                                                                              FILED 

                                                                    FEBRUARY 9, 2016 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


In the Matter ofthe Parental Rights to        )
                                              )         No. 32941-1-111
J.E.L.D.                                      )
                                              )
                                              )
                                              )
                                              )         UNPUBLISHED OPINION
                                              )

       FEARING, J.    John Downs appeals the tennination of his parental rights to his

daughter Jessie. He claims that insufficient evidence supports the trial court's findings

that led to the tennination order. A complication in the appeal arises from Downs'

incarceration during much of Jessie's young life. Downs also contends that unsworn

testimony by Jessie's guardian ad litem, after the close of evidence, violated his due

process rights. We affinn the tennination order.

                                          FACTS

       John Downs and Jacque Jones generated Jessie, born May 2, 2009. All three

names are fictitious. The caption of the case christens Jessie as J.E.L.D. At the time of
No. 32941-I-III
In re the Dependency ofJ.E.L.D.


Jessie's birth, Downs was thirty-seven or thirty-eight years of age, and Jones was

eighteen years old.

       John Downs previously fathered seven other children. All children were primarily

raised by their respective mothers. The State terminated the rights of Downs to another

of his children. Downs maintains a relationship with two daughters, whom Jessie visited

on occasion. Before the birth of Jessie, John Downs had two convictions for burglary,

one conviction for assault, and another conviction for attempting to elude a police officer.

       For the first three years of Jessie's life, she resided with her mother and father.

During this time, police journeyed to the residence on three occasions of domestic

violence involving injuries to the mother, Jacque Jones. On each occasion, Jessie

witnessed the violence or the aftermath of the violence. Jessie was never hit nor

physically harmed. Jones stated that, on occasion, John Downs choked her and that she

learned to pretend to lose consciousness so Downs would end the strangulation. Jones

also reported Downs striking her, on one occasion, after which Jones pursued him with a

baseball bat. Although Jones viewed Downs as a threat, she never expressed a desire to

end the couple's relationship.

       In January 2011, the State of Washington Department of Social and Health

Services (DSHS) first received notice of concerns of domestic violence at the Downs-

Jones home. DSHS first intervened in the care for Jessie, in June 2012, because of

allegations of domestic violence by John Downs against Jacque Jones in the presence of

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No. 32941-1-III
In re the Dependency ofJE.L.D.


Jessie. DSHS assigned caseworker Jessica Strawn to Jessie's file.

       In August 2012, John Downs pled guilty to assault in the fourth degree domestic

violence for an attack on Jones. The trial court then entered a no contact order

prohibiting Downs from contact with Jones.

       In August 2012, Jessica Strawn visited Jacque Jones and Jessie at their house.

Jessie spontaneously commented: "We saw Daddy at the park." Verbatim Tr. of

Proceedings (VTP) at 70. The rendezvous at the park violated the court protective order.

       In September 2012, DSHS removed Jessie from her home with Jacque Jones. On

September 26, 2012, the State of Washington initiated dependency proceedings for

Jessie. On November 8, 2012, the trial court entered a default order of dependency

against John Downs.

       John Downs disobeyed the order protecting Jacque Jones on more occasions. On

October 8, 2012, the trial court convicted Downs of two counts of violation of the

domestic violence no contact order and one count of felony witness tampering. Downs

had instructed Jacque Jones not to appear at court for the domestic violence trial. A

judge sentenced Downs to one year and one day of confinement, and Downs entered the

Airway Heights Corrections Center. Downs may have earlier resided in the Kittitas

County jail. Before entering prison, Downs did not contact the dependency case social

worker, Jessica Strawn, for purposes of improving his parenting.

      John Downs has not seen Jessie since his incarceration in October 2012. Social

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No. 32941-I-II1
In re the Dependency ofJ.E.L.D.


worker Jessica Strawn deemed that Jessie's visiting her father in prison would not serve

the girl's interest since prison looms as a traumatizing venue for visitation. Strawn

claimed she possessed discretion to aUow or disallow visitation between Downs and

Jessie. Linnea Lauer, Jessie's therapist, recommended no visitation between Jessie and

her father.

       Jacque Jones abused unlawful drugs. She was evicted from her home in

December 2012 for concerns over the use of methamphetamine.

       On January 24, 2013, the trial court ordered John Downs to engage in the

following services in order to remedy his parental deficiencies: (I) complete a drug and

alcohol assessment and participate in any recommended treatment, (2) complete a

parenting assessment and participate in any recommended counseling, (3) complete a

psychological evaluation and comply with any recommended treatment, (4) complete a

domestic violence/anger-management assessment and participate in any recommended

classes, (5) provide releases ofinformation, and (6) secure housing. The order also read:

"[t]he father is incarcerated, [sic] upon his release and contact with the department

[DSHS] a visitation plan will be developed and implemented." Ex. 3 at 5.

       During incarceration at Airway Heights, John Downs called Jacque Jones

numerous times. Downs' social worker, Jessica Strawn, informed the police of these

violations of the protective order. The State prosecuted Downs for more violations of the

protection order, and, in April of2013, the trial court convicted and sentenced Downs to

                                             4

No. 32941-1-III
In re the Dependency ofJ.E.L.D.


an additional five years of confinement for five felony violations of the domestic violence

no contact order.

       DSHS provided Jessie with counseling by therapist Linnea Lauer during most of

the dependency. Lauer received a master's degree in counseling and has provided

counseling services since 1988. Lauer holds certifications in parental attachment,

adoption, and foster care counseling.

       Upon first seeing Jessie, Linnea Lauer assessed the mental health condition of the

young girl and concluded she needed ongoing counseling as the result of violent scenes in

her home. According to Lauer, the domestic violence between her father and mother

traumatized Jessie and John Downs "represents something that was very frightening in

[Jessie's] early childhood." VTP at 19.

       Before therapy began in 2013, Jessie engaged in angry fits, during which she

injured herself. Jessie at times needed separation from other children at her day care

center. Jessie's condition improved as a result of counseling with Linnea Lauer. Lauer's

services included meeting with the foster parents to assist them in developing skills

needed to care for one with the background and behavior of Jessie.

       By the time of the termination trial, Jessie still spoke of the violence in her home

and retained an image of blood oozing from her mother's nose. As part of the therapy,

Jessie dictated a letter to Lauer for her parents:




                                               5

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


             Dear [Jacque] and [John], this is [Jessie]. I want to tell you some
      things. I know you can't do that any more because that was bad stuff. You
      made me cry-when you made blood come out of your nose.

VTP at2l.

      Because of John Downs' imprisonment, DSHS has not offered him any of the

court ordered services. Downs, on his own initiative, sought services in the Airway

Heights Corrections Center in an effort to satisfy the court order. He pursued a

psychological evaluation through the mental health coordinator at the prison. The

coordinator responded that the prison did not offer psychological evaluations.

      John Downs has not receive parenting classes or domestic violence classes.

Downs wanted to attend parenting and domestic violence classes ordered by the trial

court, but Airway Heights Corrections Center did not offer these services.

      A chemical dependency evaluation in prison found John Downs chemically

dependent on methamphetamine. Beginning in June 2014, Downs participated in

intensive day treatment at the Airway Heights Corrections Center for his chemical

dependency, and this treatment included some anger management and parenting training.

The treatment continued through the parental termination trial in October 2014. As part

of the treatment, Downs underwent urinalyses, all of which reported negative for drug

use. According to the chemical dependency counselor, Downs participated in treatment

fittingly. In addition to chemical dependency treatment, Downs voluntarily attended

alcoholics anonymous and narcotics anonymous meetings.

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No. 32941-1-111
In re the Dependency ofJ.E.L.D.


       During incarceration, John Downs completed an anger and stress management

class twice, and he finished choice therapy, during which he learned to make good

choices. Downs also completed a "redemption x self awareness" class, which focused on

moral recognition therapy. He completed a relationship works class, which included a

domestic violence component.

