Opinion
No. 65171-4-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-7-00752-3, Ellen J. Fair, J., entered March 11, 2010.
Affirmed by unpublished opinion per Becker, J., concurred in by Ellington and Spearman, JJ.
The court in this case considered competing petitions for termination of the mother's parental rights and for a dependency guardianship with the child's maternal grandfather. The court appropriately considered the dependency guardianship first and determined that guardianship was not in the child's best interests, largely due to the absence of a relationship between the grandfather and the child, the grandfather's ambivalence about the guardianship, and the child's specific needs for stability and continuity. The court further concluded that termination of the mother's parental rights served the child's best interests. Because substantial evidence supports the court's findings, we affirm.
FACTS
Diana Endsley has a long history of drug use, beginning at age 12, and a serious addiction to methamphetamine. Endsley is the mother of three children. Her two oldest children both reside with their respective biological fathers. Her youngest child, C.T.H., born on July 1, 2004, is the subject of this action.
C.T.H. lived with Endsley's mother, Barbara Endsley, for the first two years of his life. Although Endsley sometimes stayed with her mother and C.T.H., she was not the primary caretaker, nor did she ever parent any of her children independently. Endsley was in and out of C.T.H.'s life during this period due to her drug use. In late 2006, Barbara Endsley was diagnosed with terminal cancer, and a friend of Barbara's, Colleen Collison, agreed to provide respite care by taking care of C.T.H. on the weekends. Also in 2006, facing several criminal charges related to her drug use, Endsley was accepted into a drug court program. Endsley's father and C.T.H.'s grandfather, Jeff Endsley, who lives in Alaska, supported and financially assisted her participation in drug court.
C.T.H.'s older brother also lived with Barbara Endsley and later with Collison until 2008 when he moved to his father's home.
In January 2007, when C.T.H. was two and a half, Collison became a licensed foster parent. C.T.H. moved in with her and she began caring for him full time. The Department of Social and Health Services filed a dependency petition in February 2007, and in March 2007, he was found dependent. Endsley's primary identified deficiency was her substance abuse.
C.T.H. remained in Collison's care for almost two years. At the time he moved in with Collison, C.T.H. had significant delays and although testing concluded he was not autistic, he exhibited several autistic-like behaviors. C.T.H. made significant improvements while in Collison's care. During the dependency, the grandfather was asked at least twice if he would consider being a placement for C.T.H. He declined, insisting that he was interested only in being a grandfather to C.T.H. The grandfather met C.T.H. for the first time and only time prior to the termination trial in May 2007, when C.T.H. was almost three years old.
In the first half of 2007, Endsley had some success in drug court. For a period of approximately six months, she had regular visitation with C.T.H., at first supervised, and then monitored. Endsley had a brief relapse in May, and then a more serious relapse in October. Endsley's visitation became infrequent and sporadic. By the end of the year, Endsley was out of compliance with drug court requirements. She was formally terminated from drug court. Her last visit with C.T.H. took place in February 2008.
In August 2008, Endsley was arrested and convicted of the original charges she faced in 2006, as well as for two additional crimes committed in 2008. She was sentenced to incarceration. Her earliest release date is September 29, 2011.
In November 2008, C.T.H. was placed in a prospective adoptive home. By 2009, he had formed a strong attachment to his foster family, was attending a developmental preschool, and continuing to making progress.
In March 2009, not having seen C.T.H. in over a year, Endsley requested that the Department transport C.T.H. for visitation to the facility where she is incarcerated. The Department opposed the visitation, stating that the travel would be too difficult for C.T.H. The dependency court denied the request.
The Department filed a termination petition in July 2009. On February 4, 2010, just before the termination trial, Endsley filed a dependency guardianship petition to designate her father as the dependency guardian.
C.T.H.'s father relinquished his parental rights in February 2009.
At the time of trial in February 2010, C.T.H. was five and a half years old. He had been dependent for three years and had not seen Endsley in two years. Testimony established that C.T.H. was comfortable and thriving in his current home. Testimony also established that he remains fragile, however, and both the guardian ad litem and social worker believed that a move would jeopardize his progress and stability. Both Endsley and her father expressed ambivalence about the dependency guardianship. While opposing termination, they both acknowledged that it was not in C.T.H.'s best interest to be removed from his current stable environment.
