Opinion
No. 67602-4-I
07-23-2012
In the Matter of the Dependency of T.C.U., d.o.b. 01/31/02 A Minor Child. CHRISTOPHER MICHAEL URGA, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
UNPUBLISHED OPINION
Leach, C.J. — A trial court terminated Christopher Urga's parental rights to T.C.U. Urga appeals, claiming that the Department of Social and Health Services (Department) failed to offer or provide him services reasonably available and capable of correcting his parental deficiencies. Urga also contends that substantial evidence does not support the trial court's findings that he is currently unfit to parent T.C.U. and that there is little likelihood conditions will be remedied so that T.C.U. can be returned to him in the near future. Because substantial evidence supports each of the challenged trial court findings, we affirm.
Background
Urga is the biological father of T.C.U., who was born in January 2002. Since 2005, Urga has been incarcerated. He currently resides in a California federal penitentiary, where he is serving a 12-year sentence for being a felon in possession of a firearm. His early release date is in 2015.
Urga's maximum release date is in 2017.
T.C.U. has been the subject of two dependencies. Most recently, T.C.U. was found dependent as to Urga by an agreed order entered on June 25, 2010.In its findings, the court noted that Urga has an extensive criminal history and that T.C.U.'s mother has filed three separate civil domestic violence actions against him. The court ordered Urga to participate in chemical dependency and domestic violence assessments, including recommended treatment, to comply with the Department of Correction's conditions, and to attend age-appropriate parenting classes. Because Urga was incarcerated out-of-state, making in-person visitation impossible, the court allowed Urga to exchange letters with T.C.U. It also ordered the Department to schedule one to two supervised phone calls a month, providing, however, that "phone calls shall take place at the child's discretion."
T.C.U. was found dependent as to his biological mother on April 16, 2010.
Before the dependency, Urga had not had any contact with T.C.U. since he was three or four years old. Although T.C.U. initially did not want a relationship with Urga, he eventually permitted Urga to communicate with him through letters and monthly phone calls. Rebecca Jordan, one of the social workers, deemed some of Urga's letters inappropriate and did not share those letters with T.C.U. Urga last spoke with T.C.U. on February 3, 2011. According to Jordan, T.C.U. no longer wished to speak with Urga "because of something he had said about [T.C.U.'s] mother." Urga, however, characterized his relationship with T.C.U. as "nice."
In January 2011, Jacki Christl, a Department social worker, wrote Urga to remind him that he was required to participate in the court-ordered services.She asked Urga to contact her "to discuss what services you are able to complete while incarcerated." Additionally, Christl requested proof of already-completed services, such as copies of certificates. In June, Jordan wrote to Urga to reiterate that the court had ordered him to participate in certain services. She included a list of those services and noted, "It is important that you complete these services as soon as possible. . . . Your parental rights can be terminated if you do not complete the above Court ordered services." Jordan also informed Urga that because it had been 12 months since the court entered the dependency order, the Department had filed a termination petition. Although Urga told the social workers that he had completed some classes offered by the prison, he failed to provide the Department with verification.
The letter included a list of those services.
The termination trial took place in August 2011. Urga, Christl, Jordan, T.C.U.'s therapist, and T.C.U.'s court-appointed special advocate (CASA) testified. Jordan testified that T.C.U. experienced "real anxiety and fear" that he would be placed with Urga. According to the CASA, it was in T.C.U.'s best interests to terminate Urga's parental rights, and waiting for Urga to get out of prison to complete the ordered services would harm T.C.U. Urga testified that he wanted T.C.U. to know that "I didn't give up on him no matter what. . . . I lived this lifestyle that I did, and I probably put him in a bad position. I did, and I feel very . . . guilty for that."
T.C.U.'s mother voluntarily relinquished her parental rights, and she is not a party to this appeal.
After hearing the testimony, the trial court terminated Urga's parental rights. In its termination order, the trial court made the following contested findings:
1.12 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.The trial court noted that "[o]nce released, in a minimum of four more years, Mr. Urga would need to be further evaluated for what will likely still be needed services. [T.C.U.] could not be placed with Mr. Urga immediately in 2015 and a transition would reasonably take at least an additional year." Urga appeals.
