In re the Termination of S.J.

• Decision Date: 21 September 2011
• Docket Number: No. 26179–4–III.,26179–4–III.
• Citation: 256 P.3d 470,162 Wash.App. 873
• Court: Washington Court of Appeals
• Parties: In re the Termination of S.J.

162 Wash.App. 873

256 P.3d 470

In re the Termination of S.J.

No. 26179–4–III.

Court of Appeals of Washington, Division 3.

Aug. 2, 2011.Reconsideration Denied Sept. 21, 2011.

David L. Donnan, Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Appellant.Pamela Vogt Reuland, Amy Suzanne Mickey, Attorney General's Office, Spokane, WA, for Respondent.BROWN, J.

[162 Wash.App. 875] ¶ 1 TH appeals the termination of her parental rights to her son, SJ. Dispositive here, TH contends the trial court erred in finding all necessary services had been offered or provided because the Department of Social and Health Services (DSHS) failed to provide timely mental health services or sufficient attachment and bonding services. We agree. Additionally, TH contends her constitutional due process rights have been violated because the trial court did not specifically find she was currently an unfit parent and we agree that finding cannot be inferred. We reverse and remand for further proceedings.

FACTS

¶ 2 SJ was born to TH in November 2002. In April 2005, DSHS removed SJ and his older half-brother from TH's care due to allegations of unsanitary living conditions and TH's drug use. The parties agreed to dependency on May 31, 2005. The court required TH to complete a substance abuse evaluation and treatment, submit to random urinalysis (UA) testing, complete a psychological evaluation and participate in mental health services, join a domestic violence victims' program, participate in a parenting assessment, and establish a safe, clean, drug-free home.

¶ 3 Between June 2005 and December 2005, TH was admitted to but unsuccessfully discharged from three inpatient treatment centers. TH discovered she was pregnant in January 2006. TH successfully completed an inpatient treatment program in February 2006. She planned for an outpatient program and arranged for post-treatment living at the Safe Harbor House and Maternity Home. In March 2006, TH participated in a psychological evaluation with Dr. Christine Guzzardo. TH's social worker informed Dr. Guzzardo of TH's history of drug addiction and mental health issues. Dr. Guzzardo diagnosed TH with bipolar disorder and borderline intellectual functioning. TH began individual counseling, actively participating in her sessions and improving her ability to identify symptoms of a bipolar episode and get the help she needed. In April 2006, TH began supervised visitation with SJ at the YWCA. In May 2006, she transferred to the YWCA's parenting education program. The parent educator provided TH with verbal and hands-on instruction during the visits.

¶ 4 Despite making progress in her initially identified parental deficiencies, DSHS decided TH still had not secured suitable housing or progressed in her relationship with SJ. In May 2006, DSHS petitioned to terminate TH's parental rights with SJ.

¶ 5 TH continued working on her deficiencies and successfully graduated from the drug-treatment outpatient program in June 2006. She explained she could have been successful sooner had her mental health issues been addressed at the same time. The State does not dispute TH has since remained clean and sober. TH moved into the Safe Harbor House and Maternity Home as planned. TH had her baby, JH, in August 2006. JH has remained in TH's care. In November 2006, TH moved into St. Margaret's women's shelter in order to find housing allowing SJ to live with her. While at St. Margaret's, TH successfully enrolled in school, obtained a job, attended domestic violence and parenting classes, and cared for JH.

¶ 6 In December 2006, TH and SJ began therapeutic visitation with Carol Thomas. Ms. Thomas' role was to help create a healthy parent-child relationship and ensure nothing detrimental was said to SJ. The therapeutic visitation continued until March 2007, just before trial, when the visits were suspended at Ms. Thomas' urging due to the harmful impact the visits were having on SJ. SJ's behavior towards TH had become increasingly resistant and challenging because of his unusual negative acting-out behaviors, he was controlling and increasingly aggressive. TH had faithfully kept the scheduled visitations and applied parenting suggestions but she met increasing resistance from SJ when she attempted physical contact or to maintain control over the visitations. TH theorized SJ had detached from TH and had attached to the foster parents who had successfully intervened in this case. SJ clung to the foster parents at visitation drop off and the foster parents noticed SJ's increased stress at pick up. At the termination trial, the family preservation therapist testified she could provide attachment therapy and that TH requested it. These unprovided attachment and bonding services are central here.

