                                                                                       p ;'   "" n




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Dependency of                 NO. 72656-1-


      C.T.,
                      Minor.


                v.



STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND                            DIVISION ONE
HEALTH SERVICES,

                      Respondent,

                v.



KARINATORRESCANO-                                   UNPUBLISHED OPINION
HERNANDEZ,
                                                    FILED: September 28, 2015
                      Appellant.



       Lau, J. — Karina Torrescano-Hernandez appeals an order terminating her

parental rights to her son, C.T. Torrescano argues the trial court's order should be
reversecj because (1) requiring Torrescano to admit that she burned her son's hands

violated her Fifth Amendment right against compelled self-incrimination, (2) her counsel

was ineffective for failing to assert that right, (3) the State's failure to provide notice of
No. 72656-1-1/2



her parental deficiencies violates due process, (4) the State failed to prove there was

little likelihood that additional services would be futile, (5) the State failed to prove there

was little likelihood conditions could be remedied so that C.T. could be returned to

Torrescano, and (6) the State failed to prove RCW 13.34.180(1 )(d) and (e) by clear,

cogent, and convincing evidence. We conclude that Torrescano's Fifth Amendment

privilege was not self-executing, she fails to show her counsel's performance was either

deficient or prejudicial, and the State satisfied all necessary elements of RCW

13.34.180. We affirm the order of termination.

                                            FACTS


       Karina Torrescano-Hernandez is the mother of C.T., born in Mexico on May 27,

2006.1 In September 2012, the State filed a dependency petition based on allegations

that Torrescano burned C.T's hands on a stove to discipline him. C.T. said his mother

burned his hands because she was upset that he had taken a friend's iPod. Torrescano

denied burning C.T.'s hands. The dependency petition alleged that C.T. had been

abused and that he had no parent capable of adequately caring for him under RCW

13.34.030(6)(b) and (c). The State filed an amended petition on October 1, 2012,

alleging that Torrescano also previously hit C.T. with a shoe and a spoon. On

November 2, 2012, the State charged Torrescano with assault of a child in the second

degree (domestic violence). It later amended the charge to include deliberate cruelty.

       On December 6, 2012, the parties entered an agreed order of dependency.

Torrescano stipulated that C.T. was dependent because she had been charged with

second degree assault of a child, was incarcerated, and was incapable of caring for

       1C.T.'s father and brother, NT., are not involved in this appeal.
                                            -2-
No. 72656-1-1/3



C.T. In the order of dependency, Torrescano stipulated that any convictions or plea

agreements related to the pending criminal charges would become part of the basis for

C.T.'s dependency. She further stipulated that two required services, psychological

evaluation and a domestic violence perpetrator's assessment, would commence after

the criminal case was resolved.


       On June 14, 2013, a jury convicted Torrescano of the lesser included offense of

assault of a child in the third degree. The court sentenced Torrescano to three months

in jail with credit for time served. The court also included a no contact order preventing

Torrescano from contacting C.T. until June 14, 2018. The court noted that the

no-contact order would be subordinate to all future orders relating to contact between

C.T. and Torrescano.


       Torrescano, a Mexican-born citizen residing illegally in the United States, was

sent to the U.S. Immigration and Customs Enforcement (ICE) detention center shortly

after completing her jail sentence. On November 14, 2013, the State filed a petition to

terminate Torrescano's parental rights while she was still detained at the ICE facility in

Tacoma, Washington. She remained in detention until March 2014, when ICE granted

Torrescano temporary asylum from deportation until the dependency case was

resolved. After Torrescano's release from detention, the State made referrals for the

two court-ordered services in the October 2012 dependency order—a psychological

evaluation and a domestic violence perpetrator's assessment.

       The termination trial took place on August 18-20 and September 8, 2014, two

months after Torrescano completed the court ordered services. The court heard

extensive testimony from the following witnesses: Torrescano; Frederica Rose and

                                          -3-
No. 72656-1-1/4



Sarah Cope, two different social workers tasked with managing Torrescano's case; Dr.

David Morgan, who performed a psychological evaluation of Torrescano; Ted Vidan,

who conducted a domestic violence assessment of Torrescano; Janelle Ibsen, a board

certified physician's assistant who examined C.T. after the burning incident; Marty

Quintana, C.T.'s Guardian Ad Litem; Crystal Hynek and Lorencita Villegas, two

therapists who treated C.T.; and C.T.

       Dr. David Morgan, a licensed psychologist who performed the psychological

evaluation for Terrescano, testified that Torrescano would not be capable of caring for

C.T. in the furture:


               Ms. Torrescano-Hernandez is currently in denial regarding the
       elements of her conviction ... it is difficult for individuals to make needed
       and lasting changes to their behavior if they do not acknowledge the
       behaviors in the first place. While Ms. Terroscano-Hernandez does not
       have any diagnosed mental health issues, the fact that she is in denial
       regarding the convicted behavior could impact her ability to effectively
       parent her child.

