B.D. 2/3/10 Wash. State Dep't of Soc. & Health Servs. v. Louch (In re Dependency S.b.-L.)

In the Matter of the Dependency of S.B.-L. b.d. 2/3/10

WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. KEVIN LOUCH, Appellant.

No. 70624-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 25, 2014

UNPUBLISHED OPINION

VERELLEN, A.C.J. — Kevin Louch, father of S., appeals the trial court's order terminating his parental rights. He challenges the trial court's conclusions that continuation of S.'s relationship with him diminishes her prospects for early integration into a stable and permanent home and that S. would likely be subject to serious emotional or physical damage if placed in his custody. But the trial court explained these conclusions of law in its memorialization of its oral decision. The conclusions are amply supported by unchallenged findings of fact.

Louch also challenges the trial court's conclusion that the Department of Social and Health Services (Department) engaged in active efforts to provide him with remedial services as required under the Washington State Indian Child Welfare Act (ICWA), chapter 13.38 RCW. Specifically, he challenges limits on his visitation and a lack of Native American cultural activities. Although visitation is an important right of thefamily, it is not, on its own, a service that remedies parental deficiencies. And overwhelming evidence supports the trial court's determination that additional services would be futile. The alleged lack of active efforts is not persuasive. We affirm.

FACTS

S. was born on February 3, 2010 to Jane Baker-Louch and Kevin Louch. Shortly after her birth, she was placed in out-of-home care and she currently resides in an out-of-home placement. S. is a member of the Nooksack Indian Tribe and is an Indian child under ICWA.

S. is the third child born to Baker-Louch and Louch. In January 2009, Louch's parental rights to his two older sons were terminated. In that order of termination, the trial court explained that Louch was offered many remedial services, including psychological evaluation and parenting assessment, parenting classes, drug and alcohol evaluation and treatment, random urinalysis, mental health counseling, medication management for mental health issues and pseudo-seizure disorder, domestic violence perpetrator treatment, and assistance to obtain secure housing free from alcohol, drugs, and domestic violence. Louch did not avail himself of the services ordered and failed to address his deficiencies. He continued to have substance abuse, mental health, and domestic violence issues. Louch denied having any such issues and continued to drink to intoxication, which resulted in continued law enforcement involvement and arrests. Louch lacked rudimentary and essential parenting skills to safely or adequately care for his children. For example, he would become agitated and volatile when he perceived that he was being criticized, and his lack of understanding of child development placed him at a high risk to inflict abuse and punish his children ininappropriate ways. Louch's older boys were adopted by a Native American family. S. is currently placed with the same family.

S. was found to be dependent as to Louch in November 2010. Louch's parental rights were initially terminated in 2012, but that termination order was reversed due to insufficient evidence that Louch made a knowing, intelligent, and voluntary waiver of his right to counsel. On remand, after a 10-day trial in May and June 2013, the trial court terminated Louch's parental rights.¹

The 2010 disposition order required Louch to establish and maintain a safe, stable, suitable living environment free of domestic violence, physical and psychological abuse, drug and alcohol abuse, and criminal activity. He was ordered to participate in many services, including drug and alcohol evaluation and treatment, random urinalysis, domestic violence batterer's treatment, parenting classes, a medical examination to address his seizures, and psychiatric and psychological evaluations and treatment. All of the services ordered were offered to Louch by the Department. Louch started a parenting class but did not finish. He did not consistently participate in urinalysis. He did participate in a drug and alcohol evaluation but adamantly denied that he had a drug or alcohol problem and refused to participate in the recommended treatment program. He attended some psychological counseling but was unable to continue when further counseling was contingent on maintaining sobriety and engaging in substance abuse counseling, which he refused to do. At trial, Louch continued to deny the existence of any parental deficiencies and testified that he would not abstain from marijuana or alcohol until his daughter was placed in his custody.

Dr. Lawrence Majovski diagnosed Louch with longstanding mood and personality disorders that cause Louch to lack impulse control, become unstable, and have poor judgment skills. According to Dr. Majovski, Louch needs individualized mental health counseling and psychiatric medical management and, without such treatment, has an "extremely poor prognosis to adequately parent."² Licensed mental health therapist Andrea Lindee diagnosed Louch with posttraumatic stress disorder and testified that he needs at least two years of mental health therapy, including substance abuse treatment, to address and correct the issues that make him an unfit parent.

Indian expert Hunter Morrigan also opined that S. would be at risk if placed with Louch for several reasons. First, Louch's untreated alcohol and substance abuse issues lead to instability for S. because of his lack of awareness and judgment while impaired. Second, his untreated mental health issues make him unstable, loud, and prone to outbursts of anger. Finally, his untreated domestic violence tendencies could lead to violence directed at S. or lead to her becoming inadvertently injured.

Visitation supervisor Bill Kettenring testified that he supervised 34 visits between S. and Louch and that Louch engaged in yelling episodes in S.'s presence at nearly all of the visits. The trial court found that Louch was often "inappropriate, angry, and ranting" during the visits, expected things from S. that are beyond her developmental capabilities, and was unable to curtail his opinions and ranting.³ S.'s therapist recommended that the visits be suspended.

The trial court found that Louch lacks an understanding of childhood development and has expectations for S. that are beyond her developmental capacity.For example, Louch stated his belief that a two-year-old should not be allowed to say "no" to a parent. Additionally, the trial court found that Louch had difficulty controlling his anger both inside and outside the courtroom. For example, he had an "explosive outburst" at a parenting class, causing the facilitator, other parents, and their young children to feel unsafe so much so that some of the parents and children fled the room.⁴ The court noted that during the trial Louch "exhibited difficulty controlling his anger[,]"engaged in "frequent and loud outbursts and disruptions[,]" and, as a result of this anger, he "cannot control himself to the extent necessary to care for a child, and therefore a child in his care would be at risk of harm."⁵

Louch continued to have involvement with the criminal justice system—a fourth degree domestic violence assault conviction in December 2012—and frequent interactions with the police over the last two years, including an incident as recent as April 2013, during which he appeared intoxicated. Despite a history of domestic violence between Louch and Baker-Louch, Louch intended to remain married to and live with Baker-Louch even though her parental rights to S. were already terminated.

Finally, court appointed special advocate Pam Jensen testified in support of all the above findings and opined that Louch was not capable of providing adequate care for S. The trial court determined that Louch was unfit to parent S. and terminated his parental rights.

Louch appeals.

DISCUSSION

To prevail in a petition to terminate parental rights, the State must prove by clear, cogent, and convincing evidence:

(a) That the child has been found to be a dependent child;

(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;

(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;

(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. . . .

. . . .

(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.⁶

The State must also prove by a preponderance of the evidence that termination of parental rights is in the best interests of the child.⁷

A trial court's findings of fact entered following a termination hearing must be supported by substantial evidence in the record and must, in turn, support the trial court's conclusions of law.⁸ Findings of fact supported by substantial evidence arebinding on the reviewing court.⁹ Unchallenged findings of fact are treated as verities on appeal.¹⁰

Prospects for Early Integration into a Stable and Permanent Home

Louch argues that the trial court failed to make any specific findings supporting its legal conclusion that continuation of S.'s relationship with him diminished her prospects for early integration into a stable and permanent home under RCW 13.34.180(1)(f). He also argues that the State failed to prove this element by clear, cogent, and...