¶ 7 DSHS's social worker testified he identified bonding and attachment as a major issue between TH and SJ. Despite this, he had not referred TH for bonding and attachment services because he (incorrectly as noted below) believed the YWCA was incorporating the methods into its parenting education, he did not receive a complaint from TH regarding the services, and he did not want to refer TH to additional services to save her time traveling on the bus. The social worker testified TH was not referred for a psychological evaluation until December 2005, because the court order specifically stated that the evaluation was not to be conducted until TH was sober. He conceded since TH completed treatment, he had no concerns about her sobriety and she had complied with all services offered to her. The social worker testified he supported the termination despite his recommendation that JH remain with TH, because TH has not been able to rectify her relationship with SJ and because he had been out of her care for approximately one and a half years. He found that SJ could not wait any longer for TH to remedy her parental deficiencies and that he was in need of stability.

¶ 8 The YWCA parent educator testified her role during the visitation was to provide parenting suggestions and she related the YWCA includes some bonding and attachment principals like cuing but, contrary to the social worker's viewpoint, does not offer bonding and attachment services. She noted TH struggled with keeping to a schedule during the visits and that SJ's behavior would escalate during the visits. In the end, the parent educator opined TH had not made any progress in her parenting of SJ because she was unable to recognize SJ's emotional needs.

¶ 9 Ms. Thomas noted TH's attempts to provide behavior controls and to guide and direct SJ were minimal and ineffective. She opined TH was unable to supply SJ with emotional support, calm SJ down, or initiate physical contact with SJ without SJ becoming angry. Ms. Thomas acknowledged she did not know if TH had had enough time to correct her inability to regulate SJ's behavior. She related she had not looked into or determined the source of TH's inability. Ms. Thomas related she was unaware of what TH's service providers identified as the source of the concerns regarding TH's parenting. Ms. Thomas had worked with families where “a child is very angry, very aggressive towards a parent, not defining them as a parental authority,” and had success “decreasing those behaviors, increasing their definition of the parent as a parental authority as someone who will direct and guide them and someone who can regulate their emotional states.” Report of Proceedings (RP) (March 26, 2007) at 27. In the end, Ms. Thomas opined it was unlikely that a healthy relationship would develop in the near future due to SJ's entrenched perception of his mother and TH's inability or unwillingness to parent SJ effectively.

¶ 10 The guardian ad litem testified SJ was a difficult child and had significant behavior problems including hitting, kicking, and cruelty to animals, destruction of property, and other violent behavior. She stated that SJ could not wait any longer for TH to remedy her parental deficiencies despite TH's success and improvement.

¶ 11 In its findings of fact the court found that despite the fact that TH had been offered a substance abuse evaluation and treatment, random UA/BA testing, a psychological evaluation, mental health services, domestic violence training, a parenting assessment, and parenting education, she had failed to repair her relationship with SJ. The court noted Ms. Thomas' testimony that TH was unlikely to be able to perceive and cope with SJ's behavior problems in the near future. The trial court terminated TH's parental rights with SJ.

¶ 12 TH appealed. This appeal was stayed in May 2008 pending a decision and mandate in In re Welfare of A.B., 168 Wash.2d 908, 919, 232 P.3d 1104 (2010).

ANALYSIS

¶ 13 The dispositive issue is whether the trial court erred in finding all necessary services had been provided. TH contends the State failed to provide timely mental health services and needed attachment and bonding services.

¶ 14 A parent has a fundamental liberty interest in the care, custody and management of her child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Thus, termination of parental rights should be allowed “only for the most powerful of reasons.” In re Welfare of A.J.R., 78 Wash.App. 222, 229, 896 P.2d 1298 (1995). Washington courts use a two-step process when deciding whether to terminate parental rights. In re A.B., 168 Wash.2d at 911, 232 P.3d 1104; RCW 13.34.180(1); .190. “The first step focuses on the adequacy of the parents and must be proved by clear, cogent, and convincing evidence. The second step focuses on the child's best interests and need be proved by only a preponderance of the evidence. Only if the first step is satisfied may the court reach the second.” In re A.B., 168 Wash.2d at 911, 232 P.3d 1104 (citations omitted).

¶ 15 The first step involves six statutory elements. RCW 13.34.180(1). They are:

(a) That the child has...