               [Because of] the fact that she is in denial regarding the details of
       her conviction, it is not likely that Ms. Torrescano-Hernandez would be
       capable of adequately and consistently caring for [C.T.] in the foreseeable
       future. She would have to take greater accountability for her behavior and
       start to address the underlying issues that motivated this behavior in the
       first place in order to move forward.

Report of Proceedings (RP) (Aug. 19, 2014) at 15-18. Dr. Morgan also believed that

future treatment would not be effective for Torrescano because "it's difficult for people to

work on a problem that they don't see is a problem." RP (Aug. 19, 2014) at 17. He

stated that, under the circumstances, C.T. should not be forced to have contact with

Torrescano.




                                           -4-
No. 72656-1-1/5



       Ted Vidan, who conducted Torrescano's domestic violence assessment, also

testified. Like Dr. Morgan, Vidan testified that Torrescano denied burning C.T.'s hands.

Vidan nevertheless believed that Torrescano posed no risk to C.T. He stated that

Torrescano would benefit from a parenting class focused on appropriate discipline. But

on cross-examination, Vidan conceded that Torrescano's denial could be a problem

because "without accountability, we don't know how sincere a person is in correcting."

RP(Aug. 19, 2014) at 102.

       The court also heard testimony from Janelle Ibsen, a board certified physician's

assistant who conducted the first medical examination of C.T. after the burning incident.

Ibsen noted that it was unusual to see burns on both hands, so she asked C.T. how the

burns occurred. C.T. told her that Torrescano "had gotten extremely upset at him and

then, therefore, taken his hands and burnt them on the stove top." RP (Sept. 8, 2014)

at 65-66. Ibsen believed the burn marks on C.T.'s hands were consistent with C.T.'s

explanation of events. When Ibsen proceeded with her examination "from a head to toe

fashion," she noticed "various scars and dark marcations all over [C.T.'s] body." RP

(Sept. 8, 2014) at 66. When she asked C.T. what happened, he told her that his mother

had pinched his thighs and hit him with various objects.

       Crystal Hynek testified that she treated C.T. as his therapist from March 2013 to

September 2013. Hynek stated that C.T. was doing well with his foster parents and that

he did not want to be removed from his current placement with them. C.T. told Hynek

that Torrescano hit him and burned his hands. C.T. also told Hynek that he was afraid

of Torrescano, that he was afraid to testify at the criminal trial, and that he was afraid

Torrescano would take him away.

                                           -5-
No. 72656-1-1/6



        In February 2014, C.T. re-enrolled in therapy with Lorencia Villegas. C.T. was

having problems with stealing and lying at home. C.T. told Villegas that he did not feel

safe. C.T. experienced frequent nightmares and crying spells at night. Villegas testified

that C.T.'s behavior was largely due to fear of Torrescano. For example, C.T.

expressed feeling nervous and scared when Torrescano was released from jail. C.T.

told Villegas that he felt safe with his foster parents and asked her when he was going

to be adopted. Villegas believed C.T.'s mental health would deteriorate if he was

removed from his foster parents. She stated that C.T. had adjusted well at school,

made friends, and participated in extracurricular activities. C.T. felt anxious about not

knowing when he would be adopted. Villegas stated that resolving the issue of C.T.'s

permanent placement was crucial to his mental health.

        Sarah Cope, the social worker managing C.T.'s case, provided similar testimony.

She stated that C.T. had adjusted well to his placement with his foster parents and that

he wanted to be adopted by them. Cope believed that termination of Torrescano's

parental rights was in C.T.'s best interests so that he could gain permanency in a stable

home.


        Torrescano also testified. She acknowledged that she had been convicted of

third degree assault of a child, but denied that she had burned his hands. Torrescano

believed she was ready to provide a home for C.T. that day. She believed that she did

not need any help or services. She could not think of any reason why C.T. should not

be returned to her immediately. Torrescano stated that she did not take C.T. to a doctor

after the burning incident because of her immigration status and the fear that she might

be deported.

                                          -6-
No. 72656-1-1/7



       C.T. was eight-years-old when he testified at the termination trial. He stated that

Torrescano burned his hands on the stove and that it was not an accident. C.T. said he

did not want to live with Torrescano. He stated that he wanted to live with his foster

parents "forever," "[b]ecause they won't hurt me." RP (Sept. 8, 2014) at 78.

