.M.M. was first placed with her foster parents, she was “emotionally disconnected,” and “very quiet, non-engaging.” 2 VRP at 182. She would hide underneath furniture when she had minor accidents, like spilling milk. Id. at 184, 202, 290. The foster parents arranged for individual therapy, and K.M.M. began seeing Cory Staton in September 2009. K.M.M. presented “significant social, emotional and developmental delays” when she entered dependency. CP at 107. K.M.M. had not learned to form secure attachments to adults, meaning that she did not know how to rely on adult caregivers. 1 VRP at 64. These attachment problems were exacerbated by the inappropriate corporal punishment that K.M.M. experienced in her first foster home. CP at 107. K.M.M. was also “parentified,” meaning she tried to take care of her younger siblings rather than relying on adults. 1 VRP at 64.

¶10 Once in a more stable environment and with regular therapy, K.M.M. was able to catch up developmentally. Id. at 113. However, her relationship and experiences with her biological parents continued to remain unpredictable. In 2010, an attempt to return K.M.M. to D.C.'s custody failed when D.C. had another relapse. 4 VRP at 651. Additionally, K.M.M.'s younger half-sister K.C., who was born while D.C. was undergoing treatment for her substance abuse, was eventually removed from the mother's custody and brought into foster care with K.M.M. and K.M.¹ Id. The guardian ad litem (GAL) testified that this indicated to K.M.M. that things were not going well with her mother. Id.

¶11 In early 2011, K.M.M. expressed to her therapist, Ms. Staton, that she wanted to be adopted. 1 VRP at 78. Ms. Staton took no action in response to this statement and did not disclose the information to the Department of Social and Health Services (Department) because she determined that K.M.M.'s desire to be adopted was evidence of her emotional healing and developing ability to form attachments to adults. Id. at 79; CP at 126.

¶12 In late 2011, K.M.M. began “acting out” during visits with her father by “picking on him” and being confrontational. 4 VRP at 658. In March 2012, K.M.M. expressed reluctance to continue visitation with her parents. CP at 61. Soon after, K.M.M. began ending visits early and eventually refused visitation altogether. 1 VRP at 30.

¶13 In response to K.M.M.'s refusal to participate in visitation, the dependency court appointed family therapist Thomas Sherry in July 2012 to “render an opinion on the appropriateness of visitation, and how such visitation can occur.” CP at 324. Mr. Sherry recommended a plan for “natural contact” between K.M.M. and her parents once her younger siblings were transitioned back into their mother's custody. 2 VRP at 237–39, 321–22. The plan was to facilitate passive contact between K.M.M. and her parents that was incidental to her interactions with her siblings. Id. at 239.

¶14 The recommended natural contact plan was not implemented until October 2012, when K.M.M.'s younger siblings were returned to their mother's custody. CP at 61. K.M.M. expressed concern for her sisters' safety and worried about whether she would also be removed from her foster parents. 1 VRP at 152–53. K.M.M. had several natural contacts with her mother that involved minimal to no interaction. 2 VRP 325–26. Even with limited interaction, K.M.M.'s foster parents testified that she was very clingy after these visits and often regressed to baby talk. Id. at 194.

¶15 K.M.M.'s first and only natural contact with J.M. occurred in December 2012. Id. at 326. At this point, K.M.M. had not...