State v. Saint-Louis (In re D.L.B.)

• Decision Date: 13 July 2015
• Docket Number: No. 72421–5–I.,72421–5–I.
• Citation: 188 Wash.App. 905,355 P.3d 345
• Parties: In the Matter of the Dependency of D.L.B., D.O.B: 11/01/08, Minor child. STATE of Washington, Department of Social and Health Services, Respondent, v. Edelyn SAINT–LOUIS, Appellant.
• Court: Washington Court of Appeals

188 Wash.App. 905

355 P.3d 345

In the Matter of the Dependency of D.L.B., D.O.B: 11/01/08, Minor child.STATE of Washington, Department of Social and Health Services, Respondent

v.Edelyn SAINT–LOUIS, Appellant.

No. 72421–5–I.

Court of Appeals of Washington, Division 1.

July 13, 2015.

Richard Wayne Lechich, Washington Appellate Project, Seattle, WA, for Appellant.

Kelly L. Taylor, Ofc. of the Atty. General, Seattle, WA, Sheila Malloy Huber, Attorney at Law, Olympia, WA, for Respondent.

April M. Rivera, King County CASA Program, Seattle, WA, for Guardian Ad Litem.

Opinion

TRICKEY, J.

¶ 1 In 2013, the legislature amended the Juvenile Court Act, chapter 13.34 RCW, to ensure that the rights of incarcerated parents are protected throughout various stages of the dependency and termination process. One of these amendments is codified in RCW 13.34.180(1)(f), the amended language of which states that “[i]f the parent is incarcerated,” the trial court must consider several factors before terminating the parent-child relationship. Here, the mother was not incarcerated at the time of the termination hearing but was incarcerated for numerous months during the dependency. She contends that the order terminating her parental rights must be reversed because the trial court failed to consider the amended factors set forth in RCW 13.34.180(1)(f). We disagree and hold that the plain meaning of RCW 13.34.180(1)(f), as gleaned from its language and surrounding statutes, supports the conclusion that the amended factors apply only when the parent is incarcerated at the time of the termination hearing. Accordingly, we reject the mother's contention, as well as others she raises on appeal, and affirm the trial court's order terminating her parental rights.

FACTS¹

¶ 2 D.L.B. was born on November 1, 2008, to Edelyn Saint–Louis. The father is not a party to this termination proceeding.²

¶ 3 Since an early age, D.L.B. was exposed to domestic violence while in his mother's care. In 2009, the father threw D.L.B. at Saint–Louis and then struck her in the head. After this incident, Saint–Louis obtained a permanent no-contact order against the father.

¶ 4 A few years later, when D.L.B. was approximately two years old, Saint–Louis and D.L.B. moved in with the father's sister in Chicago for a few months. The father followed them to Chicago shortly thereafter, and would visit the house often. He would frequently harass and assault Saint–Louis. On at least one occasion, D.L.B. witnessed a physical altercation between Saint–Louis and the father. The police arrested the father three times during the three and a half months they resided in Chicago.

¶ 5 Saint–Louis and D.L.B. returned to Seattle. In early 2012, the Department of Social and Health Services (Department) received reports concerning domestic violence between Saint–Louis and her boyfriend at the time. The police had been called to Saint-Louis's residence on multiple occasions to investigate. On February 8, 2012, the police arrested Saint–Louis for leaving D.L.B. unattended for several hours. D.L.B. was taken into protective custody.

¶ 6 On March 8, 2012, the Department filed a dependency petition on D.L.B.'s behalf. On May 11, 2012, D.L.B. was declared dependent as to both parents. The trial court required Saint–Louis to complete the following services: (1) random urinalysis (UA) testing two times per week; (2) a psychological evaluation with parenting component and compliance with recommended treatment; and (3) a domestic violence support group.

¶ 7 In July 2012, the Department referred Saint–Louis to Dr. Steve Tutty for a psychological and parenting evaluation. Saint–Louis completed the evaluation in October 2012. Dr. Tutty observed a positive bond between Saint–Louis and D.L.B. However, he found that Saint–Louis presented with “a myriad of risk factors that threaten the safety and well-being of [D.L.B.]”³ He opined that Saint–Louis's “presentation, testing outcomes, and clinical/CPS history support psychological challenges best characterized by bipolar illness, polysubstance abuse, panic disorder, executive functioning deficits, learning disabilities, and histrionic traits.”⁴

¶ 8 Dr. Tutty recommended against reunification of Saint–Louis with D.L.B. He determined that Saint–Louis's prognosis for maintaining the safety and welfare of D.L.B. was poor at the time of the evaluation and in the foreseeable future. Dr. Tutty concluded that it was highly unlikely that Saint–Louis would be able to remediate her parental deficits within the timeframe allowed for the Department to establish permanency. He nevertheless recommended she complete the following services within six months of the November 2012 evaluation: (1) drug and alcohol evaluation and follow-up with all recommendations; (2) medical consultation to explore additional psychotropic medications to target her mental health issues of bipolar illness, panic disorder, and executive functioning deficits; (3) participation in the Incredible Years parent education program; (4) monitored visitations about once a week; (5) participation in a domestic violence support group; and (6) work with her social worker in obtaining suitable housing and employment options.