                                      PROCEDURE

       On November 21,2013, the State of Washington petitioned to terminate Jacque

Jones' and John Downs' respective parental rights to Jessie. On January 3,2014, the trial

court appointed Nancy Graham to serve as guardian ad litem for Jessie.

       After the filing of the termination petition, John Downs' counsel asked social

worker Jessica Strawn if Downs could correspond with Jessie, and Strawn approved.

Downs did not send any letters, however.

       On October 23,2014, the trial court conducted a trial on the parental termination

petition against John Downs and Jacque Jones. By then, Jessie had resided with maternal

relatives, her third placement, for approximately one year. She was five years old.

       John Downs testified on his behalf at triaL Downs insisted that he earlier actively

parented Jessie. He claimed to be with Jessie constantly before his incarceration, but we

assume that the no contact order interfered to some extent in interaction with Jessie

immediately before the imprisonment. According to Downs, Jessie always called him

"daddy." VTP at 133.

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No. 32941-1-III
In re the Dependency ofJ.E.L.D.


         During trial, John Downs testified he always ran from fights with Jacque Jones.

He admitted the two sometimes heatedly argued, but he never choked Jones. He also

denied striking Jones. He conceded to once shoving Jones in the presence of Jessie.

According to Downs, his only domestic violence charge resulted from pushing Jones

away from the door so he could exit the house.

         DSHS social worker Jessica Strawn testified at trial. Strawn stated that she never

observed John Downs interact with Jessie, nor assessed his parenting skills, because he

was incarcerated for the duration of Strawn's involvement in the case. Strawn averred at

trial:

                 I think it is-it's very concerning to me when a parent is aware that
         they not only have one child that requires parenting but multiple children
         that require parenting, and they still put themselves in the position to
         become incarcerated, they're still committing crimes for which they are
         convicted. And I really think that speaks volumes to a person's--empathy
         for their children, their willingness to be available for them, their physical
         ability to be available for them.

VTP at 108. Strawn testified that Downs' relationship with Jessie was chaotic given his

history of incarceration and domestic violence against Jacque Jones.

         Jessica Strawn testified that she knew that Airway Heights Corrections Center did

not offer domestic violence evaluations and treatment and that she did not refer John

Downs for any such evaluation. According to Strawn, DSHS does not send service

providers to Airway Heights Corrections Center for domestic violence or mental health

treatment and evaluations. John Downs testified that prisoners can be transported from

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No. 32941-I-III
In re the Dependency ofJE.L.D.


prison for an appointment. Strawn conceded that she did not know if Downs could be

transferred from prison for treatment, but she declared a belief that prisoners were only

transported for medical or court appointments. When asked at trial as to what services

DSHS offered Downs to remedy his parenting deficiencies, Strawn replied:

              encouraging him to do what DOC [Department of Corrections]
       offers and then letting him know for certain that we would expect him to
       do--treatment once he's out, or at least be reassessed and see what outside
       evaluators have to say.

VTP at 83.

       Jessica Strawn testified that she applauded John Downs for engaging in services at

prison but informed him he would need to engage in the services again once released

from prison. Strawn did not wish Downs to be misled that prison services would lead to

being reunited with his daughter. According to Strawn, Downs must complete domestic

violence perpetrator's treatment upon release from prison. She explained that domestic

violence treatment differed in content and duration from the limited anger and stress

management counseling obtained by Downs in prison.

       During Jessica Strawn's testimony, John Downs' counsel reasonably insinuated

that DSHS maintained the position that, if a parent goes to jail, the parent will lose rights

to his child. Strawn denied the insinuation and protested that DSHS assists incarcerated

parents in various circumstances. She mentioned no assistance provided John Downs.

       Linnea Lauer, Jessie's therapist, testified during the trial. Lauer testified that


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No. 32941-I-III
In re the Dependency ofJE.L.D.


reunification of Jessie with her father could cause Jessie serious confusion, regression,

and unhealthy coping strategies for stress. Lauer also testified that Jessie is forming a

secure attachment to her foster parents. By the time of trial, Jessie maintained no

relationship with her biological parents, and Lauer did not recommend forcing a

relationship with either natural parent.

       During trial, Linnea Lauer and Jessica Strawn testified to the importance of

permanency in Jessie's life. John Downs requested a guardianship for Jessie until he

could care for her. Jessica Strawn testified that a guardianship would not provide Jessie

the safety and long-term support she needs. Strawn emphasized the attachment between

Jessie and her foster family.

       At trial, John Downs estimated his release date from prison to be July 2016.

Social worker Jessica Strawn estimated that Downs would need a minimum of three

years to remedy his parental deficiencies. The testimony is not clear as to whether the

three years would commence on Downs' release from prison or the time oftrial in

October 2014. Strawn also testified that Jesse needed extensive therapy before contact

with her father. Katrina Daily, John Downs' chemical dependency counselor, testified

that Downs will need additional drug treatment upon release from prison.

       Jessica Strawn testified that, on John Downs' release from prison, she would want

Downs to undergo random urinalyses, submit to a domestic violence perpetrator's

evaluation and engage in any recommended domestic violence therapy, submit to a

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No. 32941-1-111
In re the Dependency ofJ.E.L.D.


psychological evaluation with a parenting component and engage in any recommended

therapy and training, and undergo stress and anger-management classes. According to

Strawn, a domestic violence treatment program would last six months or longer. Strawn

emphasized John Downs' history of domestic violence against many women over twenty

years. Strawn insisted that Downs needed additional anger-management classes, despite

taking classes in prison, because the prison instruction did not address Downs' historical

pattern of violent abuse and his relationship with his daughter. Strawn later testified to

the contrary and stated Downs might not need additional anger-management.classes.

       John Downs testified that he did not believe he could immediately enter Jessie's

life upon his release from prison. Instead, he conceded he would need further training

and monitoring, after freedom from incarceration, in order to care for Jessie. Among

other services, he agreed he needed domestic violence classes. When asked when he

would. be ready to parent Jessie, Downs gave no direct answer.

       At trial, Jessica Strawn testified to statements made by Jacque Jones and the

testimony elicited a ruling by the trial court: .

              [Strawn]: ... [Jones] shared an incident when she was very young,
       when [Jessie] was a baby, that [Downs] had asked to meet with her and
       with-and see [Jessie], and at one point he was outside the car-he had
       convinced her to let him hold [Jessie]-he was yelling at her, screaming at
       her, and she was really concerned for [Jessie's] safety.

             THE COURT: Ms. Busha, just so you know, I'm only going to
       consider that ... insofar as it relates to the mom's ... situation-and it's
       hearsay ... towards the dad.

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No. 32941-1-III
In re the Dependency ofJ.E.L.D.



              [Strawn]: -that he would choke her and that she had learned how to
       essentially pretend to pass out so that he would stop strangling her...

VTP at 75-76.

       On February 13,2014, guardian ad litem Nancy Graham reported to the court that

Jessie thrived with her foster parents and that she recommended termination of both

parents' rights. On April 10, 2014, Graham reported to the court again. She

recommended that Jessie remain in the care of her foster parents. Graham did not sign

either guardian ad litem report under oath.

       Guardian ad litem Nancy Graham did not testify at the termination trial, but she

periodically asked witnesses questions. Following the close of evidence, Graham

delivered a short closing argument. Graham asked the trial court to terminate the parental

rights of Jacque Jones and John Downs so that Jessie might be released for adoption.

During her closing comments, guardian ad litem Nancy Graham repeated some hearsay

statements, including a comment by Jessie that she is "still a little fearful sometimes."

VTP at 148. John Downs' attorney delivered her closing argument after the guardian ad

litem's statement to the trial court.