      After the trial, the court granted the State's petition to terminate Torrescano's

parental rights pursuant to RCW 13.34.180 and .190. The court based its conclusion on

Torrescano's history of inappropriate punishment, her inability to acknowledge that

history and thereby correct it, and C.T.'s resulting emotional trauma:

              It is in the best interest of the child that all of the parental rights of
       Karina Torrescano-Hernandez be terminated under RCW 13.34.180 and
       .190. The mother is not currently safe to be with him. She has engaged
       in inappropriate punishment, causing physical harm which appears to
       have occurred on more than one occasion. Without the mother being able
       to recognize how this particularly extreme last incident could have
       occurred, it is unlikely that if he was placed with his mother that he would
       not be hurt again. Furthermore, it is in [C.T.'s] best interest, because he is
       currently deathly afraid of his mother. He is suffering from adjustment
       disorder with anxiety. It would be emotionally damaging for him to have
       contact with the mother at this time. Even with months of reintegration
       therapy it is dubious that he would ever be able to be with his mother
       without being seriously or significantly afraid of her or at least in a
       significant state of anxiety.

Clerk's Papers (CP) at 18. Accordingly, on October 21, 2014, the trial court entered an

order terminating Torrescano's parental rights. Torrescano appeals.

                                          ANALYSIS


    Fifth Amendment Right Against Self-incrimination

   Torrescano argues that during the court-ordered psychological evaluation she was

forced to choose between incriminating herself by admitting she burned C.T.'s hands or

having her parental rights terminated. She contends this violated her Fifth Amendment
No. 72656-1-1/8



right against compelled self-incrimination and requires reversal of the court's order

terminating her parental rights. We conclude that Torrescano's Fifth Amendment

privilege was not self-executing here because the trial court's order requiring a

psychological evaluation did not compel Torrescano to disclose self-incriminating

information.


      The Fifth Amendment provides that no person "shall be compelled in any criminal

case to be a witness against himself." U.S. Const, amend. V; see also Wash. Const.

art. I § 9 ("No person shall be compelled in any criminal case to give evidence against

himself.").2 The privilege may be raised in any proceeding, "civil or criminal, formal or

informal, where the answers might incriminate [the questioned person] in future criminal

proceedings." Lefkowitz v. Turlev, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274

(1973). However, the privilege is generally not self-executing and must be expressly

asserted. State v. Jacobsen, 95 Wn. App. 967, 977 P.2d 1250 (1999). But when

compulsion is present, the privilege is self-executing, and an individual "does not waive

the privilege by failing to invoke it." United States v. McLaughlin, 126 F.3d 130, 135 (3d

Cir. 1997). Compulsion exists when a person is threatened with serious penalties if the

evidence sought is not produced. In re Dependency of J.R.U.-S., 126 Wn. App. 786,

794, 110P.3d773(2005).3

       The "penalty" exception is available only if "(1) the person gives answers that

would incriminate him or her in a separate criminal proceeding and (2) the State makes


       2"The protection provided by the state provision is coextensive with that provided
by the Fifth Amendment." State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008).
       3The parties agree that other circumstances indicating compulsion, such as
custodial interrogation, are not relevant here. See Jacobsen, 95 Wn. App. at 973.
No. 72656-1-1/9



express or implied assertions that exercise of the Fifth Amendment privilege will result

in the imposition of a penalty     " State v. Post. 118 Wn.2d 596, 610, 826 P.2d 172

(1992). We note that, here, Torrescano never made any incriminating statements.

During her psychological evaluation, she denied any wrongdoing whatsoever. She also

testified at the termination hearing, where she continued to deny that she burned C.T.'s

hands. Torrescano contends that it is irrelevant whether she actually made any

incriminating statements, citing Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20

L.Ed. 2d 1082 (1968) and Spevack v. Klein, 385 U.S. 511. 87 S. Ct. 625. 17 L. Ed. 2d

574 (1967) for the proposition that a person need not make self-incriminating

statements for the right to be self-executing. See Appellant's Reply Br. at 11. But in

both Gardner and Spevack, the petitioners expressly asserted their Fifth Amendment

right against self-incrimination and the Supreme Court held they were punished for

asserting the privilege. See Gardner, 392 U.S. at 274; Spevack. 385 U.S. 512-13.

Where, as here, a person does not invoke the privilege, he or she must show they made

incriminating statements. Post. 118 Wn.2d at 610.

       Torrescano failed to show any "concrete, imminent threat" of a certain penalty.

J.R.U.-S. 126 Wn. App. at 795. In J.R.U.-S.. we held that "while termination of parental

rights is a consequence of sufficient gravity to qualify as compulsion, the penalty cases

have generally required a showing that a penalty would follow directly and more or less

automatically from the refusal to answer questions." J.R.U.-S., 126 Wn. App. at 794.