¶ 9 D.L.B. was referred to the Foster Care Assessment Program (FCAP) for a reunification assessment. In the FCAP evaluator's written report, dated December 12, 2012, the evaluator recommended against reunification. She recommended Saint–Louis enroll in the Incredible Years parent education program “sooner rather than later.”⁵

¶ 10 On November 5, 2012, Saint–Louis enrolled in a 30–day in-patient chemical dependency treatment program to address her dependence on alcohol, cannabis, and cocaine. She successfully completed that program and subsequently enrolled in an out-patient program in December 18, 2012. She completed that program in April 2013. Saint–Louis's UAs remained clean until May 2013, when she tested positive for alcohol during a random UA test. Her case worker recommended she participate in a relapse prevention program. Saint–Louis was unable to begin classes until a week before the termination trial in July 2014.

¶ 11 Following a dependency review hearing on May 30, 2013, the trial court found that Saint–Louis was in compliance with all court-ordered services except that she had missed five random UA tests since March 2013 and had not attended parent education classes. The trial court added another service to be completed by Saint–Louis: participation in mental health counseling.

¶ 12 In July 2013, Saint–Louis was arrested for a hit and run charge. She was incarcerated for approximately one month. In August 2013, she was released. On October 24, 2013, Saint–Louis failed to appear at a court hearing on the matter and, as a result, a warrant was issued for her arrest.

¶ 13 In November 2013, Saint–Louis was arrested. She pleaded guilty to one count of hit and run, one count of vehicular assault, and one count of taking a motor vehicle without permission in the second degree. She also pleaded guilty to two counts of attempted forgery arising from a separate incident.

¶ 14 Saint–Louis was incarcerated from November 2013 to June 2014. On January 31, 2014, while she was incarcerated, the Department filed a petition for termination of Saint–Louis's parental rights.

¶ 15 For two brief periods, Saint–Louis was on work release. The first time was for approximately one week in March 2014; the second was for approximately two weeks in April 2014. While on her second work release in April, Saint–Louis's social worker, Alyssa Livingston, met with her to review services, which had not been started but had been referred. They spoke about setting up visits and discussed Saint–Louis's participation in the Incredible Years parent education program.

¶ 16 Saint–Louis had the option of going on work release again, but she opted against it. Nevertheless, she participated in domestic violence services while incarcerated. She also saw someone from Sound Mental Health twice each week.

¶ 17 In June 2014, Saint–Louis called Livingston after she was released from jail. At that point, Livingston made referrals for Saint–Louis to begin UA testing. She also made referrals to the Incredible Years parent education program and scheduled visits between Saint–Louis and D.L.B. Saint–Louis began the program in late 2013, but she missed several classes and was discharged. She began the program again on July 29, 2014.

¶ 18 The termination hearing took place at the end of July 2014. The trial court terminated Saint–Louis's parental rights.

¶ 19 Saint–Louis appeals.

ANALYSIS

¶ 20 Parents have a fundamental liberty interest in the care and welfare of their children. In re Dependency of Schermer, 161 Wash.2d 927, 941–42, 169 P.3d 452 (2007). To terminate parental rights, the Department must satisfy a two-pronged test. In re Dependency of K.N.J., 171 Wash.2d 568, 576, 257 P.3d 522 (2011). The Department must first prove the statutory elements set forth in RCW 13.34.180(1)(a) through (f)⁶ by clear, cogent, and convincing evidence. K.N.J., 171 Wash.2d at 576–77, 257 P.3d 522.

¶ 21 Evidence is clear, cogent, and convincing if it established the ultimate fact in issue as “ ‘highly probable.’ ”

In re Dependency of K.R., 128 Wash.2d 129, 141, 904 P.2d 1132 1995 ) (internal quotation marks omitted) (quoting In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831 (1973) ). If the trial court finds that the Department has met its burden under RCW 13.34.180, it may terminate parental rights if it also finds by a preponderance of the evidence that termination is in the “best interest” of the child. K.N.J., 171 Wash.2d at 577, 257 P.3d 522.

¶ 22 Where the trial court has weighed the evidence, our review is limited to determining whether the court's findings of fact are supported by substantial evidence and whether those findings support the court's conclusions of law. In re Dependency of P.D., 58 Wash.App. 18, 25, 792 P.2d 159 (1990). “ ‘Substantial evidence’ is...