In re Welfare of K.J.B.

• Decision Date: 11 June 2015
• Docket Number: No. 32490–7–III.,32490–7–III.
• Citation: 188 Wash.App. 263,354 P.3d 879
• Court: Washington Court of Appeals
• Parties: In re the WELFARE OF K.J.B.

188 Wash.App. 263

354 P.3d 879

In re the WELFARE OF K.J.B.

No. 32490–7–III.

Court of Appeals of Washington, Division 3.

June 11, 2015.

Kristina M. Nichols, Nichols Law Firm, PLLC, Jill Shumaker Reuter, Of Counsel, Nichols Law Firm PLLC, Spokane, WA, for Appellant.

Carissa Ann Greenberg, Office of the Attorney General, Yakima, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 The trial court terminated J.B.'s parental rights to his daughter, K.J.B. J.B. appeals, contending that the trial court erred in (1) finding that the Department of Social and Health Sciences (Department) satisfied the notice requirements of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 –1963 ; (2) finding that all necessary services were expressly and understandably offered or provided; (3) failing to consider the amended language of RCW 13.34.180(1)(f) applicable to an incarcerated parent; and (4) finding that it was in K.J.B.'s best interests to terminate J.B.'s parental rights. We agree with J.B.'s third contention, but determine that the error was harmless, and we disagree with his other contentions. We therefore affirm.

FACTS

¶ 2 The Department received a referral for K.J.B. on April 20, 2012, the day she was born. The referral was based on the mother testing positive for methamphetamine one month prior to her daughter's birth. Because of the mother's methamphetamine and cigarette use, K.J.B. has asthma

and reactive airway disease. She is required to use a nebulizer almost every day. Her condition requires that her caregiver be vigilant concerning the odors and environment to which she is exposed. Her caregiver must immediately take action if K.J.B. shows any signs of breathing difficulties.

¶ 3 The Department filed a dependency petition for K.J.B. on April 24, 2012. By court order, the Department originally placed K.J.B. with a relative but soon after moved her to foster care placement. On October 22, 2012, the court held a dispositional hearing and entered an order of dependency. The order reaffirmed K.J.B.'s placement in foster care. The order also required J.B. to complete the following services and to follow provider recommendations: drug and alcohol evaluation and treatment, random urinalysis (UA) testing, and parenting assessment and instruction.

¶ 4 Drug and alcohol evaluation and treatment. J.B. completed a drug and alcohol evaluation on May 6, 2013. The evaluation revealed methamphetamine dependence

and nicotine dependence, and the recommendation was intensive inpatient treatment. J.B. was scheduled to enter inpatient treatment on May 20, 2013, but he did not do so. In June 2013, he started intensive outpatient treatment. J.B. participated in the outpatient treatment program in July and August 2013 but then left the program due to a relapse. On September 12, 2013, he entered an intensive inpatient treatment program but left the program without completing it on September 21, 2013. J.B. stated he left the intensive drug treatment program because he was “uncomfortable with the fact that [he] was ... getting sober ... and ... dealing with [his] issues ... instead of us [ing] drugs to mask them,” which he was not ready to do at that time. Report of Proceedings (RP) at 13.

¶ 5 On December 18, 2013, J.B. went to detox and planned to begin inpatient treatment after finishing detox. He only stayed at detox for four days and did not go to inpatient treatment. He made no other attempts to obtain drug addiction treatment before he was incarcerated on January 24, 2014.

¶ 6 Random UA testing. J.B. was ordered to provide random UA tests five times per month beginning in January 2013. J.B. provided six random UAs during this time: one per month in February, March, May, and August, and two in April. Four of these tests were negative, while two were positive.

¶ 7 Parenting assessment. J.B. completed a parenting assessment and participated in parenting instruction with parent educator Esteban Cabrera in July and August 2013. In a report dated September 9, 2013, Mr. Cabrera recommended that J.B. complete inpatient substance abuse treatment, individual and couple's counseling once he completed the inpatient treatment, and consistent visitation with K.J.B. Because Mr. Cabrera recommended completion of substance abuse treatment first, the Department did not make referrals for counseling services at that time.

¶ 8 Social worker Sonny Laform, who was assigned to the case in October 2013, referred J.B. to Catholic Family and Child Services for individual and family counseling on December 18, 2013. This referral coincided with J.B.'s entry into detox and plan to go to inpatient treatment thereafter. J.B. did not complete the referral for counseling.

¶ 9 Parental visits. J.B. participated in visits with K.J.B. in January 2013 and regularly from March 2013 to January 2014, missing only a few visits within that time period.

