Opinion
No. 65011-4-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-7-00584-9, Eric Z. Lucas, J., entered February 8, 2010.
Affirmed by unpublished opinion per Becker, J., concurred in by Ellington and Spearman, JJ.
Nichole Boyett appeals the trial court order terminating her parental relationship with her daughter D.E.B. She argues that the State failed to prove by clear, cogent, and convincing evidence that there was little likelihood that conditions would be remedied so that D.E.B. could be returned to Boyett in the near future. She also argues that her attorney provided ineffective assistance of counsel by conceding that the State proved that element. We disagree and affirm.
FACTS
Nichole Boyett gave birth to D.E.B. on February 1, 2008. Pursuant to court orders in dependency proceedings for her older child, A.L.B., Boyett participated in a psychological evaluation by Dr. Ellen Walker Lind in December 2007. Dr. Lind stated that given Boyett's mental health issues, including a "long-established pattern of involvement in maladaptive interpersonal relationships" resulting in "a chaotic, ever-changing life," her limited finances, her lack of a job or support, and her "involvement with individuals who use drugs and alcohol," she "is not ready to parent her daughter or her unborn child." Dr. Lind recommended at least six months of consistent participation in a 12-step recovery program; two years of mental health counseling; group therapy for anger management or dialectical behavioral therapy; a psychiatric evaluation to determine her need for medication after the child's birth; supervised visitation with the children; and at least six months of stable housing, employment, transportation and finances, independent of a relationship with a male, prior to reunification.
Pursuant to court orders in the proceedings involving A.L.B., Boyett submitted samples for urinalysis 21 times in December 2007 and January 2008. Two of those, on January 11 and 18, tested positive for Ethanol, indicating use of alcohol. On February 4, 2008, the Department placed D.E.B. in out-of-home care and filed a dependency petition.
D.E.B.'s father, whose parental rights were terminated by default in July 2009, is not a party to this appeal.
At a hearing on February 7, 2008, the court ordered Boyett to participate in Safe Babies Safe Moms and follow all recommendations, participate in mental health counseling, follow the recommendations of Dr. Lind in her December 2007 psychological evaluation, participate in drug and alcohol treatment; submit to random UAs, and participate in supervised visitation.
Between January and May 2008, Boyett participated in Safe Babies Safe Moms, obtained a psychiatric evaluation indicating no need for medication, and began chemical dependency treatment and mental health counseling. But between April and August 2008, Boyett had at least two arrests and criminal charges, was involuntarily committed for mental health evaluations or treatment on two occasions, and quit treatment and visitations with D.E.B.
Boyett was previously involuntarily committed for mental health issues in August 2006, October 2006, April 2007, and October 2007.
At a hearing on August 28, 2008, the court entered an agreed order of dependency stating, "[T]he mother stipulates that there are substance abuse issues mental health issues that she needs to address the services are necessary and appropriate." In addition to the services previously ordered, the court ordered Boyett to obtain an updated drug and alcohol evaluation.
In September 2008, Boyett attended five hours of parenting classes at Safe Babies Safe Moms. Boyett had four supervised visits with D.E.B. between September 19 and October 1, 2008. But on October 1, 2008, Boyett was involved in an altercation in a bar while intoxicated and was arrested and charged with assault and disorderly conduct.
On December 17, 2008, the court found that Boyett had not complied with several ordered services and ordered additional services, including a psychiatric evaluation and a domestic violence evaluation. At a review hearing on May 5, 2009, the court found that Boyett had not complied with any of the ordered services. On May 15, 2009, the Department served Boyett with a petition for termination of her parental relationship with D.E.B.
On May 28, 2009, Boyett visited D.E.B. In June 2009, Boyett resumed participation with Safe Babies Safe Moms, attending parenting classes and dialectical behavioral therapy groups. On June 18, 2009, Boyett obtained a new drug and alcohol evaluation and on July 21 began intensive outpatient treatment. Between August and November 2009, Boyett resumed consistent visitations with D.E.B, moved into her own apartment, began mental health counseling, completed a domestic violence assessment, completed drug and alcohol treatment, and obtained a psychiatric evaluation indicating that she did not need medication.
The termination trial began on November 23, 2009. At the close of the evidence, Boyett argued that the Department failed to prove that the services ordered by the court were expressly and understandably offered or provided as required by RCW 13.34.180(1)(d). In particular, Boyett argued that the Department failed to provide timely referrals and funding for a psychiatric evaluation and domestic violence evaluation, as ordered by the dependency court in December 2008 and May 2009. The trial court disagreed and granted the petition to terminate Boyett's parental rights.
Boyett appeals.
ANALYSIS
To obtain an order terminating the parent-child relationship, the State must prove six statutory elements to establish unfitness of the parent by clear, cogent, and convincing evidence. RCW 13.34.190; In re Welfare of A.B., 168 Wn.2d 908, 925, 232 P.3d 1104 (2010). RCW 13.34.180 (1) provides the following six elements:
(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. . . .
. . . .
. . .; and
(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
If these elements are established, RCW 13.34.190 then requires that the State prove by a preponderance of the evidence that termination of the parent-child relationship is in the child's best interest. A.B., 168 Wn.2d at 925 (trial court must resolve question of parental unfitness before addressing child's best interests).
The trial court is assigned the challenging task of viewing the witnesses and resolving the factual disputes presented. Deference paid to the trial judge's advantage in having the witnesses before him is particularly important in deprivation proceedings. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). If there is substantial evidence that the lower court could reasonably have found to be clear, cogent, and convincing, an appellate court will not disturb the trial court's findings. In re Dependency of H.J.P., 114 Wn.2d 522, 532, 789 P.2d 96 (1990); Aschauer, 93 Wn.2d at 695. Evidence is clear, cogent, and convincing when the evidence shows the ultimate fact in issue to be highly probable.In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995).
