In re Welfare of C.B.

• Decision Date: 20 September 2006
• Docket Number: No. 33504-2-II.,No. 33500-0-II.,No. 33510-7-II.,33500-0-II.,33504-2-II.,33510-7-II.
• Parties: In re the Matter of the WELFARE OF C.B., DOB: 9/19/97, A minor. In re the Matter of the Welfare of C.R.B., DOB: 2/16/02, A minor. In re the Matter of the Welfare of T.A.B., DOB: 4/18/03, A minor.
• Court: Washington Court of Appeals

Page 846

143 P.3d 846

134 Wn. App. 942

In re the Matter of the WELFARE OF C.B., DOB: 9/19/97, A minor.

In re the Matter of the Welfare of C.R.B., DOB: 2/16/02, A minor.

In re the Matter of the Welfare of T.A.B., DOB: 4/18/03, A minor.

No. 33500-0-II.

No. 33504-2-II.

No. 33510-7-II.

Court of Appeals of Washington, Division 2.

September 20, 2006.

Jennifer Lynn Wieland, Grays Harbor County Pros. Office, Montesano, WA, for Respondent.

William Earle Morgan, Attorney at Law, Hoquiam, WA, for Appellant.

BRIDGEWATER, P.J.

¶ 1 Angelynn Bartman appeals from orders terminating her parental rights over her three children. We hold that Bartman overcame the rebuttable presumption that she could not improve her parental deficiencies because she completed a chemical dependency program and had a recent positive visitation with her children. And the State did not present any evidence that at the time of the termination hearing, Bartman's residence was unsafe. The State also conceded that she was improving, but it failed to provide any evidence that Bartman could not improve within six months to a year from the date of the termination hearing. We thus hold that the State failed to meet its burden of proof. Because the issue may arise in later proceedings, we also hold that the trial court properly ruled that the Indian Child Welfare Act did not apply. We reverse and order the trial court to vacate the termination order. But our decision does not void the dependency petition or prevent the State from filing another petition to terminate.

FACTS

¶ 2 Angelynn Bartman is the mother of three children, C.B., born September 19, 1997; C.R.B., born February 16, 2001; and T.A.B., born April 18, 2003. As a result of several referrals, the State removed the children from Bartman's custody on September 5, 2003, and had the three children declared dependent on November 4, 2003. In December 2004, a year and three months after the State removed her children from her custody, the State filed a termination petition.

¶ 3 Because Bartman concedes that she was an unfit parent when the Department of Social and Health Services (DSHS) removed her children, we focus on the facts relating to whether Bartman's parenting ability later improved. After DSHS intervened, the State recommended that Bartman take advantage of several services. For example, Bartman's social worker referred her to parenting and anger management classes.

¶ 4 Although her performance was less than ideal, Bartman eventually completed two parenting classes. In the first, which started in October 2003 and was taught by Roxane Johnson, Bartman received a certificate of completion. But Johnson remained concerned about Bartman's parenting skills and worried that Bartman failed to incorporate anything she had learned. The second class ran from April to May 2004. Bartman was chronically late and did not do all of her homework. Nonetheless, she completed the class.

¶ 5 Bartman was more dilatory in seeking anger management. Although her social worker referred her to an anger management class in November 2003, Bartman initially made no effort to attend. She finally began a course in October 2004, almost a year later, but did not finish because she had to seek drug treatment. She explained that she did not finish the class because after she got out of the drug program, the anger management class had discontinued its grant with the State and she could no longer afford it. Although Bartman did not complete an anger management class, she was enrolled in a class scheduled to begin in May 2005, the month after the termination hearing.

¶ 6 Bartman's biggest parenting deficiency seems to have involved drugs and alcohol. In fact, the event that precipitated the State's dependency petition was a drug test revealing Bartman was using methamphetamine. At the termination hearing, she admitted that she had used methamphetamine and alcohol in the past. She testified that her methamphetamine use was off and on before August 2003, but she denied use after that.

¶ 7 Her alcohol use eventually led her into the criminal justice system. On July 4, 2004, she was arrested for a driving under the influence (DUI). On October 31, she was arrested for a second DUI and felony eluding a police officer. She pleaded guilty to the felony eluding charge to avoid her misdemeanor charges. As a result of this conviction, she had to attend an inpatient alcohol treatment program.