       The trial court terminated John Downs' and Jacque Jones' respective parental

rights to Jessie. The trial court entered the following findings of fact:

              1.10 All services ordered under RCW 13.34.136 have been offered
       or provided and all necessary services, reasonably available, capable of
       correcting the parental deficiencies within the foreseeable future have been

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No. 32941-1-II1
In re the Dependency ofJ.E.L.D.


      offered or provided to the parents in an express and understandable manner,
      including but not limited to the following:

              The father was offered the services that were available to him in
      custody, including stress management classes and chemical dependency
      services. He is in need of random VAs and any recommended chemical
      dependency services, a psychological assessment with parenting
      component, and a domestic violence perpetrator's assessment and
      recommended treatment. These services were unavailable during the
      dependency, due to the father's incarceration for five felony violations of a
      domestic violence protection order. The father was aware of this service
      plan and agreed that he needed these services, but they were unavailable in
      his facility.

              1.11 The father has failed to remedy his parental deficiencies. He is
      currently serving a five year sentence for five felony violations of a .
      domestic violence protection order. He anticipates his early release date
      will be in July of2016. The father violated the domestic violence
      protection order by choosing to have contact with the mother. He knew
      that contacting her was a violation of the order, but chose to contact her
      anyway. The father has eight children and does not currently parent any of
      them due to separations with their mothers and his current incarceration.
      His rights were previously terminated in regards to his fourth child, [S.].
      The father believed the termination of parental rights was due to his
      incarceration at the time for drug use and second degree burglary. In 2012,
      he was also convicted of two additional violations of domestic violence
      protection orders and felony witness tampering. The father has nine felony
      convictions total, and a conviction for assault against the mother. [Jessie]
      witnessed this assault. The father has been diagnosed as chemically
      dependent. The father has participated in the same stress and anger
      management class while in custody twice, and intends to participate in it
      again. The father also participated in chemical dependency services and is
      currently in compliance with his program. The father needs to engage in a
      domestic violence perpetrator's assessment and complete the recommended
      treatment. He has not done so, due to his incarceration and the
      unavailability of that service at Airway Heights Correctional Facility. The
      father needs to engage in a psychological evaluation with a parenting
      component, but has not done so, as this service is also unavailable to the
      father in custody.

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No. 32941-1-111
In re the Dependency ofJ.E.L.D.


              1.12 The father has not maintained a meaningful role in the child's
      life. Throughout the dependency, the father was incarcerated and
      unavailable for visitation with the child. Visitation was restricted during
      the dependency due to the recommendations of the child's therapist that
      contact or visitation would be harmful. This harm is based upon violent
      scenes the child had witnessed between the parents and emotional and
      behavioral issues that have not yet been fully resolved therapeutically.
      Visitation or contact with the father would be retraumatizing to [Jessie]
      based upon the violence and separation she has experienced. The father
      maintained minimal contact with the social worker during the dependency
      process; he participated in one Family Team Decision Making Meeting in
      2012 and provided the social worker with a certificate.
              1.12 [sic] There is little likelihood that conditions will be remedied
      so that the child can be returned to either or both of her parents in the near
      future. Neither parent has successfully remedied the deficiencies which led
      to the filing of the dependency petition. The father will remain incarcerated
      until at least July of 2016 and the services which are necessary to resolve
      his domestic violence and parenting issues are not available while he is in
      custody. . . . There is no indication that the child could be returned to either
      parent, and contact with the parents would be harmful to the child. [Jessie]
      has been waiting for permanency since the dependency case began in 2012,
      and she can no longer wait to have a permanent and stable home.
              1.13 The mother and father are currently unfit to parent. . .. The
      father has a long standing history of criminal involvement and
      incarceration, including a long history of violence against various partners.
      He has 8 children and is not currently parenting any of them. The father is
      unable to provide a home or the skills necessary to adequately parent
      [Jessie] now or in the near future.
              1.14 Continuation of the parent-child relationship clearly diminishes
      the child's prospects for integration into a stable and permanent home. At
      age 5 years, [Jessie] will be more easily integrated into a new family unit
      now than if the process is further delayed. The child has no current
      bonding to the mother or father. No permanent setting can be established
      until the parents' rights have been terminated. [Jessie] is in need ofa
      permanent setting which the mother and father are unable to provide at this
      time. The child has been in therapy throughout the dependency and is
      currently working on bonding with her current placement. She has been in
      multiple placements, including residing with her mother, a foster home and
      her current relative placement. These changes in placement impact her

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No. 32941-I-II1
In re the Dependency ofJE.L.D.


      ability to attach, requiring at least six months for each change of placement,
      and she need to establish permanency at this time.
              1.15 Based upon the foregoing findings of fact, termination of
      parental rights is in [Jessie's] best interests. The mother and father have
      demonstrated that they are incapable of providing or unwilling to provide a
      healthy and stable environment for [Jessie] due to their failure to resolve
      the ongoing domestic violence issues, chemical dependency, and the lack of
      a relationship or bond with the child. Neither parent has stable housing or
      the ability to take physical responsibility for the child and do not have the
      parenting skills to meet her needs. Termination of parental rights rather
      than a guardianship is in [Jessie's] best interest. If contact with the parents
      were forced upon [Jessie], she would regress and not have the coping skills
      that she has now. There is no potential guardian available and contact with
      the parents would be harmful to the child.
              1.16 The guardian ad litem recommends that the parent-child
      relationship be terminated.

CP at 102-06.

      From these findings of fact, the trial court concluded:

              2.5 All services ordered under RCW 13.34.136 and all necessary
      and reasonably available services capable of correcting parental
      deficiencies within the forseeable future have been offered or provided in
      an express and understandable manner.
              2.6 There is little likelihood that conditions will be remedied so that
      the child could be returned to either or both of her parents in the near
      future.
              2.7 Continuation of the parent-child relationship clearly diminishes
      the child's prospects for early integration into a stable and permanent home.
              2.8 It is in the best interest of the child that the parent-child
      relationship be terminated.
              2.9 All elements ofRCW 13.34.180 have been established by clear,
      cogent and convincing evidence.

CP at 107.




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No. 32941-1-II1
In re the Dependency of1.E.L.D.




                                  LA W AND ANALYSIS

       On appeal, John Downs raises many contentions. Downs contends the trial court

permitted an inadmissible hearsay statement. He contends that the guardian ad litem's

comments to the trial court violated his due process rights because the guardian testified

without being under oath and without Downs being afforded the opportunity to cross-

examine her. Downs argues that insufficient evidence supports findings that DSHS

provided all necessary services, that there was little likelihood that he could remedy his

parental deficiencies in the near future, that a relationship between his daughter and him

diminished Jessie's prospects for integration into a stable and permanent home, that he

was an unfit parent, and that termination of parental rights served Jessie's best interests.

Finally, Downs argues that the trial court failed to consider the "incarcerated parent

factors" enumerated in RCW 13.34. 180(1)(f). We address the contentions in such order.

Downs' many arguments prolong this opinion.

                                          Hearsay

       Before addressing the merits of John Downs' appeal, we address two evidentiary

questions. As a preliminary matter, Downs argues that the trial court impermissibly

heard and considered hearsay testimony of Jessica Strawn, during which Strawn repeated

statements of Jacque Jones, the mother.




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No. 32941-I-III
In re the Dependency ofJE.L.D.


         John Downs' contention fails to recognize that the mother of Jessie was also a

party to the termination proceeding. The trial court ruled that it would consider the

hearsay when resolving the termination of the mother's rights, but not consider the

testimony when resolving termination of Downs' parental rights. We recognize that the

hearsay testimony implicated Downs more than Jones, since the testimony concerned an

incident of rage by Downs. Nevertheless, the testimony could show Jones' deficient

parenting by failing to protect Jessie from Downs. The record does not contradict the

judge's ruling that he would consider the evidence only against the mother.

         Hearsay is an out of court statement offered for the truth of the matter asserted.

ER 80 I. Hearsay is generally not admissible. ER 802. However, ER 80 I excludes from

the definition of hearsay admissions of a party-opponent. ER 80 I (d)(2) excepts from the

hearsay rule a statement "offered against a party and is (i) the party's own statement, in

either an individual or representative capacity." Therefore, Jacque Jones' statements

could be admitted against her as statutory nonhearsay.

