In re R.L.

In the Matter of the Welfare of: R.L.

No. 32938-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

November 19, 2015

UNPUBLISHED OPINION

KORSMO, J. — A father, JL, appeals the trial court's decision to terminate his parental rights to his son, RL. We affirm.

FACTS

RL, his older brother, and his step-sister, were placed with their maternal great-grandparents after their mother, AL, was accused of domestic violence against JL in May, 2010. Because of this incident, the Department of Social and Health Services (DSHS) initiated dependency proceedings. JL was permitted to visit the children.

The dependency required JL to complete certain services, including a neuropsychological evaluation, individual mental health therapy, parenting class, domestic violence perpetrator evaluation, drug and alcohol evaluation, and UA/BA monitoring. He immediately began the required services. After an evaluation, JL also began a one year domestic violence treatment program in August 2010.

Dr. Brian Campbell conducted a neuropsychological evaluation. He found that, while JL had above average intelligence, he had lower scores in memory and may have trouble learning. Dr. Campbell noted that because JL's own childhood was abusive, he began using alcohol and abusing drugs at a young age. Ultimately Dr. Campbell diagnosed JL with a cognitive disorder, mild anxiety, and memory loss associated with a past traumatic brain injury. He recommended a variety of services including but not limited to continuing domestic violence/anger management education, cognitive behavior therapy, relaxation training, and stress reduction. DSHS attempted to work with JL's primary care physician to arrange these services.

In March 2011, DSHS attempted to move the children back into JL's house, but two months later another domestic violence incident occurred. Assisted by DSHS, AL sought and obtained a protection order against JL for herself and the children. DSHS also struck its motion to return the children to their home. At this point, JL left Colvillc and went to visit his grandmother in Nevada; DSHS was unable to reach him. Because he left town, JL's visits were suspended and he did not complete his one-year domestic violence perpetrator treatment program. In August 2011, the program discharged him for missing the last three sessions.

By May 2012, JL was back in Washington. That spring, he spent some time incarcerated in Spokane. In July 2012, JL entered a 30-day inpatient chemical dependency treatment program. After completing the inpatient program, it wasrecommended he complete an outpatient program as well.¹ That October, DSHS referred JL to Sean Smithram, a clinical psychologist. JL only attended two sessions. He missed three sessions in November and another three sessions in December.

JL was again incarcerated from February until early April 2013. DSHS served him with notice of the termination proceeding during this time. Although the petition mentioned both of JL's sons, by the time of trial DSHS was pursuing termination only as to the youngest child, RL. AL relinquished her parental rights and is not a party to this appeal.

Shortly after JL was released from jail, there was a family team decision meeting regarding the children. RL's therapist recommended against any contact with his father. JL then stopped communicating with DSHS. He had no contact with the agency until July 10, 2013, when he notified the social worker that if he could not see his children he was not going to be engaging in any more services.

The termination trial began in early May 2014. A number of witnesses testified, including RL's therapist. She had begun seeing RL two years earlier when the child was four. The therapist indicated that RL suffers from post-traumatic stress disorder (PTSD). He has "rage episodes," suffers from emotional distress, and is very hard on himself. RL told the therapist his dad was scary. She testified that rage would be triggered when RLwent out in public or saw men with tattoos because they reminded him of his father. She believed that memories of violence caused his behavior.

She went on to testify that RL needs permanency. She felt that if he were adopted, he would probably need six more months of regular therapy with only sporadic therapy after that. In contrast, she could not fathom what would be required if he were not adopted, stating that he would likely need therapy until he achieves permanency. Ultimately, she did recommend that JL not have any further contact with RL.

JL testified that he was happy with his new girlfriend and their new baby. JL conceded, after listening to RL's therapist, that the situation with RL had deteriorated, and that it was best for RL to remain where he was. JL maintained, however, that he did not want his rights terminated, but instead wanted visitation once RL could handle it.

JL's current therapist, Myriah Pazerckas Roy, also testified. She ended treatment of a number of his past conditions, including PTSD and his personality disorder, because the symptoms had abated. She also said that he was doing well with his new family and there were no indications he was unfit to parent.

The trial court terminated JL's parental rights to RL. In its oral ruling, the trial court noted that although JL "has addressed many of the deficiencies, he cannot address, or doesn't have the tools to address the severe past emotional trauma that [RL] endured."²In its written order, the trial court specifically found that JL was currently unfit to parent RL. The court also found that RL suffered "intense trauma" while residing with JL and that he was "damaged by his relationship with his father."

JL timely appealed to this court.

ANALYSIS

JL presents four arguments: (1) the trial court erred when it found that all reasonably necessary services had been provided to rectify his parental deficiencies, (2) the trial court erred in finding that JL was an unfit parent, (3) the trial court erred by failing to consider the incarcerated parent factors in RCW 13.34.180(1)(f), and (4) his due process rights were violated because the State did not allege the incarcerated parent factors in its termination petition. We address each argument in turn, but jointly consider the final two arguments.

When deciding whether to terminate a parent's rights to his or her child, Washington courts apply a two-step process. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). "The first step focuses on the adequacy of the parents" and requires DSHS to prove, by clear, cogent, and convincing evidence, the six termination factors set forth in RCW 13.34.180(1). Id. For the second step, "the trial court must find by a preponderance of the evidence that termination is in the best interests of the child." In re M.R.H., 145 Wn. App. 10, 24, 188 P.3d 510 (2008) (citing RCW 13.34.190(2)). Only if the first step is satisfied may the court reach the second step. A.B., 168 Wn.2d at 911.

Reasonably Necessary Services

JL only challenges the court's ruling on one of the six termination factors, arguing that the record does not support a finding under RCW 13.34.180(1)(d). That provision requires:

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.

(Emphasis added.) A service is "necessary" if it is needed to address a condition that precludes reunification of the parent and child. In re Welfare of C.S., 168 Wn.2d 51, 56 n.3, 225 P.3d 953 (2010). The services must be tailored to the individual's needs. In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001). However, because RCW 13.34.180(1)(d) limits the services required to those capable of remedying parental deficiencies in the "foreseeable future," a trial court can find that DSHS offered all reasonable services where "the record establishes that the offer of services would be futile." M.R.H., 145 Wn. App. at 25.

The finding on any factor "must be upheld if supported by substantial evidence from which a rational trier of fact could find the necessary facts by clear, cogent, and convincing evidence." Id. at 24. "Because the trial court has the opportunity to hear the testimony and observe the witnesses, its decision is entitled to deference." In re Welfare of S.J., 162 Wn. App. 873, 881, 256 P.3d 470 (2011).

Here, the trial court found that "[t]here is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future." This is essentially a finding that further services would be futile. Substantial evidence supports this finding.

First, because JL damaged his relationship with RL so severely, reunification would be impossible, regardless of what services DSHS provides. Where it is not possible to reunify parent and child, providing further services is futile. See In re Welfare of K.M.M., 187 Wn. App. 545, 568-569, 575, 349 P.3d 929 (2015). RL's counselor testified that the child was significantly scared of the very prospect of returning to his father. The fear of his father was causing him to rage and destroy things in his foster home. Setting foot outside, or any change in his routine would trigger this fear. Further, men with tattoos also triggered the fear because they reminded him of his father. The counselor continued, that while at least six months of counseling would be required if RL were adopted by his foster parents, she could not fathom what would be required if he were kept in limbo for longer. Finally, JL himself testified that he would be unable to repair his relationship with RL.

Second, JL did not complete many of the services that DSHS provided him and said he would not complete further services if DSHS continued to forbid visitation. When a parent is unwilling or unable to make use of the...