The court concluded that a dependency guardianship would not serve the best interests of the child, noting that C.T.H. did not know his grandfather and there was no showing that the grandfather understood or could adequately meet the child's needs. The court also noted the grandfather's previous refusals to be considered a placement and his testimony at trial acknowledging that it was probably not best for C.T.H. to be uprooted. The court additionally found credible the testimony that moving C.T.H. would likely undermine his progress. The court then determined that termination of Endsley's parental rights was in the child's best interests. Endsley appeals, challenging the court's decision denying her petition for a dependency guardianship.
DEPENDENCY GUARDIANSHIP
If both a dependency guardianship and a termination petition are filed, the trial court must first consider the dependency guardianship as an alternative to termination. In re Dependency of A.C., 123 Wn. App. 244, 246, 98 P.3d 89 (2004). In A.C., this court adopted "factors for consideration" when evaluating a petition for guardianship and held that dependency guardianship is mandatory if the first five factors in the guardianship statute are satisfied and the court finds that guardianship, rather than termination of the parent-child relationship or continuation of efforts to return the child to the custody of the parent, would be in the best interest of the child. A.C., 123 Wn. App. at 252.
The first five requirements for dependency guardianship or termination of parental rights are the same: (1) the child has been found to be dependent, (2) the court has entered a dispositional order, (3) the child has been removed from the parent's custody for at least six months pursuant to a finding of dependency, (4) all services reasonably available and capable of correcting parental deficiencies have been offered or provided, and (5) there is little likelihood that conditions will be remedied so that the parent may regain custody within the foreseeable future. See RCW 13.34.231(1)-(5); RCW 13.34.180(a)-(e). For purposes of a dependency guardianship, these factors must be established by a preponderance of the evidence. RCW 13.34.231.
The standard for termination, on the other hand, is clear, cogent, and convincing evidence. In re Dependency of K.S.C., 137 Wn.2d 918, 931, 976 P.2d 113 (1999).
If the five threshold requirements are met, the court must then address whether guardianship is preferable to either termination or continuation of efforts to return the child to the custody of the parent. RCW 13.34.231(6). "The question is which better serves the child's interests." A.C., 123 Wn. App. at 250.
The deference paid to the trial court's advantage in having the witnesses before it is particularly important in parental termination proceedings. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980). An appellate court will not disturb the trial court's findings of fact that are supported by substantial evidence. In re Welfare of S.V.B., 75 Wn. App. 762, 768, 880 P.2d 80 (1994).
It is undisputed that the five threshold statutory requirements were met in this case. Endsley claims that C.T.H.'s best interests would be best served by a dependency guardianship and the court erred in concluding otherwise. Endsley points out that dependency guardianship with her father designated as guardian would have allowed C.T.H. to maintain ties with his biological family. She argues that the court discounted the importance of C.T.H.'s connection with his biological family due to the absence of a bond, but that lack of a bond was actually caused by the Department and its refusal to allow visitation with the grandfather prior to the termination trial. Endsley also claims the court inappropriately relied upon "speculative" concerns that C.T.H.'s progress would be compromised by removing him from his current placement.
Appellant's Br. at 21.
In A.C., we examined the effect of guardianship versus termination and observed that dependency guardianship facilitates continued involvement with the parent and/or extended family. A.C., 123 Wn. App. at 250. Termination, on the other hand, occurs only where "continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home." RCW 13.34.180(f). We identified several nonexclusive factors a court should consider in evaluating a potential guardianship: in addition to the qualifications of the proposed guardian, considerations should include the strength and nature of the parent-child bond; the benefit of continued contact with the parent or extended family; the need for continued state involvement and services; the likelihood the child would be adopted if parental rights were terminated, and any other case-specific factors relevant to the best interests of the child. A.C., 123 Wn. App. at 254-55.
In deciding against guardianship in A.C., the trial court noted that the children at issue were young, four and five at the time of trial, and that their emotional bonds with the biological family were weak because they had been out of the biological family's home and had not seen them for 17 months. The court also relied on the mother's lack of parenting history with the children, her demonstrated inability to create a safe, stable home for them, and the fact that the children had established relationships in their current placement, which was a potential adoptive home. A.C., 123 Wn. App. at 255. This court held that these findings were supported by substantial evidence, and they in turn, supported the court's ultimate conclusion that guardianship was not in the children's best interests. A.C., 123 Wn. App. at 255-56.