                                      Guardian Ad Litem

         John Downs contends that the trial court breached his due process rights when

allowing the guardian ad litem to give unsworn, hearsay testimony during a closing

statement. We note that Downs does not object to the trial court's receipt of the guardian

ad litem's report without the report being under oath. We reject Downs' assignment of

error.

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No. 32941-1-111
In re the Dependency ofJ.E.L.D.


       We readily agree that John Downs deserves due process before termination of his

parental rights. The State cannot deprive a person of life, liberty, or property without due

process oflaw. U.S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 3. Parents have a

fundamental liberty interest in the care, custody, and control of their children. Santosky

v. Kramer, 455 U.S. 745, 753,102 S. Ct. 1388,71 L. Ed. 2d 599 (1982). Therefore, at

hearings to terminate parental rights, a parent is entitled to due process of law. In re

Welfare ofLuscier, 84 Wn.2d 135, 137, 524 P.2d 906 (1974). There can be no doubt that

the full panoply of due process safeguards applies to deprivation hearings. Luscier, 84

Wn.2d at 137.

       We address the role of a guardian ad litem in a parental termination case and the

purpose of a witness oath in litigation before returning to the constitutional issue raised.

A court mle and a statute impose overlapping duties on a guardian ad litem in a parental

termination suit. RCW 13.34.105 reads, in pertinent part:                                      I
               (1) Unless otherwise directed by the court, the duties of the guardian
       ad litem for a child subject to a proceeding under this chapter, including an
       attorney specifically appointed by the court to serve as a guardian ad litem,
       include but are not limited to the following:
               (a) To investigate, collect relevant information about the child's
       situation, and report to the court factual information regarding the best
       interests of the child;
               (b) To meet with, interview, or observe the child, depending on the
       child's age and developmental status, and report to the court any views or
       positions expressed by the child on issues pending before the court;

             (e) Court-appointed special advocates and guardians ad litem may
       make recommendations based upon an independent investigation regarding

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No. 32941-1-III
In re the Dependency ofJ.E.L.D.


       the best interests of the child, which the court may consider and weigh in
       conjunction with the recommendations of all of the parties;
              (1) To represent and be an advocate for the best interests of the
       child;


              (2) A guardian ad litem shall be deemed an officer of the court for
       the purpose of immunity from civil liability .

       GALR 2 echoes and supplements RCW 13.34.105. The massive court rule

declares, in relevant portion:

               Consistent with the responsibilities set forth in Titles 11, 13, and 26
       of the Revised Code of Washington and other applicable statutes and rules
       of court, in every case in which a guardian ad litem is appointed, the
       guardian ad litem shall perform the responsibilities set forth below. For
       purposes of these rules, a guardian ad litem is any person who is appointed
       by the court to represent the best interest of the child(ren) ....
               (a) Represent best interests. A guardian ad litem shall represent
       the best interests of the person for whom he or she is appointed.
       Representation of best interests may be inconsistent with the wishes of the
       person whose interest the guardian ad litem represents. The guardian ad
       litem shall not advocate on behalf of or advise any party so as to create in
       the mind of a reasonable person the appearance of representing that party as
       an attorney.
               (b) Maintain independence. A guardian ad litem shall maintain
       independence, objectivity and the appearance of fairness in dealings with
       parties and professionals, both in and out of the courtroom.
               (c) Professional conduct. A guardian ad litem shall maintain the
       ethical principles of the rules of conduct set forth in these rules and is
       subject to discipline under local rules established pursuant to rule 7 for
       violation.
               (d) Remain qualified for the registry. Unless excepted by statute
       or court rule, a guardian ad litem shall satisfy all training requirements and
       continuing education requirements developed for Titles 13 and 26 RCW
       guardians ad litem by the administrator of the courts and for Title 11 RCW
       guardians ad litem as required by statute and maintain qualifications to
       serve as guardian ad litem in every county where the guardian ad litem is


                                             19 

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


      listed on the registry for that county and in which the guardian ad litem
      serves and shall promptly advise each such court of any grounds for
      disqualification or unavailability to serve.
              (e) Avoid conflicts of interests. A guardian ad litem shall avoid
      any actual or apparent conflict of interest or impropriety in the performance
      of guardian ad litem responsibilities ....
              (1) Treat parties with respect. A guardian ad litem is an officer of
      the court and as such shall at all times treat the parties with respect,
      courtesy, fairness and good faith.
              (g) Become informed about case. A guardian ad litem shall make
      reasonable efforts to become informed about the facts of the case and to
      contact all parties. A guardian ad litem shall examine material information
      and sources of information, taking into account the positions of the parties.
              (b) Make requests for evaluations to court. A guardian ad litem
      shall not require any evaluations or tests of the parties except as authorized
      by statute or court order issued following notice and opportunity to be
      heard.
              (i) Timely inform tbe court of relevant information. A guardian
      ad litem shall file a written report with the court and the parties as required
      by law or court order or in any event not later than 10 days prior to a
      hearing for which a report is required. The report shall be accompanied by
      a written list of documents considered or called to the attention of the
      guardian ad litem and persons interviewed during the course of the
      investigation.
              (j) Limit duties to those ordered by court. A guardian ad litem
      shall comply with the court's instructions as set out in the order appointing
      a guardian ad litem, and shall not provide or require services beyond the
      scope of the court's instruction unless by motion and on adequate notice to
      the parties, a guardian ad litem obtains additional instruction, clarification
      or expansion of the scope of such appointment.

              (I) Appear at bearings. The guardian ad litem shall be given
      notice of all hearings and proceedings. A guardian ad litem shall appear at
      any hearing for which the duties of a guardian ad litem or any issues
      substantially within a guardian ad litem's duties and scope of appointment
      are to be addressed ....

            (0) Perform duties in timely manner. A guardian ad litem shall
      perform responsibilities in a prompt and timely manner, and, if necessary,

                                            20 

No. 32941-l-III
In re the Dependency ofJ.E.L.D.


       request timely court reviews and judicial intervention in writing with notice
       to parties or affected agencies.
               (p) Maintain documentation. A guardian ad litem shall maintain
       documentation to substantiate recommendations and conclusions and shall
       keep records of actions taken by the guardian ad litem ....
               (q) Keep records of time and expenses. A guardian ad litem shall
       keep accurate records of the time spent, services rendered, and expenses
       incurred in each case and file an itemized statement and accounting with
       the court and provide a copy to each party or other entity responsible for
       payment. The court shall make provisions for fees and expenses pursuant
       to statute in the Order Appointing Guardian ad Litem or in any subsequent
       order.

       Based on his or her duties found in statute and court rule, a guardian ad litem is

unlike other witnesses at trial. The Washington Legislature, by RCW 13.34.105(2),

deems a guardian ad litem an officer ofthe court entitled to immunity from civil liability .

Kelleyv. Pierce County, 179 Wn. App. 566, 575,319 P.3d 74, review denied, 180 Wn.2d

1019,327 P.3d 55 (2014). A guardian ad litem is entitled to quasi-judicial immunity

because the guardian performs judicial-like functions. Kelley v. Pierce County, 179 Wn.

App. at 573-75. A guardian ad litem is "an arm of the court." Barr v. Day, 124 Wn.2d

318,332,879 P.2d 912 (1994).

       The Washington Constitution addresses witness oaths. WASH. CONST. art. I, § 6

declares:

             The mode of administering an oath, or affirmation, shall be such as
       may be most consistent with and binding upon the conscience of the person
       to whom such oath, or affirmation, may be administered.




                                            21 

No. 32941-I-II1
In re the Dependency ofJ.E.L.D.


The Washington Supreme Court implemented the constitutional directive with an

evidence rule:

              Before testifYing, every witness shall be required to declare that the
       witness will testifY truthfully, by oath or affirmation administered in a form
       calculated to awaken the witness' conscience and impress the witness'
       mind with the duty to do so.