We further explained that "there is no compulsion absent a certain and serious penalty,

such as an express threat to file a termination petition if the parent invoked the

privilege." J.R.U.-S.. 126 Wn. App. at 795. We concluded the parents in J.R.U.-S. were

                                          -9-
No. 72656-1-1/10



not compelled to respond to questions in a court ordered psychological evaluation

because "there was no evidence that a termination petition or any other serious adverse

consequence was certain, or even likely, to follow from the parents' refusal to answer

questions in the evaluation." J.R.U.-S.. 126 Wn. App. at 795.

       Here, Torrescano cannot show that failure to respond to questions in her

psychological evaluation would "directly and more or less automatically" result in

termination of her parental rights. J.R.U.-S, 126 Wn. App. at 794. The parents in

J.R.U.-S. were fundamentally dissimilar than Torrescano because no charges had been

filed against them and no termination petition had been filed. Here, Torrescano had

already been convicted of assault of a child in the third degree and termination

proceedings were underway when she voluntarily agreed to undergo a psychological

evaluation. While a threat to file a termination petition would have been improper

compulsion in J.R.U.-S.. Torrescano cannot show any similar compulsion here.

Termination was not contingent on her admitting guilt, nor was termination threatened if

she refused to answer any questions in her psychological evaluation. She was never

expressly required to answer any questions in any way. See In re A.N., 298 Mont. 237,

995 P.2d 427, 435 (2000) (treatment plan required parent to affirmatively explain the

cause of a child's injuries and cooperate with law enforcement to resolve the criminal

charges gave parent a "Hobson's choice of either successfully completing the

requirements of [the] treatment plan, thereby incriminating himself in the criminal

proceeding, or refusing to complete the treatment plan, with the substantially certain

penalty of having his parental rights terminated"). Because the court did not expressly

require Torrescano to either admit guilt or face termination, we conclude she was not

                                          -10-
No. 72656-1-1/11



compelled to make self-incriminating statements. Her Fifth Amendment privilege

therefore, was not self-executing.

       The out-of-state authority Torrescano relies on supports our conclusion. In

J.R.U.-S., we cited two Minnesota cases illustrating the difference between requiring a

parent to engage in a psychological evaluation and threatening that parent with a

penalty if he or she refused to admit guilt. In re Welfare of J.G.W.. 433 N.W.2d 885

(Minn. 1989); In re Welfare of J.W.. 415 N.W.2d 879 (Minn. 1987). JAAA involved a

disposition order in a dependency proceeding that "ordered the parents to obtain

psychological evaluations and to explain the death of their 2-year-old nephew, who had

been in their care, consistent with the medical findings." J.G.W., 433 N.W.2d at 885.

The State's attorney in J.W. expressly stated that if the parents persisted in invoking

their Fifth Amendment privilege, the State would file a termination petition. J.W., 415

N.W.2d at 882. The court held that the threat to file a termination petition was an

impermissible penalty for invoking the Fifth Amendment privilege and that "the

protection afforded by the privilege has been activated." J.W., 415 N.W.2d at 883. The

court explained that a trial court could not expressly require the parents to incriminate

themselves in therapy. J.W.. 415 N.W.2d at 883. But the court nevertheless held that it

was constitutionally permissible to require the parents to attend therapy generally, even

if that therapy ultimately results in the termination of parental rights because the parents

choose to forego incriminating disclosures:

              We hold that the trial court's order, to the extent it requires
       appellants to incriminate themselves, violates appellants' Fifth
       Amendment rights and is unenforceable . . . But this is as far as the
       privilege extends protection. While the state may not compel therapy
       treatment that would require appellants to incriminate themselves, it may

                                           -11-
No. 72656-1-1/12



       require the parents to otherwise undergo treatment. Therapy, however,
       which does not include incriminating disclosures, may be ineffective; and
       ineffective therapy may hurt the parents' chances of regaining their
       children. These conseguences lie outside the protective ambit of the Fifth
       Amendment.

J.W., 415 N.W.2d at 883 (emphasis added). The Supreme Court of Minnesota

repeated this rationale in J.G.W.:

                [In J.W.I we also said that while the state could not directly compel
       the parents to incriminate themselves as part of the treatment plan, the
       state could require the parents to undergo treatment successfully and the
       parents' failure to admit their guilt might as a practical matter make them
       fail in treatment... As we put it, "[T]he risk of losing the children for failure
       to undergo meaningful therapy is neither a 'threat' nor a 'penalty' imposed
       by the state" but is "simply a consequence of the reality that it is unsafe for
       children to be with parents who are abusive and violent."

J.G.W.. 433 N.W.2d at 886 (quoting JLW, 415 N.W.2d at 884).