1.16 There is little likelihood that conditions will be remedied so that the child can be returned to Mr. Urga within the near future as, despite whatever efforts Mr. Urga may have made to correct deficiencies while incarcerated, he has not and cannot correct his deficiency of absence from [T.C.U.] and his lack of a bond/relationship with [T.C.U.].
. . . .
1.26 The child's father is unfit to parent the child.
Standard of Review
The United States Constitution protects parental rights as a fundamental liberty interest. To terminate a parent's rights, the Department must satisfy a two-pronged test. The first prong requires proof of the six factors enumerated in RCW 13.34.180(1). The Department must prove these factors by clear, cogent, and convincing evidence. Clear, cogent, and convincing evidence exists when the evidence shows that an ultimate fact in issue is highly probable. If the Department satisfies the first prong, the court proceeds to the second prong, determining whether termination is in the child's best interests. The Department must prove this second prong by a preponderance of the evidence.
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011).
K.N.J., 171 Wn.2d at 576. RCW 13.34.180(1) requires the State to prove (a) the child has been found to be a dependent child; (b) the court has entered a dispositional order pursuant to RCW 13.34.130; (c) 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) the services rendered 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) 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) continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
K.N.J., 171 Wn.2d at 576-77.
In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995).
In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010).
If substantial evidence supports the trial court's findings, we must affirm the termination order. "Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premise." In this review, we do not make credibility determinations or weigh the evidence.Unchallenged findings of fact are verities on appeal. Whether a termination order satisfies statutory requirements is a question of law that we review de novo.
In re Dependency of T.R., 108 Wn. App. 149, 161, 29 P.3d 1275 (2001).
In re Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006).
C.B., 134 Wn. App. at 953.
In re Welfare of C.B., 134 Wn. App. 336, 349, 139 P.3d 1119 (2006).
K.N.J., 171 Wn.2d at 574.
Analysis
Urga contends that the State did not prove the factors listed in RCW 13.34.180(1)(d) and (e) by clear, cogent, and convincing evidence. First, Urga argues the Department failed to offer or provide him all reasonably available, necessary services capable of correcting his parental deficiencies within the foreseeable future. We disagree. If a parent is unwilling or unable to make use of available services, the Department is not obligated to offer other services. The Department is also not required to offer or provide services that would be futile.
Urga assigns error to several of the trial court's findings of fact. But he fails to support some of those assignments of error with citations to the record and legal authority. We do not consider the unsupported assignments of error. RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988).
In re Welfare of M.R.H., 145 Wn. App 10, 25, 188 P.3d 510 (2008).
Here, the court ordered Urga to participate in several services. The Department contacted Urga twice to remind him of the required services and to inquire whether those services were available to him while incarcerated. The Department also asked Urga to provide it with proof of the classes he had participated in. Although Urga testified that he completed some classes in prison, he never provided the Department with the requested verification. The Department was not required to do more, given the fact that Urga was unable to participate in outside services. Substantial evidence supports the finding that the Department offered or provided all necessary and reasonably available services capable of correcting Urga's parental deficiencies in the foreseeable future.
Urga claims that in order to facilitate the bonding process with T.C.U., the Department should have attempted to move Urga to a facility closer to T.C.U. But visitation is not a "service" for the purposes of RCW 13.34.180(1)(d). Therefore, Urga cannot argue that any limitation on visitation resulted in a failure of proof under the termination statute.
In re Dependency of T.H., 139 Wn. App. 784, 792-93, 162 P.3d 1141 (2007).
Even if we were to decide that the Department failed to offer or provide the necessary services to Urga, termination is still appropriate if the services would not have remedied his deficiencies in the foreseeable future. The foreseeable future varies with the child's age. For young children, the foreseeable future may mean a matter of months. "Although 1 year may not be a long time for an adult decision maker, for a young child it may seem like forever." Here, the trial court's uncontested findings establish that once Urga is released, he will still require at least a year of additional services to be ready to parent T.C.U. Therefore, the earliest T.C.U. could be returned to Urga's care is in 2016, when T.C.U. is 13 or 14 years old. This is beyond T.C.U.'s foreseeable future and is simply too long for him to wait to receive the permanency he needs.
