Opinion
No. 45834-5-I.
Filed: June 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 96-7-01506-5, Hon. Suzanne M. Barnett, December 3, 1999, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
David L. Donnan, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Mary F. Li, Assistant Attorney General — Social Health Services, Office of the Atty Gen., 900 4th Ave., Ste 2000, Seattle, WA 98164.
Counsel for Guardian(s) Ad Litem, Lori L. Irwin, Attorney At Law, 1401 E Jefferson Ste 500, Seattle, WA 98122-5598.
The trial court may enter an order terminating parental rights to a child if the elements set forth in RCW 13.34.180(1)(a)-(f) are established by clear, cogent, and convincing evidence and then if an order terminating parental rights is in the best interests of the child. The factual findings of a trial court 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. That standard is met here. We affirm.
At the time of the contested hearing on the termination petitions, the subdivisions of the statute were numbered as opposed to lettered. However, the substantive provisions of the statute have not changed.
RCW 13.34.180 states in pertinent part:
(1) A petition seeking termination of a parent and child relationship may be filed in juvenile court by any party to the dependency proceedings concerning that child. Such petition shall conform to the requirements of RCW 13.34.040, shall be served upon the parties as provided in RCW 13.34.070(8), and shall allege all of the following unless subsection (2) or (3) of this section applies:
(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. 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. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors:
(i) 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
(ii) Psychological incapacity or mental deficiency of the parent that is so severe and chronic 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 documentation that there is no treatment that can render the parent capable of providing proper care for the child 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.
RCW 13.34.190; see In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999) (citing In re Dependency of K.R., 128 Wn.2d 129, 140-41, 904 P.2d 1132 (1995)). See also, In re Dependency of A.S., 101 Wn. App. 60, 72-73, 6 P.3d 11, review denied, 141 Wn.2d 1030 (2000); In re Dependency of H.W., 92 Wn. App. 420, 961 P.2d 963, 969 P.2d 1082 (1998) (in proceeding to terminate parental rights, six termination factors must be established to the requisite degree of certainty before the court may focus on the best interests of the child).
In re K.S.C., 137 Wn.2d at 925.
FACTS
L.S. was born on May 6, 1996. She is the biological child of Belinda Springer, but paternity of the child has never been established. Almost immediately after birth, the Department of Social Health Services (DSHS) removed L.S. from the mother and placed her in foster care. DSHS filed a dependency petition alleging L.S. was at risk because her mother has a history of mental illness and parenting problems, and that she had prior involvement with Child Protective Services. By agreed order in January 1997, L.S. was found to be a dependent child and services were ordered.
Ms. Springer's rights to seven other children had previously been terminated.
In August of 1997, DSHS filed a petition for termination of parental rights. A contested hearing was held and at the close of the evidence the trial judge found the requirements of former RCW 13.34.180(1)-(4) had been proved, but that the State failed to prove the remaining statutory factors. The first trial judge found that though parental deficiencies had been identified they were not so extensive as to prevent reunification between L.S. and her mother. The court found that Ms. Springer was in substantial compliance with the directives of the dispositional order and had improved her parenting skills. The trial court ordered the State to formulate a plan of reunification between the mother and child, preferably within four to six months. Despite this order, L.S. was never returned to her mother and less than a year later DSHS sought to terminate Ms. Springer's rights, alleging that her parenting abilities had not sufficiently improved since the first trial, and that L.S. had extreme difficulties with reunification. The second petition was filed on June 2, 1999. Trial was set for October 25, 1999.
Former RCW 13.34.180(5) and (6), now codified as RCW 13.34.180(e) and (f).
