State v. H.O. (In re B.P.)
| Citation | 376 P.3d 350,186 Wash.2d 292 |
| Decision Date | 28 July 2016 |
| Docket Number | NO. 91925–9,91925–9 |
| Court | United States State Supreme Court of Washington |
| Parties | In the Matter of the Parental Rights to B.P. (DOB 7/8/11) State of Washington, Department of Social & Health Services, Respondent, v. H.O. (Mother), Petitioner. |
Jill Shumaker Reuter, Of Counsel, Kristina M. Nichols, Nichols Law Firm, PLLC, P.O. Box 19203, Spokane, WA, 99219–9203, Counsel for Petitioner.
Amy Suzanne Soth, Attorney General's Office, Social & Health Section Spokane Division, Attorney General of Washington, 1116 W. Riverside, Suite 100, Spokane, WA, 99201–1194, Rebecca R. Glasgow, Attorney General's Office, Solicitor General Division Attorney General, Attorney at Law, 1125 Washington Street, P.O. Box 40100, Olympia, WA, 98504–0100, Counsel for Respondents.
Nancy Lynn Talner, Attorney at Law, 901 5th Avenue Suite 630, Seattle, WA, 98164–2008, Sharon Jean Blackford, Sharon Blackford PLLC, 1100 Dexter Avenue N Suite 100, Seattle, WA, 98109–3598, Amicus Curiae on behalf of ACLU.
Sara Lyle Ainsworth, Legal Voice, 907 Pine Street, Suite 500, Seattle, WA, 98101, Amicus Curiae on behalf of Legal Voice.
Devon Carroll Knowles, Seattle University School of Law, 1215 E Columbia St., Seattle, WA, 98122–4419, Amicus Curiae on behalf of Incarcerated Parents Project of the Seattle University School.
Lillian Marie Hewko, Washington Defender Association, 110 Prefontaine Pl. S Suite 610, Seattle, WA, 98104–2626, Amicus Curiae on behalf of Washington Defender Association.
Linda Lillevik, Carey & Lillevik PLLC, 1809 7th Avenue Suite 1609, Seattle, WA, 98101–1313, Amicus Curiae on behalf of Dr. Susan Spieker.
Linda Lillevik, Carey & Lillevik PLLC, 1809 7th Avenue Suite 1609, Seattle, WA, 98101–1313, Amicus Curiae on behalf of Marian Harris Dr.
D'adre Beth Cunningham, King County DPD–TDA Division, Tara Urs, The Defender Association Division, 810 3rd Avenue Suite 800, Seattle, WA, 98104–1695, Hannah Elizabeth Roman, King County Department of Public Defense, 420 W Harrison St. Suite 202, Kent, WA, 98032–4491, Kathleen Michelle McClellan, Northwest Defenders Division, KCDPD, 1109 1st Avenue Suite 300, Seattle, WA, 98101–2992, Anita Khandelwal, King County Department of Public Defense, 401 5th Avenue Suite 800, Seattle, WA, 98104–2391, Alena K. Ciecko, King County Department of Public Defense, Irina Nikolayev, King County DPD/SCRAP Division, 1401 E Jefferson St. Suite 200, Seattle, WA, 98122–5570, Kelli M. Johnson, King County Office of Public Defense ACA, 110 Prefontaine Pl. S Suite 200, Seattle, WA, 98104–2674, Amicus Curiae on behalf of King County Department of Public Defense.
Joseph Anthony Rehberger, Cascadia Law Group PLLC, 606 Columbia St. NW Suite 212, Olympia, WA, 98501–1093, Amicus Curiae on behalf of Center for Children & Youth Justice.
¶ 1 Petitioner H.O. asks us to reverse the Court of Appeals' decision affirming the termination of her parental rights. She argues that the State failed to prove two prerequisites to termination, one statutory and one constitutional. The statutory prerequisite is codified at RCW 13.34.180(1)(d)
; it requires the State to prove that it has offered and provided “all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future.” The constitutional prerequisite is a finding (express or implied) of parental unfitness. We agree with H.O. that the State failed to prove the first prerequisite by the necessary evidentiary standard (clear, cogent, and convincing evidence), We therefore reverse the Court of Appeals and reverse the order terminating H.O.'s parental rights.1
¶ 2 The mother in this case, H.O., suffered from drug addiction, depression and other mental health issues, and the effects of long term childhood trauma. The child in this case, B.P., suffered as well: she was born addicted to methamphetamine, endured withdrawal, was abandoned by H.O. during infancy, and experienced multiple disruptions when forming attachments with H.O. and various foster parents. On the other hand, after several tries, H.O. achieved sobriety; benefited from treatment in a structured environment; and became an attentive and caring mother to another child, A., in that structured environment. She also engaged in partially supervised, therapeutic visitation with B.P., and the two began to form what witnesses at the termination hearing called a social relationship with an emerging emotional attachment.
