Opinion
No. 50858-0-I Consolidated with No. 50859-8
Filed: June 2, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-7-05137-5 Judgment or order under review Date filed: 07/19/2002
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David Bruce Koch, Nielsen Broman Koch PLLC, 810 3rd Ave Ste 320, Seattle, WA 98104-1622.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Joel Jacob Delman, Attorney at Law, Ofc of Atty Gen Dshs, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Counsel for Guardian(s) Ad Litem, Katie Hosford Traverse, Perkins Coie LLP, 1201 3rd Ave Ste 4800, Seattle, WA 98101-3099.
In these consolidated appeals, Danielle Kimber and Blaine Olds challenge an order terminating their parental rights to A. A. and J. O.
They contend the court lacked authority to continue the termination proceedings once it found that the State had failed to carry its burden.
They further contend the court had no valid basis to reopen or reconsider its decision denying termination. Finally, Danielle Kimber contends the record does not support several statutory factors for termination. We affirm.
FACTS
Danielle Kimber is the mother of three boys and a girl. This appeal involves her two youngest children, her daughter A. A. and her son J. O.
Their father is appellant, Blaine Olds. Danielle's older children, A. and Z. A., were fathered by David Corral.
Since becoming a parent, Danielle has had a series of relationships with abusive men. David Corral committed physical and sexual assaults against Danielle and sexually abused A. and Z. A. for several years. Danielle then married Rick Kimber, who Danielle said 'tried' to abuse her.
They divorced after several months. Ron Kraft then lived with Danielle. She denied having a relationship with him, but admitted that A. accused him of sexual abuse. She also admitted allowing Kraft to move back into her house after A.'s allegation. Danielle then met, and later married, appellant Blaine Olds. She learned early in the relationship that Olds had a rape conviction. That conviction included a condition prohibiting contact with minor children.
Olds, in fact, had convictions for indecent liberties with his seven-year-old sister, burglary, and third degree rape of a 15-year-old female. The Department of Corrections classified him as a level three sex offender with a high risk of reoffense.
The couple's first child, A. A., was born in March 1999. Six months later, Child Protective Services (CPS) received reports of Olds having contact with Danielle's children, burns to A. A.'s face from a firecracker, and bruising on A. and Z.A., allegedly from being hit and grabbed by the 'mother's boyfriend.' A dependency petition was filed which, in addition to the above facts, alleged that A. A. was failing to thrive, that Ron Kraft was living in the home, that a 1994 investigation 'was founded for sexual abuse of [A.] by Mr. Kraft,' and that Danielle admitted contact with Olds. The petition recounted a history of 20 referrals since 1989. One week after the petition was filed, police arrested Olds in Danielle's home for failing to register as a sex offender. Several weeks later, a man who alleged that Danielle had kicked him out of her house told police that Olds was using drugs in the home and that the boys were being molested by Olds' friend 'Jim.' In December 1999, Danielle and Olds entered an agreed order of dependency as to A. A., Z. A., and A. The order provided in part that Danielle 'has failed to provide adequate supervision of her children's contact with men that have abused children. [She] has minimized and not understood the concerns of the Department in regard to the children's recent contact with Blaine Olds.' The agreed order prohibited contact between Olds and the children pending a sexual deviancy evaluation. Services ordered for Danielle included non-offender spouse counseling, family preservation services, a public health nurse, parenting classes, and a psychological parenting evaluation. Services for Olds included substance abuse and sexual deviancy evaluations.
In January 2000, Dr. Kirk Johnson evaluated Olds for sexual deviancy and concluded he did not pose a risk to young children. Olds did not obtain a substance abuse evaluation. During the next year, CPS continued to receive referrals regarding the children. One report indicated that Olds had grabbed one of the boys by the neck and threatened to kill him. Others indicated that Z. A. and A. were routinely arriving at the local Boys and Girls Club without lunches and with instructions to find someone to stay over night with. The boys told the director of the club that their mother's boyfriend was selling speed from their home.