In September 1999, the foster parents sought to intervene as a party. The motion was brought before a juvenile court commissioner at a pretrial conference. It was brought by the foster parents as a civil motion for permissive intervention/joinder as a party. At that time, counsel for Ms. Springer did not object to the foster parents joining because it was his opinion after speaking with them that their intervention as a party would be properly limited as they did not intend to put on a case. Springer's counsel believed the foster parents would simply be available to testify to events in support of the State's case in favor of termination. Springer's counsel also stated he thought the foster parents indicated that they would be proceeding pro se. The motion to allow the foster parents to intervene as a party was granted without objection. However, just before the second trial, an attorney filed a notice of appearance on behalf of the foster parents and it became obvious they intended to present their own case, with their own experts and witnesses, in support of termination so they could adopt L.S. At this point, counsel for Ms. Springer vigorously objected to the foster parents' continued permissive intervention as parties. His objection was based on the change of circumstances, and he requested that the earlier order granting intervention to the foster parents be vacated. He asserted that this kind of intervention was not allowed by statute or under case law. Even the State admitted that foster parents clearly do not have status as a party in dependency actions under normal circumstances. However, the State argued that the original motion should continue to be treated as one for permissive intervention, not one subject to normal dependency rules. The State claimed the later objection was untimely and the decision of the juvenile court commissioner should not be changed as it did not constitute an abuse of discretion. Counsel for the State, the guardian ad litem, and the foster parents, all argued that the matter of intervention was a matter for the court's discretion. The trial court agreed indicating there was no reason to overturn the decision of the commissioner.
At the second trial, by agreement of the parties, the focus was on events occurring after the May 1998 order denying termination. To assist with the process of formulating a reunification plan, at the trial court's suggestion, the State retained the services of Dr. Kenneth Asher to advise the parties with regard to reunification. Dr. Asher involved a behavioral specialist to work with Ms. Springer during visits and to observe her parenting skills and help with any issues. Despite a 4- to 6-month suggested timeline from the court, no plan was forthcoming from Dr. Asher for at least 2-months after the first trial. Reunification efforts were further complicated when Ms. Springer was hurt in a motorcycle accident, breaking a leg, confining her to a wheelchair. Due to the accident there was no visitation between mother and child for a three-week period in September of 1998.
The testimony at the second trial can be generally summarized as including facts that although Ms. Springer made some improvement in her parenting skills and stress management, L.S. proved resistant to visits, especially after Ms. Springer told L.S. that she was going to come live with her and that her foster mother was not her mother. Most of the testimony was by experts who opined that while improvement had been made by Ms. Springer, she had not sufficiently improved her parenting skills to enable reunification to go forward in the foreseeable future. These experts supported termination of Ms. Springer's parental rights because of their concern that Ms. Springer would not be able to meet L.S.'s needs in the foreseeable future without significant additional time and resources.
Christine Kneser, Ms. Springer's caseworker, testified that after the initial trial judge found that adequate services had been provided to the point of the first trial, she believed any duty of the State to offer further services had been discharged. She indicated that to assist in the reunification plan she focused her efforts entirely on regulation of the visitation schedule. There was also evidence indicating that while no additional services were provided to Ms. Springer after November 1998, the services first offered were continued. The caseworker who followed Ms. Kneser testified that she never had a face-to-face meeting with Ms. Springer before the second termination petition was filed. Even Dr. Asher admitted that early on there were impediments in Ms. Springer's case that hindered reunification efforts, both through his and DSHS's handling of the case and then the delay caused by Ms. Springer's unfortunate accident. Dr. Asher indicated there were services available to address and improve Ms. Springer's parenting ability but believed it would take a minimum of an additional year of services to obtain the goal of reunification. Given L.S.'s age and other factors, he did not favor this additional time and along with others supported termination. Dr. Asher stated he found the mother's parenting skills were inadequate to successfully care for a young child.
Additional primary deficiencies were pointed out by those in favor of termination such as Ms. Springer's anxiety and possible learning disability. Neither was targeted or addressed through services after the first trial, but there was evidence that Ms. Springer refused to undergo testing as to a possible learning disability. The State argues that its failure to identify and treat any of these deficiencies was excusable because Ms. Springer refused additional testing or treatment. Debbie Shaw, a mental health caseworker who had worked with Ms. Springer since 1995, testified that at the time of the first trial she had doubts about Ms. Springer's ability to meet L.S.'s developmental needs and to read L.S.'s cues. Shaw stated Ms. Springer had improved significantly and showed much more insight into her daughter and her issues. However, Shaw opined that although reunification might be in the mother's best interest, it would not be in the best interest of the child. Dr. Timothy Buckley conducted an evaluation of L.S.'s developmental needs and mental health status. He testified that the mother clearly had an attachment to L.S. and was sincere in her love for L.S. However, from the child's perspective, the relationship with her mother was inconsistent, unpredictable, and characterized by occasional inappropriate and frightening behavior. Based on his observations and investigation, Dr. Buckley believed that Ms. Springer could not become a capable and consistent parent in the near future.