      Torrescano also relies heavily on In re Interest of Clifford M., 6 Neb. App. 754

577 N.W.2d 547 (1998). In Clifford, a juvenile court required a parent to enroll in a

therapy program "which the court was aware required her to make incriminating

statements as a prerequisite to enrollment." Clifford. 577 N.W.2d at 557. The court

held that this requirement violated the parent's right against self-incrimination. Clifford.

577 N.W.2d at 554-55. But the court nevertheless agreed with both JAAA and J.G.W

that this was different than requiring a parent to engage in meaningful therapy that

might involve admitting to past wrongdoing:

              [T]here is a very fine, although very important, distinction between
       terminating parental rights based specifically upon a refusal to waive
       protections against self-incrimination and terminating parental rights based
       upon a parent's failure to comply with an order to obtain meaningful
       therapy or rehabilitation, perhaps in part because a parent's failure to
       acknowledge past wrongdoing inhibits meaningful therapy. The latter is
       constitutionally permissible; the former is not.


                                            -12-
No. 72656-1-1/13



Clifford. 577 N.W.2d at 544 (emphasis added).

       Like in J.W. and J.G.W.. here, Torrescano was never expressly required to admit

guilt. Nor was she ordered to enter a therapy program that required her to make self-

incriminating statements prior to enrollment, as in Clifford. Here, the court ordered a

psychological evaluation. As a part of that evaluation, Dr. Morgan asked Torrescano to

address the methods of discipline she had used with C.T. in the past. As a practical

matter, these questions invited Torrescano to disclose self-incriminating information,

without which her therapy might be less effective. Even failing to engage in meaningful

therapy may ultimately weigh in favor of terminating Torrescano's parental rights. But

this consequence falls outside of the Fifth Amendment's protection. See J.G.W., 433

N.W.2d at 886 ("[T]he risk of losing the children for failure to undergo meaningful

therapy is neither a 'threat' nor a 'penalty' imposed by the state" but is "simply a

consequence of the reality that it is unsafe for children to be with parents who are

abusive and violent." (quoting J.W.. 415 N.W.2d at 884)). Torrescano failed to show

sufficient compulsion triggering a self-executing Fifth Amendment right against self-

incrimination.


       Ineffective Assistance of Counsel


       Next, Torrescano argues that if her Fifth Amendment right against self-

incrimination was not self-executing because there was no compulsion, then her

counsel was constitutionally ineffective for failing to expressly assert that right. We

conclude that her counsel was constitutionally effective. First, allowing Torrescano to

provide her version of events by denying any wrongdoing is a reasonable trial strategy.



                                           -13-
No. 72656-1-1/14



Second, even if counsel had asserted Torrescano's Fifth Amendment right, Torrescano

cannot show a reasonable probability that the outcome would have been different.

       Parents have a constitutional right to appointed counsel in termination

proceedings. In re Welfare of J.M.. 130 Wn. App. 912, 921, 125 P.3d 245 (2005). To

determine whether counsel was ineffective, we apply the same test articulated in

Strickland v. Washington. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See,

e.g.. In re Dependency of S.M.H.. 128 Wn. App. 45, 61, 115 P.3d 990 (2005). "To

prevail on a claim of ineffective assistance of counsel, counsel's representation must

have been deficient, and the deficient representation must have prejudiced the

defendant." State v. Aho. 137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland 466

U.S. at 687. "To establish ineffective representation, the defendant must show that

counsel's performance fell below an objective standard of reasonableness. To establish

prejudice, a defendant must show that but for counsel's performance, the result would

have been different." State v. McNeal. 145 Wn.2d 352, 362, 37 P.3d 280 (2002)

(citation omitted). Failure to establish either prong of the test is fatal to an ineffective

assistance of counsel claim. Strickland, 466 U.S. at 700.

       First, Torrescano has failed to overcome the strong presumption that counsel's

performance was effective. We are reluctant to find ineffective assistance of counsel

except in the most extreme cases. "[S]crutiny of counsel's performance is highly

deferential and courts will indulge in a strong presumption of reasonableness." State v.

Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To show deficiency, Torrescano

must establish that no legitimate strategic or tactical reasons supported her attorney's

choice to not assert her Fifth Amendment privilege. See State v. McFarland. 127 Wn.2d

                                            -14-
No. 72656-1-1/15



322, 336-37, 899 P.2d 1251 (1995). But choosing not to assert this privilege was a

legitimate strategy in this case. By answering Dr. Morgan's questions and testifying at

the termination trial, Torrescano was able to present her version of events—that C.T.

burned his own hands. Throughout the dependency proceedings, the criminal trial, her

psychological evaluation, and the termination proceedings, Torrescano maintained that

she did not burn C.T.'s hands. It was a reasonable trial strategy to forego her Fifth

Amendment privilege and present this testimony so as to discredit C.T.'s testimony and

demonstrate that the home environment did not warrant terminating Torrescano's

parental rights.4

       But even if Torrescano could show that her counsel's performance was deficient,

she cannot show a reasonable probability that the outcome would have been different

had counsel asserted Torrescano's Fifth Amendment privilege. As discussed above,

requiring Torrescano to participate in a psychological evaluation did not violate her Fifth

Amendment right against self-incrimination. All of the cases supporting that conclusion,

discussed above, involve litigants who expressly asserted their Fifth Amendment right

against self-incrimination in response to court-ordered therapy. See J.R.U.-S, 126 Wn.