In September 2000, Olds tested positive for methamphetamines and was cited for masturbating in a booth at a video store.
In October 2000, Danielle took A. A. to live with Olds' mother in Battleground, Washington. The court subsequently ordered that A. A. be officially placed with the grandmother. Danielle gave birth to J. O. in November 2000. Two months later, following reports that Olds had violated the no-contact order, threatened his mother, and used drugs, the Department removed Z. A., A., and J. O. from the home and filed a dependency petition for J. O. The children were placed with their uncle, Ward Agan, and have resided with him since that time.
The court found J. O. dependent in May 2001. Following a hearing, the court found that Danielle had received eight years of services with no improvement, that OIds had not completed a drug and alcohol evaluation, and that Olds had violated the no contact order. The court concluded that Danielle's negligent care of J. O.'s siblings supported a finding that he too was dependent. The disposition orders prohibited contact between Olds and J. O. until he completed all evaluations, including a substance abuse evaluation and a psychological evaluation to determine whether a sexual deviancy evaluation was necessary.
In July 2001, termination petitions were filed as to A. A. and J. O., who were three and one and a half years old. Trial commenced in April 2002.
At trial, Mary Jo Adams, a public health nurse, testified that she worked with the family beginning in 1999. Z. A. and A. were having significant problems in school and appeared depressed. Adams was concerned about Danielle's failure to follow through with counseling for the boys and recounted an incident where Danielle was unconcerned about Z. A.'s jaundice and fever because he had had jaundice as an infant. She felt the children were at risk in terms of safety, boundaries, and nurturing. DCFS social worker Romeo Garcia testified that he worked with the family from October 1999 through April 2000. Garcia felt that Danielle was generally complying with services. He allowed contact with Olds because of Dr. Johnson's conclusion that Olds did not present a risk to children. Jane Huey, who took over the case in May 2000, had a different experience with Danielle. Huey testified that she reviewed the required services with Danielle on several occasions. Danielle, however, did not follow through with counseling appointments for the boys or with domestic violence treatment. In October 2000, Huey told Danielle and Olds that she was going to ask the court to remove A. A. from the home. Huey specifically warned them not to remove A. A. from the area before the court hearing. Nevertheless, Danielle took A. A. to live with Olds' mother without notifying the Department. Huey requested A. A.'s removal because of 'concerns about [A. A.'s] care and the parents' failure to comply.' During the time Huey worked with the family, the juvenile court prohibited contact between Olds and the children after learning of the high risk level for reoffense assigned to him by the Department of Corrections. Huey thought Danielle's main problems were denial about Olds' risk to the children and failing to follow through with counseling for the boys. She had 'grave concerns' about Danielle's ability to provide structure, regular meals and other essentials. Neither parent improved during the time she had the case.
Richard Parker provided economic and housing services to the family beginning in July 2000. He thought the agency went 'out of its way in this particular case.' Attempts to stabilize the family failed, he believed, because of the parents' volatility which 'went well beyond the usual volatility.' Danielle and Olds cooperated and agreed to participate in programs when they needed money, but Parker 'wouldn't hear from them again until the next time they needed money [.]' Katherine Wiles of the Seattle Housing Authority (SHA) testified that she offered housing to Danielle contingent on Olds not being in the household. Danielle responded that she could not live without him. She then moved out of SHA housing. Caseworker Jeanne Kimble took over the case in October 2000. She removed the children from the home after receiving information that Olds was violating the no-contact order. Kimble felt that Danielle did not 'have parental deficiencies per se but . . . chose to prioritize a man and his dangerous friends . . . to the danger of the children [.]' She thought Danielle was telling people what they wanted to hear, but was not actually changing. Kimble recommended termination as to A. A. and a guardianship for the older boys. Roberta Chiles took over the case in the summer of 2001. She offered Danielle train or bus fare to visit A. A. in Battleground, but Danielle declined, saying she had conflicts with counseling and work. When Chiles asked for the names of her counselor and employer, Danielle could not provide them. Danielle told Chiles she would have a friend take her to visit A. A. but never followed through.
