IN RE WELFARE OF AG

• Decision Date: 20 April 2010
• Docket Number: No. 27659-7-III,27660-1-III.,27659-7-III
• Parties: In the Matter of the WELFARE OF A.G., L.S.
• Court: Washington Court of Appeals

229 P.3d 935

In the Matter of the WELFARE OF A.G., L.S.

Nos. 27659-7-III, 27660-1-III.

Court of Appeals of Washington, Division 3.

April 20, 2010.

David L. Donnan, Washington Appellate Project, Seattle, WA, Heather Lynn McKimmie, Disability Rights Washington, Seattle, WA, for Appellant.

Tobin J. Carlson, Attorney at Law, Spokane, WA, for Respondent.

SWEENEY, J.

¶ 1 This appeal follows the termination of a mother's legal parental rights to two of her three minor children. Like all parental termination cases, it is emotionally difficult for the parties, the lawyers, and the court. The essential challenge by the mother is that she had started to do what was necessary to change her life and put herself in a position to appropriately parent her children. As with many of these cases, the question is whether her efforts fall under the category of "too little too late." The trial judge concluded that her efforts were "too little too late." That is, at its heart, a factual question. And we conclude, as a matter of law, that it is a factual determination supported by this record. We therefore affirm the decision of the trial judge.

FACTS

¶ 2 April G. is the mother of A.G. and L.S. A.G. was born on December 7, 2001. And L.S. was born on January 20, 2005. A.G. and L.S. were removed from Ms. G.'s custody in June 2005. They have remained in foster care since that time. The court declared A.G. and L.S. dependent children in August 2005.

¶ 3 Ms. G. also has a son, M.S., born on October 17, 2006. At the time of the trial that is the subject of this appeal, M.S. was in Ms. G.'s care. M.S. has never lived with A.G. or L.S.

¶ 4 In March 2007, the State petitioned to terminate Ms. G.'s parental rights as to A.G. and L.S. because of drug and alcohol abuse, neglect of the children, domestic violence, and serious mental health problems. The case proceeded to hearing in late summer and fall of 2008. The State presented testimony from a variety of counselors all of whom had worked with Ms. G. over the course of recent years. Those witnesses included a national board-certified mental health counselor who was also a Washington state certified perpetrator treatment program supervisor, a domestic violence counselor, and drug and alcohol counselors.

DRUGS AND ALCOHOL

¶ 5 Ms. G. was diagnosed as being dependent on marijuana in 2006. She made limited progress in some programs (Pend Oreille County Counseling) but did better in others (Perinatal Treatment Services, Transitional Living Center, and New Horizons). Ms. G. used methamphetamine in September 2006 and was positive for THC (tetrahydrocannabinol (marijuana)) six times from March to September 2006. She provided a total of 100 UA (urinalysis) samples from 2005 to July 31, 2008. They were all negative except for the six THC, one methamphetamine, and two additional low creatinine readings. Ms. G. has had no positive UA results since leaving the Transitional Living Center program in January 2008. Her last positive UA was September 10, 2006. But she has provided several diluted samples and did not show up to give a sample a number of times.

DOMESTIC VIOLENCE ANGER MANAGEMENT

¶ 6 Ms. G. received treatment for anger control in two settings. First, she received 60 hours of anger management counseling while in a program called Perinatal Treatment Services. Second, she had ongoing family support and parenting group sessions while at Transitional Living Center. However, professionals concluded that Ms. G. needed a domestic violence perpetrator program. Ms. G. refused to participate in the program at first, but at the time of trial she had enrolled in the one-year perpetrator program.

MENTAL HEALTH

¶ 7 Ms. G. underwent an intake interview at Pend Oreille County Counseling with a behavioral health counselor in September 2005. However, she did not complete the intake after the counselor refused to provide proof that Ms. G. was in counseling. Ms. G. completed an intake interview with a mental health therapist in June 2007, but she did not start counseling as scheduled. She reported having visual and auditory hallucinations since childhood and reported that she was always being watched. She had auditory and visual hallucinations as recently as late 2007 and early 2008. Ms. G. reported seeing spirits of children, which had been in an orphanage, and again she reported that people were always watching her. She had seen spirits throughout her life. And the hallucinations were prior to and independent from any chemical dependency.

¶ 8 A counselor met with Ms. G. one time in June 2007. She intended to have weekly sessions with Ms. G., but Ms. G. did not show up for her next scheduled appointment. The counselor did not have enough information to diagnose Ms. G. and the counselor could not conclude that the hallucinations and paranoia affected Ms. G.'s daily living. The hallucinations were not a threat "to harm self or others." Report of Proceedings (RP) at 708.