App. at 794; JJAA, 415 N.W.2d at 883; J.G.W.. 433 N.W.2d at 886. Accordingly, even if

Torrescano's attorney had asserted her Fifth Amendment privilege in response to the

psychological evaluation, the outcome likely would have been the same. Torrescano

failed to show prejudice.




       4We note that Torrescano also argues that failure to preserve error for appeal
can constitute ineffective assistance of counsel. This is irrelevant because we have
addressed the alleged error on the merits above.
                                          -15-
No. 72656-1-1/16



       Notice


       Torrescano argues the State's failure to provide adequate notice of her parental

deficiencies violated due process. She claims the State never gave her prior notice that

denying she burned C.T.'s hands could constitute a parental deficiency. We disagree.

Torrescano received sufficient notice.


       Termination proceedings are accorded strict due process protections. In re

Matter of Darrow, 32 Wn. App. 803, 806, 649 P.2d 858 (1982). The due process

protections afforded a parent in a termination case include "[n]otice, open testimony,

time to prepare and respond to charges, and a meaningful hearing before a competent

tribunal in an orderly proceeding." In re Dependency of H.W., 70 Wn. App. 552, 555

n.1,854P.2d 1100 (1993) (quoting In re Moselev. 34 Wn. App. 179, 184, 660 P.2d 315

(1983)). "The parents must be clearly advised in adequate time to meet [the termination

petition] to prevent surprise, helplessness and disadvantage. Moreover, definite

allegations of the purpose of the hearing are necessary to enable the parents to

determine intelligently whether to admit or contest the petition." In re Welfare of Martin,

3 Wn. App. 405, 410, 476 P.2d 134 (1970).

   The initial dependency petition and the amended dependency petition indicated that

Torrescano's inconsistent explanation of C.T.'s wounds was a basis for parental

deficiency. The first dependency petition notified Torrescano of her parental

deficiencies. The petition provides: "The child, [C.T.] has significant, unexplained burns

to the palms of both hands. The mother's explanation regarding the burns is not

consistent with the child's injuries." Exhibit (Ex.) 1 at 3. The petition also alleged that

C.T. stated his mother burned his hands. It also indicated that Torrescano told law

                                           -16-
No. 72656-1-1/17



enforcement and Child Protective Services that C.T. burned himself. The amended

dependency petition stated that medical experts concluded the age of the wounds were

not consistent with the mother's explanation of when the wounds occurred and that it

was unlikely C.T. would have burned himself. The petition stated that the "burns are

clearly inscribed suggesting very rapid, brief contact or contact being held in a fixed

position." Ex. 3 at 6. The amended petition also indicated that medical staff observed

multiple scars on C.T.'s body and that C.T. stated his mother hit him with various

objects. Torrescano also specifically stipulated that she had been charged with assault

of a child in the second degree and that any conviction or plea agreement would

become part of the basis for dependency. Taken together, the dependency petitions

indicate that (1) C.T. suffered burns and other injuries, (2) C.T. said that Torrescano

caused these injuries, and (3) Torrescano's statements were inconsistent with C.T.'s

statements and the conclusions of medical staff.

   The termination petition made similar allegations. It stated that C.T. was removed

from Torrescano's custody due to his injuries. It provided that Torrescano's parental

deficiencies included "mental health issues, lack of parenting skills and domestic

violence." CP at 100. It noted that her conviction for third degree assault of C.T.

contributed to these parental deficiencies. The petition specifically alleged domestic

violence as one of Torrescano's parental deficiencies and that her conviction for burning

C.T.'s hands was related to this deficiency. Denying this incident occurred is obviously

relevant to whether "there is a likelihood that conditions will be remedied so that [C.T.]

can be returned to" Torrescano. RCW 13.34.180(1 )(e). For notice to be sufficient, the

allegations must be specific enough to "prevent surprise, helplessness and

                                          -17-
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disadvantage." In re Dependency of A.M.M.. 182 Wn. App. 776, 791, 332 P.3d 500

(2014) (quoting Martin, 3 Wn. App. at 410). Under these circumstances, Torrescano

cannot claim she was surprised, rendered helpless, or disadvantaged. Torrescano

received ample prior notice that denying that she burned C.T.'s hands could serve as a

basis for finding parental deficiency.