In pretrial proceedings, L.S.'s court-appointed advocate recommended that reunification go forward. However, the advocate changed this recommendation and at trial supported termination of parental rights. The advocate testified that the reunification efforts were difficult at best and were overly stressful for the child.
The trial court determined the State had proved all six of the statutory factors of RCW 13.34.180 by clear, cogent, and convincing evidence and also determined that termination would be in the best interest of the child under RCW 13.34.190(1) and (4). From this determination, Ms. Springer appeals, specifically contesting the trial court's conclusions as to three of those statutory elements:
(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.
DISCUSSION
Ms. Springer first contends the trial court erred in allowing the foster parents to intervene as a party in the dependency/termination proceedings. We agree but find the error harmless. CR 24(a) and (b) govern intervention of right and permissive intervention. Here there is no real claim that the intervention was one of right, but rather one of permissive intervention. A juvenile court commissioner determined, without objection, that the foster parents had a recognizable interest in the proceedings and had a permissible right to intervention. This was error. The foster parents cannot show a legal right to intervene under any statute or that they possess a legal interest not adequately represented by DSHS or the guardian ad litem. Without such a right, the court erroneously allowed intervention of right. Former RCW 13.34.110 gave a court the discretion to allow foster parents to attend termination proceedings, but strictly limited the scope of their participation. Under the former statute, foster parents were allowed to attend the proceedings `for the sole purpose of providing oral and written information about the child and the child's welfare to the court.' The plain language of the former statute, which was in effect at the time of the hearing below, reveals that the commissioner and the trial court erred in allowing the foster parents to be parties at trial.
CR 24(b) states in part: Upon timely application, anyone may be permitted to intervene in an action:
(1) When a statute confers a conditional right to intervene; or
(2) When an applicant's claim or defense and the main action have a question of law or fact in common. . . .
In re Welfare of Coverdell, 39 Wn. App. 887, 890, 696 P.2d 1241 (1984).
Legislation in 2000 eliminated any discussion of the role of the foster parent.
In 1995, the sentence discussing the limited role of the foster parents was rewritten, but still included the limitation on the foster parents' participation.
Further, permissive intervention has long been held to be inappropriate during dependency or termination proceedings. Dependency and termination proceedings have a goal of reunification of families and protecting the best interests of the children. The focus at a termination hearing is not whether a better `parent' may exist, but whether the natural parent has sufficiently corrected identified deficiencies to allow reunification. While a trial court has discretion to permit foster parents to intervene in dependency proceedings involving their foster children, that intervention is appropriate only to the extent that the rights of the foster parents and the rights of the legal parent do not conflict. A foster parent's adversarial participation in a hearing has a tendency to shift the focus of the proceeding from the ability of the natural parent to care for the child to a comparison of the natural parent to the foster parent. Thus, during dependency and termination proceedings the interests of the foster parents must give way to the paramount interest of the natural parent and permissive intervention would rarely be appropriate. Here, as in In re Welfare of Coverdell, intervention was improper because the foster parents' interest was in direct conflict with the rights and interests of Ms. Springer.
This is not to say that if the child is properly found to be dependent or parental rights properly terminated, the foster parents should not be heard on an issue of custody, or fully excluded from the hearing. See RCW 13.34.110; In re Welfare of Maurer, 12 Wn. App. 637, 530 P.2d 1338 (1975).
In re Moseley, 34 Wn. App. 179, 186-87, 660 P.2d 315 (1983).
In re Dependency of J.H., 117 Wn.2d 460, 471-72, 815 P.2d 1380 (1991) (citing In re Maurer, 12 Wn. App. 637; In re Coverdell, 39 Wn. App. 887; and In re Welfare of Schulz, 17 Wn. App. 134, 561 P.2d 1122 (1977)).
In re Coverdell, 39 Wn. App. at 890-91.
In re Coverdell, 39 Wn. App. at 891.
Despite the error, we must find it harmless. Where the record contains clear, cogent, and convincing evidence of the statutory predicates to termination it is difficult to see how this procedural problem could have adversely affected the result. Certainly it did not do so here. The trial court was careful to rely almost exclusively on evidence presented by the State rather than the foster parents, looking to them only for the evidence on which they could have been heard in any event. Courts have long recognized that a biological parent has a fundamental liberty interest in the care, custody, and control of his or her child. However, that fundamental right is not absolute. The State has an obligation to protect the child when the parent's action or inaction endangers a child's physical or emotional welfare. To prevail in a petition to terminate parental rights the State must prove the six factors of RCW 13.34.180 by clear, cogent, and convincing evidence. This standard is satisfied if the ultimate facts in issue are shown by the evidence to be highly probable. In addition, the State must prove by a preponderance of the evidence that termination is in the child's best interests. Ms. Springer does not dispute the first three factors listed in the statute.