When Chiles first came on the case, some services had been completed, some were on-going, and some had not been completed. Chiles reviewed the dependency disposition orders with Danielle and discussed the services she needed to complete. By the time of trial, Danielle had completed, or was engaged in, every required service. Despite the services, Chiles saw no improvement in Danielle's ability to parent. Although Danielle had repeatedly stated that she was going to divorce Olds, she never did. She also lied to Chiles about her employment and roommate. Chiles felt Danielle could not protect the children from further abuse and had concerns about her ability to 'feed them and keep them in a normal pattern of life on a day-to-day basis.' She recommended termination of Danielle and Olds' rights.
Olds' mother, Georgia Arruda, testified that Danielle asked her to take A. A. because she was afraid the court was going to take her away at a hearing the next day. Arruda picked A. A. up at a motel where the family was staying. A. A. was dirty and listless. The motel room was 'filthy' and had food and shaving razors on the floor. Arruda said Danielle had visited A. A. in Battleground only once. A few weeks before trial, Danielle told Arruda that she and Olds planned on being together again.
Linda Toliver supervised some of Danielle's visits with A. A. and J.O. and had no concerns about how Danielle related to the children.
The Court Appointed Special Advocate, Rosemarie Wentz, recommended that both parents' rights be terminated. She thought Olds was a danger to the children because of his offense history and untreated drug addiction. Shortly before trial, Danielle told Wentz that she intended to have a relationship with Olds, but would keep him away from the children. Wentz testified that Danielle's recent full compliance with several services was typical of parents making last minute attempts to avoid termination. She stressed that the children need permanency now.
Dr. Paul Johnson, who performed a psychological evaluation of Danielle in March 2000, testified that she demonstrated traits of a histrionic personality i.e. impulsivity, self interest, lack of reflection, and lack of responsibility. According to Johnson, these traits make it 'very hard to see what's in the best interest of your children.' He felt the proof as to whether Danielle could change would be in her future choices, such as whether to continue the relationship with Olds.
Geno Romano, a classification counselor at DOC, testified that Olds had listed Danielle's address as his release address. Romano also testified that Danielle visited Olds in prison 29 times in the three months preceding trial.
Lee Jameson, director of a certified alcohol and drug treatment program, testified that a January 2001 evaluation found that Olds was drug dependent. He testified that Danielle called and demanded that the results be changed to say that Olds had no significant problem.
Blaine Olds testified that he stopped using and dealing drugs before A. A. was born, but added that he has been addicted to Sudafed. Olds maintained that, contrary to a DOC document he had seen, the victim of his 1988 indecent liberties offense was thirteen, not seven, and was not his sister.
Danielle testified that caseworkers never expressed concerns about Olds abusing the children or her lack of progress. She admitted that Olds wants to continue their relationship but denied telling the CASA that she feels the same way. She testified that she has 'conflicting feelings' about whether Olds is a risk to her children and acknowledged that her dissolution petition had been dismissed.
When asked about recent prison visits, Danielle initially claimed she had only been to the prison five or six times in the two months preceding trial. She later conceded it could have been as many as 25 times. She testified that the visits concerned the divorce and visitation. After hearing the testimony, the court stated in its oral opinion that Olds' risk to the children was the pivotal issue in the case. The court concluded that there was not clear, cogent, and convincing evidence that Olds presented a risk to prepubescent boys or girls. The court did not believe Danielle's testimony that she intended to divorce Olds. But given the lack of evidence demonstrating Olds' risk to the children, the court concluded the State had not satisfied all the statutory factors for termination. Anticipating the father's imminent release from prison, and seeking to avoid another full termination trial if future events warranted termination, the State and the CASA requested a continuance of the termination proceedings, Over the parents' objections, the court continued the proceedings. The court indicated it did not foresee relitigating the question of whether Olds was a threat to his children, but could foresee other scenarios that would affect its decision. The court added that it felt the matter would be resolved 'one [way] or another within a matter of months following [Olds'] release. I don't see why any larger time frame would be appropriate.' Two weeks later, the State moved for reconsideration based on evidence that Olds had committed perjury when he testified that the indecent liberties victim was not his sister and was thirteen, rather than seven years old. The court agreed, over the parents' objections, to hear additional testimony. The court found it had authority to do so either because the termination proceedings had previously been continued, or, alternatively, because it had authority to reconsider or reopen the case.