The significance of this attachment is the central disputed issue in-this-case. H.O. maintains that B.P. would have formed a stronger attachment to her if the Department of Social and Health Services (Department) had fulfilled its duty to provide “necessary services,” RCW 13.34.180(1)(d)
, to facilitate reunification. (It is undisputed that the Department provided B.P.'s foster parents with attachment therapy services.) The Department argues that it fulfilled this obligation but the services were futile. It maintains that the absence of a stronger attachment bond and H.O.'s risk of relapse now make her unfit to parent B.P. The trial court agreed with the Department.
¶ 4 The trial court is certainly in the best position to weigh the evidence presented about H.O.'s fits and starts, B.P.'s needs, and the Department's attempts to fulfill its responsibilities. And if those were the only issues presented by the tragic facts of this case, we would certainly defer to the trial court's judgment.
¶ 5 Our court, however, must resolve a legal question about the framework the trial court should use to make decisions in a parental rights termination hearing.
¶ 6 As discussed above, the legislature mandated that the Department provide all “necessary services” to parents like H.O. to try to move toward the goal of family reunification. RCW 13.34.180(1)(d)
. The trial court may not terminate a parent's rights unless it determines that the Department fulfilled that duty or that services would be futile. The legislature did not specify how to implement this mandate where, as here, the Department identifies a child's special needs and provides the foster parents, but not the biological parent, with the tools to try to address those needs. But recent precedent from this court and the Court of Appeals has addressed that issue, and we reaffirm that precedent now: where a child has special needs (here, special attachment needs); and where, as here, those special needs are exacerbated by the State's failure to timely provide necessary services to the biological parent; then the State has failed to prove this legislatively mandated prerequisite to termination (absent futility, which was not shown here). See discussion of In re Welfare of C.S. , 168 Wash.2d 51, 225 P.3d 953 (2010), and In re Termination of S.J. , 162 Wash.App. 873, 256 P.3d 470 (2011), in Part 1 below. Because we adhere to the holdings of C.S. and S.J., we reverse the decision of the Court of Appeals.
¶ 7 Petitioner H.O. gave birth to B.P. on July 8, 2011. Because H.O. was a methamphetamine user throughout her pregnancy, B.P. was born addicted and the hospital placed a “hold” on her. Clerk's Papers (CP) at 180. B.P. was released into foster care July 13, 2011. In August 2011, an order of dependency was entered for B.P. That order and subsequent review orders required H.O. to complete random urinalysis (UA) testing, mental health treatment, chemical dependency evaluation and treatment, hands-on parenting training, therapeutic visitation, and family therapy. H.O. participated in mental health counseling and parenting services, and, in September 2011, B.P. was placed with her at Isabella House, a six-month residential chemical dependency program. Isabella House is a highly structured program: residents follow a regular schedule of chores, group therapy, exercise, and educational classes. Isabella House provides child care while residents participate in these activities. Residents of Isabella House follow a curfew, must sign in and out when they leave the facility, and must get permission to visit with any outsiders. H.O. successfully completed treatment at Isabella House in January 2012 and moved into the organization's “[t]ransition [h]ouse” located next door. CP at 182, The transition house required residents to submit to UAs, observe a curfew, and participate in outpatient treatment and self-help groups.
¶ 8 H.O. relapsed, and B.P. was again removed from her care in July 2012, when B.P. was one year old. H.O. was allowed visitation with B.P. immediately upon her removal, but H.O. frequently arrived high for visits or missed them altogether. The dependency court suspended visitation in October 2012 after H.O. missed 10 scheduled visits and B.P. began displaying aggression and disorganized behavior toward H.O. during the visits she did attend. The court ordered that visitation would not resume unless H.O. obtained another court order reinstating visits. In November 2012, B.P. was placed into her fourth and final foster home, with her paternal aunt and uncle. B.P. did well in this placement, but when there was a change in her routine she showed significant distress. She displayed “disorganized” attachment behavior and was unable to regulate her emotions. 2 Verbatim Report of Proceedings (RP) at 161 (Feb. 11, 2014).
¶ 9 H.O. became pregnant again in the fall of 2012 and continued to use methamphetamine for most of the pregnancy. The Department filed a petition to terminate H.O.'s parental rights to B.P. When she was eight months pregnant, however, in May 2013, H.O. returned to Isabella House. H.O. gave birth to A. in June 2013, and the Department agreed to an in-home dependency so that A. could remain with H.O. at Isabella House. H.O. remained sober through the time of trial in this case, and A. has never been removed from her care.
¶ 10 In August 2013, H.O. obtained a court order provisionally reinstating visitation with B.P. The order granted her “1...
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