¶ 10 Incarceration. On January 24, 2014, J.B. was found guilty of first degree unlawful possession of a firearm and possession of a stolen firearm. He was sentenced to 74 months of incarceration. He was incarcerated at the time of the March 2014 termination trial. While incarcerated, J.B. never sought contact with K.J.B. nor contacted Mr. Laform to ask about K.J.B.

¶ 11 ICWA notices. K.J.B.'s mother indicated she is Native American and identified herself as having Cherokee, Hopi, and Cree ancestry. J.B. submitted a declaration stating he has Blackfoot ancestry through his father, and he gave his father's name and date of birth. His declaration also stated that his great, great grandmother was full-blooded Cree, but he did not know her name or date of birth.

The Department prepared a Family Ancestry Chart. The chart failed to identify J.B. or his father as having Blackfoot ancestry. The Department submitted notice of the pendency of parental termination proceedings to various Cherokee, Cree, and Hopi tribes. No notice was sent to the Blackfoot tribe. Accompanying each notice was the before-described Family Ancestry Chart. For each notice sent to an individual tribe, the Department provided a copy to the Bureau of Indian Affairs (BIA). The Department did not receive any response from the various tribes or the BIA.

¶ 12 The Department filed a termination petition on May 8, 2013. The case proceeded to a termination trial on March 17–18, 2014. One month prior to trial, K.J.B.'s mother consented to an order terminating her parental rights to her daughter. At the time of trial, K.J.B. had been in a safe and stable foster care home for 22 months, and had an opportunity for adoption into a permanent family with her foster parents.

¶ 13 J.B. testified at trial that he was not going to be available to K.J.B. in the near future due to his incarceration. He estimated his early release date from prison was just under four years from the time of trial. J.B. acknowledged that he still needs drug treatment and stated that he is now ready to get treatment. He stated that no parent should be under the influence of drugs while raising a child and that using drugs has an impact on the ability of a parent to provide a stable and permanent home for a child. He also testified that he tried to keep in contact with the Department as much as possible throughout the dependency, while working two jobs and battling his drug addiction.

¶ 14 Cristy Benge, who conducted J.B.'s original drug and alcohol evaluation, testified that J.B. is still in need of substance abuse treatment.

¶ 15 Social worker Marcinna Heine–Rath, assigned to the case from February 2013 to October 2013, testified that prior to leaving intensive inpatient treatment in September 2013, J.B. “seemed motivated to do what was in the best interest for his daughter” and “[h]ad been making [the] most of his visits.” RP at 75. She testified that after leaving treatment, J.B. reported that he had been going to Alcoholics Anonymous meetings and connecting with his sponsor.

¶ 16 Ms. Heine–Rath observed several visits between J.B., K.J.B, and K.J.B.'s mother, and one visit between J.B. and K.J.B. only. She testified the visits went well, with the parents playing with K.J.B. and interacting with her. Ms. Heine–Rath testified she felt K.J.B.'s mother was a trigger for J.B. and his sobriety. At the time of trial, J.B. was still in a relationship with K.J.B.'s mother.

¶ 17 When asked why she did not make a referral for J.B. to do individual counseling after receiving Mr. Cabrera's report, Ms. Heine–Rath testified, “The recommendation was for [J.B.] to complete [counseling] after he successfully completed his inpatient treatment.” RP at 103. She stated that if J.B. had completed inpatient treatment, she would have made a recommendation for individual or couple's counseling.

¶ 18 Finally, Ms. Heine–Rath testified she believes continuation of the parent-child relationship diminishes K.J.B.'s prospects for early integration into a stable and permanent home because K.J.B. needs the security of a permanent home. She also stated that termination of J.B.'s parental rights is in K.J.B.'s best interest so that K.J.B, can move on and be a legal part of her foster family.

¶ 19 Mr. Cabrera also testified at trial, stating J.B.'s parenting questionnaire showed he “has some common sense as far as what parenting is and what you should do.” RP at 124. Mr. Cabrera observed one visit between both parents and K.J.B. and testified J.B. was nurturing and loving toward K.J.B., showing compassion and sensitivity toward her. However, he described the bond between them as “[d]istant.” RP at 138. J.B.'s interaction with K.J.B. was minimal, standing back and allowing the mother to parent K.J.B., because he did not want to “further stress” the child. RP at 137.

¶ 20 Mr. Cabrera also testified that “in talking with [J.B.] and identifying stresses in his life, it turned more [into] an individual counseling session than it did into a parenting instruction.” RP at 122. He stated J.B.'s health questionnaire indicated some stress in his life,...