In re Dependency of A.V.D., 62 Wn. App. 562, 815 P.2d 277 (1991).
In re Welfare of Young, 24 Wn. App. 392, 600 P.2d 1312 (1979).
RCW 13.34.020; In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).
In re K.S.C., 137 Wn.2d at 925.
The most troubling challenge by Ms. Springer is the amount of proof provided on the fourth factor, RCW 13.34.180(d), that `all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been . . . offered or provided[.]' Here, there was testimony that after the first trial that dismissed the petition for termination of parental rights the State failed to follow through with additional services necessary to bolster Ms. Springer's efforts at attaining parental competency, or correcting parental deficiencies.
At the conclusion of the first trial, the State and the trial court seemed to contemplate that resources would be allocated with reunification in mind. At the second trial, it was evident that the caseworkers did not believe additional testing or services were necessary or could be provided to assist Ms. Springer further. However, as the State claims, the reunification plan contemplated the recommendations of Dr. Asher. Further, the record reflects services including the ongoing services of a mental health caseworker, daycare or preschool for L.S., a parenting education component, ongoing services from DSHS, as well as the services of the mental health case manager and of mental health therapy for Ms. Springer.
The professionals who worked with Ms. Springer all testified that every possible service had been offered to the mother. The State claimed the ultimate failure of the reunification effort was due to Ms. Springer's refusal to fully cooperate with the services and her failure to recognize her own responsibilities, not due to a lack of services offered. Ms. Springer raises the issue of a possible learning disability, and while true that necessary services must be offered in a manner which accommodates a parent's disability, there was credible testimony that Ms. Springer refused to be evaluated for a learning disability. Such a refusal amounts to a waiver of the service and cannot be the basis for a challenge to a termination order. With the exception of these possible additional resources or testing being provided, a review of the record supports the determination, albeit on conflicting evidence, that the parental deficiencies of the birth mother are not capable of being corrected within the foreseeable future. There is substantial evidence to support the trial court's finding that the state proved the fourth statutory factor. To the same end, there is substantial evidence to support the trial court's finding and conclusion regarding the fifth statutory factor that there is little likelihood that conditions will be remedied so that L.S. could be returned to Ms. Springer within the foreseeable future. There was a plethora of testimony from various experts regarding deep concerns about the mother's ability to separate her own needs from those of the child and whether she would be able to consistently parent within the foreseeable future. Given the agreement of the parties at the outset of the second trial, the determination of whether sufficient progress had been made toward correction of the parental deficiencies remained the issue for determination at that proceeding. Nevertheless, the trial court at the second termination trial properly considered the issue of the birth mother's current parental fitness or unfitness separate from the determination made at the first termination proceeding.
In re Welfare of Ott, 37 Wn. App. 234, 238, 679 P.2d 372 (1984).
In re H.W., 92 Wn. App. at 428-30.
In re Welfare of S.V.B., 75 Wn. App. 762, 770, 880 P.2d 80 (1994).
In re K.R., 128 Wn.2d at 142.
In re A.S., 101 Wn. App. at 69-70.
Finally, there was substantial evidence as to the sixth statutory factor.
The focus of RCW 13.34.180(e) is the parent-child relationship and whether it impedes the child's prospects for early integration into a stable and permanent home. This case has gone on for all of L.S.'s life, and although great effort has been expended to implement a reunification plan, it has not occurred with any success. There was an abundance of testimony that continuing the efforts could prove damaging to the child. There was additional evidence that while reunification might be in the best interest of the mother it was not in the best interest of the child. When the rights of the child and the interests of the parent are in conflict, the child's rights prevail. Here, there was substantial evidence that the detrimental effect of the ongoing parent-child relationship outweighed the benefit to the child from the relationship. There was sufficient evidence to support the trial court's decision.
In re K.S.C., 137 Wn.2d at 927.
RCW 13.34.020; In re Dependency of J.B.S., 123 Wn.2d 1, 8-9, 863 P.2d 1344 (1993).
We affirm.
WE CONCUR: AGID, J., KENNEDY, J.