   Torrescano's reliance on A.M.M.. is misplaced. In that case, we found a trial court's

order terminating parental rights failed to provide sufficient notice to the parent when it

included a parental deficiency that had not been identified in either the dependency or

termination petitions. A.M.M., 182 Wn. App. at 791-93. Specifically, the termination

petition alleged that the parent's substance abuse constituted a deficiency, but the trial

court ultimately held that the parent's substance abuse in conjunction with her lack of

knowledge regarding her children's developmental needs justified termination. A.M.M.,

182 Wn. App. at 792. The termination petition did not indicate that ignorance regarding

the children's developmental needs would justify termination. A.M.M.. 182 Wn. App. at

791-92.


   In A.M.M., one of the grounds for terminating parental rights was unrelated to what

the State had alleged in its termination petition. Here, however, Torrescano's denial is

directly related to deficiencies the State alleged. The State provided sufficient notice

that domestic violence was an alleged parental deficiency. The trial court's findings

show that Torrescano's denial of any wrongdoing indicated that she may still pose a

physical threat to C.T. and therefore termination was justified:

              The mother continues to deny that she abused [C.T.] in any way,
       and has denied any inappropriate discipline, and denied the need for any
       services whatsoever. . . [N]ot being able to understand a need for

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       treatment even now or acknowledge it at a time where she has already
       gone through the criminal proceedings renders her a continuing unfit
       parent. Should [C.T.] be placed with mother now or in the near future, he
       would be a severe risk of serious physical injury.

CP at 17 (emphasis added). Unlike in A.M.M., the trial court here did not base its

termination ruling on any deficiency unrelated to what was alleged in the dependency or

termination petitions. Those petitions specifically alleged domestic violence as a

deficiency, and Torrescano's unwillingness to acknowledge a need for treatment

regarding that deficiency indicated C.T. might still be in danger of physical harm. As

noted above, one relevant factor for termination is whether "there is little likelihood that

conditions will be remedied so that the child can be returned to the parent in the near

future." RCW 13.34.180(1 )(e). Torrescano's denial is relevant to this inquiry and she

received sufficient notice that it could be relevant to termination.

       The State's Offered Services


       Torrescano argues that the State failed to meet its burden under RCW

13.34.180(1 )(d) by refusing to offer any services tailored to correct her parental

deficiencies. The trial court found that any future services would be futile, and that

finding is supported by substantial evidence. The record shows that the State met its

burden under RCW 13.34.180(1)(d).

       RCW 13.34.180(1 )(d) that "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." RCW

13.34.180(1 )(d). Torrescano argues the trial court erred when it excused the State from


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providing any further services because Torrescano denied burning C.T.'s hands. But

the State does not have to provide services where to do so would be futile, or where a

parent is unwilling or unable to take advantage of those services. In re Dependency of

Ramguist. 52 Wn. App. 854, 861, 765 P.2d 30 (1988); see also In re Welfare of M.R.H..

145 Wn. App. 10, 25-26, 188 P.3d 510 (2008).

       The record supports the trial court's conclusion that additional services would

have been futile here. Dr. Morgan testified that additional services would be ineffective.

Torrescano stated she required no additional services and was prepared to reunite with

C.T. immediately without any additional help. Torrescano continued to deny she burned

C.T. Dr. Morgan stated that, during his evaluation, Torrescano denied applying

unreasonable discipline. Under these circumstances, substantial evidence supports the

trial court's determination that future services would be ineffective.


       Even if future services could have corrected Torrescano's parental deficiencies,

those services must be capable of correcting the parental deficiencies "within the

foreseeable future." RCW 13.34.180(1)(d). Dr. Morgan testified that, even if

Torrescano could engage in therapy in good faith, it would take a long period of time to

reach a point where she could make significant changes to make sure events like C.T.'s

burns "didn't happen again." RP (Aug. 19, 2014) at 16. Dr. Morgan concluded that

Torrescano could not be safely reunited with C.T. in the foreseeable future even with

treatment. Sarah Cope, C.T.'s social worker, also concluded that Torrescano's

deficiencies could not be remedied by additional services in the foreseeable future.

Substantial evidence supports the trial court's finding that additional services would not

remedy Torrescano's parental deficiencies in the foreseeable future.

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       Torrescano relies heavily on In re Dependency of T.L.G.. 126 Wn. App. 181, 108

P.3d 156 (2005). Torrescano claims that, like the parents in T.L.G.. she is willing to

participate in additional services and therefore the court erred when it found that

additional services would be futile. In T.L.G., we held that the State failed to offer or

provide all necessary services in part because "parental deficiencies were not identified,

no treatment services were offered, and there [was] no finding [that] they would have

been unable to benefit." T.L.G.. 126 Wn. App. at 203. Here, by contrast, the State did

identify Torrescano's parental deficiencies and provided initial treatment services.