ATTACHMENT TO CHILDREN

¶ 9 A.G. and L.S. had been out of Ms. G.'s home for 13 months by mid-2006. A social worker conducted a parent-child bonding and attachment assessment. She drew a number of conclusions.

¶ 10 A.G. had a significant social and emotional attachment with her mother. She looked to her mother as a source of comfort and security. A.G.'s attachment to Ms. G. was described as anxious "in terms of her mother's availability." RP at 275. "A.G. didn't trust that her mother was going to be there for her or that she would have access to her mother." Id. The anxiety was likely due to living apart, not due to their relationship before A.G. and L.S. were removed. The bond between A.G. and her mother had been weakened by their separation.

¶ 11 L.S. had a social relationship with her mother but no attachment had formed. L.S. had no anxiety on separation from her mother. Eight hours of visitation a week with L.S. is not enough time to develop an attachment or bond with her mother.

¶ 12 One mental health counselor has worked with A.G. since February 2007 and L.S. since August 2007. She concluded that A.G.'s behaviors deteriorated in the fall of 2007. A.G.'s behavior was "far more escalated and severe" when she was having visits with her mother. Id. at 548. She threw severe tantrums, refused to eat, vomited, and urinated on the floor in public. A.G. had a higher level of anxiety about visits than other children similarly situated. Her behavior gradually improved, but would again deteriorate when she visited her mother. She improved significantly once visits were terminated. In counseling, A.G. went from being sad about leaving her mother, to worrying that she would have to care for M.S. if she returned to her mother, to not wanting to return to her mother and wanting to stay with her foster mother. L.S. suffered an eating problem starting at age 21 months, but is now at a healthy weight. L.S. would refuse to eat during the times when visitation would take place. The eating problem relates to visits with her mother.

¶ 13 A witness opined that termination of Ms. G.'s parental rights would reduce both A.G.'s and L.S.'s anxiety, because "at times they still wonder if they will be leaving where they're living." Id. at 552.

TRIAL COURT'S DECISION

¶ 14 The trial court concluded that the statutory elements necessary to terminate Ms. G.'s parental rights had been met and entered an appropriate order doing so.

¶ 15 Specifically, the court concluded that "there is little likelihood that conditions will be remedied so that A.G. or L.S. can be returned to their mother in the near future." A.G. Clerk's Papers (CP) at 49. The court found "since late August, 2008, Ms. G. has given no testable UA samples—in that time she has had one unable-to-specimen, two no-shows, and four diluted samples." Id. at 50. And the court found that "domestic violence is learned behavior. While there is not a necessary connection between being a domestic violence perpetrator and parenting ability, such behavior leads to physical and emotional abuse of children, and sets a poor example." Id. at 50-51.

¶ 16 The court concluded that "continuation of the parent-child relationships clearly diminishes the children's prospects for early integration into a permanent and stable home." Id. at 52. The court also found "it is in the best interest of A.G. and L.S. to terminate the parent-children relationships." Id. at 55. Finally, the court found that "the children shall have no relationship with M.S." Id. at 57.

¶ 17 Ms. G. appealed the trial court's order regarding both A.G. and L.S. We consolidated the appeals.

DISCUSSION

STANDARD OF REVIEW

¶ 18 First of all, it is important for us to clarify what we are doing here on appeal. Standards of review dictate when we can intrude upon a decision of a trial court and when we cannot. It is important, then, to spell out the authority of the court and the way in which that authority is exercised when passing on the legal adequacy of the evidence to support the court's findings.

¶ 19 Our review here is of this trial judge's decision and is not de novo. See In re Welfare of M.R.H., 145 Wash.App. 10, 24, 188 P.3d 510 (2008) (the decision of the trial court "is entitled to deference and this court will not judge the credibility of the witnesses or weigh the evidence"). We review the record to decide whether the court's findings are supported by substantial evidence. In re Dependency of K.S.C., 137 Wash.2d 918, 925, 976 P.2d 113 (1999). That is, we determine whether the State produced sufficient evidence to support the statutory elements necessary to terminate the parent-child relationship. See M.R.H., 145 Wash.App. at 24, 188 P.3d 510.

¶ 20 Ms. G. argues throughout that the court failed to satisfy the criteria for "substantial evidence" when the State's burden of persuasion—clear, cogent, and convincing or preponderance—is considered. Appellant's Br. at 40, 42, 48. But that approach implicates the State's burden of persuasion...