¶ 8 Bartman's progress in battling her drug and alcohol problems was initially slow. The State referred Bartman to Robert Udd, a chemical dependency counselor, in September 2003. In his initial meetings with her, Udd did not recommend drug treatment because she denied use. He repeated his assessment in March 2004 but still did not recommend treatment because she continued to deny use.

¶ 9 But after her DUI arrests, by all accounts, Bartman was very successful in battling her addiction. In lieu of going to jail, she entered a drug treatment program. Her counselor reported that her progress was remarkable. After getting out of the inpatient program, she entered an outpatient treatment program in February 2004 and had almost completed a 90-day program when the termination hearing took place. According to her counselor there, she has been doing "[w]onderfully" and was positive and focused. Report of Proceedings (RP) (Apr. 28, 2005) at 65. The counselor indicated that her prognosis was good. Bartman also reported that she had begun attending Alcoholic Anonymous (AA) classes and even chaired the meetings. A member of her AA group testified the she had progressed in their program. And, according to her social worker, Bartman did not fail any drug screens after August 2003.

¶ 10 In addition to her anger and drug problems, the State introduced testimony that Bartman's visitation with her children during the dependency was indicative of bad parenting. After the State placed the children in foster care, Bartman had supervised visits with them. The State presented several witnesses who testified that the visitations were very stressful. In particular, the visitation supervisors felt that Bartman persisted in bringing unhealthy snacks, did not listen to suggestions, and paid more attention to T.A.B., her son and youngest child, than her two older daughters. They also reported that Bartman would not keep a schedule when ending the visits, hanging on to the children and making them cry.

¶ 11 One of the visitation supervisors, Kim Burdick, stopped supervising visits so that she could be a foster parent for all three children. Burdick testified that she and her husband would adopt the children if Bartman's rights were terminated. She also indicated that the two daughters had told her husband and herself that they wanted to be adopted by the Burdicks and that they spoke of it often. Burdick also told the trial court that the children call her "[m]ommy" and Bartman "visit mom." RP (Apr. 28, 2005) at 23, 24.

¶ 12 The State's expert witness, Betty Danielson, testified that she observed one of Bartman's visits a week before the termination hearing and thought her interactions with her children were totally appropriate. The children did not display reactive attachment or oppositional defiance. And Danielson conceded that she could not predict how harmful continued foster care might be.

¶ 13 Danielson also testified that she began treating the older children in August 2004 and reported that their behavior had not been improving over the course of her treatment from August 2004 to April 2005. She stated that the children needed structure, consistency, and a sense of permanency. According to Danielson, if they continued moving from placement to placement, the children's development would be negatively impacted. She further indicated that the children were bonded in their current placement with Burdick, that she observed more physical comforting when the children were with the foster family, and that the children more often mentioned their social worker and Burdick than Bartman.

¶ 14 Despite her improvement after her DUI arrests, the State maintained that Bartman was still not trustworthy as a parent. Natalie McLaughlin, Bartman's assigned social worker since November 2003, testified at the hearing, that while Bartman recently finished her drug treatment programs, she had turned down multiple opportunities to correct her parental deficiencies, falsified information in her evaluations, and refused to take responsibility for her actions. For example, Bartman did not tell McLaughlin about her DUI convictions; McLaughlin learned about them from Bartman's mother after Bartman was already in jail. McLaughlin also told the court that, even if Bartman had kicked her drug habit, she still needed to work on anger management and would have to demonstrate that she was clean and sober and that she could provide a safe home.

¶ 15 In addition to testimony about Bartman's parental deficiencies, the State also sought to establish that the children were not Native American.¹ During the termination process, Bartman alleged that her children were members of the Cherokee or Sioux tribes. As a result, her social worker notified all of the federally recognized Cherokee and Sioux tribes. All of the tribes either responded that Bartman and her children were not members of their tribes or failed to respond after a second notice the State sent via certified mail. The State ended its efforts to determine whether Bartman and her children were members of a Cherokee or Sioux tribe after the Local Indian Children Welfare Advisory Committee (LICWAC) recommended ending the search.

¶ 16 After the April 2005 termination hearing, the trial court ordered Bartman's parental rights terminated. The trial court found that the children were not members of Indian tribes. It also found that although Bartman had accepted some services, she continued to make poor choices. The trial court determined...