ER 603. We do not address whether a guardian ad litem constitutes a "witness" or

whether a guardian ad litem's report or closing statement constitutes "testimony" for

.purposes ofER 603.

       State v. Dixon, 37 Wn. App. 867, 684 P.2d 725 (1984), informs us of the purpose

behind an oath or affirmation of a testifYing witness. The State charged Michael Dixon

with indecent liberties. The State called eight-year-old Breckeen Anderson to testifY at

trial, but the trial court, contrary to the State's request, did not administer an oath to the

lad. The prosecutor asked a series of questions to establish that Breckeen knew the

difference between the truth and a lie and recognized the importance of telling the truth.

Breckeen promised to tell the truth. Breckeen then told the jury that he heard someone

screaming near the time that the victim claimed Dixon assaulted her.

       On appeal, Steve Dixon sought reversal of his conviction on the ground that the

trial court failed to administer a witness oath to Breckeen Anderson as demanded by ER

603. The Dixon court noted that, under earlier case law, there was no need to administer

a formal oath or affirmation to a child of tender years. The court observed that the


                                              22 

No. 32941-I-III
In re the Dependency ofJE.L.D.


purpose of an oath or affirmation is to awaken the witness' conscience and impress his

mind with the duty to tell the truth. The court concluded that questioning and directions

to Breckeen Anderson, before he testified to his observations, awakened his conscience to

the duty to speak honestly. The Dixon court also held that Dixon waived any irregularity

by failing to object to the testimony, without an oath, of young Breckeen.

       As already discussed, a guardian ad litem is an officer of the court who holds

duties not possessed by other witnesses. John Downs does not claim that guardian ad

litem Nancy Graham violated any of her statutory or rulatory obligations. The fact alone

of being an officer of the court quickens the guardian'S conscience to report truthfully to

the court. Most guardians ad litem maintain an ongoing relationship with his or her local

court judges. The guardian engages in continual training. These factors add further

safeguards to a guardian ad litem reporting honestly.

       A relevant decision is In re Welfare ofS. V.B., 75 Wn. App. 762, 88 P.2d 80

(1994). The father, in a parental termination case, complained on appeal that the

guardian ad litem gave an oral report, while not under oath, after the close of evidence.

The father objected to any purported evidence being argued for the first time in closing

statements, but did not seek to cross-examine the guardian under oath. The guardian ad

litem reported that the children needed permanence that could only be achieved by

termination. This court held that the trial court committed no error by entertaining the

guardian ad litem's oral report at the close of testimony. In a terse analysis the court

                                             23 

No. 32941-1-111
In re the Dependency ofJE.L.D.


held:

               The law provides for the appointment of a guardian ad litem and for
        a report from the guardian to the court. Former RCW 13.34.100; see RCW
        13.34.105. Clearly, it also permits the juvenile court to consider the
        guardian's report. There is no requirement that the guardian make his
        report under oath. However, if Appellant had desired to call the guardian as
        a witness, he could have done so. Then it would have been appropriate for
        the court to administer the oath. The trial court did not err in considering
        the report of the guardian ad litem.

In re S. V.B., 75 Wn. App. at 767-68.

        S. V.B. did not address the due process contention that John Downs raises. The

court only engaged in statutory interpretation. Nonetheless, we note that, in S. v.B., the

father objected to the closing argument ofthe guardian ad litem. John Downs did not

object to the closing statement of his child's guardian ad litem, let alone seek to cross-

examine the guardian ad litem. Guardian ad litem Nancy Graham's comments in closing

did not differ from her recommendations already provided in her written report.

        John Downs principally relies on In re Welfare ofRoss, 45 Wn.2d 654, 277 P.2d

335 (1954), in which the State terminated the parental rights ofa father. The State

introduced into evidence his wife's cross complaint in a divorce action pending against

the father. The decision does not describe the allegations contained in the cross

complaint, but apparently the accusations impugned the father's parenting skills. The

State did not call the wife to testify at trial. The State Supreme Court reversed the

termination because the cross complaint constituted testimony from a witness not sworn


                                             24 

No. 32941-I-III
In re the Dependency 0/J.E.L.D.


to truthfully testify. Ross is quickly distinguishable because the unsworn witness was not

a guardian ad litem, but presumably an unsympathetic wife.

          We hold for numerous reasons already contoured that the trial court did not breach

John Downs' due process rights when permitting guardian ad litem Nancy Graham to

deliver a short closing statement without being administered an oath. Graham knew from

factors, other than an affirmation, the importance of speaking honestly. Downs could

have cross-examined Graham if he wished. The closing statement provided no evidence

or recommendations not already known by Downs. Downs forwards no decision that

demands a guardian ad litem's written or oral report be given under oath.

                                       Necessary Services

          We now tum from evidentiary assignments of error and begin a discussion of John

Downs' insufficiency of evidence arguments. Downs contends the evidence did not

support many of the statutory elements the State must prove before terminating a parent's

rights.

          On appellate review, the trial court's findings in a parental rights termination

proceeding must be affirmed .if supported by substantial evidence from which a rational

trier of fact could find the necessary facts by clear, cogent and convincing evidence. In

re Dependency o/K.S.c., 137 Wn.2d 918,925,976 P.2d 113 (1999). Whether

substantial evidence exists to support the superior court's findings is measured in light of

the "highly probable" test. See In re Welfare a/Carpenter, 21 Wn. App. 814, 816,587

                                                25 

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


P.2d 588 (1978). Under that test, the evidence must be more substantial than in the

ordinary civil case in which proof need only be by a preponderance of the evidence. In re

Welfare ofHall, 99 Wn.2d 842, 849,664 P.2d 1245 (1983). The evidence establishes a

"high probability" when permanent deprivation is necessary for the physical and mental

welfare of the child. Carpenter, 21 Wn. App. at 816. Appellate courts "defer to the trial

court's credibility determinations when reviewing an order terminating parental rights."

In re Dependency ofA.MM, 182 Wn. App. 776, 786,332 P.3d 500 (2014).

       We list all statutory elements before addressing whether the evidence supports

discrete elements. Before terminating a person's right to parent his child, the State must

prove six parental inadequacy elements by clear, cogent, and convincing evidence:

              (a) That the child has been found to be a dependent child;
              (b) That the court has entered a dispositional order ...
              (c) That the child has 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 ...
              (f) That continuation of the parent and child relationship clearly
      diminishes the child's prospects for early integration into a stable and
      permanent home. If the parent is incarcerated, the court shall consider
      whether a parent maintains a meaningful role in his or her child's life based
      on factors identified in RCW 13.34. 145(5)(b); whether the department or
      supervising agency made reasonable efforts as defined in this chapter; and
      whether particular barriers existed as described in RCW 13.34. 145(5)(b)

                                            26 

No. 32941-1-II1
In re the Dependency ofJ.E.L.D.


       including, but not limited to, delays or barriers experienced in keeping the
       agency apprised of his or her location and in accessing visitation or other
       meaningful contact with the child.

RCW 13.34. 180(1)(emphasis added).

       Once the State proves the initial six elements by clear, cogent, and convincing

evidence, the trial court concentrates on whether termination is in the child's best

interests. In re A.MM, 182 Wn. App. at 784-85. The State must prove that termination

is in the best interests of the child by a preponderance of the evidence. In re A.MM, 182

Wn. App. at 784.

       John Downs argues that this court should ignore unsupported factual statements, in

the form of arguments, forwarded by the State in its brief. Specifically, Downs

complains that the State asserts that Jessie is afraid of him and that Jessie has special

parenting needs. Nevertheless, Linnea Lauer, Jessie's therapist, testified that Downs

frightened Jessie. Lauer also testified to Jessie's needs because of her background and

behavior and that she assisted Jessie's foster parents in addressing these needs.

Therefore, trial evidence reasonably supports the arguments of the State.