Relying on In re Welfare of C.B., 134 Wn. App. 942, 143 P.3d 846 (2006), Boyett contends that the State failed to prove that there was little likelihood that Boyett's parental deficiency could be remedied in the near future as required by RCW 13.34.180(1)(e) because Boyett proved that she had significantly improved her areas of deficiency and the record showed that she needed no more than one year to sufficiently improve.
Where the State offers or provides all necessary services reasonably capable of correcting parental deficiencies within the foreseeable future and the parent fails to substantially improve in the first year following the dependency order, a presumption arises that the State has established RCW 13.34.180(1)(e). In re Welfare of T.B., 150 Wn. App. 599, 608, 209 P.3d 497 (2009). When this presumption applies, the burden of production shifts to the parent, but the State still bears the ultimate burden of convincing the court that it is highly probable that the parent will not improve in the near future. T.B., 150 Wn. App. at 608. A parent's unwillingness to avail herself of remedial services within a reasonable period is highly relevant to a trial court's determination as to whether the State has satisfied RCW 13.34.180(1)(e). T.B., 150 Wn. App. at 608.
In C.B., the Department originally removed the children from the mother because of her drug use.C.B., 134 Wn. App. at 956. Although the mother participated in some ordered services, such as parenting and anger management classes, with varying degrees of success, and initially progressed slowly in drug and alcohol treatment, it was undisputed that by the time of the termination hearing, she had significantly resolved her drug and alcohol problem. It was also undisputed that the only remaining service was a 12 week anger management course set to begin shortly after the hearing. Although the State presented evidence that the children required permanency within six to twelve months, the State presented no evidence that the mother's parental deficiencies would not be remedied within four months when she completed the anger management course, relying instead on the mother's past history alone. C.B., 134 Wn. App. at 956-57. Because substantial evidence did not support the court's finding that it was unlikely that conditions would improve in the near future, the termination order was reversed. C.B., 134 Wn. App. at 959.
Here, the Department initially removed D.E.B. from Boyett's care because of Boyett's alcohol use. But it is clear from the record that unlike the parent in C.B., Boyett had other problems to resolve. Her mental health issues, assaultive behavior, and lack of stable housing and financial resources also contributed to her parental deficiencies. It is undisputed that Boyett had completed a course of drug and alcohol treatment in the five months immediately preceding the termination hearing. Boyett had also apparently improved her financial circumstances enough to maintain her own apartment for approximately four months. Still, at the time of the hearing, Boyett had completed only five hours of the two years of individual counseling recommended in Dr. Lind's December 2007 evaluation to address her admitted mental health issues. And Marisa LaRue, Boyett's therapist, testified that she still needed time to confirm her diagnosis of Boyett before beginning at least a year of treatment with her. Also, Timothy Tackels, Boyett's domestic violence evaluator, testified that Boyett's history of violence justified a one year treatment program of Moral Reconation Therapy. Based on this substantial evidence that Boyett failed to engage in treatment for her mental health and domestic violence issues, the trial court could properly find that there was little likelihood that conditions would be remedied in less than a year so that Boyett could provide a safe home for the child.
And here, unlike the circumstances in C.B., where the children were 2, 4, and 7 years old, the State presented evidence that one year, or even six months, was not the "near future" for D.E.B, who was 21 months old at the time of trial and had never been in Boyett's care. What constitutes the "near future" in RCW 13.34.180(1)(e) depends on the age of the child and the circumstances of the child's placement. C.B., 134 Wn. App. at 954. Social worker Helen Lippert testified that given the length of time D.E.B. had already been in foster care and the strength of her bond with her current placement family, "if you were to add another year on to that for mother to obtain a truly sustainable, mental health chemical dependency recovery and a handle on her occasional propensity to be assaultive, . . . it would be painful for that child." Lippert testified that her opinion would be the same if D.E.B. was required to wait even six months longer. Barbara Blair, the guardian ad litem, testified that she believed that termination of Boyett's parental rights was in D.E.B.'s best interests. Blair testified that 19 months was a long time for a child to be in out-of-home care and opined that D.E.B. seemed very bonded with her placement family. Given the testimony from Lippert and Blair, there was substantial evidence for the trial court to find that a year, or even six months, was not the "near future" in this case.
Under these circumstances, Boyett fails to demonstrate error in the trial court's order terminating her parental rights.See, e.g., T.B., 150 Wn. App. at 611 (where State filed termination petition after mother failed to significantly engage in services for 14 months, and mother obtained evaluations and attended less than six weeks of treatment by the time of the termination hearing, because counselor testified that she would likely need to continue treatment for another year, substantial evidence supported the trial court's finding that the State had established requirements of RCW 13.34.180(1)(e)).
Boyett also contends that she received ineffective assistance of counsel when her attorney conceded that the State had proved RCW 13.34.180(1)(e) — little likelihood that conditions will be remedied — and instead argued that the State failed to prove RCW 13.34.180(1)(d) — the offering of ordered services. She claims that this court should apply theStrickland test for ineffective assistance of counsel rather than the Moseley test often applied in dependency proceedings. Cf. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (requiring showing of deficient performance and resulting prejudice), and In re Dependency of Moseley, 34 Wn. App. 179, 184, 660 P.2d 315, review denied, 99 Wn.2d 1018 (1983) (requiring showing that attorney was not effective in providing meaningful hearing). Under either test, because the State presented substantial evidence to support the trial court's findings under RCW 13.34.180(1)(e), Boyett's claim of ineffective assistance of counsel fails.
Affirmed.