At the hearing, the court allowed testimony regarding events occurring since trial, as well as testimony concerning the details of Olds' prior conviction.
Following the hearing, the court found that, contrary to Olds' trial testimony, the victim of his 1988 offense was seven years old. The court found that Olds had misrepresented his offense history, was a threat to his children, was still classified as a high risk to reoffend, and had used drugs since the trial. The court also found that Danielle had taken no steps to divorce Olds and had not visited A. A. since the trial recessed.
The court terminated the parents' rights as to A. A. and J. O., entered findings and conclusions, and ordered a dependency guardianship for Z. A. and A.
DECISION I.
Both parents contend the superior court exceeded its authority when it continued the termination proceedings. Citing RCW 13.34.110(1) and this court's decision in In re the Interest of J., 99 Wn. App. 473, 994 P.2d 279 (2000), they contend the court had only two options: dismiss the petition or enter written findings stating the reasons for granting the petition..
We note that the parents acknowledged in a hearing before a Commissioner of this court that they are not challenging the proceedings below on due process grounds.
We need not reach this contention because nothing required the court to immediately enter written findings or an order of dismissal at the conclusion of the initial hearing. Considering that less than two weeks passed between the court's oral decision and the motion for reconsideration, we conclude the court had authority to reopen or reconsider its oral decision and to take additional evidence. And because it was plainly in the children's best interest to allow additional evidence or testimony, we cannot say the court abused its discretion. The parents' arguments that the motion for reconsideration was either untimely or defeated by the State's lack of diligence are contrary to existing caselaw.
See In re Pawling, 101 Wn.2d 392, 395-96, 679 P.2d 916 (1984) (where court had entered oral opinion but no written findings or judgment, it properly continued termination hearing to take additional testimony as to child's best interest); Atkinson v. Atkinson, 38 Wn.2d 769, 231 P.2d 641 (1951) (when a case involves the custody of children, 'the trial court should seek all the light available'); Seidler v. Hansen, 14 Wn. App. 915, 917-18, 547 P.2d 917 (1976) (oral decision is not binding; therefore, trial court had discretion to reopen case to consider additional evidence); Powell v. Schultz, 4 Wn. App. 213, 216, 481 P.2d 12 (1971) (court had discretion to take additional testimony after oral decision in defendant's favor).
See State v. Luvene, 127 Wn.2d 690, 711, 903 P.2d 960 (1995) (motion to reopen for purpose of introducing additional evidence is addressed to discretion of trial court).
In re Marriage of Harshman, 18 Wn. App. 116, 120, 567 P.2d 667 (1963) (motion for reconsideration filed after oral opinion, but before written findings and judgment, is timely); Atkinson v. Atkinson, 38 Wn.2d at 771 (although court could technically refuse to reopen because testimony could have been offered at trial, 'the trial court should seek all the light available' in a custody case).
II. Parental rights may be terminated when the statutory elements set forth in RCW 13.34.180(1)-(6) are established by clear, cogent and convincing evidence and the court finds that termination is in the best interests of the child. "Deference paid to the trial judge's advantage in having the witnesses before him [or her] is particularly important in deprivation proceedings . . . ." We review the court's findings for substantial evidence. Danielle argues that the record does not support several of the trial court's findings.