Similarly here, the court appropriately took note of the fact that C.T.H. did not know the proposed guardian. And contrary to Endsley's assertion, this had nothing to do with denial of visitation by the Department. The record establishes that the grandfather did not seek visitation or contact with C.T.H. until 2007 when he called the social worker to arrange a visit during a planned trip to Seattle. That visit did occur in May 2007, when C.T.H. was almost three years old. The grandfather did not pursue further communication with C.T.H., nor did he request further information when he learned that C.T.H. had certain delays and was being evaluated at a hospital. It was not until just before the termination trial that Endsley filed a "Motion to Investigate Placement with the Maternal Grandfather and Other Relief." This motion sought to order the Department to conduct an investigation of grandfather as a placement for C.T.H. and, in the interim, allow contact and visitation. The court denied the motion, ruling that the grandfather could obtain a home study at his own expense.
Clerk's Papers at 700.
But the reason for the lack of a relationship was not because this motion was denied and visitation did not occur in the month before the termination trial. The grandfather admitted that he had "very little of a bond" with C.T.H. and that prior to the termination trial in 2010, had met him only once. He further acknowledged this was because he lived out of state and because there were significant periods where he was not in contact with his daughter due to her drug use.
Report of Proceedings at 482.
Moreover, the lack of a relationship with the grandfather was not the sole reason the court decided against a dependency guardianship. The court also cited the grandfather's previous refusal to be considered as a placement and equivocal testimony. The grandfather conceded he had been unwilling to consider being a placement for C.T.H. until just before trial. He also admitted that he believed guardianship was not the best option for C.T.H.; in his opinion it was merely a "lesser of the two evils" compared with termination of his daughter's rights. The grandfather further admitted that it was probably best for C.T.H. to remain in his current placement where he was bonded to the family. In his opinion, the optimal situation would be for the foster family to permit and facilitate contact with the biological family.
Report of Proceedings at 479.
In addition, the court pointed to the evidence of C.T.H.'s special needs and noted the grandfather's lack of awareness and potential inability to meet those needs. Further, although Endsley claims that the court relied on unfounded speculation to conclude that moving C.T.H. to an unfamiliar environment with a biological relative he did not know would be harmful, ample evidence supports the court's finding. Several witnesses testified about C.T.H.'s fragility, his delays, and his difficulty adjusting to new circumstances. The court's finding of probable harm is supported by substantial evidence in the record.
Endsley also challenges the Department's denial of her request in 2009 to have C.T.H. brought to the facility where she is incarcerated for visitation. The Department opposed the request because C.T.H.'s medical and developmental issues would have made the two to three hours of travel challenging for him. Endsley claims that because the Department acknowledged C.T.H.'s improvements, there was no basis to refuse to facilitate her visitation. Here again, Endsley asserts that the Department denied her the opportunity to develop a bond with C.T.H. and then relied on that lack of bond to determine that termination, rather than guardianship, was in the child's best interest.
However, as the Department correctly notes, Endsley did not appeal the order denying her visitation request and a parent who fails to appeal an order entered by the dependency court cannot then argue in an appeal of the termination order that the order was improper. In re Dependency of T.H., 139 Wn. App. 784, 792-93, 162 P.3d 1141, review denied, 162 Wn.2d 1001 (2007). But even if Endsley had appealed or petitioned for discretionary review of the order entered by the dependency court, the premise of her argument is simply incorrect. The lack of a strong bond between her and C.T.H. was not caused by the Department's denial of visitation in 2009 during her incarceration. It was caused by the fact that, apart from a brief period in 2007, Endsley was not a consistent presence in his life. Before she was incarcerated in 2008, Endsley had not seen C.T.H. for six months.
And furthermore, the court did not relate Endsley's lack of visitation or lack of a strong bond to any of the statutory guardianship or termination elements. Instead, the court found that despite availing herself of many services in prison, Endsley continued to have a parental deficiency caused by drug addiction. Even if she could overcome that deficiency, the court determined that it would be more than two years before the court consider her as a possible placement. In addition, the court found that C.T.H. was thriving in his current placement, there was a high probability that he would be adopted if termination were granted, and that continuation of the parent-child relationship would diminish his prospects for early integration into a permanent, stable home. These findings are supported by substantial evidence, and Endsley presents no argument that undermines the court's findings.
We affirm the court's decision denying a dependency guardianship and terminating Endsley's parental rights.