Unlike in T.L.G., the trial court here entered a finding that Torrescano was unable to

benefit from additional services. As discussed above, substantial evidence supports

that finding. The State satisfied the requirements of RCW 13.34.180(1 )(d).

       Likelihood Torrescano's Deficiencies Could Be Remedied

       Next, Torrescano contends that the State failed to prove that "there is little

likelihood that conditions will be remedied so that the child can be returned to the parent

in the near future." RCW 13.34.180(1 )(e). For reasons similar to those discussed

above, we conclude the State met its burden here.

       Torrescano claims that although Dr. Morgan and Sarah Cope testified that

additional services would take a long period of time before remedying her parental

deficiencies, they did not specify an amount of time. But under RCW 13.34.180(1 )(e),

whether a parent's deficiencies could be remedied in the near future must be

considered from the child's perspective. See In re Welfare of Hall. 99 Wn.2d 842, 851,

664 P.2d 1245 (1983). In a termination proceeding, "what constitutes 'near future'



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depends on the child's age and the placement circumstances." In re Welfare of T.B.,

150 Wn. App. 599, 609-610, 209 P.3d 497 (2009).

       Here, the State demonstrated that Torrescano's deficiencies could not be

remedied in the near future. As discussed above, testimony at trial demonstrated that

additional services would be ineffective due to Torrescano's denial of any wrongdoing.

C.T.'s placement circumstances support the trial court's conclusion that Torrescano's

deficiencies could not be remedied in the near future. C.T. has been living in foster care

since September 2012. Testimony at trial from therapists, the GAL, and from C.T.

demonstrate that C.T. adjusted well in his foster care placement. He feels happy and

safe with his foster parents and wants to be adopted by them. He remains afraid of his

mother, and this fear caused anxiety and nightmares throughout Torrescano's criminal

proceedings and dependency proceedings. Multiple witnesses testified that C.T. still

experiences anxiety because he does not know whether he will be adopted. C.T.'s

therapists agreed that achieving permanence was in C.T.'s best interests. Even if

treatment would be effective for Torrescano, the record supports the trial court's finding

that it would not remedy her deficiencies in the near future, particularly in light of C.T.'s

placement circumstances. See, e.g.. Hall. 99 Wn.2d at 851 ("Three months may not be

a long time for an adult decisionmaker. For a young child it may be forever.'" (quoting

Joseph Goldstein, Anna Freud, & Albert J. Solnit, Beyond the Best Interests of

the Child 43 n.* (1973))). We conclude that the State satisfied RCW 13.34.180(1 )(e).




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No. 72656-1-1/23



       The Best Interests of CT.


       Finally, Torrescano argues that the trial court erred when it concluded that

termination of her parental rights was in C.T.'s best interests when the State failed to

establish its burden under RCW 13.34.180(1 )(d) and (1)(e). Because we conclude that

the State satisfied these statutory elements, as discussed above, the trial court did not

err when it concluded that termination of Torrescano's parental rights was in C.T.'s best

interests.


       The primary consideration in termination proceedings is the welfare of the child.

In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113(1999). Once a trial

court finds that each element of RCW 13.34.180 has been proven by clear and

convincing evidence, it must then decide, by a preponderance of the evidence, that

termination is in the best interests of the child. RCW 13.34.190. The trial court has

broad discretion in determining the best interests of the child, and its decision is entitled

to great deference on review. In re Welfare of Young. 24 Wn. App. 392, 395, 600 P.2d

1312(1979).

       The record supports the trial court's conclusion here. As discussed above,

substantial evidence supports the trial court's finding that further treatment would be

ineffective for Torrescano. Further, even if that treatment could be effective, it would not

remedy her deficiencies in the near future. Given C.T.'s placement circumstances and

continuing emotional trauma regarding his mother's actions, the trial court properly

concluded that termination of Torrescano's parental rights was in C.T.'s best interests.

See, e.g.. In re Dependency of T.R., 108 Wn. App. 149, 167, 29 P.3d 1275 (2001) ("a

court is 'fully justified' in finding termination in the child's best interests rather than

                                             -23-
No. 72656-1-1/24



'leaving [the child] in the limbo of foster care for an indefinite period while [the parent

seeks] to rehabilitate himself.'" (quoting In re Dependency of A.W., 53 Wn. App. 22, 33,

765 P.2d 307 (1988)).

                                       CONCLUSION

       For the foregoing reasons, we affirm the trial court's order terminating

Torrescano's parental rights.




WE CONCUR:




                                                              ^X,J-




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