       John Downs contends that insufficient evidence supports the trial court's findings

that the State met its burden to prove the first three elements ofRCW 13.34.180 by clear

cogent, and convincing evidence. Those elements are: (1) the child has been found to be

a dependent child, (2) the court has entered a dispositional order, and (3) the child has

been removed from the custody of the parent for a period of at least six months pursuant

                                             27 

No. 32941-1-III
In re the Dependency 01J.E.L.D.


to a finding of dependency. Nevertheless, Downs includes no argument in his brief about

a lack of evidence for these elements. When a party assigns error, but does not argue it,

the error is deemed waived. Fulton v. Fulton, 57 Wn.2d 331,336,357 P.2d 169 (1960);

Erdman v. Henderson, 50 Wn.2d 296,298,311 P.2d 423 (1957). We do not address

whether evidence supported the first three of the six elements in RCW 13.34.180(1). We

move to the fourth of the six elements.

       John Downs contends that the State failed to prove that it offered and provided all

services that the court ordered him to complete. Under RCW 13 .34.180( 1)( d), the State

must expressly offer or provide all services ordered by the trial court. The State must

also provide or offer necessary services, reasonably available, capable of correcting the

parental deficiencies within the foreseeable future. "Necessary services" are those

services needed for the parent to reunite with his or her child. In re Welfare oICS., 168

Wn.2d 51, 56 n.3, 225 P.3d 953 (2010); In re Dependency oID.L.B., 188 Wn. App. 905,

920, 355 P.3d 345 (2015). "Reasonably available" encompasses all reasonable services

that are available within the agency, or within the community, or those services which the

department has existing contracts to purchase in order to enable a parent to resume

custody. In re Dependency oITL.G., 126 Wn. App. 181, 198, 108 P.3d 156 (2005). The

State must tailor the services it offers to meet each individual parent's needs. In re

Welfare oISJ, 162 Wn. App. 873, 881, 256 P.3d 470 (2011).

       The trial court ordered six services for John Downs:

                                             28 

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


       (I) completion of a drug and alcohol assessment and participation in any

recommended treatment;

       (2) completion of a parenting assessment and participation in any recommended

counseling;

       (3) completion of a psychological evaluation and compliance with any

recommended treatment;

       (4) completion of a domestic violence/anger-management assessment and

participation in any recommended classes;

       (5) provision of releases of information; and

       (6) securing of housing.

       The last two ordered services did not demand any assistance from DSHS. We do

not know if Downs provided the court or the State all needed releases for information.

Downs did not secure housing for Jessie, but instead gained secure housing for himself

from the state Department of Corrections. Our analysis of the sufficiency of evidence

does not focus on the last two ordered services.

      Jessica Strawn impliedly, if not expressly, testified that the State would require

John Downs to satisfy the first four of the court ordered services before regaining custody

of Jessie. Thus, we consider those services necessary in addition to being ordered by the

trial court. The uncontroverted evidence established that John Downs underwent a

chemical dependency assessment, which found him dependent on methamphetamine.

                                            29 

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


Thereafter~ Downs engaged in the intensive chemical dependency treatment offered by

Airway Heights Corrections Center. The     State~s   evidence equivocates as to whether the

chemical dependency treatment received by Downs in prison suffices for the court order.

Regardless~   the State never offered Downs the dependency treatment it may now demand

Downs undergo to comply with the court order.

       The State did not offer John Downs a parenting assessment or parenting classes.

The State did not offer Downs psychological evaluation or counseling. The State did not

offer Downs a domestic violence or anger assessment or domestic violence or anger-

management training. Downs tried to obtain all of these assessments and services, but

they were not available in prison. According to Jessica Strawn, Downs had limited

parenting and anger-management classes at Airway Heights Corrections Center~ but the

limited nature of the programs did not suffice to meet the State requirements to parent

Jessie. Strawn emphasized the need of Downs to undergo extensive domestic violence

counseling because of his history.

       Social worker Jessica Strawn testified that she did not attempt to offer or provide

John Downs with services ordered by the court because DSHS does not send service

providers into Airway Heights Correctional Facility to provide domestic violence

services. Since the trial court entered the order for services three months after Downs

entered the correctional center, one wonders why the State presented or agreed to the

order and why the State never later informed the court that it would not follow the order.

                                            30 

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


Downs contends that prisoners might be transported from Airway Heights for services.

Strawn stated a belief that transportation was not available, but she never investigated the

validity of her belief.

       The State used John Downs' incarceration as an insurmountable wall keeping him

from his daughter. The State mandated services for him to retain rights to companionship

with Jessie, then the State argues that it need not deliver the services because they are not

reasonably available. The State violated the spirit, ifnot the letter, ofRCW

13J4.180(1)(d) when demanding Downs complete a service, but not affording him an

opportunity to engage in the service. This conclusion does not end our analysis,

however.

       The State need not offer services when a parent is unable to benefit from the

services. In re Welfare ofSJ., 162 Wn. App. at 881 (2011). Even when DSHS

"inexcusably fails" to offer services to a willing parent,termination will still be deemed

appropriate if the services would not remedy the parent's deficiencies in the foreseeable

future, which depends on the age of the child. In re Dependency ofT.R., 108 Wn. App.

149, 164,29 PJd 1275 (2001). When the record establishes that the offer of services

would be futile, the trial court can find that the State offered all reasonable services. In re

Welfare ofMR.H., 145 Wn. App. 10,25,188 P.3d 510 (2008); In re Welfare of

Ferguson, 32 Wn. App. 865, 869-70, 650 P.2d 1118 (1982), rev'd on other grounds, 98

Wn.2d 589, 656 P.2d 503 (1983).

                                              31 

No. 32941-1-II1
In re the Dependency ofJ.E.L.D.


       Sufficient evidence supports a conclusion that provision of domestic violence and

mental health services would have been futile. Even with treatment, John Downs, as of

the trial, would remain in prison for almost two more years. Downs testified he would

wish additional assistance after release from prison before caring for Jessie. Experts did

not wish Jessie to visit Downs in prison in the meantime because of potential trauma

resulting from a prison visit. At trial, Jessie was five years old and had not seen her

father for two years. She was thriving with foster parents who might adopt her. From the

perspective of Jessie, an additional three or more years to reunite with her father is not in

the foreseeable future.

                             Likelihood of Deficiency Remedy

       The fifth of the six initial elements for the State to prove is "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). John Downs contends insufficient evidence

supports this additional element of parental termination.

       The focus ofRCW 13.34.l80(1)(e) is "whether the identified deficiencies have

been corrected." In re Welfare ofMR.H, 145 Wn. App. at 27 (2008). Even when

evidence suggests that the parent may eventually correct parental deficiencies,

termination is still appropriate when deficiencies will not be corrected within the

foreseeable future. In re A. W, 53 Wn. App. 22, 32, 765 P.2d 307 (1988). The State need

not give a parent an unlimited time to become a fit parent. In re Dependency ofT. R. , 108

                                               32 

No. 32941-1-111
In re the Dependency ofJ.E.L.D.


Wn. App. at 167 (2001). When it is eventually possible, but not imminent, for a parent to

be reunited with a child, the child's present need for stability and permanence is more

important and can justify termination. TR., 108 Wn. App. at 166.

       "Near future" is a key phrase in RCW 13.34.l80(1)(e) and is determined from the

child's point of view. In re Dependency ofA.C., 123 Wn. App. 244, 249, 98 P.3d 89

(2004). What constitutes "near future" depends on the age of the child and the

circumstances of the child's placement. TL.G., 126 Wn. App. at 205. The cases support

the proposition that the younger the child, the shorter is the "near future." "A matter of

months for young children is not within the foreseeable future to determine if there is

sufficient time for a parent to remedy his or her parental deficiency." In re Welfare of

MR. H., 145 Wn. App. at 28 (2008). Eight months was not in the foreseeable future of a

four-year-old. Hall, 99 Wn.2d at 850-51. One year was not in the foreseeable future of a

three year-old. In re A. W, 53 Wn. App. at 31-33 (1988). Six months was not foreseeable

in the near future ofa fifteen-month-old. In re Dependency ofP.D., 58 Wn. App. 18,27,

792 P.2d 159 (1990).

       Jessica Strawn estimated that John Downs needed at least three years to remedy

his parental deficiencies. In analyzing Strawn's testimony, we consider that some of this

time span results from a failure of the State to provide Downs ordered services.