The statutory factors include the following: (4) That the services ordered under RCW 13.34.130 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; and (5) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. A parent's failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. . . . In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors: (a) Use of intoxicating or controlled substances so as to render the parent incapable of providing proper care for the child for extended periods of time and documented unwillingness of the parent to receive and complete treatment or documented multiple failed treatment attempts; or (6) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home . . . .'
In re Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980).
Aschauer, 93 Wn.2d at 695; In re H. J. P., 114 Wn.2d 522, 532, 789 P.2d 96 (1990).
Adequacy of Services. Danielle first challenges the court's finding that 'all necessary services reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been . . . offered or provided[.]' She argues that '[t]he State failed to . . . to provide necessary services with respect to visitation with [A. A.].' She concedes the State provided visitation with A. A., but contends A. A.'s remote location made it virtually impossible for her to visit A. A. on a regular basis. But there were no relative placement options closer to Danielle.
Finding of Fact 1.9.
App. Br. at 25.
The State offered to pay Danielle's bus or train fare, and while she claimed the long trips would conflict with her employment and counseling, she never substantiated that claim. Significantly, Danielle managed to visit Olds in prison 29 times in a two-month period, but only traveled to visit A. A. once in a year. The court's finding is supported by substantial evidence. Likelihood of Remedying Conditions in the Near Future. Danielle also challenges the court's finding that '[t]here is little likelihood that conditions will be remedied so that the children can be returned to the parents within the near future.' She contends this finding, as well as findings that she did not benefit from services and was unfit to parent the children, are not supported by the record. We disagree. Substantial evidence established that Danielle, despite her statements to the contrary, plans to continue her relationship with Olds. In fact, her counsel stated at oral argument before a Commissioner of this court that she is still seeing Olds. The evidence amply demonstrates that there is little likelihood this will change in the near future. Given the risk Olds presents to the children, there is little likelihood the children can be returned to Danielle in the near future.
Finding of Fact 1.27.
Danielle briefly argues that Olds does not present a sufficient risk to his children to justify termination. She points to Dr. Johnson's evaluation and the fact that no one has accused Olds of abusing his own children. But the court also heard evidence that Olds had committed sex offenses against seven and fifteen year old victims, had misrepresented that history to the court, was a high risk to reoffend, and had a long-standing, untreated problem with drugs. These facts support the court's findings and conclusions.
Continuation of the Parent and Child Relationship Diminishes Prospects for Early Integration. Danielle next contends the record does not support the court's finding that '[c]ontinuation of the parent-child relationship . . . clearly diminishes the children's prospects for early integration into a stable and permanent home.' Because several witnesses felt continued contact with Danielle would benefit the children, and because the children's uncle and grandmother are willing to care for them indefinitely, she contends continuation of the parent-child relationship would not diminish the children's prospects for early integration into a stable and permanent home. But this scenario, which leaves the children in the status quo, clearly diminishes their prospects for early integration into a permanent home given the dim prospects for reunification with their parents. Substantial evidence at trial established that A. A. and J. O. need permanence now. The challenged findings are supported by sufficient evidence.
Finding of Fact 1.35.
Best Interests of the Children. Last, Danielle challenges the court's finding that termination is in the children's best interest. She again points out that several witnesses believed continued contact between Danielle and the children would be beneficial. But the professionals involved in this case, including those recommending continued contact, were virtually unanimous in their conclusion that termination was in the children's best interest given the parents' lack of progress and the statutory goal of early integration into a stable and permanent home. The court's finding is supported by the evidence.
In conclusion, it is clear from the record in this case that Danielle loves her children and wants to remain their parent. It is also clear, however, that she has generally made little progress in addressing her parental deficiencies, and has made no progress in recognizing the risks associated with her relationship with Olds. We conclude that the challenged findings are supported by the evidence and that the findings support the court's conclusions of law and the decision to terminate Danielle's and Olds' parental rights to A.A. and J.O.
Affirmed.
ELLINGTON and COX, JJ., concur.