See T.R., 108 Wn. App. at 164.
T.R., 108 Wn. App. at 164.
See, e.g., In re Welfare of Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983) (finding eight months not in foreseeable future of 4-year-old); In re Dependency of P.D., 58 Wn. App. 18, 27, 792 P.2d 159 (1990) (finding six months not in foreseeable future of 15-month-old).
In re Dependency of A.W., 53 Wn. App. 22, 32, 765 P.2d 307 (1988).
Second, Urga argues that the State failed to prove there was little likelihood that conditions would be remedied so that T.C.U. could be returned to him in the near future. The focus of RCW 13.34.180(1)(e) is whether a parent has corrected his or her parental deficiencies. "A determination of what constitutes the near future depends on the age of the child and the circumstances of the placement." If all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future are offered or provided and the deficiencies are not substantially improved within 12 months of the dependency order, there is a rebuttable presumption that the Department has established this factor.
T.R., 108 Wn. App. at 165.
In re Dependency of T.L.G., 126 Wn. App. 181, 204, 108 P.3d 156 (2005).
Substantial evidence in the record supports the trial court's finding that there is little likelihood that conditions will be remedied such that T.C.U. can be returned to Urga in the near future. The Department's social workers testified that although they sent Urga two letters regarding services, he failed to provide the Department with the requested paperwork verifying that those services had been completed. T.C.U.'s CASA testified that even assuming Urga is released in 2015, he would need an additional year of services before T.C.U. could be placed with him. Urga claims that the Department actively hindered the bonding process between him and T.C.U. by withholding some of his letters. But that fact does not alter the conclusion that Urga's incarceration makes him unavailable to parent T.C.U. until 2016 at the earliest. Five years from the date of the termination trial is not within T.C.U.'s near future. Urga has failed to overcome RCW 13.34180(1)(e)'s rebuttable presumption.
Third, Urga claims that he has made substantial progress in addressing his deficiencies while in prison and for that reason the Department did not prove his current unfitness to parent. But proof of the six statutory elements in RCW 13.34.180 establishes that a parent is currently unfit and satisfies due process.Because the trial court correctly determined that the Department proved all six statutory elements, it did not err by determining Urga is currently unfit to parent T.C.U.
A parent has a due process right not to have the relationship with a natural child terminated in the absence of a finding of current unfitness to parent the child. A.B., 168 Wn.2d at 920.
K.N.J., 171 Wn.2d at 577.
Urga contends that the trial court improperly based its termination decision on the fact that he is incarcerated. Incarceration is insufficient in and of itself to terminate the parent-child relationship. As our Supreme Court stated in In re Welfare of Sego, "For example, a parent's misconduct, even if criminal in nature, does not automatically support permanent child deprivation. By the same token, imprisonment, alone, does not necessarily justify an order of permanent deprivation." The court, however, also observed that the effect of incarceration on a parent's ability to parent is a relevant consideration for the trial court in a termination action:
82 Wn.2d 736, 740, 513 P.2d 831 (1973).
On the other hand, a parent's inability to perform his parental obligations because of imprisonment, the nature of the crime
committed, as well as the person against whom the criminal act was perpetrated are all relevant to the issue of parental fitness and child welfare, as are the parent's conduct prior to imprisonment and during the period of incarceration.
Sego, 82 Wn.2d at 740.
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Here, the court focused on the effect Urga's incarceration would have on T.C.U.'s foreseeable future. At the time of trial, Urga was not available to parent T.C.U. and would not be in the position to parent him for several more years. Additionally, there was no evidence other than Urga's own testimony that he had complied with the court-ordered services to correct his parental deficiencies, which include substance abuse and domestic violence. The trial court therefore did not err when it considered the effect of Urga's incarceration on his current ability to parent.
Conclusion
Substantial evidence supports the trial court's findings that the Department offered or provided Urga all necessary services reasonably available and capable of correcting his parental deficiencies within the foreseeable future, that there is little likelihood that conditions will be remedied so that T.C.U. could be returned to Urga within the near future, and that Urga is currently unfit to parent T.C.U. We affirm.
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WE CONCUR:
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