Nevertheless, Downs testified that at the earliest he would not be released until nearly

two years after trial. He would then need additional time before reuniting with Jessie.

                                            33 

No. 32941-I-III
In re the Dependency ofJ.E.L.D.


He could not estimate the period of time needed. We assume that any reunification

would require at a minimum three years from the date of trial.

       Our analysis here repeats our prior futility analysis. At trial, Jessie was five years

old and had not seen her father for two years. She was thriving with foster parents who

might adopt her. From the perspective of Jessie, an additional three or more years to

reunite with her father is not in the foreseeable future. We cannot even be assured that

services would allow Downs to surmount his history of domestic violence and overcome

his parental deficiencies.

                              Integration into Permanent Home

       The final of the six initial elements of parental termination is "continuation of the

parent and child rela~ionship clearly diminishes the child's prospects for early integration

into a stable and permanent home." RCW 13.34.180(1)(1). We reject John Downs'

contention that insufficient evidence supports this element. To the contrary,

overwhelming, ifnot undisputed evidence supports the trial court's finding of diminished

prospects. Jessica Strawn testified that maintaining Downs' parental rights would

prevent Jessie from adoption and permanency. Jessie thrives now in a foster home that

might adopt her. Strawn opined that Jessie needed security to continue to heal. A

guardianship would not provide the permanency that Jessie needs. Linnea Lauer, the

child's therapist, testified that Jessie had no current relationship with her father and that it

would be confusing for her to attempt to establish one now.

                                              34
No. 32941-1-III
In re the Dependency ofJE.L.D.


                                     Parental Unfitness

       The six elements of parental termination cases, found in RCW 13.34.180 and .190,

address, in part, whether a parent is unfit, but the elements are not conclusive or

exclusive. Even if the State establishes the termination factors in RCW 13.34.180(1), the

trial court may not terminate the rights of a currently fit parent. In re Welfare ofA.B.,

168 Wn.2d 908,919-20,232 P.3d 1104 (2010); In re Welfare ofA.G., 160 Wn. App. 841,

845,248 P.3d 611 (2011); In re Welfare ofShantay c.J, 121 Wn. App. 926, 936, 91 P.3d

909 (2004); Santosky, 455 U.S. at 760. Termination of the parent-child relationship must

be based on current parental unfitness. In re Dependency ofTL.G., 126 Wn. App. at 203

(2005). Identifying parenting deficiencies is not the equivalent of proving parental

unfitness. In re Dependency ofSchermer, 161 Wn.2d 927,943, 169 P.3d 452 (2007).

       A finding of current unfitness requires more than the determination that DSHS

proved, by a preponderance of the evidence, that a parenting deficiency exists, as in a

dependency proceeding. In re Welfare ofA.B., 181 Wn. App. 45, 61, 323 P.3d 1062

(2014). To meet its burden to prove current unfitness in a termination proceeding, the

State must prove that the parent's parenting deficiencies prevent the parent from

providing the child basic nurture, health, or safety by clear, cogent, and convincing

evidence. A.B., 181 Wn. App. at 61.

       John Downs maintains that insufficient evidence supports the trial court's finding

that he was an unfit parent. We disagree. Substantial evidence supports this finding.

                                             35 

No. 32941-I-III
In re the Dependency ofJE.L.D.


Jessica Strawn testified that Downs' prior relationship with Jessie was chaotic at best.

Downs has been incarcerated for the majority of his daughter's Hfe due to acts of

domestic violence against her mother, including at least one assault occurring in front of

Jessie. Linnea Lauer testified that Downs' abuse of Jacque Jones traumatized Jessie and

that seeing Downs could cause regression and confusion for Jessie. Downs repeatedly

violated a court order, which led to a lengthier sentence and precluded him from contact

with his daughter. Downs fathered seven other children, all of whom were raised by their

mothers. The State terminated Downs' rights to another child.

                                   Best Interests of Child

       Termination is a two-step process. First, the court must find that the parent is

unfit, and then it must find by a preponderance of the evidence that termination is in the

best interests of the child. In re Dependency ofA.MM, 182 Wn. App. at 784-85 (2014).

The best interests of the child test is based on all of the facts and circumstances. In re

Dependency ofA. V.D., 62 Wn. App. 562, 572, 815 P.2d 277 (1991).

       John Downs also challenges the finding of termination being in Jessie's best

interests. Overwhelming evidence, which we have previously reviewed, supports the

finding.

                                        Incarceration

       Three statutes direct the State to consider or engage in additional steps when a

parent of a dependent child is incarcerated. John Downs advances each statute. We

                                             36 

No. 32941-1-III
In re the Dependency ofJ.E.L.D.


conclude that none ofthe statutory provisions preclude the termination ofDowns~

parental rights.

       The first statute is RCW 13.34.136(2)(b)(i)(A), which reads:

               If the parent is incarcerated, the plan must address how the parent
       will participate in the case conference and permanency planning meetings
       and, where possible, must include treatment that reflects the resources
       available at the facility where the parent is confined. The plan must
       provide for visitation opportunities, unless visitation is not in the best
       interests of the child.

       RCW 13.34.136 addresses a permanency plan of care for a dependent child.

Therefore, the statute lacks relevance in a termination proceeding. If Downs considered

the State to have violated the statute, he should have raised the violation during the

dependency proceeding. In In re Welfare ofMR.H, 145 Wn. App. 10,188 P.3d 510

(2008), we noted that a parenCs complaint that the State failed to afford her visitation

related back to the dependency proceeding.

       The second statute, RCW 13.34.145 declares, in pertinent part:

               (5) Following this inquiry, at the permanency planning hearing~ the
       court shall order the department or supervising agency to file a petition
       seeking termination of parental rights if the child has been in out-of-home
       care for fifteen of the last twenty-two months since the date the dependency
       petition was filed unless the court makes a good cause exception as to why
       the filing of a termination of parental rights petition is not appropriate. Any
       good cause finding shall be reviewed at all subsequent hearings pertaining
       to the child.
               (a) For purposes of this subsection, "good cause exception" includes
       but is not limited to the following:




                                             37
No. 32941-1-II1
In re the Dependency ofJ.E.L.D.


              (iv) The parent is incarcerated, or the parent's prior incarceration is a
       significant factor in why the child has been in foster care for fifteen of the
       last twenty-two months, the parent maintains a meaningful role in the
       child's life, and the department has not documented another reason why it
       would be otherwise appropriate to file a petition pursuant to this section;

                (b) The court's assessment of whether a parent who is incarcerated
       maintains a meaningful role in the child's life may include consideration of
       the following:
                (i) The parent's expressions or acts of manifesting concern for the
       child, such as letters, telephone calls, visits, and other forms of
       communication with the child;
                (ii) The parent's efforts to communicate and work with the
       department or supervising agency or other individuals for the purpose of
       complying with the service plan and repairing, maintaining, or building the
       parent-child relationship;
                (iii) A positive response by the parent to the reasonable efforts of the
       department or the supervising agency;
                (iv) Information provided by individuals or agencies in a reasonable
       position to assist the court in making this assessment, including but not
       limited to the parent's attorney, correctional and mental health personnel, or
       other individuals providing services to the parent;
                (v) Limitations in the parent's access to family support programs,
       therapeutic services, and visiting opportunities, restrictions to telephone and
       mail services, inability to participate in foster care planning meetings, and
       difficulty accessing lawyers and participating meaningfully in court
       proceedings; and
                (vi) Whether the continued involvement of the parent in the child's
       life is in the child's best interest.

       John Downs contends that the trial court erred by not considering the good cause

exception for incarcerated parents provided in RCW 13.34. 14S(S)(a)(iv) when it found

little likelihood that he would remedy his parental deficiencies such that Jessie could

return to him in the near future. He asserts that the statute .means that a parent's

incarceration may justify waiting longer to terminate parental rights. The State maintains

                                              38 

No. 32941-1-III
In re the Dependency ofJ.E.L.D.


that the RCW 13.34.145(5)(a)(iv) exception grants a trial court discretion to prevent the

State from filing a termination when good cause is found, but does not prevent a court

from adjudicating a termination proceeding that has already begun.

       We agree with the State. RCW 13.34. 145(5)(a)(iv) allows a good cause exception

to the filing of a termination of parental rights petition. The statute does not afford an

exception to entry of a termination order after the filing of the petition. If John Downs

wished to rely on the statute, he should have argued its applicability long before the

termination trial.

       RCW 13.34.180(1)(1) completes the trilogy of statutory stipulations forwarded by

John Downs because of his internment. This provision directs the trial court to review

three additional considerations before determining whether 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(1)(1) declares, in pertinent portion:

               If the parent is incarcerated, the court shall consider whether a parent
       maintains a meaningful role in his or her child's life based on factors
       identified in RCW 13.34. 145(5)(b); whether the department or supervising
       agency made reasonable efforts as defined in this chapter; and whether
       particular barriers existed as described in RCW 13.34.l45(5)(b) including,
       but not limited to, delays or barriers experienced in keeping the agency
       apprised of his or her location and in accessing visitation or other
       meaningful contact with the child.

       The legislature adopted the incarcerated parent factors in 2013. Laws of2013, ch.

173, §§ 3, 4. This court recently addressed the factors and noted that the legislature



                                             39 

No. 32941-1-III
In re the Dependency ofJ.E.L.D.


mandated consideration of the parent's ability to maintain a meaningful role despite his

custodial status. In re Termination ofParental Rights to MJ., 187 Wn. App. 399, 409,

348 P.3d 1265 (2015). Nevertheless, the legislature did not demand findings for each

factor. This court wrote:

              "consideration" of evidence ultimately means a weighing or
       balancing of facts, along with a resolution of that weighing. In many
       instances, particularly where the evidence is uncontested or the State's case
       is very strong, the court's conclusion will need no further explication.

In re Termination ofParental Rights ofMJ., 187 Wn. App. at 409.

       The first of the three RCW 13.34.180(1)(f) considerations incorporates the six

factors we previously listed from RCW 13.34.l45(5)(b) when determining whether the

parent maintained a meaningful role in the child's life. In other words, the new

incarceration considerations contain factors upon factors. We repeat the RCW

13 .34.l45( 5) factors:

               (b) The court's assessment of whether a parent who is incarcerated
       maintains a meaningful role in the child's life may include consideration of
       the following:
               (i) The parent's expressions or acts of manifesting concern for the
       child, such as letters, telephone calls, visits, and other forms of
       communication with the child;
               (ii) The parent's efforts to communicate and work with the
       department or supervising agency or other individuals for the purpose of
       complying with the service plan and repairing, maintaining, or building the
       parent-child relationship;
               (iii) A positive response by the parent to the reasonable efforts of
       the department or the supervising agency;
               (iv) Information provided by individuals or agencies in a reasonable
       position to assist the court in making this assessment, including but not

                                            40
No. 32941-1-III
In re the Dependency ofJE.L.D.


       limited to the parent's attorney, correctional and mental health personnel, or 

       other individuals providing services to the parent; . 

                (v) Limitations in the parent's access to family support programs, 

       therapeutic services, and visiting opportunities, restrictions to telephone and 

       mail services, inability to participate in foster care planning meetings, and 

       difficulty accessing lawyers and participating meaningfully in court 

       proceedings; and 

                (vi) Whether the continued involvement of the parent in the child's
       life is in the child's best interest.

       Downs contends that the trial court erred in failing to consider the statutory factors

listed in RCW 13.34.145(5)(b) before finding that the State had met its burden to prove

that Downs relationship with Jessie diminished her prospects for early integration into a

stable, permanent home. The State contends that the trial court made all proper

considerations under the statute.

       The trial court found that John Downs had not maintained a meaningful role in

Jessie's life. Nevertheless, the trial court did not enter findings with respect to the

underlying RCW 13.34.145(5)(b) factors. 	 Therefore, in light of In re Termination of           i
Parental Rights to MJ, we ascertain whether the trial court "considered" those factors.
                                                                                                f
       The trial court found that John Downs did not visit Jessie after incarceration and
                                                                                                ti
that any visitation would have harmed Jessie. The court found that Downs made minimal
                                                                                                ~
efforts to communicate with DSHS and participated in only one Family Team Decision

Making Meeting. The trial court heard testimony from a representative of the                    I
Department of Corrections about Downs' chemical dependency treatment and argument

from his attorney about the effort undergone in prison to better himself and comport with

                                              41
                                                                                                I
No. 32941-1-III
In re the Dependency ofJ.E.L.D.


the court order. The court found that Downs completed many services available to him.

The trial court repeatedly acknowledged that incarceration prevented Downs from

completing services. Finally, the trial court found that visitation or contact with the

father would retraumatize Jessie. In short, the court considered all of the factors in RCW

13.34.145(5)(b). The statute demands consideration of the factors, but not any particular

outcome after consideration.

       The second of the RCW 13.34.180(1)(f) considerations is the expenditure by

DSHS of "reasonable efforts" on behalf of the parent. The statute does not define

"reasonable efforts." In MJ., this court interpreted the term "to require DSHS to make

reasonable efforts to help the incarcerated person remedy parental deficiencies." 187

Wn. App. at 408. Our trial court found that the State offered the services available in

prison. Thus, the trial court considered reasonable efforts. Although we may disagree

with the trial court's conclusion that DSHS exerted reasonable efforts, we may not

reverse the trial court for this reason, since RCW 13J4.180(1)(f) only requires
                                                                                             l
                                                                                             ~.




consideration of the factor not any particular outcome.

      The third and final consideration under RCW 13.34.180(1 )(t) is barriers faced by

the incarcerated parent. The statute does not define "barrier," nor provide courts with

guidance on assessing the significance of different "barriers." In In re Welfare ofKJ.B.,

188 Wn. App. 263,354 PJd 879 (2015), this court addressed the subsection. In KJ.B.,

the trial court made no record of their consideration of the "incarceration factors." We

                                             42
No. 32941-1-111
In re the Dependency ofJ.E.L.D.


decided, nonetheless, that the trial court's failure was harmless error because the State's

case was so strong. We wrote:

                [T]here is no evidence that the barriers of incarceration impacted
        J.B.'s ability to maintain meaningful contact with his daughter nor is there
        evidence that the barriers of incarceration impacted J.B. 's required
        assessments, services, or his ability to participate in court proceedings.

In re K.J.B., 188 Wn. App. at 285.

        The trial court made oral and written findings about the barriers that incarceration

posed to John Downs' parenting ability. The trial court noted incarceration created a

barrier to visitation with Jessie. The trial court found that imprisonment prevented

Downs from obtaining services. Again, the trial court is only required to consider the

barriers and not to render any particular outcome as a result of the barriers. We also must

recall that the therapist recommended no visitation not only because of incarceration but




                                                                                                 II
because of trauma to Jessie. Downs, not DSHS, caused the trauma.

        In short, the trial court considered all incarceration factors before finding that the

State proved by clear, cogent, and convincing evidence that John Downs' ongoing

relationship with Jessie prevented her from early integration into a stable, permanent

home.

                                       CONCLUSION

        We affirm the trial court's order terminating the paternal rights of John Downs in

her daughter, Jessie.


                                              43 

No. 32941-I-III
In re the Dependency ofJE.L.D.


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





Lawrence-Berrey, 1.




                                           44 

